-20' 7JS'^ UNITED STATES REPORTS VOLUME 1 1 5 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1884 AND OCTOBER TERM, 1885 J. C. BANCROFT DAVIS REPORTER NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1886 Entered according to Act of Congress, in the year 1885, by BANKS & BROTHERS, In the Office of the Librarian of Congress at Washington. Press of J. J. Little & Co., Nos. 10 to 20 Astor Place, New York. JUSTICES OF 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. Augustus H. Garland. solicitor-general. John Goode, clerk. James H. McKenney. marshal. John G. Nicolay. ERRATA. Page 2, Syllabus, line 1, paragraph 6—For “Kansas” read “ Missouri.” Page 2, Syllabus, line 1, paragraph 7.—For “Kansas” read “ Missouri.” Page 149, line 6.—For “Veagh ” read “ Veigh.” Page 149, line 6.—For “ Wall.” read “ U. S.” For Amendment to Rules see Appendix. TABLE OF CASES. Page Alabama v. Burr....................................413 Allen County, Thompson v..........................550 Allis, Pope v. .................................. 363 Arnson v. Murphy...................................579 Arthurs, Bohlen v. ....... 482 Baltzer v. Raleigh & Augusta Railroad Company . 634 Beecher Manufacturing Company, Clark v. ■ . . . 79 Bell v. First National Bank of Chicago . . . 373 Bergen County, Merchants’ Bank v. . . . .384 Black, Smith v. ...................................308 Bohlen v. Arthurs ................................482 Boston Mining Company v. Eagle Mining Company . 221 Bowman v. Chicago & Northwestern Railway Company 611 Broomall, Eachus v.................................429 Buncombe County Commissioners v. Tommey . . 122 Burr, Alabama v. ....... 413 Camors v. Watts....................................353 Camors, Watts v....................................353 Campbell v. Holt...................................620 Charles Morgan (The)................................69 Chatfield, Leonard v...............................465 Chesapeake, Ohio & Southwestern Railroad Company v. Commonwealth of Kentucky .... 321 Chicago & Northwestern Railway Company, Bowman v. 611 Cincinnati, New Orleans & Texas Pacific Railroad Company v. Commonwealth of Kentucky . . . 321 viii TABLE OF CASES. Page Citizens’ Gas Company, Louisville Gas Company v. . 683 City of Kansas, Union Pacific Railway Company v. . 1 Clark v. Beecher Manufacturing Company . . 79 Clay v. Field . . . . •......................260 Clay County v. McAleer..............................616 Clews, Traer v. ................................. . 528 Collins, Lancaster v................................222 Commonwealth of Kentucky, Chesapeake, Ohio & South- western Railroad Company v. . . . 321 Commonwealth of Kentucky, Cincinnati, New Orleans & Texas Pacific Railroad Company -w. 321 Commonwealth of Kentucky, Louisville & Nashville Railroad Company v. ................................321 Crump v. Thurber.....................................56 Davis Sewing Machine Company v. Richards . . 524 Deffeback v. Hawke..................................392 Donnellan, Gwillim v.................................45 Drew v. Grinnell....................................477 Dunham, Stewart v.................................. 61 Eachus v. Broomall..................................429 Eagle Mining Company, Boston Mining Company v. . 221 Effinger v. Kenney..................................566 Effinger, Kenney v..................................577 Ehrhardt v. Hogaboom.................................67 Ferry v. Livingston.................................542 Ferry, Livingston v.................................542 Field, Clay v.......................................260 Filley v. Pope......................................213 First National Bank of Chicago, Bell u 373 Frasher v. O’Connor.................................102 Gage v. Pumpelly.................................. 454 Gibson v. Lyon......................................439 Giddings, Merrick’s Executor v......................300 Good v. O’Connor....................................116 Grant v. Parker............................., 51 TABLE OF CASES. ix Page Gray v. National Steamship Company .... 116 Grinnell, Drew v. '...............................477 Gwillim v. Donnellan...............................45 Hadden v. Merritt . . . . . . 25 Harrison v. Merritt...............................577 Harwood, Union Pacific Railway Company v. . 1 Hassall v. Wilcox ........ 598 Hawke, Deffeback v...................... . . 392 Hazard v. O’Connor . . . . . . .116 Hazlett v. United States..........................291 Helena, Jacks v...................................288 Helton, Sargent v. ...............................348 Henderson v. Wadsworth . .........................264 Hogaboom, Ehrhardt v....................... . 67. Holt, Campbell v..................................620 Humes, Missouri Pacific Railway Company . . 512 Independent Steamboat Company v. New York . . 248 Jacks v. Helena...................................288 Jones v. Van Benthuysen...........................464 Kenney v. Effinger ....... 577 Kenney, Eflinger v................................566 Kentucky Railroad Tax Cases.......................321 Kirk, Texas & Pacific Railway Company v. . . . 2 Knickerbocker Life Insurance Company v. Pendleton 339 Knuth, Union Pacific Railway Company v. ... 1 Kurtz v. Moffitt . . . . . . . . 487 Kurtz, Moffitt v..................................487 Lamar v. McCulloch................................163 Lancaster v. Collins..............................222 Leonard v. Chatfield..............................465 Leonard v. Ozark Land Company . 465 Livingston v. Ferry...............................542 Livingston, Ferry v...............................542 Louisiana Light Company, New Orleans Gas Company v. 650 X TABLE OF CASES. Page Louisville & Nashville Railroad Company v. Commonwealth of Kentucky . . . . . 321 Louisville Gas Company v. Citizens’ Gas Company . 683 Lyon, Gibson v........................................439 May, Shepherd v. .....................................505 Mayfield v. Richards..................................137 McAleer, Clay County v................................616 McAllister, Texas & Pacific Railway Company v. . 1 McCarthy V; Wadsworth.................................264 McCulloch, Lamar v....................................163 McGee, St. Louis Iron Mountain & Southern Railway Company v............................................469 Merchants’ Bank v. Bergen County . . . .384 Merrick’s Executor v. Giddings........................300 Merritt, Hadden v.....................................25 Merritt, Harrison v...................................577 Missouri Pacific Railway Company v. Humes . .512 Missouri Pacific Railway Company, Pullman’s Palace Car Company v...................................... . 587 Missouri Pacific Railway Company v. Terry . . 523 Moffitt v. Kurtz.....................................487 Moffitt, Kurtz v................................... 487 Moses v. Wooster.....................................285 Murphy, Arnson v.....................................579 Murphy, Texas & Pacific Railway Company v. . . 2 Myers, Union Pacific Railway Company -y. 1 National Steamship Company, Gray v...............116 New Brunswick & Canada Railroad Company, Wheeler v. 29 New Orleans Gas Company v. Louisiana Light Company 650 New Orleans Water-works Company v. Rivers . . 674 New York, Independent Steamboat Company w. . . 248 New York, Starin v..............................•. 248 Norrington v. Wright.................................188 Northern Pacific Railroad Company v. Traill County 600 O’Connor, Frasher v..................................102 O’Connor, Good v.....................................116 TABLE OF CASES. xi Page O’Connor, Hazard v....................................116 Ozark Land Company, Leonard v.........................465 Pacific Kailroad Kemoval Cases..........................1 Parker, Grant v........................................51 Pendleton, Knickerbocker Life Insurance Company v. . 339 Philippe, Philippi v..................................151 Philippi v. Philippe..................................151 Pierce, Sparks v......................................408 Pirie v. Tvedt.........................................41 Pope v. Allis.........................................363 Pope, Filley v. ......................................213 Pullman’s Palace Car Company v. Missouri Pacific Kailway Company.......................................587 Pumpelly, Gage v......................................454 Kaleigh & Augusta Kailroad Company, Baltzer v. : . 634 Keiher, Wollensak v....................................87 Keiber, Wollensak v. . . ... . . .96 Kichards, Davis Sewing Machine Company v. . . 524 Kichards, Mayfield v......................... . . 137 Kichter v. Union Trust Company . . . . 55 Kivers, New Orleans Water-works Company v. . . 674 St. Louis, Iron Mountain & Southern Kailway Company v. McGee . . . . •.......................469 Sargent v. Helton ....................................348 Shepherd v. May.......................................505 Smith v. Black . . . ’ . . . . 308 Smith v. Woolfolk.....................................143 Sparks v. Pierce . . . . . . . . 408 Starin v. New York....................................248 Stewart v. Dunham.......................................61 Terry, Missouri Pacific Kailway Company v. . . 523 Texas & Pacific Kail way Company v. Kirk ... 2 Texas & Pacific Kailway Company v. McAllister . 1 Texas & Pacific Kailway Company v. Murphy . . 2 The Charles Morgan . . . . ... . 69 xii TABLE OF CASES. Page Thompson v. Allen County /............................550 Thurber, Crump v.......................................56 Tommey, Buncombe County Commissioners v. . . 122 Traer v. Clews . . ........................528 Traill County, Northern Pacific Railroad Company v. . 600 Tvedt, Pirie v........................... . . • 41 Union Pacific Railway Company v. City of Kansas . 1 Union Pacific Railway Company v. Harwood . . 1 Union Pacific Railway Company v. Knuth ... 1 Union Pacific Railway Company v. Myers ... 1 Union Trust Company, Richter v.........................55 United States, Hazlett v..............................291 Van Benthuysen, Jones v. . . 7 . . . 464 Van Slyke, Waterville v...............................290 Van Weel v. Winston...................................228 Wadsworth, Henderson v................................264 Wadsworth, McCarthy v.................................264 Waterville v. Van Slyke...............................290 Watts v. Camors.......................................353 Watts, Camors v.-.....................................353 Wheeler w. New Brunswick & Canada Railroad Company 29 Wilcox, Hassall v................................... 598 Winston, Van Weel v...................................228 Wollensak v. Reiher . . • . . . . . 87 Wollensak v. Reiher....................................96 Woolfolk, Smith v.....................................143 Wooster, Moses v.....................................285 Wright, Norrington v.................................188 TABLE OF CASES CITED IN OPINIONS. Page Abbotsford (The), 98 U. 8. 440 363 Aby v. Bingham, 28 La. Ann. 840 142 Adams v. Crittenden, 106 U. S. 576 65, 276 Allis v. Insurance Co., 97 U. 8. 144‘ 227 Ambler v. Choteau, 107 U. S. 586 238 Ames v. Kansas, 111 U. S. 449 15, 245 Anderson v. Radcliff, El. Bl. & El. 806 540 Anthony v. County of Jasper, 101 U. 8. 693 390 Arthur v. Bank, 9 S. & M. 394 135 Ashburner v. Balchen, 7 N. Y. 262 360 Ashmead v. McArthur, 67 Penn.' St. 326 448 Asylum v. New Orleans, 105 U. S. 362 665 Atlantic Works v. Brady, 107 U. S. 192 436 Attorney-General v. Federal St. Meeting-House, 3 Gray, 1 157 Ayers v. Watson, 113 U. S. 594 17 Ayers v. Wiswall, 112 U. S. 187 60 Badger v. Badger, 2 Wall. 87 102, 157 Bailey v. Glover, 21 Wall. 342 537, 538 Baldro v. Tolmie, 1 Oregon, 176 632 Ball y. Wyeth, 99 Mass. 338 633 Baltimore & Ohio Railroad Co., A’® parte, 106 U. S. 5 276 Bangs v. Strong, 7 Hill, 250 (42 Am. Dec. 16) 511 Bank of Washington v. Triplett, 1 Pet. 25 379 Banking Association v. Insurance Association, 102 U. S. 121 613 Barbier v. Connolly, 113 U. S. _523, 661 Barker v. New York Central Rail- road Co., 24 N. Y. 599 346 Barker v. Windle, 6 E. & B. 675 360 ' Page Barkleys. Levee Commissioners, 92 U. S. 575 557, 564 Barr v. Gibson, 3 M. & W. 390 372 Barrow v. Bloom, 18 La. Ann. 276 362 Barry v. Mercein, 5 How. 103 495,496 Baugher v. Nelson, 9 Gill, 304 627 Beaubien v. Beaubien, 23 How. 190 102 Beaulieu v. Pleasant Hill, 4 McCrary, 554 618, 619 Beer Co. v. Massachusetts, 97 U. S. 25 665, 669 Behn v. Bumess, 3 B. & S. 751 203 Belk v. Meagher, 104 U. S. 279 49 Belleville Nail Co. v. People, 98 Ill. 399 461, 462 Belmont v. Coman, 22 N. Y. 438 510 Bender v. Crawford, 33 Texas, 745 630 Bentinck v. Franklin, 38 Texas, 458 630 Bicknell v. Comstock, 113 U. S. 149 623 Bigelow v. Bemis, 2 Allen, 496 633 Binghamton Bridge, 3 Wall. 51 663 Birnie v. Main, 29 Ark. 291 150 Black v. Smith, 4 McA. & M. 338 314 Blackwell v. Blackwell, 33 Ala. 57 159 Blake v. Bagle, Macqueen’s Prac. H. of L. 244 288 Blake v. McKim, 103 U. S. 336 60 Bliss v. Nichois, 12 Allen, 443 370 Bohall v. DiKa, 114 U. S. 47 413 Bonner v. Home Ins. Co., 13 Wise. 677 368 Boom Co. v. Patterson, 98 U. S. 403 18 Boothby v. Scales, 27 Wise. 626 372 Boston v. Richardson, 13 Allen, 146 659 Boston Water Power Co. v. Bos- xiv TABLE OF CASES CITED. Page ton &c. Railroad Co., 23 Pick. 360 673 Boston &c. Railroad Co. v. Salem &c. Railroad Co., 2 Gray, 1 673 Bowen v. Newell, 4 Selden,190 382,383 Bowes v. Shand, 2 App. Cas. 455; IQ. B. D. 470 ; 2 Q. B. D. 112 203, 207 I Bowman v. Wathon, 1 How. 189 159 Bradford v. Brooks, 2 Aiken (Vt.) 284 632 Bradford v. The Union Bank, 13 How. 57 645 Bradstreet Co. v. Higgins, 112 U. S. 227 276, 613 Brandt ®. Lawrence, 1 Q. B. D. 344 207 Brawley v. United States, 96 U. S. Page Chusan (The), 2 Story, 455 362 Chy Lung v. Freeman, 92 U. S. 275 662 Cincinnati, New Orleans &c. Rail- road Co. ®. Commonwealth, 81 Ky. 492 333 Cincinnati, Ohio &c. Railroad Co. v. Commonwealth, 81 Ky. 492 333 Clark ®. Barnard, 108 U. S. 436 361 Clarke ®. Rippon, 1 B. &. A. 586 287 Clearwater v. Meredith, 1 Wall. 25 594 Clementson ®. Williams, 8 Cranch, 72 632 Clopton v. Martin, 11 Ala. 187 645 Cloutier ®. Lemee, 33 La. Ann. 305 141 Cockell ®. Taylor, 15 Beav. 103 540 Coddington ®. Paleologo, L. R. 2 Ex. 193 207 Coffin ®. Davenport, 26 Iowa, 515 618, 619 Coffin ®. Loring, 5 Allen, 153 383 Cohens ®. Virginia, 6 Wheat. 264 257 Coldcleugh ®. Johnson, 34 Ark. 312 150 Comegys ®. Vasse, 1 Pet. 193 540 Commonwealth v. Bacon, 13 Bush, 210 694 Commonwealth v. Whipps, 80 Ky. 269 695 Confederate Note Case, 19 Wall. 548 573 Connemara (The), 108 U. S. 754 276, 363 Connolly ®. Belt, 5 Cranch C. C. 405 318 Conrad ®. Griffey, 16 How. 38 77 Cook ®. Barr, 44 N. Y. 156 370 Cook ®. Lillo, 103 U. S. 792 572 Cook ®. Renick, 19 Ill. 598 382 Cooper ®. Wandsworth B. of W., 14 C. B. N. S. 180 334 Corbin ®. Cannon, 31 Miss. 570 263 Cornwall ®. Culver. 16 Cal. 423 108 Cox ®. Mobile &c. Railroad Co., 37 Ala. 320 511 Coy ®. City of Lyons, 17 Iowa, 1 618, 619 Cramer v. Arthur, 102 U. S. 612 28 Crescent City Gas-Light Co. v. New Orleans Gas-Light Co., 27 La. Ann. 138 659, 664 Crooks ®. Douglass, 56 Penn. St. 51 448 Croxall ®. Shererd, 5 Wall. 268 623 Cucullu ®. Hernandez, 103 U. S. 105 511 Cullum ®. Erwin, 4 Ala. 452 148 Cummins ®. Gill, 6 Ala. 562 148 Currie ®. Stewart, 26 Miss. 646 261 Cutter «. Powell (notes), 1 Smith’s Lead. Cas. 37 372 168 204, 360 Bridge Proprietors v. The Hoboken Co., 1 Wall. 116 662 Bright v. Legerton, 2 DeG. F. & J. 606 157 Britton v. Thornton, 112 U. S. 526 446 Brobst v. Brock, 10 Wall. 519 447 Brockway v. Crawford, 3 Jones (No. Car.), 433 504 Brooklyn v. Insurance Co., 99 U. S. 362 149 Brooks v. Railway Co., 101 U. S. 443 129 Brown v. Lull, 2 Sumner, 443 361 | Brown ®. Piper, 91 U. S. 37 434, 436 Brown’s Appeal, 68 Penn. St. 53 447 Buchanan ®. Litchfield, 102 U. S. 278 392 Burgess v. Seligman, 107 U. S. 20 127, 446 Burns ®. Erben, 40 N. Y. 463 504 Busk ®. Spence, 4 Camp. 329 212 Butchers’ Union Co. v. Crescent City Co., Ill U. S. 746 667, 669 Butler v. Palmer, 1 Hill, 324 627 C. H. Foster (The),1 Fed. Rep. 733 76 Callicott ®. Parks, 58 Miss. 528 263 Cannon v. Pratt, 99 U. S. 619 227 Carroll Co. ®. Smith, 111 U. S. 556 446 Cass County ®. Morrison, 28 Minn. 257 608 Central Bridge v. Lowell, 15 Gray, 106 370 Central Railroad Co. ®. Georgia, 92 U. S. 665 594 Chanter v. Hopkins, 4 M. & W. 399 372 Chapman ®. Brewer, 114 U. S. 158 351 Cheatham ®. United States, 92 U. S. 85 585 Cholmondeley ®. Clinton, 2 Jac. & Walk. 1 159 TABLE OF CASES CITED. xv Page Dale v. Metcalf, 9 Barr, 108 450 Dana v. Kemble, 19 Pick. 112 346 Davidson ®. New Orleans, 96 U. S. 97 331, 335, 519 Davies v. Corning, 112 IT. S. 36 276 Davis ®. Minor, 1 How. (Miss.) 183 632 633 Davis v. Wells, 104 IT. S. Ip9 527 Davison®. Von Lingen, 113 U. S. 40 203 Day ®. Woodworth., 13 How. 363 225 521 Deery ®. Cray, 5 Wall. 795 227 Deffeback ®. Hawke, 115 U. S. 392 411, 412, 413 DeKrafft ®. Barney, 2 Black, 704 496 Delaware Railroad Tax, 18 Wall. 206 660 Desmaire ®. United States, 93 U.S. 605 141 Detroit City Railway Co. ®. Guthard, 114 U- S. 133 289 DeWhelpdale ®. Milbum, 5 Price, 485 370 Dial ®. Reynolds, 96 U. S. 340 350 Dickerson ®. Colgrove, 100 U. S. 578 . 623 Dickinson ®. Burrell, L. R. 1 Eq.” 337 539 Dietzsch ®. Huidekoper, 103 U. S. 494 352 Dixon County ®. Field, 111 U. S. 83 391 Doe ®. Steel, 3 Camp. 115 370 Dundas ®. Hitchcock, 12 How. 256 512 Dwight ®. Overton, 35 Texas, 390 630 Dynes ®. Hoover, 20 How. 65 500 East St. Louis ®. United States ex rel. Zebley, 110 U. S 321 618 Eastern Railroad ®. Relief Insur- ance Co., 98 Mass. 420 220 Edwards ®. Ricks, 30 La. Ann. 924 282 Elgee’s Administrator ®. Lovell, 1 Woolw. 103 184 Elgin «. Marshall, 106 U. S. 578 498 Elliott®. Hayden, 104 Mass. 180 .370 Elliott v. Sackett, 108 U. S. 132 * 510 Elmondorf ®. Taylor, 10 Wheat. 152 159 Empire ®. Darlington, 101 U. S. 87 149 English ®. Latham, 3 Martin La. (N. S.) 88 362 Erwin ®. United States, 97 U. S. 392 540 Factors’ Insurance Co. ®. Murphy, 111 U S. 738 534 Fairfield ®. Madison M’f’g Co., 38 Wise. 346 372 Page Farmers’ Loan & Trust Co. ®. Waterman, 106 U. S. 265 65, 276, 599 Farnsworth ®. Minnesota &e. Railroad Co., 92 U. S. 49 474 Farrington ®. Tennessee, 95 U. S. 679 665 Fee ®. The New Orleans Gas-Light Co., 35 La. Ann. 413 657 Fertilizing Co. ®. Hyde Park, 97 U. S. 659 666, 669 Filley ®. Pope, 115 U. S. 213 372 First National Bank of Omaha ®. -Redick, 110 U. S. 224 276 Fiske ®. Tolman, 124 Mass. 254 510 Fitch®. Baldwin, 17Johns. 161 512 Floyd Acceptances, 9 Wall. 666 391 Foster ®. Gray, 22 Penn. St. 9 447,450 Foster ®. The Essex Bank, 16 Mass. 245 629 Fourth National Bank ®. Stout, 113 U. S. 684 65, 276 Fowler ®. Fay, 62 Ill. 375 510 Francis Wright (The), 105 U. S. 381 ' 363 Freeman ®. Auld, 44 N. Y. 50 512 Freeth v. Burr, L. R. 9 C. P. 208 210 French v. Fyan, 93 U. S. 169 68 French v. Hope Insurance Co., 16 I Pick. 397 220 Gage v. Bailey, 102 Ill. 11 461, 462, 463 Gaines ®. Fuentes, 92 U. S. 10 19 Gamble ®. Witty, 55 Miss. 26 462 Gibbons v. Ogden, 9 Wheat. 1 661 Giffert ®. West, 33 Wise. 617 368 Gillespie ®. Moon, 2 Johns. Ch. 585 645 Girdner v. Stephens, 1 Heiskell, 280 633 Godden?’. Kimmell, 99 U. S. 201 102 Goetcheus®. Matthewson, 61 N. Y. 420 502 Gold Washing & Water Co. ®. Keyes, 96 U. S. 199 257 Gompertz v, Bartlett, 2 El. & Bl. 819 372 Gooch ®. Magee, 83 N. C. 59 135 Goodtitle ®. Tombs, 3 Wils. 118 263 Goodwin ®. Baldwin, 59 Ala. 127 157 Gordon v. Appeal Tax Court, 3 How. 133 665 Gordon v. Ogden, 3 Pet. 33 276 Gordon v. Winchester Building Ass., 12 Bush. 110 693 Graceland Cemetery Co. ®. People, 92 Ill 619 460, 461 Graham ®. Railroad Co., 102 U. S. 148 540 I Gratz ®. Provost, 6 Wheat. 481 157 Graves v. Legg, 9 Exch. 709 212 xvi TABLE OF CASES CITED. Page Page Gray v. Blanchard, 97 U. S. 564 613 Hunt v. Rousmaniere, 1 Pet. 1 648 Gray v. McCallister, 50 Iowa, 498 540 Huntley ®. Whittier, 105 Mass. Green v. Biddle, 8 Wheat. 1 673 391 345 Greenless v. Greenless, 62 Ala. 330 159 Hutchings v. Van Bokkellen, 34 Greenwood v. Freight Co., 105 Maine, 126 504 U. S. 13 660 Hyde v. Ruble. 104 U. S. 407 60 Gregg v. Moss, 14 Wall. 564 227 Iowa Railroad Land Co. v. County Griffin v. Goff, 12 Johns. 423 381 of Sac, 39 Iowa, 124 618 Gue v. Tide Water Canal Co., 24 Ivory v. State Bank, 36 Missouri, How. 257 135 475 383 Hagar v. Reclamation District, Jefferson Branch Bank v. Skelly, 111 U. S. 701 336 1 Black, 436 697 Haines v. Carpenter, 91 IT. S. 254 350 Jenness v. Citizens’ National Hall®. Hurlbert, Taney, 589 361 Bank, HOU. S. 52 613 Hall ®. Macneale, 107 U. S. 90 436 Jermon ®. Lyon, 81 Penn. St. 107 453 Hall ®. Wells, 54 Miss. 289 261 Jesse Williamson, Jr. (The), 108 Hampton v. Commonwealth, 1 U. S. 305 613 Penn. St. 329 627 Johnson v. Waters, 111 U. S. 640 141 Hancock v. Holbrook, 112 U. S. Jones v. Jones, 18 Ala. 248 625 229 61 Jones v. Van Benthuysen, 103 Hardenburg v. Kidd, 10 Cal. 402 462 U. S. 87 464 Hardin v. Boyd, 113 U. S. 756 148, 150 Juliana (The), 2 Dodson, 504 361 Harkness v. Hyde, 98 U. S. 476 149 Kane «. Bloodgood, 7 Johns. Ch Harriet (The), 1 W. Rob. 182 361 90 157, 159 Harrison v. Heflin, 54 Ala. 552 Kansas Pacific ®. Atchison Rail- 159, 160 road, 112 U. S. 414 257 Harrison v. Wright, 13 East, 343 361 Kemper ®. McClelland’s Lessee, 19 Hawley ®. Fairbanks, 108 U. S. Ohio, 308 462 543 65, 276 Kenner v. Creditors, 7 Martin La. Heald ®. Rice, 104 U. S. 737 436 N. S. 540; 8 Martin La. N. S. 36 381 Heine v. The Levee Commission- Kenner ®. Creditors, 1 La. 435 382 ers, 19 Wall. 655 556, 563, 564 King v. Beal, 3 Mod. 124 499 Heinrichs, In re, 5 Blatchford, 414 497 King v. Dale, 2 Shower, 511 499 Henderson v. Mayor of New York, King Philip Mills v. Slater, 12 92 U. S. 259 661 R. I. 82 211 Henkle v. Royal Assurance Co., Knapp ®. Banks, 2 How. 73 276 1 Ves. Sen. 317 645 Knickerbocker Life Insurance Co. Heth v. WTilson, 55 Miss. 587 261 v. Pendleton, 112 U. S. 696 340 Hetherington ®. Kemp, 4 Camp. Lamb ®. Parkman, 21 Law Rep. ’ 193 346 589 76 Hewitt ®. Wilcox, 1 Met. (Mass.) Lammon v. Feusier, 111 U. S. 17 187 154 627 Landsdale v. Smith, 106 U. S. 391 Heyer v. Deaves, 2 Johns. Ch. 154 318 102, 157 Higginson v. Weld, 14 Gray, 165 361 Law ®. People, 87 Ill. 385 463 Hill v. Blake, 97 N. Y. 216 211 Lee v. Lee, 8 Pet. 44 495, 496 Hilton®. Dickinson, 108 U. S. 165 Lee ®. Watson, 1 Wall. 337 613, 614 276,613 Lee County Supervisors ®. Rogers, Hoare ®. Rennie, 5 H. & N. 19 206 7 Wall. 175 559 Holley®. Mix, 3Wend. 350 504 Leffingwell ®. Warren, 2 Black, Holmes ®. Jennison, 14 Pet. 540 496 599 623 Home of the Friendless, 8 Wall. Leopold ®.Van Kirk,30 Wise. 548 368 430 665 Le Roy ®. Crowninshield, 2 Ma- Honck ®. Muller, 7 Q. B. D. 92 210 son, 151 626 Hornbuekle v. Stafford, 111 U. S. Letchford ®. Cary, 52 Miss. 791 263 389 227 Lewis ®. Davidson, 51 Texas, 251 630 Hovenden ®. Annesley, 2 Sch. & Livingston ®. Story, 9 Pet. 632 362 Lef. 607 159 Lorymer v. Smith, 1 B. & C. 1 372 Hovey®. McDonald, 109U. S. 150 468 Lottawanna(The), 21 Wall. 558 362 Hoy ®. Bramhall, 4 C. E. Green, 74 510 Louisville & Nashville Railroad Huber ®. Reily, 53 Penn. St. 112 501 Co. ®. Commonwealth, 81 Ky. Humphrey ®. Pegues, 16 Wall.244 665 492 333 TABLE OF CASES CITED. xvii Page Louisville & Nashville Railroad Co. v. Ide, 114 U. S. 52 42, 61, 259 Louisville & Nashville Railroad Co. v. Palmes, 109 U. S. 244 594, 697 Lowber v. Bangs, 2 Wall. 728 203 Lucas v. Brooks, 18 Wall. 436 227 Lucille (The), 19 Wall. 73 75 Lyman v. United Ins. Co., 2 Johns. Ch. 630 645 Lyon v. Bertram, 20 How. 149 205,373 McCardle, Ex parte, 6 Wall. 318 ; 7 Wall. 506 497 McCarty ®. McCarty, 74 Ala. 546 159, 160 McDonald ®. Lee’s Administrators, 12 La. 435 382 McElmoyle v. Cohen, 13 Pet. 312 626 MacGregor v. Keily, 3 Exch. 794 345 McKinney ®. Carroll, 12 Pet. 66 287 McKinney r. Springer, 8 Black- ford, 506 • 632 McLaughlin ®. Thompson, 55 Ill. 249 460, 462 McLean County Precinct v. Deposit Bank, 81 Ky. 254 560 McLeod v. Callicot, Chase’s Dec. 443 186 McMahon v. Allen, 35 N. Y. 403 • 540 McMicken v. United States, 97 U. S. 217 474 McMillen v. Anderson, 95 U. S. 37 332 M’Nair v. Thompson, 5 Martin La. 525 362 McNitt v. Clark, 7 Johns. 465 38 Magee ®. Billingsley, 3 Ala. 679 372 Mahn v. Harwood, 112 U. S. 354 100 Mahoney ®. Van Winkle, 21 Cal. 552 108 Mamie (The), 105 V. S. 773 276 Manly®. United Insurance Co., 9 Mass. 85 221 Maraist v. Guilbeau, 31 La. Ann. 713 141 Marcella (The), 1 Woods, 302 361 Market Co. v. Hoffman, 101 U. S. 112 276 Marsh v. Fulton, 10 Wall. 676 391 Marsh v. Whitmore, 21 Wall. 178 102 Mason, Ex parte, 105 U. S. 696 500 Maury ®. Mason, 8 Porter (Ala.) 211 157 Mayor v. Cooper, 6 Wall. 247 257 Mayor ®. Ray, 19 Wall. 468 391 Mechanics’ Bk. d. Merchants’ Bk., 6 Mete. (Mass.) 13 382 Meriam v. Hassam, 14 Allen, 516 157 Meriwether v. Garrett, 102 U. S. 472 557 Merrill v. Petty, 16 Wall. 338 276 Mersey Co. v. Naylor, 9 App. Cas. 434 204 Page Miller v. Brass Co., 104 U. S. 350 98, 99 Miller v. Palmer, 55 Miss. 323 262 Milwaukee & St. Paul Railway Co. v. Arms, 91 U. S. 489 521 Mining Co. v. Taylor, 100 U. S. 37 227 Missouri v. Lewis, 101 U. S. 22 338 Moore v. Green, 19 How. 69 102 Morgan v. Hazelhurst Lodge, 53 Miss. 665 261 Morgan v. McKee, 77 Penn. St. 228 212 Morning Star (The), 14 Fed. Rep. 866 76 Morris v. Levison, 1 C. P. D. 155 360 Mosely ®. Lee, 37 Texas, 479 630 Murdock ®. City of Memphis, 20 Wall. 590 542 Murphy v. Cleary, 3 Yeates, 405 450 Murray ®. Columbian Insurance Co., 4 Johns. 443 221 Musson v. Lake, 4 How. 262 346 National Bank ®. Insurance Co., 100 U. S. 43 290 Neal ®. Delaware, 103 U. S. 370 334 Nettles ®. Nettles, 67 Ala. 599 157 Neves v. Scott, 13 How. 268 362 New Jersey v. Wilson, 7 Cranch, 164 665, 673 New Jersey v. Yard, 95 U. S. 104 660 New Jersey Central Railroad Co. ®. Mills, 113 U. S. 249 61 New Jersey Zink Co. ®. Trotter, 108 U. S. 564 276 Newman, In re, 4 Ch. D. 724 361 New Orleans v. Clark, 95 U. S. 644 658 New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650 680, 692, 697 New Orleans &c. Railroad Co. ®. Delamore, 114 U. S. 501 534 Nichol v. Godts, 10 Exch. 191 372 Norrington v. Wright, 115 U. S. 188 360,372 North Carolina (The), 15 Pet. 40 76 Northern Bank of Toledo v. Porter Township Trustees, 110 U. S.608 391 Oder (The), 21 Blatchford, 26 76 O’Hara «. Lexington & Ohio Rail- road Co., 1 Dana, 232 693 Ohio Life Insurance &c. Co. ®. Debolt, 16 How. 415 670, 673 O’Kell ®. Smith, 1 Stark. N. P. 86 372 Oliver v. Alexander, 6 Pet. 143 276 Oliver v. Piatt, 3 How. 333 157 O’Neil v. Teague, 8 Ala. 345 645 Oridge v, Sherborne, 11 M. & W. 374 380, 383 Osborn v. Bank of United States, 9 Wheat. 738 11, 14, 24, 257 Pacific Railroad Removal Cases, 115 U. S. 1 257 xviii TABLE OF CASES CITED. Page Page Parke v. Ross, 11 How. 362 305 Reuter v. Sala, 4 C. P. D. 239 209 Patchin v. Swift, 21 Vermont, 292 38 Rey v. Simpson, 22 How. 341 511 Paving Co. ®. Milford, 100 U. S. Rhodes v. Turner, 21 Ala. 210 159 147 276 Rich v. Lambert, 12 How. 347 276 Peacock v. Carnes, 109 Ill. 100 463 Richard v. Holmes, 18 How. 143 315 Pennoyer v. Neff, 95 U. S. 714 149 Richardson v. City of Boston, 19 Pennsylvania Railroad v. Locomo- How. 263 305 tive Truck Co., 110 U. S. 490 436 Richmond ®. New Bedford Cord- Perkins v. Franklin Bank, 21 Pick. age Co., 2 Lowell 315 361 483 382 Richmond &c. Railroad Co. ®. Lou- Phenix Insurance Co. v. Liverpool isa Railroad Co., 13 How. 71 673 &c. Steamship Co., 22 Blatchford Riley v. Heisch, 18 Cal. 198 108 372 76 Rivers v. Washington, 34 Texas, Phillippi v. Phillippi, 61 Ala. 41 157 267 630 Piatt ®.Vattier, 1 McLean, 146 632 Riverside Co. v. Howell, 113 Ill. Pirie v. Tvedt, 115 U. S. 41 61, 259 259 462 Polk v. Winett, 37 Iowa, 34 618 Rives v. Duke, 105 U. S. 134 573 Pontchartrain Railroad Co. v. La- Roberts v. Ryer, 91 U. S. 150 436 fayette &c. Railroad Co., 10La. Rohan v. Sawin, 5 Cush. 281 504 Ann. 741 656, 664 Rosenthal v. Walker, 111 U. S. 185 Pontchartrain Railroad Co. v. New 345, 538 Orleans Railway Co., 11 La. Royall, Ex parte, 112 IT. S. 181 497 Ann. 253 664 Russell v. Southard, 12 How. 139 362 Pontchartrain Railroad Co. ®. Or- Russell ®. Stansell, 105 IT. S. 303 256 leans Navigation Co., 15 La. Ryder v. Wilson, 12 Vroom (41 Ann. 404 664 N. J. L.) 9 633 Porter v. Hornsby, 32 La. Ann. St. Lawrence (The), 1 Black, 522 362 337 141 St Louis &c. Railroad Co. v. Wil- Potts ®. Chumasero, 92 IT. S. 358 498 son, 114 U. S. 60 61 Powder Co. v. Powder Works, 98 Salem’s Cargo (The), 1 Sprague, IT. S. 126 438 389 361 Pratt ®. Fitzhugh, 1 Black, 271 496 Sandusky Tool Co. v. Comstock, Prentice v. Dehon, 10 Allen, 353 633 not reported, (S. C., Oct. Term, Pritchard ®. Norton, 106 U. S. 124 362 1878) 468 Providence Bank ®. Billings, 4 Saulet ®. Trepagnier, 11 Rob. 266 282 Pet. 514 673 Sehacker ®. Hartford Fire Insur- Provident Savings Co. ®. Ford, 114 ance Co., 93 IT. S. 241 613 U.S. 635 257 Schuchardt ®. Allens, 1 Wall. 359 305 Putnam v. Ingraham, 114 U. S. 57 Schulenberg ®. Harriman, 21 Wall. 61, 259 44 474 Quinn’s Appeal, 86 Penn. St. 447 453 Schwed ®. Smith, 106 U. S. 188 65 Railroad Co. ®. Georgia, 98 U. S. Scott ®. Kittanning Coal Co., 89 359 594 Penn. St. 231 212 Railroad Co. ®. Husen, 95 U. S. Seaver v. Bigelow, 5 Wall. 208 64, 276 465 662 Severance ®. Healey, 50 N. H. 448 501 Railroad Co. ®. McClure, 10 Wall. Shainwald ®. Louis, 108 U. S. 158 60 511 672 Shelburn®. Inchiquin, 1 Bro. Ch. Railroad Co. ®. Maine, 96 U. S. 338 645 499 594 Shelby ®. Smith, 2 A. K. Marshall, Railroad Co. ®. Mississippi, 102 504 148 U. S. 135 257 Shields ®. Barrow, 17 How. 130 148 Railway Co. ®. McShane, 22 Wall. Shields ®. Miltenberger, 14 Penn, 444 606. 607, 608 St. 77 450 Railway Co. ®. Prescott, 16 Wall. Shields ®. Ohio, 95 U. S. 319 594 603 606, 607, 608, 609 Shields ®. Thomas, 17 How. 3 276 Rayland ®. Morton, 41 Ala. 344 159 Shinn ®. Bodine, 60 Penn. St. 182 212 Rees ®. City of Watertown, 19 Sikes ®. Bladen, 72 N. C. 34 131 Wall. 107 554, 556, 563 Simpson ®. Crippin, L. R. 8 Q. B. Renshaw v. Stafford, 30 La. Ann. 14 207 853 141 Sinking Fund Cases, 99 U. S. 700 609 Reuck ®. McGregor, 3 Vroom, 70 504 Sively ®. Summers, 57 Miss. 712 262 TABLE OF CASES CITED. xix Page Skilbeck v. Garbett, 7 Q. B. 846 346 Slaughter-House Cases, 10 Wall. 273 468 Slaughter-House Cases, 16 Wall. 36 661, 668, 669 Sloman v. Walter, 1 Bro. Ch. 418 361 Smart v. Baugh, 3 J. J. Marsh. 364 624 Smith ®. Greenhow, 109 U. S. 669 614 Smith v. Hutchinson, 108 Ill. 668 463 Smith v. Bines, 2 Sumner, 348 43 Soon Hing®. Crowley, 113 U.S.703 523 Spencer v. Thompson, 6 Irish Law R. N. S. 537 346 Sprigg v. Bank of Mount Pleasant, 14 Pet. 201 511 Stackpole v. Glassford, 16 S. & R. 163 448 State v. Cincinnati Gas Co., 18 Ohio St. 262 659 State ®. Cunningham, 72 N. C. 469 131 State v. Holmes, 48 N. H. 377 504 State®. Rives, 5 Ired. 297 135 State v. Symonds, 57 Maine, 148 501 State v. Taylor, 76 N. C. 64 131 State Bank of Ohio v. Knoop, 16 How. 363 665 State Railroad Tax Cases, 92 U. S. 575 332, 557, 564 Stearns v. Page, 7 How. 819 102 Steel v. Smelting Co., 106 IT. S. 447 406 Stewart v. Cahn, 11 Wall. 493 142 Stewart v. Salamon, 94 IT. S. 434 572, 575 Stimpson v. Woodman, 10 Wall. 117 436 Stipp v. Brown, 2 Ind. 647 682 Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290 645 Stone v. Mississippi, 101 IT. S. 814 661, 667, 669 Studdy ®. Sanders, 2 D. & R. 347 370 Sully v. Drennan, 113 U. S. 287 61 Summers v. Brady, 56 Miss. 10 261 Swayne v. Lyon, 67 Penn. St. 436 452, 453 Tayloe v. Sandiford, 7 Wheat. 13 361 Taylor ®. Ypsilanti, 105 IT. S. 60 128 Tennessee v. Davis, 100 IT. S. 257 257 Thayer v. Life Association, 112 IT. S. 717 61 Thompson v. Allen County, 13 Fed, Rep. 57 553 Thorington ®. Smith, 8 Wall. 1 569, 571, 573, 575 Thornton v. Wynn. 12 Wheat. 183 373 Thorpe v. Mattingley, 1 Phillipps Ch. 200 8 288 Tintsman ®. National Bank, 100 U. S. 6 613 Page Tioga Railroad ®. Blossburg &c. Railroad, 20 Wall. 137 628 Tom Tong, Ex parte, 108 IT. S. 556 * 494 Townsend ®. Jemison, 9 How. 407 626 Townsend ®. Wells, 3 Day, 327 38 Traske ®. Payne, 43 Barb. 569 504 Troy ®. Evans, 97 U. S. 1 276 Tucker ®. Spalding, 13 Wall. 453 436 Tupper ®. Wise, 110 IT. S. 398 276 Turner v. Smith, 11 Tex. 620 157 Tyler ®. Pomeroy, 8 Allen, 480 499 United States®. Bowen, 100 U. S. 508 402 United States ®. Clark County, 96 U. S. 211 619 United States ®. Eliason, 16 Pet. 291 503 United States®. Freeman, 3 How. 556 503 United States ®. Howland, 4 Wheat. 108 362 United States ®. Macon County, 99 U. S. 582 618 United States ®. Repentingny, 5 Wall. 211 474 United States ®. Ross, 92 U. S. 281 346, 347 United States ®. Union Pacific Railroad Co., 98 U. S. 569 245 Van Buren ®. Digges, 11 How. 461 361 Van Reynegan ®. Bolton, 95 U. S. 33 107 Van Wyck ®. Knevals, 106 U. S. 360 474 Vance «. Campbell, 1 Black, 427 434 Virgin (The), 8 Pet. 538 361 Wagner ®. Baird, 7 How. 233 159 Wakeley ®. Hart, 6 Binney, 316 504 Wales ®. Whitney, 114 U. S. 564 497, 500 Walker ®. Byers, 14 Ark. 246 148 Walker®. United States, 4 Wall. 163 276 Walkley ®. City of Muscatine, 6 Wall. 481 553, 556, 563 Ward ®. Lord Londesborough, 12 C B 252 346 Warren®. Stoddard, 105 U. S. 224 363 Washington ®. McCaughan, 34 Miss. 304 261 Wayman ®. Southard, 10 Wheat. 1 362 Weaver ®. Thompson, 1 Wall. Jr. C. C. 343 . 76 Webster ®. Buffalo Insurance Co., 110 U. S. 386 613 Wedderbum ®. Wedderbum, 4 Myl. & Cr. 41 157 Weire ®. The City of Davenport, 11 Iowa, 49 540 XX TABLE OF CASES CITED. Page Welch v. Wadsworth, 30 Conn. 149 627 Welsh v. Thom, 16 Louisiana, 188 362 West River Bridge Co. v. Dix, 6 How. 507 664, 673 Whitaker v. Smith, 81 N. C. 340 126 Williams v. First Presbyterian Society, 1 Ohio St. 478 157 Williams v. Jones, 13 East, 439 625 Wilmington & Weldon Railroad Co. v. King. 91 U. S. 3 571, 573, 575 Wilmington Railroad v. Reid, 13 Wall. 264 665 Wilson, Ahi parte, 114 U. S. 417 499 Wilson v. Boyce, 92 U. S. 320 476 Wilson v. Gray, 8 Watts, 25 485 Winchester ®. Loud, 108 U. S. 130 60 Winchester u Newton, 2 Allen,492 212 Windsor v. McVeagh, 93 U. S. 274 149 Page Witherspoon v. Duncan, 4 Wall. 210 405 Wolf v. New Orleans, 103 U. S. 358 673 Wolton v. Freese, 16 Q. B. 81 500 Wolton v. Gavin, 16 Q. B. 48 500 Wood v. Carpenter, 101 U. S. 135 102, 538 Wood v. Kennedy, 19 Ind. 68 627 Wood v. Welder, 42 Texas, 396 630 Woodie v. Whitney, 23 Wise. 55 372 Woodruff v. Trapnail, 10 How. 190 673 Wooley v. High, 40 Ala. 171 159 Wright ®. Court, 6 D. & R. 623; 4 B. & C. 596 499 Wright v. Nagle, 101 U. S. 794 697 Yerger, Ex parte, 8 Wall. 85 497 Zeigler’s Appeal, 35 Penn. St. 173 448 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. / Page 1789, Sept. 24, § 22, 1 Stat. 84, Appeals, Writs of Error...496, 497 1789, Sept. 24, § 31, IStat. 90, Survival of Actions......287,494 1789, Sept. 29, § 4, 1 Stat. 96, Articles of War, Deserters...501 1796, May 18, 1 Stat. 464, Sale of Lands, N. W. Territory. 114 1802, March 16, § 18, 2 Stat. 136, Desertion..........................501 1806, April 10, Art. 20, 2 Stat. 362, Articles of War, Deserters.. .501, 502 1812, Jan. 11, § 16, 2 Stat. 673, Desertion......................... 501 1813, Jan. 29, § 12, 2 Stat. 796, Desertion......................... 501 1816, April 2, § 1, 3 Stat. 261, Appeal to Supreme Court, amount involved............................ 495 1830, May 29, 4 Stat. 418, Desertion in time of Peace...501 1841, Sept. 4, § 10, 5 Stat. 453, Preemption...............104, 400 1842, Aug. 29, 5 Stat. 539, Jurisdiction of Supreme Court, Habeas Corpus, Foreign Subjects 497 1844, June 17, 5 Stat. 697, Army Appropriations, Deserters. 503 1850, Sept. 28, 9 Stat. 521, California Swamp Lands..... 68 1853, Feb. 9, §§ 4, 5, 10 Stat. 155, Public Lands in Missouri and Kansas....................;.. 470 1853, March 3, §§ 6, 13, 10 Stat. 244, Public Lands in California 104, 107, 401 1862, May 30, § 7, 12 Stat. 409, Survey and Sale of Public Lands. 401 1862, July 1, § 3, 12 Stat. 489, Pacific Railway Grants......... 401 1862, July 1, 12 Stat. 1266, Proclamation of Rebellion.182 1863, March 3, §§ 24, 26, 12 Stat. 735, Enticing Deserters, Resisting Draft....................502, 504 1863, March 12, 12 Stat. 820, Captured and Abandoned Property 182 1863, March 10, 13 Stat. 775, Proclamation to absent Soldiers.. 504 1863, Dec. 8, 13 Stat. 737, Proclamation of Amnesty..... 185 1864, June 11, 13 Stat. 123, Limitations...................... 141 1864, June 30, §§ 8,14, 13 Stat. 210, Customs Duties......477, 580, 584 1864, July 1, § 6, 13 Stat. 194, California Land Titles............ 108 1864, July 2, § 4, 13 Stat. 356, Pacific Railway Grants...... 401 1864, July 2, § 21, 13 Stat. 365, Northern Pacific Grants.607, 608 1864, July 2, 13 Stat. 375, Captured and Abandoned Property 183 xxii TABLE OF STATUTES CITED. Page 1865, March 3, § 21, 13 Stat. 490, Deserters ; forfeiture of Citizenship................................................t................. 501 1868, March 27, 15 Stat. 44, Appeals to Supreme Court...497 1868, July 27, § 2, 15 Stat. 227, Removal of Causes................... 324 1868, July 27, § 3, 15 Stat. 243, Exclusive Jurisdiction of Court of Claims................................ 182 1870, May 31, §§ 16, 18, 16 Stat. 144, Civil Rights..................... 615 1870, July 2, 16 Stat. 291, Survey of Lands granted Northern Pacific Railroad Co..............................................,. 608 1870, July 9, § 12, 16 Stat. 217, Public Domain, Mineral Lands.. 401 1871, March 3, 16 Stat. 573, Act Incorporating Texas Pacific Railroad Co............................ 16 1871, April 20, §§ 1, 2, 17 Stat. 13, Civil Rights....................... 615 1872, May 2, 17 Stat. 59, Act Changing name of Texas, Pacific Railroad Co.................... 16 1872, May 10, § 1, 17 Stat. 91, Mineral Lands.......402, 404, 406 1873, Feb. 18, 17 Stat. 465, Mineral Lands ..402 1875, Feb. 16, § 1, 18 Stat. 315, Circuit Court, Practice, Ad- miralty Cases:....................... 363 1875, March 3, 18 Stat. 470, Removals. 3, 41, 59, 257, 259, 494, 498 1876, May 5, 19 Stat. 52, Mineral Lands in Missouri and Kansas...................... 403 1876, July 24, 19 Stat. 98, Army Appropriations, Deserters. 503 1877, Feb. 27, 19 Stat. 247, Suits for Excess of Duty 581 1877, Nov. 21, 20 Stat. 2, Army Appropriations, Deserters. 503 1883, March 3, § 6, 22 Stat. 489, Customs Duties . 543 1885, March 3, 23 Stat. 359, Army Appropriations, Deserters. 503 Rev. Stat. § 640. Removal of Causes....................................... 3 § 699. Jurisdiction of Supreme Court.............. 614 § 709. Judgment of State Court on writ of error... 141 § 720. Injunction to stay proceedings in State Court.... 350 § 866. Depositions de bene esse................... 56 § 913. Mesne process in Equity and Admiralty Causes... 362 § 914. Practice in Equity and Admiralty Causes....362 § 956. Abatement of Actions....................... 287 § 997. Assignment of Errors.......................221 § 1012. Appeal to Supreme Court.......................... 287 § 1014. Crimes, Arrest................................... 500 § 1059. . Jurisdiction of Court of Claims................ 183 § 1342, Arts. 47,48, 51, Articles of War, Deserters. ............501, 502 § 1909. Writs of Error, etc., to Supreme Court from Territories.........................;....................................497 § 1996. Deserters, Loss of Citizenship.......................... 501 § 1998. Avoiding Draft.....................'............. 501 § 2302. Public Lands, Homesteads........................ 403 § 2318. Public Lands, Mineral Lands......................402 § 2319. Public Lands, Mineral Lands......................406 § 2320. Public Lands, Mineral Lands...................... 47 TABLE OF STATUTES CITED. xxiii Page Rev. Stat. § 2322. Public Lands, Mineral Lands.................... 47 § 2324. Public Lands, Mineral Lands.................... 48 § 2325. Public Lands, Mineral Lands.................46, 48 § 2326. Public Lands, Mineral Lands.................46, 49 § 2345. Public Lands, Mineral Lands.................... 402 § 2358. Public Lands, Mineral Lands... ............... 403 § 2386. Town Sites, Mineral Lands.......................404 § 2392. Town Sites, Mineral Lands.......................404 § 2502 ) § 2503 > Customs Duties 543, 578 § 2504 ) § 2505. Customs Duties, free list...................543, 578 § 2838. Customs Duties.............................................. 27 § 2931. Customs Duties, Protests and Appeals........580, 584 § 3011. Suits for Excess of Duties..................... 581 § 3564. Value of Foreign Coin........................... 27 § 4979. District Court Jurisdiction in Bankruptcy...... 351 § 5024. Injunction in Bankruptcy Proceedings........... 351 § 5057. Limitations in Bankruptcy.............................352, 535, 538 § 5062. Bankruptcy, Sales by Assignee...................541 § 5455. Enticing Deserters.......................... 502 § 5595. What Revised Statutes embrace...................402 § 5596. Repealing Clause................................504 (B.) Statutes of the States. Alabama, 1867, Feb. 19, Internal Improvements........ 425 1870, Feb. 11, Loan to Alabama, &c., Railroad 428 Arkansas, Rev. Stat. 1884, § 1318, i _ .. _ . . Gannt’s Dig. (1874), §§ 1108,1109, f PnBtace’ Opm'“.................. 289 California, 1852, May 3, Sale of Lands................ 105 1863, April 27, Sale of Lands.............104, 112 Penal Code, §§ 836, 837, 849, Arrests............................... 504 Illinois, Rev. Stat. 1874, ch. 120, Tax Sales.....................459 Iowa, Rev. Stat. 1860, § 1846, • Mechanics’ Liens.......... 129 Kentucky, 1856, Feb. 14, Power to amend or repeal Charters, etc........696, 698 1867, Jan. 30, Louisville Gas Co.....696, 697, 699 1869, Jan. 22, Louisville Gas Co.....696, 697, 699 1872, March 21, Citizens’ Gas Light Co..... ... 696 Gen. Stat. 1872, ch. 71, Limitations.................. 277 Gen. Stat. 1881, 1019, Taxation of Railroads....331, 336 Louisiana, 1833, April 1, Commercial Bank of Louisiana. 675 1870, April 20, Crescent City Gas Light Co.... 656 1874, Dec. 12, Consolidation of Corporations.. 655, 656, 657 1877, March 31, New Orleans Waterworks Co.. 676 xxiv TABLE OF STATUTES CITED. Page Louisiana, Civil Code, (1870), Art. 11, Effect of Laws.................... 656 1422, ] 1423, I 4405 V Personal action against heir 275, 283 - 1427, 3945, Contracts...........................362 2082, ] 2091 2002' V Obligation in Solido.....278,279 2093, 2117, 2124. Contracts.................................. 362 2125, 2127, 2405, $’ .-Community of Gains...... 279 2410, J 2872, Obligation in Solido............... 278 3540, Limitations........................ 141 3552, Limitations............277, 283, 284 Code ol Practice, Art. 25 J LiabiUty of succession oi de-( ceased wrong-doer.................................... 282 „,.... « , „ ( Action to recover property sold Mississippi. Code. 2173, j by Administrator, etc........261 § 2506, Ejectment................... 263 § 2512, Ejectment....................... 263 ( Lands Granted to Cairo & Ful-Missouri, 1855, Feb. 20, 4 inn I ton RR. Co.......................................................... 470 1866, Feb. 19, Cairo & Fulton RR. Co.......... 471 1875, Feb. 18, Railroads, Fences, etc.....519, 522 1875, March 24, §§ 3, 6, Charter of City of Kansas..... 20 Rev. Stat. 1879, § 789, Consolidation of Railroads.....595 North Carolina, 1870, March 28, § 11, Mechanics’ Liens............ .127,131 1872, Feb. 8, Railroads..................128, 131 1872, Feb. 12, Battle’s Revisal................... 131 1872, Feb. 12, ' Private Corporations............. 131 ( Sales under Corporation Mort- 1873, March 1, j 1 ( gages....................129, 131 Rev. Code 1855, ch. 26, Executions......................... 135 Battle’s Revisal, 861, Repealing Act. ................... 136 Pennsylvania, 1705,1 Brigh. Purd. Dig. 483, § 122, 'J 1705, 484, § 123, I 1836, 656, § 107, > Execution Sales..449 1836, 658, § 119, 1836, 658, §122, J 1807, 535, § 15, Ejectment, Judgment 446 1853, 2 Brigh. Purd. Dig. 1244, § 5, Real Estate........... 446 TABLE OF STATUTES CITED. xxv Page Pennsylvania, 1871, 1266, § 6, Replevin......... 486 Wisconsin, Rev. Stat. 2669, Pleading, Variance......... 367 (C.) Statute of a Territory. Dakota, Code Civ. Proc. § 641, . Real Actions, Counter-claim... 407 (D.) English Statutes. 1688, 1 W. & M., ch. 5, Mutiny, Desertion.......... 499 1696-7, 8 & 9 W. III., ch. 11, §§ 7, 8, Abatement of Actions.287, 360 1708, 7 Anne, ch. 4, Mutiny, Desertion........... 499 1711, 10 Anne, ch. 13, Mutiny, Desertion........... 499 1881. 45 & 46 Viet., ch. 61, § 14, Bills of Exchange........... 383 9 Statutes of the Realm, 58, 576, Desertion..................*..... 499 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1884. PACIFIC RAILROAD cMEA^VAL CASES. A' ~ UNION PACIFIC RAILWAY %CWANY v. MYERS. IN EBBOB TO THE CIRCUIT £(J&BT ^JfHE UNITED STATES FOB THE ^tSYRICT^l' KANSAS. SAME v. CITY OF KANSAS. IN EBBOB TO THE CIBCUIT COUBT OF THE UNITED STATES FOB THE WESTERN DISTRICT OF MISSOUBI. SAME v. KNUTH. IN EBBOB TO THE CIBCUIT COUBT OF THE UNITED STATES FOB THE DISTRICT OF NEBEASKA. SAME v. HARWOOD. IN EBBOB TO THE SUPREME COUBT OF THE STATE OF KANSAS. TEXAS & PACIFIC RAILWAY COMPANY v. Mc-ALLISTER. VOL. CXV—1 2 OCTOBER TERM, 1884. Syllabus. TEXAS & PACIFIC RAILWAY COMPANY v. KIRK SAME v. MURPHY. IN ERROR TO THE SUPREME COURT OE THE STATE OF TEXAS. Argued November 20, 21, 1884.—Decided May 4, 1885. Corporations of the United States, created by and organized under acts of Congress, are entitled, under the Act of March 3, 1875, 18 Stat. 470, to , remove into the Circuit Courts of the United States suits brought against them in State courts on the ground that such suits are suits “ arising under the laws ox the United States.” The Union Pacific Railway Company is, as to its road, property and franchises in Kansas, a corporation de facto created and organized under acts of Congress ; and as to the same in Nebraska, it is strictly and purely a corporation deriving all its corporate and other powers from acts of Congress The Texas & Pacific Railway Company is also a corporation, deriving its corporate powers from acts of Congress. These companies are entitled, under the Act of March 3, 1875, to have all suits brought against them in State courts removed to Circuit Courts of the United States, on the ground that they are suits arising under the laws of the United States. An objection that a petition for removal was not verified by oath, or that there was delay in filing it, may be waived by delay in taking the objection. In Kansas, a proceeding before a Mayor of a city and a jury to take land for widening a street, and to ascertain the value of the land taken, and to assess the cost thereof on the property benefited, is not, while pending there, a suit at law within the meaning of the Act of March 3, 1875, authorizing the removal of causes; but it becomes such a suit at law when transferred to the Circuit Court of the State on appeal. In proceedings, under the Act of the Legislature of Kansas, passed in 1875, for widening the streets of Kansas City, the Union Pacific Railway Company had a controversy distinct and separate from like controversies of other owners of land, affected by the proceedings : and the fact that the removal of the controversy of the Railway Company to the Circuit Court of the United States may have an indirect effect upon the proceedings in the State courts as to the other owners, furnishes no good reason for depriving the Company of its right to remove its suit. The questions argued and decided in these cases arose under the statutes regulating the removal of causes from State courts. The facts in regard to each case are stated in the opinion of the court. PACIFIC RAILROAD REMOVAL CASES. 3 Opinion of the Court. J/?. John F. Dillon for Union Pacific Railway Company. J/r. Walter D. Davidge, Ur. John F. Dillon, Ur. John C. Brown, and Ur. Wager Swayne for Texas & Pacific Railway Company. Ur. W. Hallett Phillips for all defendants in error. Ur. A. H. Garland for defendants in error in Texas & Pacific cases. Ur. T. P. Fenlon filed a brief for Myers, defendant in error. Ur. W. H. Uunger and Ur. F. H. Gray filed a brief for Knuth, defendant in error. Me. Justice Bradley delivered the opinion of the court. The principal question involved in these cases is whether a suit brought in a State court against a corporation of the United States may be removed by such corporation into the Circuit Court of the United States, on the ground of its being a corporation organized under a law of the United States. The plaintiff in error in four of the cases is the Union Pacific Railway Company, and in the other three cases is the Texas & Pacific Railway Company. They contend that they have such a right of removal, either under the removal act of July 27,1868, 15 Stat. 227, now forming § 640 of Revised Statutes; or under the act of March 3, 1875, entitled “An Act to determine the jurisdiction of Circuit Courts of the United States, and to regulate the removal of causes from State courts, and for other purposes,” 18 Stat. 470; or both. Whether the corporations of the United States, organized under acts of Congress, have or have not this right of removal is the principal question in these cases. The suits were all brought in State courts against the said corporations severally. In the first case, Myers, a switchman at Armstrong, in Kansas, in the employ of the Union Pacific Railway Company, sued the company for an injury alleged to 4 OCTOBER TERM, 1884. Opinion of the Court. have been sustained by him through the carelessness of the company or its agents, in the construction of the coupling of its cars. The company filed an answer, and at the same time a petition for the removal of the cause to the Circuit Court of the United States for the District of Kansas, and the proper bond required by the law. The petition for removal stated that the petitioner was a corporation other than a banking corporation, and organized under a law of the United States, namely, an act of Congress entitled ‘‘An Act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the government the use of the same for postal, military, and other purposes,” approved July 1st, 1862; and that, in accordance with said act and the acts amendatory and supplemental thereto, the petitioner had exercised and did exercise its corporate functions and powers. The petition then proceeded as follows: “ That February 1st, 1880, pursuant to sec. 16 of the said act of July 1, 1862, and of the act of July 2d, 1864, the Kansas Pacific Railway Company, a corporation created by the Territorial Legislature of Kansas, and organized under the laws of said Territory, and the Denver Pacific Railway & Telegraph Company, a corporation created and organized under the laws of the Territory of Colorado, both of which said companies are mentioned in said acts of Congress and their said railroads by said acts made a part of the Union Pacific Railroad system, were, by agreement, consolidated with the Union Pacific Railroad Company. Your petitioner and said consolidated company, by agreement, as by said acts authorized, assumed and adopted the name of The Union Pacific Railway Company, which company, consolidated, assumed, took, and from thenceforth had and has, by virtue of said agreement of consolidation, possession and ownership of all the railroads and other property, real and personal, of said constituent companies, and has and does operate and manage the same under and by authority of said acts of Congress, and is governed and controlled by said acts, and is to all intents and purposes and in fact a corporation under the laws of the United States. PACIFIC RAILROAD REMOVAL CASES. 5 Opinion of the Court. “ That the plaintiff, Abram Myers, has sued your petitioner, the Union Pacific Railway Company, process in this suit having been served on its agents, and your petitioner has appeared thereto and filed its answer; that the matter and amount in this suit above entitled exceeds, exclusive of costs, the sum or value of five hundred dollars; that your petitioner has a defence to said action arising under and by virtue of the aforesaid laws of the United States ; that said suit has not been tried, nor has it been ready or stood for trial, and the present is the first term of the court at which it could have been tried.” The petition concluded with the proffer of the proper bond, and a prayer for an order of removal, and that the court would proceed no further in the cause. The bond was approved and an order of removal was made. On filing the record in the Circuit Court of the United States, a motion was made to remand the cause to the State court, and it was remanded accordingly, the circuit judge holding that the suit was not one arising “ under the Constitution and laws of the United States,” within the meaning of the act of Congress of March 3, 1875, and that a suit cannot be removed from a State to a federal court upon the sole ground that it is a suit by or against a corporation organized under the laws of the United States. To the judgment remanding the cause, the writ of error was sued out in this court. The next case, Union Pacific Railway Company v. The City of Kansas, was a proceeding instituted by the common council of said city by ordinance passed in April, 1880, for widening a street through the depot grounds of the company, and thereby taking a portion of its said grounds and the property of many other persons. A jury was summoned in November, 1880, before the mayor, to inquire and find the value of the property taken for the street, and to assess the amount upon surrounding property benefited thereby. On December 12, 1880, this jury found the value of the company’s property taken equal to $7,305, and assessed, as benefits, upon the remaining property of the company the sum of $12,325 towards paying the damages for widening the street. The verdict was confirmed by the mayor and common council, February 25,1881. The laws 6 OCTOBER TERM, 1884. Opinion of the Court. of Missouri give to any party, dissatisfied with the award of the jury in such cases, an appeal to the Circuit Court of Jack-son County (in which Kansas City is situated), and the Union Pacific Railway Company, and some other dissatisfied parties, filed separate appeals, and the proceedings were certified to the said court, where the said appeals were by the law directed to be tried “ in all respects, and subject to the same rules and the same law, as other trials had in the Circuit Court, and the same record thereof made and kept.” After the case was certified to the Circuit Court of Jackson County, the company in due time, April, 1881, filed a petition for removal of the case to the Circuit Court of the United States for the Western District of Missouri. The petition, as in the case of Myers, set out the incorporation of the company, and the consolidation of the three companies before mentioned under the acts of Congress before referred to, by the name of The Union Pacific Railway Company. The petition then proceeds to state as follows : “And your petitioner, by agreement of said constituent companies, succeeded to, had, and possessed all the rights and privileges and property, real and personal, which was of said constituent companies, or either of them, and that at the time of commencement of this proceeding your petitioner had owned and possessed, exclusive of all other rights and claims, the tract of land described in said proceeding, as follows: ” (it then describes the land of the company taken for the street, and then states as follows :) “ and that the same had been acquired by the Kansas Pacific Railway Company for depot and other railway purposes by authority of law, and that your petitioner held said land for said purposes, and was occupying the same in part for such purposes at the time of the commencement of the proceedings, and was about to appropriate the residue thereof to such use, the increase of business of your petitioner making it imperatively necessary that it should be so occupied. “ Your petitioner distinctly avers that it is a corporation, not banking, organized under the laws of the United States; that it holds and possesses said property pursuant to such laws; that it has a defence in this action arising under and by virtue of PACIFIC RAILROAD REMOVAL CASES. 7 Opinion, of the Court. the laws of the United States hereinbefore referred to; and your petitioner desires that said cause may be removed into said Circuit Court of the United States for trial pursuant to section 640 of the Revised Statutes of the United States. Your petitioner further states that the matter in dispute in this cause, in which your petitioner is interested, exceeds the sum of five hundred dollars, exclusive of costs; and further, that this suit has not been tried, but is now pending for trial on appeal in the Circuit Court of Jackson County, Missouri.” The petition concluded with the ordinary proffer of a bond and prayer for removal of the case, &c., and an order of removal was made by the State court. Motion was then made to the Circuit Court of the United States to remand the cause, and that court, after holding the motion under consideration for some time, gave judgment to remand, which judgment is brought here by writ of error. Before rendering judgment, the Circuit Court of the United States allowed the company to file an additional statement of facts for the purpose of showing that the cause was removable, averring its acceptance of the acts of Congress, and the passage of an act by the Legislature of Missouri, authorizing the company to extend its track within the limits of Missouri, and to acquire depot grounds there, which it did; and the fact that said grounds are essential to the operations of the company in carrying out the objects declared in the acts of Congress relating thereto; that the United States loaned its bonds on said portion of the road and has a lien thereon for their payment. The third suit, Union Pacific Railway Company v. Lucia Knuth, was an action brought by the defendant in error against the company in the District Court of Dodge County, Nebraska, in July, 1883, to recover damages for injuries sustained by her at the company’s depot at North Bend, between Omaha and Ogden. A petition for removal of the cause to the Circuit Court of the United States for the District of Nebraska was filed in due time, alleging the incorporation and organization of the company under and by virtue of the acts of Congress of 1862 and 1864, before referred to; that the matter in dispute exceeds $500 exclusive of costs ; that the de- 8 OCTOBER TERM, 1884. Opinion of the Court. fendant had a defence to the action arising under and by virtue of the laws of the United States, to wit, the act and amendatory act of Congress above referred to, concluding with the usual proffer of bond and prayer for removal. The order of removal was granted, the Circuit Court remanded the cause to the State court, and a writ of error brings the case here. In this case the place of injury was on the main line of the Union Pacific Railway Company. The fourth case is that of Frank Harwood, who brought a suit against the Union Pacific Railway Company in the District Court of Davis County, Kansas, in July, 1882, to recover damages for an injury received by him at the company’s depot at Junction City, Kansas, whilst loading hogs in a car. A petition for removal of the cause was filed in due time, alleging the organization of the company under the act of Congress of July 1, 1862, and the amendments thereto, and other acts of Congress; and that the petitioner had a defence arising under the laws of the United States, and concluding with tendering the proper bond, and a prayer for removal. The State court approved the bond offered, but denied the petition and proceeded with the cause. A verdict being found for plaintiff, the case was taken to the Supreme Court of Kansas by appeal. One of the reasons assigned on the appeal was the denial of the petition to remove the cause. The Supreme Court affirmed the judgment, and a writ of error to the judgment of that court (brings the case here. The three cases of the Texas and Pacific Railway Company were as follows: The first was a suit brought by A. F. McAlister against the company in the District Court of Harrison County, Texas, in April, 1879, to recover damages for an injury to the plaintiff whilst a passenger in one of the company’s trains. A petition for removal was filed in due time, alleging that the suit arose under the laws of the United States, and that the defendant was a corporation organized under and by virtue of certain acts of Congress of the United States, to wit an act entitled “ An Act to incorporate the Texas Pacific Railroad Company, and to aid in the Construction of its Road, and for other Purposes,” approved March 3,1871,16 Stat. 573, PACIFIC RAILROAD REMOVAL CASES. 9 Opinion of the Court. and an act supplementary thereto, approved May 2, 1872, 17 Stat. 59; that the petitioner had a defence to the action arising under and by virtue of a law of the United States, to wit, said act of incorporation ; that it was not a banking, but a railroad corporation authorized to construct, own and maintain a railroad to and from certain places designated in said acts of Congress; concluding with a proffer of a bond and a prayer for removal. The court approved the bond, but refused to remove the cause. The special exceptions to the petition for removal were two; first, that it did not show what the defence was, arising under and by virtue of a law of the United States; secondly, denying the allegation that the defendant was a corporation created and existing under and by virtue of acts of Congress of the United States. Afterwards the defendant filed a plea in abatement, stating that it had filed in the United States Circuit Court at Jefferson, Eastern District of Texas, a certified copy of the record of the pleadings and other papers in the cause, and had the same entered on the docket of said court, in the fall term of 1879, and that plaintiff appeared and moved to remand the cause to the State court, which motion was overruled, and the Circuit Court of the United States entertained jurisdiction of the cause; and the plaintiff agreed to a continuance of the cause in that court to the spring term of 1880; and at the spring term, 1880, procured the same to be continued, and at the fall term, 1880, appeared before said court and consented to a continuance, and at the spring term, 1881, again prosecuted his cause in said court, and continued the same. This plea was excepted to, and overruled by the State court. Judgment was rendered in favor of the plaintiff, and an appeal was taken to the Supreme Court of Texas. That court overruled the error assigned on the refusal of the District Court to remove the cause, on the ground that the defendant’s petition for removal did not set forth the defence so as to show that it was a defence arising under the laws of the United States. The court took notice also that the petition was not sworn to, but as that point was not raised by the plaintiff’s counsel, they did not consider it. The judgment of the District Court was affirmed; and the case is brought here by writ of error to the judgment of the Supreme Court. 10 OCTOBER TERM, 1884. Opinion of the Court. The second case of the Texas and Pacific Railway Company was a suit brought by Laura Kirk against the company in the District Court of the Second Judicial District of Texas, in March, 1881, to recover damages for the death of her husband, caused by the company’s cars running off the track. The petition for removal was filed in this case similar in all respects to that in the preceding case. A second petition was filed a few days later, adding an averment that the defendant had fixed its domicil and principal business office at Philadelphia, in the State of Pennsylvania, and was in contemplation of law a citizen of that State. The prayer of the petition was denied, the cause went to trial, judgment was rendered for the plaintiff, an appeal was taken, and the judgment was affirmed by the Supreme Court of Texas, upon the reasons and authority of the previous case of McAlister v. The Texas and Pacific RaiVeoay Company. The case is now here by writ of error. The third and last case of the Texas and Pacific Railway Company was a suit brought by James Murphy against the company (or rather against one of its constituent companies, and afterwards, by amendment against the company itself) in the District Court of Harrison County, Texas, in 1873, to recover damages for an injury received by the plaintiff in getting upon the cars of the company at Jonesville, Texas. The pleadings were amended from time to time on both sides, and the cause was continued, until finally an amended original petition was filed in October, 1878, followed by a petition for removal filed November 1, 1878. The prayer of the petition was denied. The case was afterwards tried, and a verdict and judgment rendered for the plaintiff; and in May, 1883, this judgment was affirmed by the Supreme Court of Texas on appeal. On the question of removal the court followed the decision in the McAlister case above stated. No question was raised in this case on account of the time at which the petition for removal was filed. The application for removal was treated by the court as made under § 640 of the Revised Statutes. With some diversification of details, it will be perceived that all of these cases depend principally on two questions: First, whether the fact that the plaintiffs in error are corpo* PACIFIC RAILROAD REMOVAL CASES. 11 Opinion of the Court. rations of the United States created by act of Congress makes the suits against them “ suits arising under the laws of the United States,” within the meaning of the second section of the act of March 3,1875, before referred to, so as to be removable from the State into the federal courts for that cause: and, Secondly, whether, if not removable on that ground, they are removable under § 640 of the Revised Statutes, upon the allegation contained in the several petitions of removal, that the defendant has a defence to the action arising under and by virtue of a law of the United States, naming, in some cases, the act of incorporation as the law referred to. We are of opinion that corporations of the United States, created by and organized under acts of Congress like the plaintiffs in error in these cases, are entitled as such to remove into the Circuit Courts of the United States suits brought against them in the State courts, under and by virtue of the act of March 3, 1875, on the ground that such suits are suits “ arising under the laws of the United States.” We do not propose to go into a lengthy argument on the subject; we think that the question has been substantially decided long ago by this court. The exhaustive argument of Chief Justice Marshall in the case of Osborn v. Bank of the United States, 9 Wheat. 738, 817-828, delivered more than sixty years ago, and always acquiesced in, renders any further discussion unnecessary to show that a suit by or against a corporation of the United States is a suit arising under the laws of the United States. That argument was the basis of the decision on the jurisdictional question in that case. The precise question, it is true, was as to the power of Congress to authorize the bank to sue and be sued in the United States courts. The words of its charter were, that the bank should be made able and capable in law to “sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all State courts having competent jurisdiction, and in any Circuit Court of the United States.” The power to create such a jurisdiction in the federal courts rested solely on the truth of the proposition, that a suit by or against the bank would be a suit arising under the laws of the United States; for the Constitution confined the judicial power of the United 12 OCTOBER TERM, 1884. Opinion of the Court. States to these four classes of cases, namely: first, to cases in law and equity, arising under the Constitution, the laws of the United States, and treaties made under their authority; secondly, to cases affecting ambassadors, other public ministers and consuls; thirdly, to cases of admiralty and maritime jurisdiction; fourthly, to certain controversies depending on the character of the parties, such as controversies to which the United States are a party, those between two or more States, or a State and citizens of another State, or citizens of different States, or citizens of the same State claiming lands under grants of different States, or a State or its citizens and foreign States, citizens or subjects. Now, suits by or against the United States Bank could not possibly, as such, belong to any of these classes except the first, namely, cases in law and equity arising under the Constitution, laws or treaties of the United States; and the Supreme Court, as well as the distinguished counsel who argued the Osborn case, so understood it. Unless, therefore, a case in which the bank was a party was for that reason a case arising under the laws of the United States, Congress would not have had the power to authorize it to sue and be sued in the Circuit Court of the United States. And to this question, to wit, whether such a case was a suit arising under the laws of the United States, the court directed its principal attention. But as it was objected that several questions of general law might arise in a case, besides that which depended upon an act of Congress, the court first disposed of that objection, holding that, as scarcely any case occurs every part of which depends on the Constitution, laws or treaties of the United States, it is sufficient for the purposes of federal jurisdiction if the case necessarily involves a question depending on such Constitution, laws or treaties. The Chief Justice then proceeds as follows: “We think, then, that when a question to which the judicial power of the Union is extended by the Constitution, forms an ingredient of the original cause, it is in the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or law may be involved in it. “ The case of the bank is, we think, a very strong case of PACIFIC RAILROAD REMOVAL CASES. 13 Opinion of the Court. this description. The charter of incorporation not only creates it, but gives it every faculty which it possesses. • The power to acquire rights of. any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter, and that charter is a law of the United States. This being can acquire no right, make no contract, bring no suit which is not authorized by a law of the United States. It is not only itself the mere creature of a law, but all its actions and all its rights are dependent on the same law. Can a being, thus constituted, have a case which does not arise literally as well as substantially under the law ? Take the case of a contract, which is put as the strongest against the bank. “ When a bank sues, the first question which presents itself, and which lies at the foundation of the cause, is, has this legal entity a right to sue? Has it a right to come, not into this court particularly, but into any court? This depends on a law of the United States. The next question is, has this being a right to make this particular contract ? If this question be decided in the negative, the cause is determined against the plaintiff; and this question, too, depends entirely on a law of the United States. These are important questions, and they exist in every possible case. . . . “ The question forms an original ingredient in every cause. Whether it be in fact relied on or not, in the defence, it is still a part of the cause, and may be relied on. The right of the plaintiff to sue cannot depend on the defence which the defendant may choose to set up. His right to sue is anterior to that defence, and must depend on the state of things when the action is brought. The questions which the case involved, then, must determine its character, whether those questions be made in the cause or not.” pages 823, 824. “ It is said that a clear distinction exists between the party and the cause: that the party may originate under a law with which the cause has no connection; and that Congress may, with the same propriety, give a naturalized citizen, who is the mere creature of law, a right to sue in the courts of the United States, as give that right to the bank. 14 OCTOBER TERM, 1884. Opinion of the Court. . “ This distinction is not denied; and if the act of Congress was a simple act of incorporation, and contained nothing more, it might be entitled to great -consideration. But the act does not stop with incorporating the bank. It proceeds to bestow upon the being it has made all the faculties and capacities which that being possesses. Every act of the bank grows out of this law, and is tested by it. To use the language of the Constitution, every act of the bank arises out of this law.” page 827. If the case of Osborn v. The Bank of the United States, is to be adhered to as a sound exposition of the Constitution, there is no escape from the conclusion that these suits against the plaintiffs in error, considering the said plaintiffs as corporations created by and organized under the acts of Congress referred to in the several petitions for removal in these cases, were and are suits arising under the laws of the United States. An examination of those acts of Congress shows that the corporations now before us, not only derive their existence, but their powers, their functions, their duties, and a large portion of their resources, from those acts, and, by virtue thereof sustain important relations to the Government of the United States. A question is made in the cases coming from Kansas about the constitution of the company owning and controlling the line of railroad running through that State. The allegations of the petition for removal in the Myers case (and the others are substantially the same) are: That on February 1, 1880, pursuant to § 16 of the Act of Congress of July 1, 1862, and § 16 of the act of July 2, 1864, the Kansas Pacific Railway Company, a corporation created by the territorial legislature of Kansas, and organized under the laws of said Territory, and the Denver Pacific Railway and Telegraph Company, a corporation created and organized under the laws of the Territory of Colorado, both of which companies are mentioned in the said acts of Congress, and their roads by said acts made a part of the Pacific Railroad system, were by agreement consolidated with the Union Pacific Railroad Company, and said consolidated company assumed and adopted the name of The PACIFIC RAILROAD REMOVAL CASES. 15 Opinion of the Court. Union Pacific Railway Company, which assumed, took, and thenceforth has had, by virtue of said agreement of consolidation, possession and ownership of all the railroads and other property, real and personal, of said constituent companies; and has operated and managed the same under and by authority of said acts of Congress, and is governed and controlled by said acts, and is to all intents and purposes and in fact a corporation under the laws of the United States. These allegations, if true (and they must be taken to be so on the application for removal), show that the present corporation, the Union Pacific Railway Company, which is the corporation sued, and which appears and defends the suits, is a corporation formed and organized under an act of Congress. Besides, the legislation of Congress in reference to all the companies so consolidated, in the acts of 1862 and 1864, and subsequent acts, all of which is reviewed and commented on in the opinion of this court in Ames v. Kansas, 111 U. S. 449, shows that all the said companies, before the said consolidation, had received large donations of land, subsidies, powers and privileges from Congress, and had accepted and were subject to important duties to the United States Government, and were subject to a wide control of said government both in the construction and management of their roads and works ; and one of said companies, to wit, the Union Pacific Railroad Company, was originally incorporated and organized under said acts, and was strictly a corporation of the United States, subject to the acts of Congress, and having important duties to perform to the government in the prosecution of its business. The facts that the last named company is one of the constituent elements' of the consolidated company, and that the entire system of roads now in its possession and under its charge and control constitutes one of the most comprehensive and important mediums of inter-State commerce in the country, and that in all its transactions it is subject to the supervision and control of the Government of the United States, are sufficient, it seems to us, to bring the Kansas cases, as well as the other cases, fairly within the principle of the case of Osborn v. The Bank. The organization of the company under the consolidation proceed- 16 OCTOBER TERM, 1884. Opinion of the Court. ings makes it, at least, a corporation de facto, and the legality of its constitution as a corporation will not be inquired into collaterally. It has, as we know, from the case of Ames v. Kansas, been called in question in a regular way by an information in the nature of a quo warranto, and until that, or some other case directly assailing the validity of the consolidation, is decided, the plaintiff in error must be regarded as a corporation organized under and by virtue of the laws of the United States. And the whole being, capacities, authority and obligations of the company thus consolidated are so based upon, permeated by and enveloped in the acts of Congress referred to, that it is impracticable, so far as the operations and transactions of the company are concerned, to disentangle those qualities and capacities, which have their source and foundation in these acts, from those which are derived from State or Territorial authority. With regard to transactions occurring in Nebraska, on the original line of the Union Pacific Railroad Company, it is not disputed that the present company derives all its corporate and other powers from the acts of Congress and is strictly and purely a United States corporation; and the Texas and Pacific Railway Company stands in the same predicament and occupies the same position in Texas, in relation to consolidation with State organizations, as the Union Pacific does in Kansas, and the same considerations apply to both. It was originally incorporated by the name of the Texas Pacific Railroad Company by act of Congress, approved March 3,1871, 16 Stat. 573, with power to construct a railroad from Marshall, Texas, to San Diego on the Pacific Coast, and to purchase, or consolidate with, any railroad company, chartered by Congressional, State, or Territorial authority on the same route. Under this act, and by authority of the Legislature of Texas, a consolidation was effected with the Southern Pacific Railroad Company and the Southern Transcontinental Railway Company, corporations of Texas, and by act of Congress of May 2, 1872, 17 Stat. 59, the name of the company was changed to the Texas and Pacific Railway Company. The powers, privileges and advantages given to the company, by ’Congress, and the duties imposed PACIFIC RAILROAD REMOVAL CASES. 17 Opinion of the Court. upon it, are specified in the acts referred to. It comes clearly within the reason and conclusion applied to the Union Pacific Railway Company. If we are correct, therefore, in the conclusion to which we have come, that suits by and against such corporations are “ suits arising under the laws of the United States,” then they are, in terms, embraced in § 2 of the act of March 3, 1875, and the cases now under consideration were removable to the respective Circuit Courts of the United States, to which it was sought to remove them, unless any of them were obnoxious to some other objection peculiar to the individual cases. The point suggested by the Supreme Court of Texas in the case of McAlister, that the petition was not verified by oath,, would not be tenable if it were raised by the defendant in error, since it was evidently waived by him at the time, having never been raised or mentioned in any way. The same may be said of the delay in filing the petition in the case of Murphy. See Ayers v. Watson, 113 U. S. 594. In the Kansas City case, of proceedings for widening a street. running through the depot grounds of the company at that place, brought here by writ of error to the Circuit Court of the United States, for the Western District of Missouri, it is contended by the City of Kansas, the defendant in error, first, that the consolidated railway company must be regarded as having the same status as if it were still the Kansas Pacific Railway Company, a corporation of the State of Kansas; secondly, that the case had already been tried once before the Mayor and a jury, and an appeal had been taken to the Circuit Court of Jackson County before the petition for removal was filed, and, therefore, the application came too late; and, thirdly, that the proceeding was not a separate one against the railway company, but a joint one against that company and many other persons, and the appeal of the railway company and other parties carried the whole case to the Circuit Court of Jackson County to be retried in toto ; and a removal of the case by the railway company to the Circuit Court of the United States must be a removal of the whole case, and not merely the case of the railway company, which would cast upon vol. cxv—2 18 OCTOBER TERM, 1884. Opinion of the Court. the Federal Court an administrative function in local matters, for which it was incompetent and destitute of jurisdicton. The first of these points has already received consideration. But it may be added, as bearing on this particular case, that the original Kansas company was authorized by § 9 of the Pacific Railroad act of July 1, 1862, to extend its road into the State of Missouri—that is, “to construct a railroad and telegraph line from the Missouri River, at the mouth of the Kansas River, on the south side thereof [which is in the State of Missouri], so as to connect with the Pacific Railroad of Missouri, to the aforesaid point on the one hundredth meridian of longitude,” namely, the point where the Union Pacific was to commence. This provision looked to the establishment of a continuous line of railroad from the Mississippi River, at St. Louis (the eastern terminus of the Pacific Railroad of Missouri), to the Pacific Ocean. The power assumed by Congress in giving this authority to the Kansas company was, undoubtedly, assumed to be within the power “ to regulate commerce among the several states; ” and, although by an act of the Legislature of Missouri, passed in February, 1865, the consent of that State was also given to the extension of the road into its territory, and to its connection with the Missouri road, the fact remains that the company claimed and assumed to exercise its powers under the act of Congress, as well as by the consent of the Legislature of Missouri. So that the right of appropriating the very property in question in this case was claimed under authority of an act of Congress. This circumstance adds strength to the claim of the plaintiff in error that the case was one “arising under the laws of the United States.” The second ground of objection, that the cause had been once tried before the mayor by a jury, and an appeal taken, before a petition for removal was filed, and therefore the application was too late, is answered by the reasoning of this court in the case of The Boom Company v. Patterson, 98 U. S. 403, which was a case very similar in this respect to the present. It was there held that the preliminary proceedings were in the nature of an inquest to ascertain the value of the prop- PACIFIC RAILROAD REMOVAL CASES. 19 Opinion of the Court. erty condemned, or sought to be condemned by the right of eminent domain, and was “ not a suit at law in the ordinary sense of those terms,” consequently not a “ a suit ” within the meaning of the removal acts; but that “ when it was transferred to the District Court by appeal from the award of the commissioners, it took, under the statute of the State, the form of a suit at law, and was thenceforth subject to its ordinary rules and incidents.” In that case, “ the point in issue on the appeal was the compensation to be made to the owner of the land; in other words, the value of the property taken. No other question was open to contestation in the district court.” The court, therefore, considered the case to be within the rule laid down in Gaines v. Fuentes, 92 U. S. 10, 20, in which it was held that a controversy between citizens of different States is involved in a suit whenever any property or claim of the parties, capable of pecuniary estimation, is the subject of litigation and is presented by the pleadings for judicial determination.” And, in this view, the case of Boom Co. v. Patterson was held to be removable to the federal court. That case, we think, governs the present, so far, at least, as relates to the trial before the mayor, which was in its nature an inquest of valuations and assessments, not having the character of a suit. A more embarrassing question arises under the third objection raised by the defendant in error, to wit, that the whole case relating to the widening of the street was carried before the Circuit Court of Jackson County by the. appeal, and must also be carried to the Circuit Court of the United States in the same condition if the application for a removal is sustained, whereby the latter court will be called upon to exercise administrative functions of a local character to which it is incompetent. To understand the bearing of this objection, it is necessary to inquire, first, the condition of the case in the Circuit Court of Jackson County on the appeal; and, secondly, the rules which must govern the case on its removal to the federal court, if such a removal should be effected. The condition of the case in the Circuit Court of Jackson County on the appeal depends upon the statute of Missouri 20 OCTOBER TERM, 1884. Opinion of the Court. under which the proceedings were had for widening the street. This statute was an amendment to the city charter of the City of Kansas, passed in 1875. We have carefully examined its provisions. After giving very full directions as to the preliminary proceedings, such as the ordinance for opening or widening a street, the notices to be given, the summoning of jurors, and the duties to be performed by them, the recording of their verdict, &c., § 6 declares : “ In case the city, or any defendant to such proceedings, shall feel aggrieved by the verdict of the jury, such party so aggrieved may, within twenty days from the time the verdict of the jury is confirmed by the common council, appeal to the circuit court in and for the County of Jackson in this State. If the appeal is taken by either party, the same shall be taken and perfected by the filing with the clerk of the city, within the time aforesaid, such an affidavit as is required by law, in appealing from the judgment of a justice of the peace. If any appeal is so taken, the clerk of the said city shall, within six days from the taking of such appeal, file a complete transcript of the proceedings, and all papers filed and used in the trial, certified by him, with the clerk of the circuit court; and said circuit court shall thereupon become possessed of the cause, and said cause, unless dismissed, shall be tried de novo in said court, and the parties thereto shall have a speedy trial thereof, and to that end said causes shall have precedence over all other causes, and if necessary to a full determination of any question arising in the said cause, the circuit court shall have power to make and bring in other parties to such proceedings, on service of notice upon them for six days, or by publishing a notice to them for the same length of time, in any daily newspaper printed in said City of Kansas; and the parties so made by either kind of notice, and all persons claiming under them, shall be bound by such proceedings; . . . and the judge of said circuit court shall have power, and it shall be his duty to hold a sitting of his court for the speedy trial thereof, at the court house in said city, at any time in vacation, and summon a jury before him (unless a jury is waived) for the trial of such appeals only, such trials to be had in all respects, and subject to the same rules and the same law as PACIFIC RAILROAD REMOVAL CASES. 21 Opinion of the Court. other trials had in the circuit court, and the same record thereof made and kept. The verdict of the jury, or the finding of the circuit judge sitting as a jury, as the case may be, shall conform in all respects to the requirements of section three of this act for the government of the jury making the first assessment, and the verdict shall have the same force and effect as is provided in regard to said first verdict, and shall be binding on the parties; and the assessments against private property shall be paid in the same time, and until paid bear the same rate of interest as is above provided; and the amount assessed by the jury against property shall be a lien on the several parcels of property, charged from the day the ordinance for the improvement takes effect until paid. . . . On appeal under this section the jury shall consist of six men, freeholders of the city, and be chosen by the judge ; and any finding or verdict in that court shall, unless set aside for good cause, be confirmed, and judgment entered thereon, that the city have and hold the property sought to be taken for the purposes specified in the ordinance providing for the improvement, and pay therefor the amount assessed against the city, and full compensation assessed therefor, and that the several lots and parcels of private property assessed to pay compensation by the verdict or finding stand charged and be bound' respectively for the payment of assessments, with interest, as provided in this act. . . . ” We have not been furnished by the counsel on either side with reference to any decisions of the Missouri courts giving construction to this section. Whether the direction that the cause shall be tried de novo requires that all the valuations and assessments are to be retried, or only those affecting the appellants, is not expressly stated. The principle of valuation and assessment to be followed by the jury is laid down in § 3 of the act, as follows: “ Sec. 3. The jury shall first ascertain the actual damages done to each person or corporation in consequence of the taking of their property for such purposes, without reference to the proposed improvement, as the just compensation to be made therefor; and, second, to pay such compensation, assess against 22 OCTOBER TERM, 1884. Opinion of the Court. the city the amount of benefit to the city and public generally, inclusive of benefit to any property of the city, and against the several lots and parcels of private property deemed benefited, as determined according to the last section, by the proposed improvement, the balance of such compensation; each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance as the benefit to each lot or parcel bears to the whole benefit to all the private property assessed. Parties interested may submit proof to the jury, and the latter shall examine personally the property to be taken and assessed. . . .” From this it would seem that the balance of damages for .property taken, after deducting the amount to be paid by the city, is to be divided and assessed pro rata upon those whose property is benefited, in proportion to the benefit to each. But each piece of property taken is valued by itself, “ without reference to the proposed improvement,” and the amount of benefit to each piece of property benefited is ascertained separately without reference to the other pieces benefited. It is only after this has been done that the aggregate amounts are ascertained and the damages are assessed pro rata against the pieces of property benefited according to the benefit to each, which is the result of a mere arithmetical calculation. In the State Circuit Court the jury ascertains and finds all these facts, and reports them in one general verdict. What, then, is the relation in which the railway company, as an appellant, stands towards the city of Kansas in this litigation ? Clearly, it has two distinct issues, or grounds of controversy ; first, the value of its property taken for the street; secondly, the amount of benefit which the widening of the street will create to its remaining property, not so taken. It may have a third issue, and, judging from the course of the argument, it has a third issue, still more important to it than either of the others, to wit, the right of a city to open a street at all across its depot grounds. Now this controversy involving these three issues, is a distinct controversy between the company and the city. It may be settled in the same trial with the other appeals, and by a single jury; but the controversy is PACIFIC RAILROAD REMOVAL CASES. 23 Opinion of the Court. a distinct and separate one, and is capable of being tried distinctly and separately from the others. If the State Circuit Court had equity powers, it might direct a separate issue for the trial of this controversy by itself. It might try the other appeals without a jury (the parties waiving a jury), and try this controversy by a jury. If this view of the subject is correct, we see no difficulty in removing the controversy between the city of Kansas and the railway company for trial in the Circuit Court of the United States. The proceedings for widening the street, pending in the State court, may have to await the decision of the case in the federal court; and the result of those proceedings may be materially affected by the decision of that case; but that consideration does not affect the separate and distinct character of the controversy between the city and the railway company, although it might raise a question of proper parties in a pure chancery proceeding as between the city and the company. This controversy is to all intents and purposes “ a suit.” The indirect effect upon the general proceedings for widening the street which would ensue in case the federal court should determine that the City of Kansas had no right to widen the street in the company’s depot grounds, or that the valuation of its property was much too small, or the assessment of benefits against it was much too large, furnishes no good reason for depriving the company of its right to remove its suit into a United States court. We think that the case was removable to that court under the act of March 3, 1875. This disposes of all the cases now before us, and renders it unnecessary to inquire whether the allegations in the several petitions of removal were, or were not, sufficient to bring the cases within Rev. Stat. § 640; or whether this section still remains in force. The judgments are reversed in all the cases, and the causes will be remanded, with instructions to enter judgments in accordance with this opinion. Mr. Chief Justice Waite, with whom concurred Mr. Justice Miller, dissenting. 24 OCTOBER TERM, 1884. Dissenting Opinion : Waite, C.J., Miller, J. I am unable to agree to these judgments. In my opinion Congress did not intend to give the words “ arising under the Constitution or laws of the United States,” in the act of 1875, the broad meaning they have when used by Chief Justice Marshall in the argument of the opinion in Osborn n. Bank of the United States, 9 Wheat. 738. I do not doubt the power of Congress to authorize suits by or against federal corporations to be brought in the courts of the United States. That was decided in Osborn’s case, and with it I have no fault to find. Neither do I doubt that Congress did, in the charters under which these corporations exist, authorize suits by or against them to be brought in the courts of the United States as well as in the courts of the States; but I cannot believe that, if the charters had given jurisdiction to the courts of the United States in only a limited class of actions, and had provided that in all others the suits must be brought in the courts of the proper State, the act of 1875 would have extended the jurisdiction of the courts of the United States to all suits by or against such corporations when the value of the matter in dispute exceeded $500. The acts of incorporation made no provision for the removal to the courts of the United States of suits begun in a State court. The act of July 27, 1868, ch. 255, § 2, 15 Stat. 227, now Rev. Stat. § 640, did, however, give authority for that purpose in suits brought against the company in a State court “ upon the petition of such defendant, verified by oath, stating that such defendant has a defence arising under or by virtue of the Constitution or of any treaty or law of the United States.” If all suits by or against, and all defences by, a federal corporation necessarily arise under the laws of the United States “ because the charter of incorporation not only creates it, but gives it every faculty which it possesses,” why require the corporation, when asking for a removal, to cause an oath to be filed with its petition that it has a defence in the suit which arises under the Constitution or laws ? If, “ because the power to acquire rights of any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter, and HADDEN v. MERRITT. 25 Opinion of the Court. that charter a law of the United States,” every suit by or against, and every defence to such a suit by, a federal corporation must arise under the laws of the United States, why require it to set forth in its petition for removal that its defence does arise under such a law ? If such a corporation cannot “ have a case which does not arise literally, as well as substantially, under the law,” what the necessity for saying more than that it is such a corporation ? The act of 1868, Rev. Stat. § 640, related specifically to this class of corporations and this class of suits, and it shows distinctly that the words “ arising under the laws of the United States” were there used in a restricted sense. I see no evidence of any intention by Congress to use them in any other sense in the act of 1875, when applied to the same kind of suits and to the same kind of corporations. I am authorized to say that Mr. Justice Miller unites with me in this dissent. HADDEN & Others v. MERRITT, Collector. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Argued April 23,1885.—Decided May 4, 1885. The value of foreign coins, as ascertained by the estimate of the Director of the Mint, and proclaimed by the Secretary of the Treasury, is conclusive upon Custom House officers and importers. This was a suit to recover back duties alleged to have been illegally exacted. The facts are stated in the opinion of the court. Mr. Mason IT. Tyler for plaintiff in error. Mr. Solicitor-General submitted on his brief. Mr. Justice Matthews delivered the opinion of the court. This was an action brought by plaintiffs in error against the 26 OCTOBER TERM, 1884. Opinion of the Court. Collector of the Port of New York, to recover an excess of duties, alleged to have been illegally exacted and paid under protest. A verdict was returned for the defendant under instructions to that effect by the court, and judgment rendered accordingly. To this ruling of the court exceptions were duly taken, and it is now assigned for error. The plaintiffs’ case was this: In the year 1879 they imported from China several invoices of merchandise, subject to an ad valorem duty, the value of which was stated in the invoices in Mexican silver dollars, the currency of the country whence the goods were exported. In converting the value of the invoices, as expressed therein, from Mexican silver dollars into the value by which the actual ad valorem duty upon them was to be ascertained, the dutiable value was arrived at in each case by estimating the value of the Mexican dollar in accordance with the value of such coin as estimated by the director of the mint, and proclaimed by the Secretary of the Treasury on the 1st day of January of the year during which the importations were made; and the value of the Mexican dollar so ascertained, estimated and proclaimed, was $1.01^, and duties were assessed upon the importations accordingly. The plaintiff offered to prove that this valuation of the Mexican dollar, as estimated and proclaimed, was erroneous in this, to wit, that it was based on the value of the Mexican dollar as compared with the silver dollar of the United States, whereas it ought by law to have been estimated and proclaimed by relation to the value of the gold dollar of the United States, and that this would have diminished the dutiable value of the goods imported, by the difference between from cents to 86TV cents, and 101^ cents, as the value of the Mexican dollar, varying, according to the dates of the several importations, with the commercial difference in value between gold and silver. The evidence offered on this point was rejected, and the ruling of the court, in its instruction to the jury to return a verdict for the defendant, was based on the proposition that, in assessing the duties collected on the value of the invoices, reduced from Mexican silver dollars to the money of account of the United States, the collector and importer were concluded by HADDEN v. MERRITT. 27 Opinion of the Court. the estimate of the director of the mint, proclaimed by the Secretary of the Treasury, and then in force. In opposition to that, it is contended that such estimate is not conclusive, in a case where it can be shown that it is based on the value of the foreign silver coin computed in terms of the silver dollar, instead of the gold dollar, of the coinage of the United States, in violation, it is argued, of the statutory rule prescribed for making such estimate, which requires that the value of the foreign coin, so estimated, shall be expressed in the money of account of the United States, the standard unit of value of which is assumed to be the gold dollar and not the silver dollar. Section 2838 Rev. Stat, requires all invoices of merchandise, subject to a duty ad valorem, to be made out in the currency of the place or country from whence the importation shall be made, and that they shall contain a true statement of the actual cost of such merchandise in such foreign currency or currencies, without any respect to the value of the coins of the United States, or of foreign coins, by law made current within the United States in such foreign place or country. Section 3564 Rev. Stat, is as follows: “ The value of foreign coin, as expressed in the money of account of the United States, shall be that of the pure metal of such coin of standard value; and the values of the standard coins in circulation of the various nations of the world shall be estimated annually by the director of the mint and be proclaimed on the first day of January by the Secretary of the Treasury.” The value of foreign coins, as ascertained by the estimate of the director of the mint and proclaimed by the Secretary of the Treasury, is conclusive upon custom-house officers and importers. No errors alleged to exist in the estimate, resulting from any cause, can be shown in a judicial proceeding, to affect the rights of the government or individuals. There is no value, and can be none, in such coins, except as thus ascertained ; and the duty of ascertaining and declaring their value, cast upon the Treasury Department, is the performance of an executive function, requiring skill and the exercise of judgment and discretion, which precludes judicial inquiry into the correctness of 28 OCTOBER TERM, 1884. Opinion of the Court. the decision. If any error, in adopting a wrong standard, rule, or mode of computation, or in any other way, is alleged to have been committed, there is but one method of correction. That is to appeal to the department itself. To permit judicial inquiry in any case is to open a matter for repeated decision, which the statute evidently intended should be annually settled by public authority ; and there is not, as is assumed in the argument of the plaintiff in error, any such positive and peremptory rule of valuation prescribed in the statute, as serves to limit the discretion of the Treasury Department in making its published estimate, or would enable a court to correct an alleged mistake or miscalculation. The whole subject is confided by the law exclusively to the jurisdiction of the executive officers charged with the duty; and their action cannot be otherwise questioned. Such was the principle announced in the case of Cramer v. Arthur, 102 U. S. 612. It was there said, “ That valuation, so long as it remained unchanged, was binding on the collector and on importers—just as binding as if it had been in a permanent statute, like the statute of 1846, for example. Parties cannot be permitted to go behind the proclamation, any more than they would have been permitted to go behind the statute, for the purpose of proving, by parol or by financial quotations in gazettes, that its valuations are inaccurate.- The government gets at the truth as near as it can, and proclaims it. Importers and collectors must abide by the rule as proclaimed. It would be a constant source of confusion and uncertainty if every importer could on every invoice, raise the question of the value of foreign moneys and coins,” pages 616, 617. . . . “If existing regulations are found to be insufficient, if they lead to inaccurate results, the only remedy is to apply to the President, through the Treasury Department, to change the regulations.” Page 619. There was no error in the ruling of the Circuit Court, and the judgment is Affirmed. WHEELER v. NEW BRUNSWICK, &c., R.R. CO. 29 Statement of Facts. WHEELER & Others v. NEW BRUNSWICK & CANADA RAILROAD COMPANY. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CONNECTICUT. Argued April 16, 1885.—Decided May 4,1885. A, by letter dated January 31, acknowledged to B, Vice-President of C, a Corporation, that he had bought of him as representative of C, one thousand tons of old rails for delivery before August 1, and also two to six hundred tons for delivery between August 1 and October 1. B, by letter of same date, signed in the corporate name, B, Vice-President, accepted the order, and agreed to deliver the rails. On the 17th February B wrote A, enclosing a corporate ratification of the sale which stated the ton as “ per ton of 2,000 pounds.” A replied February 28 that he understood at the time of the sale, and still understood the sale to be “absolute, final, unconditional,” needing no ratification, and that the number of pounds in each ton under the contract “ was not 2,000 but 2,240.” C made no answer before June 14, when it notified A that it had 1,000 tons old rails ready for delivery, and that without waiving its rights under the contract, to avoid dispute it made the tender, “ at gross weight of 2,240 lbs. to the ton.” A replied that he did “not recognize the existence of any such contract of sale,” and declined to designate a place for delivery. The court below found that B had authority to make the contract, and that each party at the time of its making understood the word “ ton ” to mean a ton of 2,240 pounds. On these facts, Held, (1) That there was a legal contract between the parties ; (2) That 0 was not estopped from setting it up against A ; (3) That the contract was not repudiated and terminated by C in such manner as to discharge A from further obligation ; (4) That A was bound to accept from C, between August 1 and October 1, any amount of rails between the limits of two hundred tons and six hundred tons. This was an action at law brought by defendant in error, as plaintiff below, to recover damages of plaintiffs in error, for refusal to receive a quantity of old rails under a contract. The facts which make the case are stated in the opinion of the court. Mr. J. K. Beach and Mr. E. J. Phelps for plaintiffs in error. Mr. John W. Alling and Mr. C. B. Ingersoll for defendant in error. 30 OCTOBER TERM, 1884. Opinion of the Court. Mr. Justice Miller delivered the opinion of the court. The case was submitted to the court without a jury, and the question to be decided here is, whether on the finding of facts the judgment for plaintiff below is right. The action was brought by the railroad company on the following agreement: “ New Haven, JaBy 31,1880. James Murchie, Esq., H Predt N. Brunswick de Canada R. R. Dear Sir: We have this day bought of you, as representative of the New Brunswick & Canada R. R. Co., one thousand tons old rails, for delivery in New York or New Haven (at our option), at $30, without duty, and delivery to be before Aug. 1st; and also two (2) to six hundred tons, for delivery in New York or New Haven, between August 1st and October 1st, at $28, without duty. Terms in each case cash ag’st B. L. and insurance policy in satisfactory company. Very resp’y, E. S. Wheeler & Co.” “ New Haven, Jarty 31, ’80. S. Wheeler & Co., New Haven. We hereby accept your order of this date, and will deliver rails at place and on terms named. Resp. New Brunswick & Canada R. R. Co., James Murchie, V. Pretty There was a tender of the rails by the railroad company, and a refusal to receive or pay for them by Wheeler & Co. The court finds as a matter of fact that the contract was a valid contract, and that Murchie had authority to make it on behalf of the company. The controversy in the case grows out of the following correspondence subsequent to the making of the contract by the execution and delivery of the foregoing papers: “ St. Stephen, Feb. 17th, 1880. Mess. E. S. Wheeler & Co., New Haven. Dear Sirs: I herewith enclose a copy of resolution passed at our meeting of directors yesterday. WHEELER v. NEW BRUNSWICK, &c., R.R. CO. 31 Opinion of the Court. This confirmed the sale ‘ made by me to you ’ by the company, which was done on my arrival home. The car-wheels and chains that we had on hand were sold before I came home. We will have a large quantity by the time we ship our rails. Please acknowledge the above. Yours, truly, James Muechie. New Brunswick de Canada Railroad Company. Minute of a resolution passed at a directors’ meeting February 16, 1880. Resolved, That the following sale of old rails, made by Mr. James Murchie to Messrs: E. S. Wheeler & Co., New Haven, Conn., be confirmed: Sold Messrs. E. S. Wheeler & Co. one thousand tons of old rails, for delivery in New York or New Haven, at their option, before August the 1st next, at thirty dollars ($30) per ton of 2,000 lbs., the duty to be paid by Wheeler & Co., and also two hundred to six hundred tons, for delivery in New York or New Haven between August 1st and October 1st, at twenty-eight ($28) per ton of 2,000 lbs., the duty to be paid by Wheeler & Co. In each case cash against invoice bill of lading. Insurance policy in satisfactory company. True copy: F. H. Todd, Pres” “ New Haven, Feb. 28, 1880. James Muechie, Esq., Vice Preset New Brunswick c& Canada R. R. Co., St. Stephens, Canada. Deae Sie : We received duly your favor of the 17th inst., enclosing what purports to be a certified copy of a resolution adopted by the directors of the N. B. & C. R. R. Co. in reference to the sale of old rails made by you on behalf of that company to us on the 31st ult. We assume that this resolution was passed merely as a matter of form, and a copy has been sent to us for our information solely, as no mention was made at the time of the negotiations that you acted subject to any approval by your company. We understood then, and understand now, that the sale made at that time on behalf of your company was 32 OCTOBER TERM, 1884. Opinion of the Court. an absolute and final unconditional sale. We do not understand, further, that this resolution was forwarded to us with the view of in any way modifying that sale in any of its terms. Furthermore, we understood at the time, and now understand, that the number of pounds in each ton of this contract, there being no contrary specification when the contract was made, was not 2,000 but 2,240. Old rails, like other scrap and like pig-iron, are bought and sold by the gross ton, not only in this market but in every foreign market. The custom of the trade fixing 2,240 as the standard number of pounds in a ton of old rails is universal, and can be excluded from operating on contracts only by distinct conditions fixing some other quantity. No such conditions were mentioned in the contract of your company with us, and we look, therefore, for the delivery of the rails within the dates named in the contract of your company, and in ‘gross’ not ‘net’ tons. We make no doubt but that your understanding of that contract is in accord with ours, and that in so far as this resolution fixes a different number of pounds for each ton, that it so fixes them by an oversight on the part of the directors. We hope to hear from you at your early convenience. Very truly yours, E. S. Wheeler.” No answer was made to this letter, nor was any further correspondence had until June 14, when the railroad company notified Wheeler & Co. by letter that they had the 1,000 tons of old rails ready for delivery, and added— “ In your letter to James Murchie, as vice-president of our company, of February 28, last, you construe the contract as meaning that the ton of rails specified in that contract is 2,240 lbs., or the gross ton; now, without waiving any of our rights under that contract, but to avoid dispute, we tender you the delivery of the thousand tons at gross weight of 2,240 lbs. to the ton, and ask your determination whether the delivery shall be made at New Haven or New York. New Brunswick & Canada Railroad Co. By F. A. Pike, Special Agents WHEELER v. NEW BRUNSWICK, &c., R.R. CO. 33 Opinion of the Court. To which reply was made by the plaintiffs in error as follows: “New Haven, June 15, 1880. New Brunswick & Canada Railroad Co. Gentlemen : Your letter of yesterday, advising us that you are ready to deliver to us 1,000 tons of old rails, and asking us to designate a port of delivery, is received. As we do not recognize the existence of any such contract of sale as your letter contemplates, we have no instructions to offer upon the subject. It is true that we tried last winter to buy of you 1,000 gross tons of old rails at a price which would have netted us a large profit; but this we had to lose, as your company insisted that they were selling net tons, and no contract resulted upon which we could base our sales. Very truly yours, E. S. Wheeler & Co.” A similar correspondence took place between the parties in August, in reference to the six hundred tons tendered by the railroad company under the clause of the contract for two to six hundred tons to be delivered in that month. The court finds as a fact that each of the parties, at the time the contract was made, understood that the word tons meant tons of 2,240 pounds, and there was no misunderstanding between said persons (Wheeler and Murchie) as to the true intent and meaning of the contract. The court also finds that Murchie was duly authorized to make the contract on behalf of his company, and it rendered judgment for the plaintiff. 1. It is assigned for error that no legal contract between the parties to the action was established. 2. That, if any contract existed at any time, the defendant in error was estopped from setting it up as against the plaintiffs in error by the pleadings and by the facts proved. 3. If such contract existed, it was repudiated and terminated by the defendant in error in such manner as to discharge the plaintiffs in error from further obligation. 4. Damages were more than plaintiff was entitled to recover. As regards the first of these propositions, it is sufficient to VOL. cxv—3 34 OCTOBER TERM, 1884. Opinion of the Court. say that the Circuit Court finds as a fact that there was a contract made. It also finds other facts which establish that proposition beyond controversy, namely, that Murchie and Wheeler, who signed and delivered the papers which constituted the written agreement, had authority to do so and to bind the parties to their action. The agreement, on its face, makes a contract. The court finds that there was no mistake or misunderstanding between Wheeler and Murchie as to the number of pounds which the ton should contain. It is, therefore, to be taken, as the foundation of the whole case, that when these papers were signed and delivered at New Haven, January 31, a valid and completed contract, the one on which the suit was brought, existed between the parties to the suit. The second and third grounds of error may be considered together. What was done by the railroad company which repudiated and terminated the contract and discharged Wheeler & Co. from its obligation, or estopped the railroad company from setting it up against them ? It is to be observed that to annul or set aside this contract, fairly made, requires the consent of both parties to it, as it did to make it. There must have been the same meeting of minds, the same agreement to modify or abandon it, that was necessary to make it. All that was said or done, on which reliance is placed, for that purpose, is in the two letters, one written seventeen days after the contract was completed and the other twenty-eight days afterwards. The first of these, that of Murchie to Wheeler & Co., enclosing the resolutions of the directors of the railroad company, so far from repudiating the contract or denying its force and validity, by this resolution, in express terms, affirms it. Though the contract needed no ratification to make it binding, the company here ratifies what its vice-president had done. In doing this, it thought proper to place its own construction on the word “ ton,” as used in the contract; but neither in the resolution of the directors nor in the letter of Mr. Murchie is there the slightest intimation that a difference of opinion on this matter would be relied on as impairing the obligation of WHEELER v. NEW BRUNSWICK, &c., R.R. CO. 35 Opinion of the Court. the contract. If they believed that their construction was the right one, it was the simplest piece of justice and precaution to suggest it, leaving the question, as by law it must be left, to a court to construe, if the difference was insisted on by either party. Finding that Wheeler & Co. did not concur in this construction, the railroad company waived their view of it, and tendered performance in accordance with the view of the other party. Looking now to what was said by Wheeler & Co. in reply to this, it is still clearer that they did not entertain for a moment the idea of an abandonment or rescission of the contract; but, on the contrary, that they insisted on its continued existence and on performance of it according to their understanding of its meaning. After stating that they did not understand that the contract needed the ratification of the company to make it valid, they say: “We understood then, and understand now, that the sale made at that time on behalf of your company was an absolute, and final, unconditional sale. We do not understand, further, that this resolution was forwarded to us with the view of in any way modifying that sale in any of its terms.” Certainly this was a fair construction of the resolution. Then, after commenting on the commercial meaning of the word “ tons,” which could only be varied by express conditions in the contract, they say: “ No such conditions were mentioned in the contract of your company with us, and we look, therefore, for the delivery of the rails within the dates named in the contract of your company, and in ‘gross’ not ‘ net ’ tons.” They then add their belief that Murchie, to whom the letter was addressed, understood the contract as Wheeler did as to the number of pounds to the ton. The correspondence ceased here until the time for delivery of the rails arrived. Nothing more was said or done by either party during this time. The last word from each to the other was a clear assertion of the existence of a valid contract, and the very last words of the correspondence was the assertion of Wheeler & Co. that “ we look for the delivery of the rails within the dates named in the contract.” When, therefore, on 36 OCTOBER TERM, 1884. Opinion of the Court. the 14th of June, the railroad company notified Wheeler & Co. that they were ready to comply with the contract by delivering tons of 2,240 pounds, and requested to know whether it should be made at New York or New Haven, they must have been surprised by the letter of Wheeler & Co., denying the existence of the contract, and treating the matter as a negotiation from which no contract resulted. The contrast between this and their last letter of February 28th is indeed remarkable. By this letter of June 14th Wheeler & Co. do not place their refusal to receive on the ground now set up by counsel, namely, that though a contract was made, it had been waived or abandoned by the parties, or by the railroad company, or that the company was estopped from enforcing it; but on the broad ground that the negotiations for the sale and purchase of the iron had failed, and had never become a contract because of the disagreement as to the difference between net and gross tons. As there was a contract, as neither party had abandoned it, or expressed any purpose to do so, Wheeler & Co. were bound to accept and pay for the rails when tendered, unless they have some other good reason for not doing so. It is said such reason is to be found in the silence of the railroad company after the receipt of the letter of Wheeler & Co. to Murchie of the 28th of February, by which the railroad company is estopped from enforcing the contract. It would be difficult to make out such an estoppel from mere silence, since nothing remained to be done by either party until the time for performance came. If the letter of Wheeler & Co. had expressed any doubt of the binding force of the contract, or had made any proposal for its modification, or had suggested a willingness to reconsider the question of weight of the tons, there might be some reason why the railroad company should have responded, and why a failure to respond might be some small evidence of want of good faith. But these letters show a determination on both sides to insist on their rights under the contract, and Wheeler & Co.’s letter left no answer to be made unless the other party should yield its construction of the contract. It was not bound to do WHEELER v. NEW BRUNSWICK, &c., R.R. CO. 37 Opinion of the Court. this. It had a right to insist on the contract, and to refer its performance of it to the courts in case it became necessary. The railroad company could, when the time for delivery of the rails came, deliver the one thousand tons by either standard. If the other party accepted there was an end of the matter. If it did not, it could accept pro tanto, and sue for the balance, or it could refuse to accept at all. But in all this the contract would remain, and would be the measure of the rights of the parties in court or out of it. There was, therefore, no necessity for the railroad company to reply to the letter of Wheeler & Co. It was not bound to say any more than it had said as to the true meaning of the contract. There was no demand in the letter of Wheeler & Co. that the railroad company should accept its construction. There was no intimation that if this was not done the contract was at an end, or would be abandoned. Let us suppose that the price of iron had risen instead of declining during this three or four months, and the railroad company had failed to deliver, would Wheeler & Co. have lost their right of action by anything in their letters, or by the cessation of the correspondence ? Clearly not. And yet, if that correspondence released one party, it must have released both. There remained no obligation, unless it was mutual. The right to deliver and require payment, and the right to require delivery, were correlative rights, one of which could not exist without the other. The judgment of the court that plaintiff was entitled to recover is right. The objection to the amount of the recovery rests upon the contention of defendants that they were only bound by the contract for the October delivery to accept two hundred tons, while the court held them bound for the difference in price for six hundred tons. We concur with the Circuit Court in holding that when Wheeler & Co. say we have bought of you (the railroad company) “from two (2) to six hundred tons for delivery in New York or New Haven between August 1st and October 1st” that they agreed to accept any amount of old rails between 38 OCTOBER TERM, 1884. Dissenting Opinion : Field, Harlan, Matthews, Blatchford, J J. those limits. The company was selling old rails. It knew that by August it would have a thousand tons. It did not know how much more they would have by October 1. It intended to secure the sale of what it might have, between two hundred and six hundred tons. Besides, as it was bound to do the first act in performance of the contract by delivering the iron, the option, if there was one, was with the railroad company. The defendants were never in condition to exercise this option, if one existed. Town-send v. Wells, 3 Day, 327; Patchin v. Swift, 21 Vermont, 292; AT Witt v. Clark, 7 Johns. 465. The judgment of the Circuit Court is Affirmed. Mr. Justice Blatchford, with whom concurred Mr. Justice Field, Mr. Justice Harlan, and Mr. Justice Matthews, dissenting. Justices Field, Harlan, Matthews and myself are unable to concur in the judgment of the court in this case. When the directors of the Railroad Company came to consider, as a Board, the transaction between Murchie and Wheeler & Co., they took it up, as their resolution states, as a sale by Murchie to Wheeler & Co., and confirmed it on behalf of the Railroad Company, as a sale of tons of 2,000 lbs. When Wheeler & Co. received Murchie’s letter enclosing a copy of the resolution of the Board, their letter of reply of February 28, 1880, states their understanding to be, that the sale was not made subject to approval by the Railroad Company, and that the ton was 2,240 lbs., and that they look for the delivery of the rails in gross and not net tons. But the resolution of the Board expressed the contrary view, as to the ton, and so the letter proceeds to say, that Wheeler & Co. make no doubt that Murchie’s understanding of the contract, as he had made it, is in accord with that of Wheeler &.Co., and that, in so far as the resolution of the Board fixed 2,000 pounds for each ton, it did so by an oversight on the part of the directors. This was a plain appeal to Murchie, to bring his understanding of the contract to bear on the directors, to induce them to change their view and their statement of the contract, in respect of WHEELER v. NEW BRUNSWICK, &c., R.R. CO. 39 Dissenting Opinion : Field, Harlan, Matthews, Blatchford, JJ. the tons; and it was followed up by the closing words of the letter: “We hope to hear from you at your earliest convenience.” The whole tenor of this letter was to throw the matter into the field of negotiation and arrangement, where the Railroad Company asked to have it put. That Company plainly said to Wheeler & Co.: “ If you regard the ton in this contract as a gross ton, we do not; and, if you do, we do not think there is any contract.” Wheeler & Co. replied: “We do, and we think such was Mr. Murchie’s view at the time, and that your directors have committed an oversight in their resolution which ‘ fixes ’ the ton at 2,000 pounds; but, in view of all this, we ask to hear from you at your early convenience about it.” At that date old rails were $33.50 to $34 a ton of 2,240 pounds, without duty. The contract price was $30 and $28, without duty. The contract was a good one for Wheeler & Co., if they could then sell the rails, for future delivery, at the market rate of that date, and if the tons of the contract were 2,240 pounds. So, it was important for them to know whether the Railroad Company would adhere to the view stated in the resolution or would recede from it; and they sought to learn. But they received no reply from Murchie or his Company. They had a right to take the Company at its word and to act on its solemnly announced understanding of the contract. They did so and refrained from turning the contract to any benefit by a re-sale of the rails. They were dealers in rails and bought only to re-sell. They did not buy to use otherwise. This the Railroad Company and Murchie knew. Now, what is the finding of the Circuit Court ? It is, that Murchie in fact understood that the tons of the contract were 2,240 pounds, as did Wheeler & Co.; that the Company, while not misunderstanding, intended to induce Wheeler & Co. to think it misunderstood, for the purpose of having Wheeler & Co. agree that the tons should be 2,000 pounds; that this conduct was “ disingenuous; ” and that the natural effect of a failure to reply to Wheeler & Co.’s letter was to create “ great uncertainty ” on the part of Wheeler & Co., and to cause “ annoyance and pecuniary loss ” to them. On these facts, it is held, 40 OCTOBER TERM, 1884. Dissenting Opinion : Field, Harlan, Matthews, Blatchford, JJ. that, when the market price of the rails has fallen to one-half of the contract price, the Company can insist on compelling Wheeler & Co. to take the rails at the contract price, because the Company then chooses to turn around and say: “ The ton was and is 2,240 pounds. We were wrong all the time, and you were right; and we now reply to your letter, by saying that we did commit an ‘ oversight ’ in our resolution, as you suggested.” We can sanction no such view of the rights of the parties to a commercial transaction. The company made statements, in its resolution and letter, which the Circuit Court finds were not true, as to its understanding regarding the ton; and which that court finds it knew were not true; and which that court finds it intended should be regarded by Wheeler & Co. as honestly made; and which it is clear it intended Wheeler & Co. should act upon; and which they did act upon to their injury. The actual ground of recovery by the company in this case is based on proof of the untruth of the assertions made by the company, followed by the proposition that Wheeler & Co. had no right to believe and rely on those assertions. Every element exists to estop the company from denying the truth of those assertions, and from insisting that Wheeler & Co. should not have relied on them. There is not a suggestion impeaching the good faith and fair dealing of Wheeler & Co. They were not guilty of any deceit or misrepresentation; they held out no false light; they did not attempt to procure an advantage by an untrue statement of their understanding of the contract; they did not mislead the other party to his injury. Their letter to Murchie of February 28 was a model of mercantile candor and fair dealing. It demanded a reply. The absence of a reply was no ground for supposing that the company had abandoned the position it took in the resolution, for Wheeler & Co. did not then know, what they learned afterwards, that the resolution was a sham and a false pretence. The conclusion seems to us to follow inevitably, under the findings of the Circuit Court, that the company had lost its right to recover on the contract; and we, therefore, dissent from the judgment of affirmance. PIRIE v. TVEDT. 41 Opinion of the Court. PIRIE & Others v. TVEDT & Another. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA. Submitted April 24, 1885.—Decided May 4,1885. The filing of separate answers, tendering separate issues for trial by several defendants sued jointly in a State court, on a joint cause of action in tort, does not divide the suit into separate controversies so as to make it removable into the Circuit Courts, under the second clause of § 2, act of March 3, 1875. Louisville & Nashville Railroad Co. v. Ide, 114 IT. S. 52, where a like decision was made as to actions ex-contractu, affirmed and applied. This was an action in tort commenced in a State court against several defendants on a joint cause of action; removed to the Circuit Court as a separable controversy after filing of separate answers, and thence remanded to the State court. This writ of error was brought to review this judgment of the Circuit Court. The facts are stated in the opinion of the court. Mr. Gordon E. Cole for plaintiffs in error. No brief filed for defendants in error. Mr. Chief Justice Waite delivered the opinion of the court. This is a writ of error brought under § 5 of the act of March 3, 1875, ch. 137, 18 Stat. 470, for the review of an order of the Circuit Court remanding a cause which had been removed from a State court. The suit was brought by Tvedt Brothers, citizens of Minnesota, against Carson, Pirie, Scott & Co., citizens of Illinois, and Owen J. Wood and Theodore S. Stiles citizens of Minnesota, to recover damages for a malicious prosecution, it being averred in the complaint that “ the said defendants, confederating together, and with a malicious and unlawful design and intent had and entertained by them, and each of them, to injure, oppress, and harass these plaintiffs, and to break them up in business, wrongfully, maliciously, un- 42 OCTOBER TERM, 1884. Opinion of the Court. lawfully, and without any reason, or provocation, or probable cause, caused a certain action to be commenced against these plaintiffs, in which said Carson, Pirie, Scott & Co. were plaintiffs, for the pretended recovery of money, . . and then and there wrongfully, unlawfully, and maliciously, and with the aforesaid intent so had. and entertained by each and all of said defendants, wickedly and maliciously conspired together, and without probable cause, caused to be issued . . a writ of attachment upon the stock of goods, wares, and merchan dise of these plaintiffs; . . that, under said writ of attachment, and by direct instruction of the defendants, the sheriff of said county levied the same upon the stock of goods and closed up the store, and stopped and broke up the business of these plaintiffs.” The defendants, Wood & Stiles, answered separately from their co-defendants, denying all malice and conspiracy, and saying that they, as attorneys-at-law, and acting for and under the instructions of Carson, Pirie, Scott & Co., brought the action and sued out the attachment in good faith, and not otherwise. The other defendants also filed a separate answer, admitting that they caused the action to be brought and the attachment to be issued, and that the attachment had been vacated, though the action itself was still pending and undisposed of. Upon these pleadings Carson, Pirie, Scott & Co. filed a petition under the second clause of § 2 of the act of 1875, for the removal of the cause to the Circuit Court of the United States, on the ground that as the action was in tort and therefore in its nature severable, there was in it a a controversy which is wholly between citizens of different States, to wit, between the plaintiffs and Pirie, Scott & M’Leish, . . and that said controversy can be fully determined as between them.” After the case got into the Circuit Court on this petition, it was remanded because there was but one controversy in the suit, and that between the plaintiffs, citizens of Minnesota, on one side, and all the defendants, citizens of Minnesota and Illinois, on the other. This ruling is the only error assigned. It has been decided at this term in Louisville di Nashville Railroad Co. v. Ide, 114 U. S., 52, that, in a suit on a contract PIRIE v. TVEDT. 43 Opinion of the Court. brought by a citizen of one State against a citizen of the same State and a citizen of another State, there was no such separate controversy as would entitle the citizen of the other State to remove the cause, even though he answered separately from his co-defendant setting up a separate defence, and the statutes regulating the practice, pleadings, and forms and modes of proceedings in the State where the suit was brought, allowed judgments to be given in actions ex contractu for one or more plaintiffs and for one or more defendants. In that case it was said: “ A defendant has no right to say that an action shall be several, which a plaintiff elects to make joint. Smith v. Rines, 2 Sumner, 348. A separate defence may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings. Here it is certain joint contracts entered into by all the defendants for the transportation of property. On the one side of the controversy upon that cause of action is the plaintiff, and on the other all the defendants.” We are unable to distinguish this cgtse in principle from that. There is here, according to the complaint, but a single cause of action, and that is the alleged malicious prosecution of the plaintiffs by all the defendants acting in concert. The cause of action is several as well as joint, and the plaintiffs might have sued each defendant separately, or all jointly. It was for the plaintiffs to elect which course to pursue. They did elect to proceed against all jointly, and to this the defendants are not permitted to object. The fact that a judgment in the action may be rendered against a part of the defendants only, does not divide a joint action in tort into separate parts any more than it does a joint action on contract. The order remanding the cause is Affirmed. Mr. Justice Harlan, with whom concurred Mr. Justice Woods, dissenting. Mr. Justice Woods and myself dissent from the opinion and 44 OCTOBER TERM, 1884. Dissenting Opinion : Harlan, Woods, JJ. judgment in this case. Although the action is, in form, against all of the defendants jointly, it is, practically, a separate one against each defendant; for, it is conceded, that, by the laws of Minnesota, it would not be wholly defeated if the plaintiffs failed to establish a cause of action against all of the defendants. They would be entitled to judgment against the defendant or defendants against whom a case was made. Had the suit been only against the defendants who are citizens of Illinois, as it might have been, the right of the latter to remove it into the Circuit Court of the United States would not be questioned. But it seems by the present decision, that their right of removal has been defeated by the act of the plaintiffs in uniting with them, as defendants, citizens of Minnesota, against whom, as is conceded, it was not necessary to introduce any evidence whatever in order to entitle the plaintiffs to a judgment against the other defendants. As in most, if not in all, the States, the local statutes dispense with the verification of pleadings in actions of tort, this convenient device will be often employed. When, for instance, a citizen of New York has a cause of action, sounding in damages, against a citizen of New Jersey, who happens to go within the jurisdiction of the former. State, the plaintiff can join a citizen of New York as a co-defendant, charging them jointly with liability to him for damages claimed. And when the citizen of New Jersey asks a removal of the suit to the Federal court, he is met with the suggestion that it is for the plaintiff, in his discretion, to sue him separately, or jointly with others. Upon his application to remove the cause, the State court may not institute a preliminary inquiry as to whether the plaintiff had, in fact, a cause of action against the defendant citizen of New York. It is not for that court, in advance, to determine the good faith of the plaintiff in making a citizen of New York a co-defendant with the citizen of New Jersey. The removal statutes make no provision for such an inquiry, and the State court, by the decision just rendered, must look alone to the cause of action as set out in the petition or complaint. When, in the case supposed, the evidence is concluded, and it appears that there is, in fact, no cause of action against the de- GWILLIM v. DONNELLAN. 45 Statement of Facts. fendant citizen of New York, it is too late for the removal to occur; for it must be had, if at all, before the suit could be tried in the State court. It seems to us that where the plaintiff, in a suit against several defendants in tort, is not required to prove a joint cause of action against all of them, but may have judgment as. to those against whom he makes a case, there is, within the meaning of the act of Congress, a controversy in the suit, which is wholly between the plaintiff and each defendant, and finally determinable, as between them, without the presence of the other defendants as parties in the cause. The suit, therefore, belongs to the class which, under the act of 1875, may be removed into the Federal court. The decision in this case, it seems to us, restricts the right of removal, under the act of 1875, by citizens of States, other than that in which the suit is brought, within much narrower limits than those established by previous legislation; and this, notwithstanding it was intended by that act to enlarge the right of removal, especially in respect to controversies between citizens of different States. GWILLIM v. DONNELLAN & Another. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. Argued April 1, 1885.—Decided May 4,1885. In proceedings under Rev. Stat. §§ 2325, 2326 to determine adverse claims to locations of mineral lands, it is incumbent upon the plaintiff to show a location which entitles him to possession against the United States as well as against the other claimant: and, therefore, when plaintiff at the trial admitted that that part of his claim wherein his discovery shaft was situated had been patented to a third person, the court rightly instructed the jury that he was not entitled to recover any part of the premises, and to find for defendant. These were proceedings under Rev. Stat. §§ 2325, 2326 to determine adverse claims to a mineral location. The facts are stated in the opinion of the court. 46 OCTOBER TERM, 1884. Opinion of the Court. Mr. E. T. Wells for plaintiff in error, submitted on his brief. Mr. Enoch Totten and Mr. Charles H. Toll {Mr. Edward 0. Wolcott was with them on the brief) for defendants in error. Mr. Chief Justice Waite delivered the opinion of the court. This is a suit begun July 7,1881, under Rev. Stat. § 2326, to determine the rights of adverse claimants to certain mining locations. Donnellan and Everett, the defendants in error here, and also the defendants below, were the owners of the Mendota claim, or location, and Gwillim, the plaintiff in error here, and the plaintiff below, the owner of the Cambrian. The two claims conflicted. The defendants applied, under Rev. Stat. § 2325, for a patent of the land covered by their location, and the plaintiff filed in due time and in proper form his adverse claim. To sustain this adverse claim the present suit was brought, which is in form an action to establish the right of the plaintiff to the premises in dispute, and to the possession thereof as against the defendants, on account of a “ prior location thereof as a mining claim in the public domain of the United States.” The question in the case arises on this state of facts: Upon the trial the plaintiff gave evidence tending to show that Isaac Thomas, on the 16th of May, 1878, discovered in the public domain, and within the premises described in the complaint, a vein of rock in place, bearing gold and silver, and sunk a shaft to the depth of ten feet or more, to a well-defined crevice, and located the premises under the name of the Cambrian Lode, and performed all the acts required by law for a valid location. The plaintiff got his title from Thomas. In the answer of the defendants they set up title under the Mendota claim, located, as they allege, November 19, 1878. The plaintiff, in presenting his case to the jury, stated in effect that after the location of the claim by Thomas, and before his conveyance to the plaintiff, one Fallon instituted proceedings to obtain a patent from the United States for another claim, including that part of Thomas’ claim wherein was situated the GWILLIM v. DONNELLAN. 47 Opinion of the Court. discovery shaft sunk by him; that no adverse claim was interposed, and Fallon accordingly entered his claim and obtained a patent therefor; and, before any new workings or developments done or made by Thomas upon any part of his claim not included in this patent, the defendants entered therein and located the same as a mining claim in the public domain. Upon this statement the court “ ruled that, inasmuch as that part of the claim of said Thomas, wherein was situated his discovery shaft, had been patented to a third person, the plaintiff was not entitled to recover any part of the premises, and instructed the jury to find for the defendants.” This instruction is assigned for error. Thomas made his location as the discoverer of a vein or lode within the lines of his claim. He made but one location, and that for fifteen hundred feet in length along the discovered vein. All his labor was done at the discovery shaft. There was no claim of a second discovery at any other place than where the shaft was sunk. Section 2320 Rev. Stat, provides that “a mining claim located after the 10th of May, 1872, . . . shall not exceed one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.” § 2322 gives “ the locators of all mining locations, so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, . . . the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical sidelines of such surface location.” The location is made on the surface, and the discovery must be of a vein or lode, the top or apex of which is within the limits of the surface lines of such location. A patent for the land located conveys the legal title 48 OCTOBER TERM, 1884. Opinion of the Court. to the surface, and that carries with it the right to follow a discovered vein, the apex of which is within the limits of the grant downwards even though it may pass outside the vertical side-lines of the location. The title to the vein depends on the right to the occupancy or the ownership of its apex within the limits of the right to the occupation of the surface. This right may be acquired by a valid location and continued maintenance of a mining claim, or by a patent from the United States for the land. To keep up and maintain a valid location one hundred dollars’ worth of labor must be done, or improvements made, during each year until a patent has been issued therefor. § 2324. By § 2325 it is provided that a patent may be obtained for land located or claimed for valuable deposits. To accomplish this a locator, who has complied with all the statutory requirements on that subject, may file in the proper land office an application for a patent under oath, showing such compliance, together with a plat and field notes of his claim, made by or under the direction of the Surveyor General of the United States, showing accurately the boundaries of the claim, which must be distinctly marked by monuments on the ground. He must also post a copy of his plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to filing his application for a patent, and he must also file an affidavit of at least two persons that such notice has been duly posted. A copy of the notice must be filed in the land office. Upon the filing of such papers the register of the land office is required to publish a notice that the application has been made for the period of sixty days in some newspaper to be by him designated as published nearest to the claim, and he must, also post a similar notice for the same time in his own office. If no adverse claim shall have been filed with the register and receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, and that no adverse claim exists; and thereafter no objection from third parties to the issue of GWILLIM v. DONNELLAN. 49 Opinion of the Court. the patent shall, be heard, except to show that the applicant has failed to comply with the law. Where an adverse claim is filed within the time, all proceedings upon the application in the land office, except in reference to the publication and proof of notice, are to be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It is then made the duty of the adverse claimant to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession, and prosecute the same to final judgment. After such judgment shall have been rendered, the party entitled to the possession of the claim, may, without further notice, file a certified copy of the judgment-roll with the register of the land office, together with the certificate of the Surveyor General that the requisite amount of labor has been expended, or improvements made thereon, and the description required as in other cases. When this has been done and the proper fees paid, the whole proceedings and the judgment-roll must be certified to the Commissioner of the General Land Office, and a patent shall issue for the claim or such portion thereof as the applicant shall appear from the decision of the court to rightly possess. If it appears from the decision that several parties are entitled to separate and distinct portions of the claim, each party may pay for his portion of the claim', together with the proper fees, and file the certificate and description by the Surveyor-General, and then the register must certify the proceedings and judgment-roll to the Commissioner as in the preceding case, and patents shall issue to the several parties according to their respective rights. § 2326. A valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located. If, when one enters on land to make a location there is another location in full force, which entitles its owner to the exclusive possession of the land, the first location operates as bar to the second. Belk v. Meagher, 104 U. S. 279, 284. VOL cxv—4 50 OCTOBER TERM, 1884. Opinion of the Court. To entitle the plaintiff to recover in this suit, therefore, it was incumbent on him to show that he was the owner of a valid and subsisting location of the lands in dispute, superior in right to that of the defendants. His location must be one which entitles him to possession against the United States, as well as against another claimant. If it is not valid as against the one, it is not as against the other. The location is the plaintiff’s title. If good, he can recover; if bad, he must be defeated. A location on account of the discovery of a vein or lode can only be made by a discoverer, or one who claims under him. The discovered lode must lie within the limits of the location which is made by reason of it. If the title to the discovery fails, so must the location which rests upon it. If a discoverer has himself perfected a valid location on account of his discovery, no one else can have the benefit of his discovery for the purposes of location adverse to him, except as a re-locator after he has lost or abandoned his prior right. Belle v. Meagher, supra. In this action the plaintiff must recover on the strength of his own title, not on the weakness of that of his adversary. The question to be settled by judicial determination, so far as he is concerned, is as to his own right of possession. He must establish a possessory title in himself, good as against everybody. If there had not been a patent to Fallon, it would have been competent for the defendants to prove, on the trial, that when Thomas entered Fallon held and owned a valid and subsisting location of the same property, and was the first discoverer of the lode the apex of which was within the surface lines of Thomas’ claim. Had this been done the location of Thomas would have been adjudged invalid, because the land on which his alleged discovery was made was not open to exploration, it having been lawfully located and claimed by Fallon. The admission made by the plaintiff at the trial, and on which the court acted in instructing the jury to find for the defendants, is the equivalent to such a proof. It showed that after May 16,1878, and before November 19, 1878, Fallon had applied for a patent of the land on which Thomas’ alleged discovery was made, and where he had sunk his discovery shaft; GRANT PARKER. 51 Syllabus. that Thomas set up no adverse claim, that in due time Fallon got his patent, and this because under the law the United States had the right to assume that no adverse claim existed. Having failed to assert his claim he lost his title as against the United States, the common source of title to all. The issue of the patent to Fallon was equivalent to a determination by the United States, in an adversary proceeding to which Thomas was in law a party, that Fallon had title to the discovery superior to that of Thomas, and that consequently Thomas’ location was invalid. This barred the right of Thomas to apply to the United States for a patent, and of course defeated his location. From that time all lands embraced in his location not patented to Fallon were open to exploration and subject to claim for new discoveries. The loss of the discovery was a loss of the location. It follows that the court did not err in its instructions to the jury, and the judgment is consequently Affirmed. GRANT v. PARKER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. Argued April 23,1885.—Decided May 4,1885. A syndicate, of which A and B were members, was formed to purchase a mine, and it was agreed before the purchase, as a condition of A’s subscription,. that he should “ control the management of the mine.” After the purchase a board of directors was organized, of which A & B were members. At a meeting of the Board, of which A had notice, resolutions were passed at the instigation of B prohibiting the treasurer from paying checks not signed by the president and vice-president, and countersigned by the secretary ; directing that all orders for supplies and materials from San Francisco should be made through the head officer there; authorizing the vice president in the absence of the president, to sign certificates of stock and other papers requiring the president’s signature ; and authorizing the superintendent of the mine, in the absence from the mine of the president, to draw on the com pany at San Francisco for indebtedness accruing at the mine : Held, That these resolutions were not inconsistent with the control of the mine by A. 52 OCTOBER TERM, 1884. Opinion of the Court. The facts which make the case are stated in the opinion of the court. Mr. Whitaker M. Grant for appellant, submitted on his brief. Mr. John Johns [Mr. John N. Rogers also filed a brief] for appellee. Mk. Chief Justice Waite delivered the opinion of the court. This is a bill in equity filed by a stockholder and director of the Fresno Enterprise Company, a California corporation owning the Enterprise mine, against another stockholder and director, to restrain him “ from attending any meeting of the board of directors to enforce ” certain resolutions passed at a previous meeting, “ which give the vice-president authority to sign checks or certificates of stock,” when the complainant, the president of the company, is “ not in the city of San Francisco, or which authorize the superintendent to dr^w drafts on the company when ” the complainant is “ not at the mine,” and also restraining the defendant “ from voting on . . . five thousand six hundred and sixty shares of stock issued to him under the contract of 3d May, 1881, or any other shares of stock owned by him, at any meeting of the stockholders for electing directors or amending the by-lawsand “ that on the final hearing ” the complainant “ be decreed to have a continuing proxy for said five thousand six hundred and sixty shares.” The general ground on which the complainant seeks his relief is this: In May, 1881, an association of capitalists, called in the bill a “ syndicate,” to which both the complainant and defendant belonged, bought 51,000 of the 100,000 shares of the capital stock of the company, and in the contract under which the syndicate was formed it was agreed that the complainant was “to control the management of the mine.” In the purchase the complainant became the owner of 17,000 shares, and the defendant of 5,660. Other persons divided the remaining 28,340 shares between them. The 49,000 shares not purchased GRANT v. PARKER. 53 Opinion of the Court. were held by persons outside of the syndicate. At a meeting of stockholders, held a few days after the purchase for the election of directors, the complainant and the defendant, with one other member of the syndicate, were elected directors, as the representatives of the purchasers, and two others not in the syndicate as representatives of the minority stockholders. The complainant was elected president of the board of directors and general manager of the mine. The defendant and the directors who were elected in the interest of the minority stockholders seem to have been of opinion that some additional rules for the government of the affairs of the company were necessary, and so, as is alleged, by false representations the defendant, in December, 1881, induced some of the members of the syndicate to agree to the adoption of the following resolutions by the directors: “ Resolved, That the Bank of California, the treasurer of this company, be, and is hereby, instructed to pay only such checks as are signed by the president or vice-president and countersigned by the secretary. “ Resolved, That all orders for supplies and materials from San Francisco for the company shall be made through the head office in San Francisco, and payment for the same shall be made by checks signed by-the president or vice-president and countersigned by the secretary, at the office in San Francisco. “ Resolved, That in the absence of the president from the office of the company in San Francisco, the vice-president, in accordance with the by-laws, be, and is hereby, authorized to sign all certificates of stock that are legally issued by the secretary, as well as all papers requiring the signature of the president, if he were present at the office. “ Resolved, That in the absence of the president from the mine that the superintendent at the mine be, and is hereby, instructed to draw drafts on the company at San Francisco for all indebtedness accruing at the mine.” These resolutions were adopted by the board on the 4th of January, 1882, at a regular meeting held that day, of which the complainant had knowledge, but which he did not attend. A quorum of directors was present at the meeting and the 54 OCTOBER TERM, 1884. Opinion of the Court. defendant voted for the resolutions. It was to restrain the defendant from aiding the directors in the enforcement of these resolutions, and from voting his shares acquired under the syndicate contract, except in accordance with the will of the complainant, that this bill was brought. We are unable, to discover any ground for equitable relief in the case made by the bill. It is undoubtedly true that the defendant was anxious to have the complainant interested in the mine, and was willing to become one of a number of persons, of whom the complainant should be one, to purchase enough of the stock to make the aggregate of their holdings a majority of the entire capital of the company. It is also true that the defendant, and all the other members of the syndicate, yielded to the condition insisted on by the complainant that “ he should have the control of the management of the mine” if the purchase of the majority of the stock was made, but this was necessarily subject to such reasonable rules and regulations as should be adopted in a proper way, either by the stockholders or the directors, for the government of the conduct of the officers of the company. No attempt has been made to remove the complainant from his office of general manager. He still “ controls the management of the mine,” so far as anything appears in the bill. All that the directors have done by their resolutions, of which complaint is made, is to prohibit the Bank of California, the treasurer of the company, from paying any checks of the company except such as are signed by the president or vice-president and countersigned by the secretary; to direct that all orders for supplies and materials from San Francisco should be made through the head office in San Francisco, and paid for in checks signed and countersigned as above; to authorize the vice-president to sign certificates of stock and all other papers requiring the signature of the president, when the president was away from the office, and authorizing the superintendent at the mine, in the absence of the president, to draw drafts on the company at San Francisco for debts incurred there. We see nothing in this inconsistent with the control of the mine itself by the complainant “ as if he owned it.” RICHTER v. UNION TRUST COMPANY. 55 Statement of Facts. Without, therefore, deciding whether, if the members of the syndicate should undertake to remove the complainant from the control of the management of the mine without just cause, he could have preventive relief in equity, we affirm the decree. Affirmed. RICHTER v. UNION TRUST COMPANY & Others. ORIGINAL MOTION IN A CAUSE PENDING ON APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISRICT OF MICHIGAN. Submitted April 20, 1885.—Decided May 4, 1885. On the facts appearing in the averments in the motion and in the affidavits, the court declines to order a commission to take testimony de bene esse: there being nothing to indicate that the testimony could not be taken under the provisions of Rev. Stat. § 866. This was a motion to take testimony de bene esse in a cause pending in this court, on appeal. The motion was founded upon the affidavit of appellant that the bill below was taken pro confesso as to the Union Trust Company; that the other defendant demurred and the demurrer was sustained, and the cause was here on appeal from the judgment dismissing the bill on the demurrer; that it could not be reached for hearing “ until the lapse of at least two or three years from the present date; ” that several witnesses, named in the affidavit, by whom the appellant expected to make the case stated in his bill, a copy of which was on file in this court, were aged and infirm, and resided more than five hundred miles from the place of trial of the cause ; and that several of them were single witnesses to material facts in the cause, which facts could only be proved by them. After stating in detail the names of the witnesses, and the facts to be proved by each, the deponent further stated that he had applied to the Circuit Judge in the district from which the appeal was taken, under the provisions of Equity Rule 70 for a commission to i^sue in the cause, to 56 OCTOBER TERM, 1884. Syllabus. take the depositions of the witnesses, which application had been denied “ because of doubts expressed by said judge of his power to grant said commission, after said bill was dismissed and the case appealed.” Mr. J. P. Whittemore for the motion. Mr. H. H. Wells opposing. Mr. Chief Justice Waite delivered the opinion of the court. This motion is denied. Equity Rule 70 has no application to this case, and the affidavits presented do not show such facts as render it necessary for this court to make any special order in the premises. Under Rev. Stat. § 866 “ any Circuit Court, upon application to it as a court of equity, may, according to the uses of chancery, direct depositions to be taken in perpetuam rei memoriam, if they relate to any matter that may be cognizable in any court of the United States.” There is nothing in the motion papers to indicate that the appellant may not proceed under this statute to take and perpetuate his testimony, if he has reason to fear that it will otherwise be lost. CRUMP v. THURBER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY. Submitted April 22,1885.—Decided May 4,1885. A suit in equity brought by C, a citizen of one State, against a corporation of the same State, and T, a citizen of another State, and W, to obtain a decree that C owns shares of the stock of the corporation, standing in the name of W, but sold by him to T, and that the corporation cancel on its books the shares standing in the name of W, and issue to C certificates therefor, cannot be removed by T into the Circuit Court of the United States, under § 2 of the Act of March 3d, 1875, 18 Stat. 470, because the corporation is an indispensable party to the suit, and is a citizen of the same State with C. CRUMP v. THURBER. 57 Opinion of the Court. The only question involved in this appeal was the rightfulness of the removal of the cause from a State court to a Circuit Court of the United States. The facts which raise the question are stated in the opinion of the court. Mr. Emmet Field and J/?. G. C. Wharton for appellant. Mr. E. More for appellee. Me. Justice Blatchfoed delivered the opinion of the court. This suit was commenced by the filing in the Louisville Chancery Court, in the city of Louisville, Kentucky, on the 26th of November, 1880, of a petition in equity, by W. H. Crump against James Wilson, and the Southern Dairy Company, a Kentucky corporation. The substance of the petition was, that Crump had, under a contract with Wilson, assisted him in selling rights under a patent which he controlled ; that, by the terms of the contract, Wilson was to receive $12,000 for the right for Kentucky, and $8,000 for the right for Indiana, and all received above those sums for either State was to be divided equally between Crump and Wilson; that the rights for Kentucky and Indiana were disposed of to the Southern Dairy Company, and 1,000 shares of its capital stock, of $100 each, out of 2,000 shares, were issued to Wilson, in payment for the rights, of wThich he had sold 100 shares for $5,000; that he had received more in value than the $20,000; that he refused to give to Crump any part of the stock or of the money ; that a large amount of the stock issued to Wilson still stood on the books of the corporation in his name; and that Crump was entitled to 300 shares thereof. The petition prayed that Crump be adjudged to own 300 shares of the stock; and that the corporation be ordered to cancel on its books the stock standing in the name of Wilson, to that extent, and to issue to Crump certificates for 300 shares. The corporation was served with process. The petition was then amended by stating that not less than 250 shares of the stock still stood in the name of Wilson ; and process on that was served on the corporation. It then filed an answer, stat- 58 OCTOBER TERM, 1884. Opinion of the Court. ing that 250 shares of its stock stood, when the petition was filed, in the name of Wilson, on its books, and had not since been transferred thereon; that, before the suit was brought, one H. K. Thurber bought the 250 shares from Wilson, and received from him the certificates thereof, by indorsement and delivery, and still held and owned them, and he had notified the president of the corporation of that fact, and claimed the right to have the stock transferred into his own name; and that it was willing to obey the judgment of the court, but ought not to be ordered to cancel or transfer the stock, unless Thurber should be brought before the court, to litigate with Crump the true ownership of the stock. Crump replied to the answer of the corporation, and filed an amended petition, making Thurber a party to the suit, and praying the same relief as in his original petition. Wilson and Thurber were then each personally served with process in the City of New York. Thurber then came into the State court and filed a petition and a bond for the removal of the suit to the Circuit Court of the United States for the district of Kentucky, and the State court made an order removing the cause, under the objection and exception of the plaintiff. The petition proceeded on the ground that Crump was a citizen of Kentucky and Thurber a citizen of New York, and that there was a controversy in the suit between them, which was wholly between citizens of different States, and could be fully determined between them. Nothing was said in the petition for removal about Wilson or the corporation. Thurber then filed an answer in the Circuit Court, setting, forth that he had, on the 26th of October, 1880, purchased the 250 shares from Wilson, for value, and received from him the certificates therefor, three in number, issued by the corporation to, and in the name of, Wilson, with blank forms of assignment and power of attorney on the back, which Wilson signed, and delivered to Thurber, with the certificates; that he was entitled to fill the blanks and surrender the certificates, and have the shares transferred and new certificates issued to him by the corporation; and that he purchased the shares without any knowledge or information of any claim by Crump CRUMP v. THURBER. 59 Opinion of the Court. against Wilson. The answer prayed that the shares be decreed to be the property of Thurber and not of Crump, and that the corporation be ordered to cancel the certificates issued to Wilson, and to issue to Thurber new certificates in their place. There was a replication to this answer. Thurber also filed a cross-bill in the Circuit Court, making as a defendant only the corporation, but not Crump, setting forth himself as a citizen of New York and the corporation as a citizen of Kentucky, and averring the facts as to his purchase of the stock from Wilson, for value, and as to the indorsement and delivery of the certificates by Wilson to him, and praying for judgment against the corporation, that it receive and cancel the certificates issued to Wilson, and issue to Thurber other certificates, in their stead, for the 250 scares. The corporation answered this cross-bill, saying that it was a mere stake-holder between the parties to the suit, and praying for a proper judgment, which should protect it. There was a replication to that answer. Then Crump filed in the Circuit Court an amended bill, setting forth that the transaction between Wilson and Thurber was for the fraudulent purpose of protecting the stock for Wilson, and that the certificates were held in secret trust by Thurber for Wilson. Thurber answered that amended bill, denying its allegations. To that answer there was a replication. Proofs were taken, and, on a hearing, a decree was made dismissing the bill of Crump, and adjudging that Thurber was the true owner of the 250 shares, and was entitled to have the certificates issued to Wilson therefor cancelled, and other certificates issued in lieu thereof, on his application; and it was ordered that the corporation cancel the certificates, and issue or deliver to Thurber, or his order, such new certificates, and that Thurber and the corporation recover of Crump their costs. Wilson had never appeared or answered. Crump has appealed to this court. It is assigned for error, that the Circuit Court did not have jurisdiction of this cause, under § 2 of the act of March 3, 1875,18 Stat. 470, and ought to have remanded it to the State 60 OCTOBER TERM, 1884. Opinion of the Court. court. This objection is well taken. It is true that there is, in the suit, a controversy between Crump and Thurber, but it is a controversy to which the corporation is an indispensable party. Crump brought the controversy into court as one between himself on one side, and Wilson and the corporation on the other side; and throughout Crump maintained that Thurber had no right to take the place of Wilson, because the transactions between Wilson and Thurber gave Thurber no greater right than Wilson had. The controversy which Crump asked to have adjudicated was one in which he should be declared to be the owner of the shares, and in which to give him the fruition of such decree, and enable him to stand as the legal owner of the shares, and be recognized as such on the books of the corporation, there should be a decree ordering the corporation to cancel on its books the evidence of the ownership by Wilson, and to issue to Crump certificates for the shares. The jurisdiction of the Circuit Court must be determined, for the purposes of this case, by the status of the parties, and the nature of the relief which had been asked by the plaintiff, at the time of the application for removal. If the decree of the Circuit Court had been in favor of Crump, it would have enforced a right in favor of a citizen of Kentucky against a corporation of Kentucky. That corporation could not have removed the suit, by showing that a citizen of New York was the other claimant of the stock. The event of the suit, a decree in favor of Thurber, on the merits, against Crump and the corporation, is not a proper test of the jurisdiction. If Thurber had brought the suit originally in the State court, against Crump and the corporation, it could have been removed; or he might have brought it originally against them in the Circuit Court. But in the present decree, Crump’s bill is dismissed on the merits, and of course he is adjudged to have no rights against the corporation, and costs are decreed against him in favor of the corporation. This case falls distinctly within a series of rulings made by this court. Blake v. McKim, 103 IT. S. 336; Hyde n. Ruble, 104 IT. S. 407; Winchester v. Loud, 108 IT. S. 130; Shain-wald v. Lewis, 108 IT. S. 158; Ayres v. Wiswall, 112 IT. S. STEWART v. DUNHAM. 61 Statement of Facts. 187; Hancock v. Holbrook, 112 U. S. 229 ; Thayer v. Life Association, 112 U. S. 717; N. J. Cent. Railroad Co. n. Hills, 113 U. S. 249; Sully v. Drennan, 113 U. S. 287; Louisville & Nashville Railroad Co. v. Ide, 114 U. S. 52; St. Louis Ac San Francisco Railroad Co. v. Wilson, 114 U. S. 60; Pulnam n. Ingraham, 114 U. S. 57; Pirie v. Tvedt, ante, 41. The decree of the Circuit Court is reversed, and the case is remanded to that court, with a direction to remand it to the State court, for want of jurisdiction, with costs to Crump agai/nst Thurber, in the Circuit Court. STEWART & Others v. DUNHAM & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI. Submitted April 20, 1885—Decided May 4, 1885. When a creditor’s bill in equity is properly removed from a State court to a Circuit Court of the United States on the ground that the controversy is wholly between citizens of different States, the jurisdiction of the latter court is not ousted by admitting in the Circuit Court as co-plaintiffs other creditors who are citizens of the same State as the defendants. On appeal by defendants from a decree of a Circuit Court on a creditor’s bill, in which the judgments are several, for the payment of amounts adjudged to creditors severally, this court has jurisdiction only over such as appeal from a decree for payment to a creditor of a sum, exceeding the sum or value of $5,000. As to all others the appeal must be dismissed. In the absence of fraud a transfer by a debtor in Mississippi of all his property to one of his creditors in satisfaction of the debt is valid ; nor is it invalidated if, before it was made, the same property had been transferred by the debtor to a trustee to secure the same debt in like good faith, by an instrument which was void under the statutes of Mississippi, by reason of its form and contents, and if the said trustee joins in the transfer by the debtor. The facts in this case do not establish the charge that the sale of the property to the creditor was made with a purpose to hinder or defraud creditors. This was a bill in equity by creditors to reach property of the debtor alleged to have been fraudulently transferred, as against the creditors. 62 OCTOBER TERM, 1884. Opinion of the Court. Mr. T. C. Catchings for appellants. Mr. JohnF. Hamna and Mr. Janies M. Johnston for appellees. Me. Justice Matthews delivered the opinion of the court. The appellees who composed the firms of Dunham, Buckley & Co., who were citizens of New York, and of Edwin Bates & Co., who were citizens of New York and South Carolina, filed their bill in equity, on July 14, 1881, in the Chancery Court of Jefferson County, Mississippi, against John W. Broughton, and Andrew Stewart, Andrew D. Gwynne, and P. H. Haley, composing the firm of Stewart Bros. & Co., and others, all of whom were citizens either of Mississippi or of Louisiana. On September 16, 1881, the complainants filed a petition for the removal of the cause from the State court to the Circuit Court of the United States for that district, on the ground of citizenship, the amount in controversy being in excess of $500 in value, and presented a bond in conformity with the provisions of law. This was denied, notwithstanding which a certified transcript of the proceedings in the cause was filed in the Circuit Court on November 3, 1881, and that court proceeded thereon to final decree. The complainants in the bill were creditors severally of Broughton, and its object and prayer were to set aside a conveyance of a stock of merchandise, made by him to the defendants Stewart Bros. & Co., alleged to be fraudulent as against his creditors, and was filed on behalf of the complainants and all other creditors who might come in and share the costs of the litigation. After the cause was removed into the Circuit Court, the bill was amended by permitting Sigmond Katz, Jacob Katz, Nathaniel. Barnett, and Sei via Barnett, partners as Katz & Barnett, and John I. Adams and W. H. Renaud, composing the firm of John I. Adams & Co., creditors respectively of Broughton, to become co-complainants. The members of the firm of Katz & Barnett are described as “resident citizens of and doing business in the City of New Orleans, State of Louisiana, and in the City of New York, State of New York.” The citizenship STEWART v. DUNHAM. 63 Opinion of the Court. of those who constitute the firm of John I. Adams & Co. does not appear. On final hearing, on November 25, 1882, a decree was rendered in favor of the complainants, finding that the transfer and conveyance of his property by Broughton to Stewart Bros. & Co., described in the pleadings, was made with the intent to hinder, delay and defraud the complainants and other creditors of Broughton, with the knowledge and connivance of Stewart Bros. & Co., and the same was thereby cancelled, set aside, and declared to be null and void. The decree proceeds as follows: “ It appears to the court that complainants, at and before the making of said pretended transfer and conveyance, were, and still are, creditors of the said John W. Broughton, and that the amount due each of them respectively, including interest to this date, is as follows: Dunham, Buckley & Co., ten thousand two hundred and twenty-two dollars ($10,222.50); Edwin Bates & Co., four thousand three hundred and ninty-one dollars ($4,391.08); John I. Adams & Co., seven hundred and six dollars ($706.37) and Katz & Barnett, nine hundred and thirty dollars ($930.82). Total, sixteen thousand two hundred and fifty dollars ($16,250.77). It appears to the court that the defendant John W. Broughton is insolvent, and without property or means, and that the defendants Stewart Bros. & Co. had in their hands and possession, at the time of filing the bill of complaint in this cause, and still have, property, assets, and money, being the same fraudulently transferred and conveyed to them by the defendant John W. Broughton, as aforesaid, and the proceeds of the same, amounting to a sum largely in excess of the said sum of $16,250.77, due complainants as aforesaid. It is therefore ordered, adjudged and decreed, that the defendants, John W. Broughton and Andrew Stewart, Andrew D. Gwynne, and P. H. Haley, composing the firm of Stewart Bros. & Co., do pay to the complainants the above-mentioned sums respectively due them, with interest thereon at the rate of six (6) per cent, per annum from this date until paid, that is to say: To Dunham, Buckley & Co., ten thousand two hundred and twenty-two 3% dollars ($10,222.50); to Edwin Bates & Co., four thousand three hundred and ninety- 64 OCTOBER TERM, 1884. Opinion of the Court. one t°o8o dollars ($4,391.08) ; to Katz and Barnett, nine hundred and thirty i8o2o dollars ($930.82); and to John I. Adams & Co., seven hundred and six TVo dollars ($706.37); for which amounts and costs executions in favor of said creditors respectively may issue as at law.” The appeal is from this decree. The appellants assign as error, that the court proceeded to decree, after admitting Katz and Barnett and John I. Adams & Co. as co-complainants, alleging, that, as the case then stood, it was without jurisdiction, as the controversy did not appear to be wholly between citizens of different States. This, of course, could have furnished no objection to the removal of the cause from the State court, because at the time these parties had not been admitted to the cause; and their introduction afterwards as co-complainants did not oust the jurisdiction of the court, already lawfully acquired, as between the original parties. The right of the court to proceed to decree between the appellants and the new parties did not depend upon difference of citizenship; because, the bill having been filed by the original complainants on behalf of themselves and all other creditors choosing to come in and share the expenses of the litigation, the court, in exercising jurisdiction between the parties, could incidentally decree in favor of all other creditors coming in under the bill. Such a proceeding would be ancillary to the jurisdiction acquired between the original parties, and it would be merely a matter of form whether the new parties should come in as co-complainants, or before a master, under a decree ordering a reference to prove the claims of all persons entitled to the benefit of the decree. If the latter course had been adopted, no question of jurisdiction could have arisen. The adoption of the alternative is, in substance, the same thing. It is, however, objected by the appellees, Edwin Bates & Co., Katz & Barnett, and John I. Adams & Co., that, as to them respectively, this court has no jurisdiction of the appeal, for the reason that the decrees in their favor are several, and that the amounts adjudged to be paid to them respectively do not exceed the sum or value of $5,000. On the authority of Seaver n. Bigelows, 5 Wall., 208; Schwed STEWART v. DUNHAM. 65 Opinion of the Court. v. Smith, 106 U. S. 188; Farmers' Loan and Trust Co. n. Waterman, 106 U. S. 265; Adams v. Crittenden, 106 U. S. 576; Hawley n. Fairbanks, 108 U. S. 543; and Fourth National Bank v. Stout, 113 U. S. 684, the motion to dismiss the appeal as to all the appellees, except Dunham, Buckley & Co., must be granted. As to the remaining appellees, the cause must be disposed of on the merits. An outline of the transactions involved in the controversy is as follows: Broughton carried on business as a merchant in Rodney, Mississippi, and became indebted, by reason of advances made on account of cotton purchases, to the appellants, Stewart Bros. & Co., merchants in New Orleans, in about the sum of $34,000. Being pressed for payment on May 26, 1881, he gave his two promissory notes therefor, payable one in six, the other in eight, months after date, with interest at the rate of eight per cent, per annum; and, to secure the payment of the same, a written instrument of that date was executed, by which Broughton conveyed to C. J. Pintard all his stock of merchandise and assets and property, in trust, in case he should make default in the payment of the principal or interest of the notes, to sell the property conveyed, at public auction, for cash, to the highest bidder, at the request of the holder of the notes, on twenty days’ notice. The instrument also contained the following provisions : “ It is understood and agreed between the parties hereto, that the said party of the first part shall have the right to carry on the business as heretofore, for the purpose of selling off the stock of goods and collecting in the notes and accounts due and to become due, and, in order to enable said party of the first part to carry on said business, the said parties of the third part hereby agree to advance to him the further sum of one thousand dollars, which last amount is also understood and agreed to be included in and covered by this deed in trust, and to be due and payable six months after this date, the maturity of the first note.” This paper, executed by all the parties, was recorded on May 27, 1881. On June 13,1881, having been advised that this conveyance was probably ineffectual and void as to other creditors, by rea-vol. cxv—5 66 OCTOBER TERM, 1884. Opinion of the Court. son of its form and contents, Broughton and Pintard, the trustee, united in a conveyance of the same property unconditionally to Stewart Bros. & Co., in satisfaction of the debt represented by the notes, and the latter took possession of the property conveyed; and on the same day Broughton executed also a bill of sale, for the same property, upon the same consideration, to Stewart Bros. & Co. It is contended by the appellees that these conveyances, the last as well as the first, are fraudulent against creditors, per se, and void on their face ; and such was the ground of the decree appealed from, as stated in the opinion of the court. To this we cannot accede. Assuming that the conveyance to Pintard, in trust, was of that character, according to the law of Mississippi, it does not follow that the subsequent sale and transfer, followed by delivery of possession, is tainted by the vice of the original transaction. The objection we are considering assumes that the whole transaction, from the beginning, was free from actual and intended fraud, and was meant to be a mode of securing and paying an actual debt, in good faith, without any design injurious to other creditors, beyond that implied in obtaining a preference, which is not forbidden by law. In this view, the admission that the conveyance to Pintard was illegal does not affect the subsequent sale, which, on the contrary, being free from objection, on account of its own nature and form, served to remedy the defects in the original security. It was quite competent for the parties to rescind and cancel the first conveyance, and unite in the execution of another, free from objection. This is all they did. It is further urged, however, that the sale to Stewart Bros. & Co., however formally correct, and technically legal on its face, was made in pursuance of a design, participated in by both parties, actually to hinder, delay and defraud the creditors of Broughton. On this point we have examined and weighed the evidence with attention and care, and are of opinion that it does not sufficiently establish the case of the appellees. It would not be profitable to rehearse the testimony, and point out the facts and circumstances relied on, on the one hand, to establish the fraud charged, and those, on the other, adduced EHRHARDT v. HOGABOOM. 67 Opinion of the Court. to rebut the suspicions of dishonest and unlawful combination to defeat the claims of honest creditors. It is sufficient, we think, to say, that the proof falls short of that which the law requires to establish so grave a charge. It follows, that The decree in favor of James H. Dunham, William T. Buck-ley, and Charles H. Webb, partners as Dunham, Buckley & Co., must be reversed and the cause remanded, with directions to dismiss the bill as to them; and it is so ordered. As to all the other appellees, the appeal is dismissed. EHRHARDT v. HOGABOOM. IN ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA. Submitted April 22, 1885.—Decided May 4,1885. In an action of ejectment for lands in California, where the plaintiff traces title to the lands from a patent of the United States issued to a settler under the pre-emption laws, oral evidence is inadmissible on the part of the defendant to show that the lands were not open to settlement under those laws, but were swamp and overflowed lands, which passed to the State under the act of September 28, 1850. It is the duty of the Land Department, of which the Secretary of the Interior is the head, to determine whether land patented to a settler is of the class subject to settlement under the pre-emption laws, and his judgment as to this fact is not open to contestation, in an action at law, by a mere intruder without title. The facts are stated in the opinion of the court. Br. J. IT. IfcKune for plaintiff in error. No appearance for defendant in error. Mr. Justioe Field delivered the opinion of the court. This is an action for the possession of a tract of land in Sacramento County, California, designated as the northeast 68 OCTOBER TERM, 1884. Opinion of the Court. quarter of section six of a certain township, which is described. The plaintiff below, the defendant in error here, deraigns her title, through a patent of the United States embracing the demanded premises bearing date June 10, 1875, issued to one Elkanah Baldwin, a settler under the pre-emption laws, and his conveyance to her of the land patented to him. On the trial the patent and the conveyance to the plaintiff were produced and given in evidence. The defendant thereupon admitted that he was in possession of twenty acres of the tract covered by the patent, lying south of a certain fence, but contended that these twenty acres were swamp and overflowed lands, which passed to the State of California under the act of Congress of September 28, 1850. This character of the land as swamp and overflowed he offered to prove by parol, but the offer was rejected, and, we think, correctly. He did not connect himself in any way with the title to the twenty acres. The certificate of purchase from the register of the State land office, which he produced, related to different land—to what constituted a portion of the southeast quarter of section six, whereas the land in controversy is part of the northeast quarter of that section. He was, as to the twenty acres, a simple intruder, without claim or color of title. He was, therefore, in no position to call in question the validity of the patent of the United States for those acres, and require the plaintiff to vindicate the action of the officers of the Land Department in issuing it. It does not appear that the twenty acres formed a part of any land selected by the State or claimed by her as swamp and overflowed land. A patent of the United States, regular on its face, cannot, in an action at law, be held inoperative as to any lands covered by it, upon parol testimony that they were swamp and overflowed and therefore unfit for cultivation, and hence passed to the State under the grant of such land on her admission into the Union. In French v. Fyan, 93 U. S. 169, this Court decided that by the second section of the swamp land act the power and the duty devolved upon the Secretary of the Interior, as the head of the department which administered the affairs of the public lands, of determining what lands were of the description granted by that act, and THE CHARLES MORGAN. 69 Syllabus. made his office the tribunal whose decision on that subject was to be controlling. And he was to transmit a list of such lands to the Governor of the State, and at the latter’s request issue a patent therefor to the State. In that case parol evidence, to show that the land covered by a patent to Missouri under the act was not swamp and overflowed land, was held to be inadmissible. On the same principle parol testimony to show that the land covered by a patent of the United States to a settler under the pre-emption laws was such swamp and overflowed land must be held to be inadmissible to defeat the patent. It is the duty of the Land Department, of which the Secretary is the head, to determine whether land patented to a settler is of the class subject to settlement under the preemption laws, and his judgment as to this fact is not open to contestation in an action at law by a mere intruder without title. As was said in the case cited of the patent to the State, it may be said in this case of the patent to the pre-emptioner, it would be a departure from sound principle and contrary to well-considered judgments of this court to permit, in such action, the validity of the patent to be subjected to the test of the verdict of a jury on oral testimony. “ It would be,” to quote the language used, “ substituting the jury, or the court sitting as a jury, for the tribunal which Congress had provided to determine the question, and would be making a patent of the United States a cheap and unstable reliance as a title for lands which it purported to convey.” The judgment is, therefore, Affirmed. THE CHARLES MORGAN. appeal from the circuit court of the united states for THE EASTERN DISTRICT OF LOUISIANA. Argued April 24,1885.—Decided May 4, 1885. In case of collision on the Mississippi, if the facts show that the injured vessel made the first signal, and that it was responded to by the offending vessel, and that no question was made below as to its being made within the time TO OCTOBER TERM, 1884. Opinion of the Court. , required by the Rules of the Board of Supervising Inspectors, it will be presumed to have been made at the proper distance, in compliance with the Rules. The Circuit Court, in an appeal from a decree of a District Court in admiralty, may in its discretion permit amendments to the libel, enlarging the claims, and including claims rejected below as not specified in the pleadings. The Lucille, 19 Wall. 73, affirmed and applied. The North Carolina, 15 Pet. 40, distinguished. The finding of the board of local inspectors, and the documents connected therewith are not admissible in a collision suit in admiralty for the purpose of showing that the offending vessel was in her proper position in the river, and had proper watches and lights set at the time of the collision. When depositions of witnesses, made in another suit, are offered for the purpose of impeaching their evidence, and are admitted, and exception is taken thereto, and the bill of exceptions shows that “ in the cross-examination of each of said witnesses the attention of the witness was called to the evidence” given by him in [the other case] and the said witnesses were specifically examined as to the correctness of said evidence, and that “ at the offering, no objection was made that the evidence offered was not the evidence of said witnesses respectively, or that the same had been imperfectly taken and reported,” but the cross-examination is not incorporated into the bill of exceptions ; it will be presumed that ample foundation was laid for the introduction of the evidence. Although the general rule is that when contradictory declarations of a witness made at another time in writing are to be used for purposes of impeachment, questions as to the contents of the instrument without its production are ordinarily inadmissible : yet the law only requires that the memory of the witness shall be so refreshed as to enable him to explain if he desires to do so, and it is for the court to determine whether this has been done, before the impeaching evidence is admitted. This was a collision case in admiralty. The facts are stated in the opinion of the court. Lfr. T. D. Lincoln [Mr. R. H. Marr also filed a brief] for appellants. Mr. Richard H. Browne [Mr. Charles B. Singleton was with him] for appellees. Mk. Chief Justice Waite delivered the opinion of the court. This is a suit in admiralty, brought by the owners of the steamboat “Cotton Valley,” to recover for the loss of their boat, and certain articles of personal property belonging to Martin H. Kouns alone, in a collision on the Mississippi River THE CHARLES MORGAN. n Opinion of the Court. with the steamboat “ Charles Morgan.” In the original libel filed in the District Court, claim was made only for the value of the boat, and for an itemized account for clothes, jewelry, furniture, etc., of the libellant Kouns. The District Court found the Morgan in fault, and referred the cause to a commissioner to take testimony and report the damages. The commissioner reported that the libellants were entitled to recover the value of the boat, and also the value of stores and supplies, $1,376.-16, and $500 cash in the safe of the boat, and belonging to her, lost at the time of the collision; he also reported that Martin H. Kouns, one of the libellants, should recover the value of a lady’s gold watch, $150; of a gentleman’s gold watch, $120, and $75 cash lost. The claimant of the Morgan excepted to the allowance for stores and supplies, and for cash in the boat’s safe, on the ground that they had not been sued for. The District Court sustained this exception, and gave a decree only for the value of the boat and the allowances by the commissioner to Kouns. From this decree both parties appealed to the Circuit Court. When the case got into the Circuit Court leave was granted the libellants to file a supplemental and amended libel setting up their claim for stores, supplies, and cash, proved before the commissioner in the District Court, but rejected by that court because not included in the original libel. Upon the hearing in the Circuit Court that court found, among other things, tl}at at the time of the collision the Cotton Valley, bound for Red River, was the ascending boat, and the Charles Morgan, bound for New Orleans, the descending boat; that the collision occurred near Bringier’s Point, about three miles below Donaldsonville; that both boats were properly officered and manned, and had proper wmtches and proper lights set. “ Third. That prior to the collision the Cotton Valley was m her proper position in the river near the left bank, following up the Bringier Point preparatory to rounding the same, while the Charles Morgan was above the point, perhaps in the middle of the river, but heading across and near the point to a wood-yard light, in the bend of the river below the point. 72 OCTOBER TERM, 1884. Opinion, of the Court. “ Fourth. That when the respective boats were in the positions just described, the Cotton Valley blew one whistle as a signal that she would pass the Charles Morgan to the right, which signal the Charles Morgan answered with one whistle, as a signal that the pilot of the Morgan understood, and would also pass to the right. “ Fifth. Both boats kept on their respective courses, approaching each other, when the pilot of the Morgan sounded three or four short whistles, stopped the Morgan’s engines, and soon commenced backing the wheels, but not enough to stop the Morgan’s headway, and without in any wise changing her course to starboard or port. “Meanwhile, the Cotton Valley, rounding the point, at the three or four short whistles given by the Morgan, understanding the signal as a hail, stopped the engines. “ At this time the boats were within one hundred yards of each other, the Morgan, with her headway and the current, coming straight on without changing her course, the pilot of the Cotton Valley, foreseeing an inevitable collision if he remained still, started the Cotton Valley ahead, sheering to starboard; but this forwarding of the Cotton Valley was too late, for almost immediately the Charles Morgan, head on, struck her on the port side, about twenty-five feet forward of the stern, and at an angle of about sixty degrees, with such force as to cut through her guards into her hull nearly to the kelson, and cause her to sink in about ten minutes. “ Sixth. That the Charles Morgan and her officers were in fault, as the proper position of the boat was nearer the middle of the river, and as her officers disregarded the passing signal given and answered, and made no effort to change the boat’s course to the starboard, by which the boats would have been so separated that a collision would have been avoided. “ Seventh. That the Cotton Valley was not in fault, as she was in her proper place as the ascending boat, and as she gave the proper signal for passing. “ The failure of the pilot to understand the signal of three or four short whistles given by the Morgan was not, under the circumstances of the case, a fault; and if the starting of the THE CHARLES MORGAN. 73 Opinion of the Court. Cotton Valley’s engines and sheering to starboard when the Morgan was upon them was an error, it was an error of judgment in extremis, not putting the boat in fault.” Upon these facts a decree was rendered against the Morgan and her owners and stipulator^ for the value of the Cotton Valley, and for the value of the personal property belonging to Kouns, the same as in the District Court, and also for the value of the stores, supplies, etc., set forth in the supplemental libel, $1,376.16. From that decree this appeal was taken. The record contains a bill of exceptions, which shows that in the progress of the trial in the Circuit Court the defendants offered in. evidence a certified copy of “the finding of the board of local inspectors of steam vessels, New Orleans, December 18,1878, being their decision in the case of the collision between the steamers Cotton Valley and the Charles Morgan, and signed by C. B. Johnson and J. A. Moffat, United States Local Inspectors.” They also offered certain other documents connected with that proceeding, including an appeal to the District Inspectors and their decision thereon. To the introduction of this evidence the libellants objected, and their objection was sustained. To this ruling the claimant of the Morgan excepted, and the exception was made part of the record. It is also shown by another bill of exceptions in the record, that, after the depositions of Albert Stein, Harry W. Stein, Sylvester Doss, John B. Evelyn, and Livingston McGeary had been read on behalf of the claimant of the Morgan, the libellants, for the purpose of impeaching and contradicting their evidence, offered certain depositions of the same witnesses used on the trial of certain other suits, growing out of the same collision, between one Menge and some insurance companies, to which the claimant was not a party. To the introduction of this evidence the claimant objected, on the ground that no basis for offering said purported depositions had been laid, it not having been shown or pretended that said purported depositions were ever submitted to the said witnesses, or otherwise verified as their evidence in said causes; but as, “ in the cross-examination of each of said witnesses in this case, the atten- T4 OCTOBER TERM, 1884. Opinion of the Court. tion of the witness was called to the evidence given by him in the cases of Menge n. Insurance Companies, . . . and the witnesses were specifically examined as to the correctness of said evidence, and admitted having testified therein,” and “ no objection was made that the evidence offered was not the evidence of said witnesses respectively, or that the same had been imperfectlytaken or reported,” the depositions were admitted for the purpose for which they were offered. The cross-examination referred to is not set forth in the bill of exceptions. To the admission of this evidence the claimant excepted. The following positions are taken by the appellants: 1. That the findings of fact are not sufficient to support the decree. 2. That leave to file the supplemental and amended libel should not have been granted, and consequently that the decree should not have included the value of the stores, supplies and money belonging to the Cotton Valley, which were lost. 3. That the record of the proceedings and findings of the board of local inspectors, and the documents connected therewith, were improperly excluded as evidence; and 4. That the depositions taken in the Menge cases were improperly admitted. 1. The objection to the sufficiency of the findings is based on Rule 2 of the Board of Supervising Inspectors of Steam Vessels, which is as follows: “ Should steamers be likely to pass near each other and these signals should not be made and answered by the time such boats shall have arrived at a distance of 800 yards from each other, the engines of both boats shall be stopped; or should the signal be given and not properly understood, from any cause whatever, both boats shall be backed until their headway shall be fully checked, and the engines shall not be again started ahead until the proper signals are made, answered and understood. Doubts or fears of misunderstanding signals shall be expressed by several short sounds of the whistle in quick succession.” The particular specifications of insufficiency are: 1. That it does not appear that the signals for passing had THE CHARLES MORGAN. 75 Opinion of the Court. been made and answered before the boats came within eight hundred yards of each other; and, 2, that the failure of the Cotton Valley to understand the signal of doubt or fear made by the Morgan was a fault on her part. There is no complaint in the pleadings as to the time when the Cotton Valley made the first signal, and neither party at the hearing below seems to have considered that an important fact in the case.' So long as it was made and assented to by the Morgan without any signal of misunderstanding, it will be presumed to have been at the proper distance, as nothing appears to the contrary. The findings show affirmatively that it was understood and assented to by the Morgan. As the “ several short sounds of the whistle ” were only to be given in case of doubt or fear of a misunderstanding of signals, it was not necessarily a fault in the Cotton Valley to misinterpret their meaning when made by the Morgan, so short a time after her assent had been given to the signal of the Cotton Valley to pass to the right. 2. Admiralty Rule 24 provides that in all informations and libels, in causes of admiralty and maritime jurisdiction, “ new counts may be filed, and amendments, in matters of substance, may be made, upon motion, at any time before the final decree, upon such terms as the court shall impose.” 3 How. xiv. In The Lucille, 19 Wall. 73, 74, it was decided that an appeal in admiralty from the District to the Circuit Court “ has the effect to supersede and vacate the decree from which it was taken. A new trial, completely and entirely new, with other testimony and other pleadings, if necessary, or, if asked for, is contemplated—a trial in which the judgment of the court below is regarded as though it had never been rendered. A new decree is to be made in the Circuit Court.” Clearly, under this decision, after an appeal is taken, and the decree of the District Court vacated, a motion to amend, made while the case is pending in the Circuit Court for a new trial on its merits, will be before the final decree; and, under the operation of the rule, we have no doubt the Circuit Court may, in its discretion, permit an amendment of the libel, so as to include a claim for damages growing out of the original cause of action 76 OCTOBER TERM, 1884. Opinion of the Court. and litigated in the court below, but rejected because not specified in the pleadings. It is true, that in the case of The North Carolina, 15 Pet. 40, 50, it was decided that a libel could not be amended after an appeal, so as to bring in a new claim for damages; but this was before the adoption of the admiralty rules, the decision having been made in 1841, and the rules not taking effect until September 1, 1845. 3 How. xix. The act authorizing th^ rules was passed August 23, 1842, ch. 188, § 6, 5 Stat. 518, and it is quite possible Rule 24 was suggested by that case. It has long been the practice of the Circuit Court to allow such amendments. Weaver v. Thomson, 1 Wall. Jr., C. C. 343, decided in 1849 in the Third Circuit; Lamb n. Park-man, 21 Law Rep. 589, First Circuit, in 1858; The C. H. Foster, 1 Fed. Rep. 733, same Circuit; The Morning Star, 14 Fed. Rep. 866, Seventh Circuit; The Oder, 21 Blatchford, 26, Second Circuit ; Phenix Ins. Co. v. Liverpool c& Great Western Steamship Co., 22 Blatchford, 372, same Circuit. In Lamb v. Parkman, supra, Mr. Justice Curtis, then holding the Circuit Court, said: “ The twenty-fourth rule, made by the Supreme Court to regulate the practice of the instance courts of admiralty, applies to this as well as to the District Court. Pursuant to it, amendments in matters of substance may be made on motion, at any time before the final decree, upon such terms as the court shall impose. What amendments shall be allowed, under what circumstances and supported by what proofs they must be applied for, and in what form they must be incorporated into the record, are left to the sound discretion of the court, to be exercised in each case, or to be regulated by written rules of practice, so far as the court may find it useful to frame such rules.” In some of the circuits, rules upon the subject have been adopted. The Second Circuit is among them. In the case of Lamb v. Parkman, Mr. Justice Curtis, after saying that there were no written rules in his circuit, proceeded to state what, from the course of decisions in similar or analogous cases, would, in his opinion, be proper guides to the exercise of the discretion of the court. If proper care is taken to avoid surprise, and to confine amendments in the appellate court to the original subject of controversy, so as not to allow matters out- THE CHARLES MORGAN. 77 Opinion of the Court. side of the general scope of the pleadings below to be brought in it is difficult to see how any possible harm can come from permitting a libellant to amend his libel in such a way as to give him the full benefit of his suit as it has been begun. 3. The finding of the board of local inspectors, and the documents connected therewith, were properly excluded. The proceeding in which the finding was made was instituted under Rev. Stat. § 4450, for an investigation of the facts connected with the collision, so far as they had a bearing on the conduct of the licensed officers on board the boats, and at most it only showed the opinion of the board upon the subject from the evidence adduced before them. It was offered, to use the language of counsel, “ as tending to affect the evidence offered by the libellants to show that the Cotton Valley was in her proper position in the river, and had proper watches and lights set at the time of the collision.” Clearly it was not admissible for any such purpose. 4. The specific objection to the depositions in the Menge cases that were offered for the purpose of impeachment, is that they were not exhibited to the witnesses whose testimony was to be impeached upon tlieir cross-examination, or otherwise verified, as the evidence of the witnesses in the former causes. The rule is, that the contradictory declarations of a witness, whether oral or in writing, made at another time, cannot be used for the purpose of impeachment until the witness has been examined upon the subject, and his attention particularly directed to the circumstances in such a way as to give him full opportunity for explanation or exculpation, if he desires to make it. Conrad v. Griffey, 16 How. 38, 46. If the contradictory declaration is in writing, questions as to its contents, without the production of the instrument itself, are ordinarily inadmissible, and a cross-examination for the purpose of laying the foundation of its use as impeachment would not, except under special circumstances, be allowed until the paper was produced and shown to the witness while under examination. Circumstances may arise, however, which will excuse its production. All the law requires is, that the memory of the witness shall be so refreshed by the necessary inquiries as to enable 78 OCTOBER TERM, 1884. Opinion of the Court. him to explain, if he can and desires to do so. Whether this has been done is for the court to determine before the impeaching evidence is admitted. Here the cross examination, on which the right to use the depositions depended, has not been put into the record, but the bill of exceptions shows “ that, in the cross-examination of each of said witnesses, the attention of the witness was called to the evidence given by him in the cases of Menge, . . . and the said witnesses were specifically examined as to the correctness of said evidence, and admitted having testified therein.” From this, and the failure to incorporate the cross-examination into the bill of exceptions, we must presume that ample foundation was laid for the introduction of the evidence, unless the failure to show the depositions to the witnesses at the time of their cross-examination was necessarily and under all circumstances fatal. The objection is not to the cross-examination as to the contents of the depositions without their production, but to the admission of the depositions after a cross-examination which was, as we must presume, properly conducted in their absence. It is also stated in the bill of exceptions that, “ at the offering, no objection was made that the evidence offered wras not the evidence of said witnesses respectively, or that the same had been imperfectly taken or reported.” This shows that the depositions must have been sufficiently identified as the evidence of the witnesses in the former cases. In the case, as it comes to us, we find no error. The decree of the Circuit Court is affirmed and interest al- lowed. CLARK v. BEECHER MEG. COMPANY. 79 Opinion of the Court. CLARK v. BEECHER MANUFACTURING COMPANY & Another. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CONNECTICUT. Argued April 17, 1885.—Decided May 4,1885. Letters patent No. 66,130, granted to Janies B. Clark, June 25, 1867, for an “ improvement in the manufacture of blanks for carriage thill shackles,” are not infringed by the manufacture of blanks for shackles in accordance with letters patent No. 106,225, granted to Willis B. Smith, August 9,1870. The features of the Clark patent are, that, by dies, the arms of the blank are bent into an oblique direction, and the body into a curved form, so that the parts where the arms join the body are rounded on the outside as well as the inside ; and that when, subsequently, the curved body is straightened, there will be in it sufficient metal to form sharp outside corners, by being pushed out into them. The arms of the Smith blank are not bent in an oblique direction, its body is not curved, the parts where the arms join the body are not rounded, either on the inside or on the outside, and, in afterwards straightening the back, surplus metal is not pushed towards or into the corners, to form them, but the existing corners, already formed, are forced further apart, by driving surplus metal into the back, between the corners. In view of the state of the art, and the terms of the Clark patent, it must be confined, at least, to a shape which, for practical use, in subsequent manipulation, has a disposition of metal which causes a sharp corner to be formed in substantially the same way as by the use of his blank. This was a bill in equity to restrain an infringement of a patent. The facts are stated in the opinion of the court. Mr. William Edgar Simonds for appellant. Mr. 0. TI. Platt for appellees. Mr. Justice Blatchford delivered the opinion of the court. This is a suit in equity, brought in the Circuit Court of the United States for the District of Connecticut, by James B. Clark against The Beecher Manufacturing Company, a Connecticut corporation, and D. F. Southwick, for the infringe-ment of letters patent No. 66,130, granted to the plaintiff, 80 OCTOBER TERM, 1884. Opinion of the Court, June 25, 1867, for an “improvement in the manufacture of blanks for carriage thill shackles.”' The main defence to the suit is non-infringement. The Circuit Court, after a hearing and two rehearings, dismissed the bill, holding that infringement had not been proved. 7 Fed. Rep. 816. The plaintiff has appealed. A history of the state of the art, and of the progress of invention in making shackle blanks, will conduce to a determination of the questions involved. A carriage thill shackle is a device by which the thills of a carriage are hinged to the axle. The finished shackle is a horizontal plate, with a pair of vertical ears rising therefrom, one at each end of the back. The cockeye on the end of the thill is received between the ears, and a bolt passing through the ears and the cockeye secures the parts. The flat back or body part of the article is forged with a projection at each side, forming what is commonly called the “ clip,” by which the article is secured to the axle. In forming the shackle, it is necessary that the outside corners, where the ears join the back, should be sharp, full and square, to obtain a good bearing on the axle, or the article will not be salable. The old style of shackle was of this shape. It was formed by _____ Section an / I '/%/// x--------as ///// I Top I —■ ■— / viewy i bending up the two ears from a piece of metal of equal thickness, and the outer corners became round, and the bearing on the axle was not firm and true. It was desirable to obtain in some way a reservoir or surplus of metal, which could be utilized, in the bending, by being thrown out into or remaining in the corners, to make them full and square on the outside. To CLARK v. BEECHER MEG. COMPANY. 81 Opinion of the Court. attain this result, one James P. Thorp made an invention for which he obtained letters patent No. 28,114, granted May 1, 1860, which were reissued to his assignees, H. D. Smith and others, as No. 2,362, September 18, 1866. Thorp’s blank was of the following shape: The two projections on the bottom of Top i View; the blank were intended to furnish sufficient metal to make the outer corners of the shackle square and sharp, when the ears were bent in the direction indicated by the arrows. The projections were at the places where the arms joined the body. Thorp’s patent showed a die for making the blank, constructed with recesses or cavities to form the projections, and stated that, after the arms were bent up, the blank, instead of being of the old form, Fig. 6, with rounded corners, a, a, thus: n crJl S vol. cxv—6 82 OCTOBER TERM, 1884. Opinion of the Court. would be of the form of Fig. 7, with square or right-angled comers, a, a, thus: n n & 5 I > a a the blank being stronger at the junction of the arms and body, and the expansion of the metal, in bending the arm, being compensated for by a diagonal contraction of the metal, which operated to prevent the destruction of the cohesion of the particles of the metal, and the consequent weakening of the blank at the parts where it was bent. The next step is shown in letters patent No. 65,641, granted June 11, 1867, to Leander Burns and Josiah Wilcox, on the invention of Burns. That patent shows, in Fig. 7, an upper die M, and a lower die N, and the blank made between them, with square corners, L, L thus : Fig.7. Fig. 7 is a transverse vertical section taken in the plane of the line y y, in Fig. 6. Fig. 6 is a face view of the lower die, N, and shows also the blank after it is acted on by the dies. The specification states, that, if the arms of the blank are bent up at right angles, in a direction towards each other, perfect square corners will be left at L, L, with the metal through those corners and the other parts of a uniform thickness. CLARK v. BEECHER MEG. COMPANY. 83 Opinion of the Court. ----------------------K • Then followed the patent to the plaintiff, the specification and drawings of which are as follows : “ This invention relates to the construction of carriage shaft shackles from solid blanks, and to the shape of the dies for forming the same, so that, with the least amount of labor and power, the said shackle may be gradually formed into the required shape. In the annexed drawings this invention is illustrated. Fig. 1 is a vertical sectional view of a shackle blank, showing it between the dies. Fig. 2 is a top or plan view of a shackle blank, as the same is formed by the dies. Similar letters of reference indicate like parts. The blank, which is made in the shape of a cross, in the usual manner, is placed upon the lower die I Fig. 2. gg^ ■ H 9 j । LL 3 A, and the upper die B is then EL Bl______S forced down upon it, whereby the_____________\ / arms a, a, of the blank are bent into an oblique direction, and the body, 5, is curved, as shown m the figure. The portion of the blank where the arms join 84 OCTOBER TERM, 1884. Opinion of the Court. the body is rounded, as shown, on both the inside as well as on the outside, the straightening of the body of the shackle pushing out sufficient material for forming the sharp corners, without having any hindersome and impracticable projections. The dies are formed so as to give the blank the required shape. This process of forming shackle blanks has proved, by practice, to be the most expeditious and simple yet performed, as it requires the least amount of machinery, and forms each part of the shackle with just the required amount and thickness of metal for completing the article.” The claims, two in number, are these: “1. The carriage shaft shackle blank, so formed between dies that the body I of the blank is curved, substantially as herein shown and described. 2. The dies A and B, for making the said blank, when so constructed and arranged as to form the rounded corners and the curved body of the said blank, substantially as herein shown and described.” The plaintiff, according to his description, takes a blank in the form of a cross, and, by dies of proper shape, bends the arms of the blank into an oblique direction, and the body into a curved form, the result being, that the parts where the arms join the body are rounded on the outside as well as the inside; and when, subsequently, the curved body is straightened, there will be in it sufficient metal to form sharp outside corners, by being pushed out into them. The plaintiff’s patent stops with the curved blank shown in Fig. 1 of his drawings. That blank is, in practice, afterwards formed, by other dies, into the following shape: ] j....... Section af "ZB H Top \\ / "View CLARK v. BEECHER MEG. COMPANY. 85 Opinion of the Court. Putting the blank into that shape is what the specification, refers to when it speaks of “the straightening of the body,” and “ forming the sharp corners.” The defendants make shackle blanks by dies, under letters patent No. 106,225, granted to Willis B. Smith, August 9, 1870. Fig. 3 of that patent is a plan view of the blank which the dies forge, and Fig. 4 is an end view of the blank. In S' Fig. 4. ------------ff ||p| 0 these figures, b, b, are the ears; d is the clip ; f is the shaft; g is the body of the blank; A, A, are the corners at the junction of the ears and the body ; AT is the whole blank. The corners \ A, are formed at right angles to each other. The specification says, that the blank H is then placed in a trimming die, and the surplus metal which projects from its edges is removed; and that the blank is then heated, and the oblique portions of A Fig. 5. X & I 0 the body, g, are bent, so as to throw the ears, b, b, upward, in the form shown in Fig. 5, in which operation the corners, A, A, 86 OCTOBER TERM, 1884. Opinion of the Court. previously formed at right angles, remain unmolested, and are square and full. The specification says: “ I am aware that dies for the same purpose have been previously used, as shown in the patents to L. Burns, June 11,1867, and J. B. Clark, June 25, 1867. In Burns’ dies, the body of the shackle is formed straight, while the ears are curved, the curve commencing at the plane where the ears are to be bent to form the corners, and, therefore, said corners are not right angled, neither is it possible for curved ears to be both on one and the same line. In Clark’s dies, the ears are formed straight, but were arranged on different lines, so that the edge of the blank at the side of each ear was thrown out of a vertical line, which seriously interferes with trimming off the surplus metal. I make no claim to either of the above or similar dies. ” Smith’s patent claims the blank so constructed and formed, and also the dies for forging it. The Circuit Court was of the opinion, that, in straightening the angularly bent back of the defendants’ blank, to get it into the shape of Fig. 5 of the Smith patent, surplus metal was not pushed toward or into the corners to form them, but the existing corners were forced further apart, to the extent of one fourth of an inch, by driving surplus metal into the back, between the corners. We are of opinion that this view is correct. Besides this, the arms of the defendants’ blank are not bent in an oblique direction, its body is not curved, and the parts where the arms join the body are not rounded, either on the inside or on the outside. The defendants’ blank, as in Fig. 4 of the Smith patent, has abundance of material near the corners A, A, which are to be sharp and square, and are already formed, while the plaintiff’s blank, by reason of its rounded corners, has a deficiency of material near the points where the square corners to be formed are to be. In the efforts to make, by dies, a shackle blank, which should ultimately have sharp outside corners, the inventors, in succession, had the idea of a reservoir or surplus of metal. Thorp had it in the downward projections. Burns had it in his sharp lower corners with curved arms. The plaintiff had it in his WOLLENSAK v. REIHER. 87 Opinion of the Court. curved body and rounded corners. Smith, has it in his shape. But, in view of the state of the art, and the terms of his patent, the plaintiff must be confined to a curved body, rounded corners and oblique arms, or, at least, to a shape which, for practical use, in subsequent manipulation, has a disposition of metal, which causes a sharp corner to be formed in substantially the same way as by the use of his blank. The defendants’ blank does not have such a shape. Decree affirmed. WOLLENSAK v. REIHER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. Argued April 14, 15,1885.—Decided May 4,1885. In view of the state of the art existing at the date of the patent granted to John F. Wollensak for an improvement in transom lifters by original patent No. 136,801, dated March 11, 1873, and by reissued patent No. 9,307, dated July 20, 1880, and the claims of that patent, it must be limited to a combination, with a transom, its lifting arm and operating-rod, of a guide for the upper end of the operating rod, prolonged beyond the junction with the lifting arm, so as to prevent the operating-rod from being bent or displaced by the weight of the transom; and it is not infringed by the device .secured to Frank A. Reiher by patent No. 226,353, dated April 6,1880. This was a bill in equity to restrain infringements of a patent. The facts are stated in the opinion of the court. Mr. L. I. Bond (Mr. Ephraim Banning and Mr. Thomas A. Banning were with him) for appellant. Mr. Charles T. Brown submitted on his brief for appellee. Mr. Justice Matthews delivered the opinion of the court. This bill in equity was filed by the appellant to restrain the alleged infringement by the defendant of re-issued letters patent No. 9,307, dated July 20,1880, the original patent, No. 88 OCTOBER TERM, 1884. Opinion of the Court. 136,801, dated March. 11, 1873, having been issued to John F. Wollensak, the appellant, for an alleged new and useful improvement in transom-lifters. This appeal is from a decree dismissing the bill for want of equity. The specification and drawings of the patent are as follows: “ Figure 1 is a perspective view, showing one means for carrying my invention into operation. Fig. 2 is a side elevation of the same, and Fig. 3 is a detached sectional view. “Similar letters of reference in the several figures denote the same parts. “Transom-lifters have heretofore been constructed with a long upright rod or handle jointed at its upper end to a lifting- Fig.2. Rg'K ■ ; \ T P 72, arm which extends to and is connected with the side or edge of the transom-sash, the sash being opened or closed by a verti-cal movement of the long rod. When thus constructed the upright rod is liable to be bent by the weight of the transom, WOLLENSAK v. REIHER. 89 Opinion of the Court. owing to the want of support at or near the point of junction between the long rod and the lifting-arm. “The object of my invention is to remedy this difficulty; and to such end it consists in providing the proper support, or support and guide, for the upper end of the lifting-rod during its vertical movements and while at rest. “ This may be accomplished in a variety of ways, one of which I will now proceed to describe in detail, although I wish it clearly understood that I do not limit my invention to this construction, but regard it as covering broadly any construction, combination or arrangement of parts which shall support the long or operating rod and prevent it from being bent or displaced by the weight of the transom. “In the drawings, D is the door; T, the transom-sash, pivoted at top, bottom, or middle, as preferred; A, the liftingarm that connects the sash to the upright rod, passing through two guides, G G', one above and one below the point of junction with the lifting-arm; G. a friction roller secured to the lifting-rod so as to bear against the wall and support said rod at its point of junction with the lifting-arm; n n, notches cut in the upright rod to receive the end of the set-screw; and s, a set-screw arranged, in connection with the lower guide and the rod G, so as to be convenient of operation for the purpose of fixing the transom at any required angle. The upright rod is thus supported at three points, to wit, above, below, and at the point where it sustains the weight of the transom. It can also be adjusted and securely fastened so as to open the sash as much or as little as may be desired, and to lock it in that position. “Having thus described my invention, what I claim as new is— “1. The combination, with a transom, its lifting-arm and operating-rod of a guide for the upper end of the operatingrod, to prevent it from being bent or displaced by the weight of the transom. ‘ 2- The roller 7?, arranged at the junction of the lifting-arm and upright rod G, in a transom-lifter, substantially as and for the purpose described. 90 OCTOBER TERM, 1884. Opinion of the Court. “3. The guide G', arranged above the junction of the lifting-arm and upright rod, in combination with the prolonged rod U, the guide G, and arm A, substantially as and for the purpose specified.” The defences relied on were, that the alleged invention was not patentable; that it had been anticipated by Bayley and ‘ 2^. -Z «?. F|0 0 | | M Z%J; 4 ™ '• '4 Xu ®J '05 ^ g JhdlM o L r ~ iT1 The drawings accompanying the specification, which formed part of the reissued patent, were the same as the original, except one described as Figure 4, which was added, but was un- 432 OCTOBER TERM, 1885. Statement of Facts. important. The specification of the reissued patent was as follows: “ Be it known that I, James Eachus, of Coatesville, in the county of Chester, and State of Pennsylvania, have invented a new and improved Process of Cutting Paper Boards, of which the following is a description,, reference being had to the accompanying drawings, in which— “ Figure 1 is a front view of my machine for conducting my process. Fig. 2 is a side elevation of such machine. Fig. 3 is a top view, and Fig. 4 is a detail of a saw in the act of cutting. “ Similar letters of reference indicate corresponding parts in the several figures. “ The object of this invention is to trim and cut heavy paper used in the manufacture of boxes and books; and it consists in subjecting the paper while in a wet state, as it is taken from the paper-making machine, to the action of circular cutters having serrated edges, whereby the sheets are cut evenly and economically, and the trimmings can be returned to the paper machine without regrinding or other treatment. “ In the annexed drawings I have represented one practical form of a machine fop conducting my process ; but I desire to be understood as not confining myself to the precise construction of such machine, nor to the number of serrated cutters shown. “ In Fig. 3, E designates the frame, which should be strongly constructed. B B and T T are guides on frame E. A is a two-way carriage, which is constructed in such manner as to play freely on the guides B B and T T. D and F are sawshafts, which are mounted upon adjustable bearings bolted to frame E. COG and B B B are circular saws or cutters, having serrated edges, adapted for the purpose intended, which saws are secured upon shafts D and ^by adjustable collars. “ For the purpose of operating this machine, shafts D and F are provided with pulleys P P. Motion is communicated by belts H H, Fig. 2, from a shaft G, on which are pulleys PP • “ The paper to be cut is put upon the carriage A. The pile is composed of a number of large sheets as they are taken from the paper-making machine in a very wet condition. The EACHUS v. BROOMALL. 433 Statement of Facts. carriage is then drawn upon the guides B B, saws BBS cutting through the paper; thence at right angles to the first direction upon guides T T, saws C C C cutting through the pile in the new direction, the result of the operation being to trim the edges of the sheets and cut each sheet into four parts. “ The saws can be adjusted on shafts D and F so as to trim and cut the sheets any desired size. “ It will be seen from the above description that I take sheets of paper, while they are in a wet condition, directly from the paper-making machine, and pass the saws over them, thereby trimming their edges, and leaving them of an equal thickness throughout, and dividing them into smaller sheets. This process of sawing cannot be performed successfully and without tearing the surface of the sheets unless the sheets are wet, and in the condition in which they leave the paper-making machine. “ I make no claim to the arrangement of circular saws and carriages for the purpose of sawing logs or any kind of wood; nor do I broadly claim the machine herein described for sawing wood. “ I am aware that paper board has heretofore been sawed when in a dry state, and I therefore lay no claim to such invention, which leaves the edges of the paper thus sawed in a jagged condition, the action of the saw-teeth tending to separate the fibres of the paper board in the line of the kerf; whereas, when the paper board is sawed in a wet state, directly after leaving the paper machine, the edges are left smooth, the saws causing an interlocking of the fibres in its path through the paper, and the trimmings of the paper being in a condition to be returned to the vat without regrinding, which would not be the case with trimmings of paper board sawed in a dry state. “ What I claim as new, and desire to secure by letters patent, is— “The process of sawing paper board as herein described, consisting in sawing the paper board while it is in the wet state in which it is taken from the paper-making machine, substantially as described, and for the purpose set forth.” The only defences set up in the answer were a denial of the vol. cxv—28 434 OCTOBER TERM, 1885. Opinion of the Court. validity of the reissued patent, and a denial of the alleged infringement. Mr. Wayne McVeagh and Mr. Joseph C. Fraley [Mr. George Tucker Bispham was with them on the brief] for appellant, contended that the reissue and the original letters patent were for the same invention ; and further that the defence of want of novelty could not be considered under the pleadings in this case, as no notice of prior knowledge or use was given in the answer, and as all evidence touching this point was seasonably objected to. Rev. Stat. § 4920. Mr. Charles H. Pennypacker for appellee. Mb Justice Matthews delivered the opinion of the court. He stated the facts in the language above reported, and continued : A comparison of the two patents, for the purpose of determining the question raised as to the identity of the inventions described in them, requires an interpretation of the original patent in the light of the state of the art at the date when the application for it was filed. And we have the material for ascertaining its meaning, in that view, by means of the evidence on that point contained in the record, which, although objected to on the ground that no prior use or knowledge of the invention claimed had been specifically set up in the answer as a defence, was nevertheless admissible for the purpose of defining the limits of the grant in the original patent and the scope of the invention described in its specification. Vance v. Campbell, 1 Black, 427; Brown v. Piper, 91 U. S. 37. From that evidence', it appears that, at the time of the alleged invention of the appellant, and for many years prior thereto, paper boards for bookbinding or for making boxes were cut, trimmed or separated, while in a wet or moist state, as the paper in sheets came from the mill, by means of a hand saw, sometimes with teeth, and sometimes ground with a curved line to a sharp edge. This was the mode or process m universal use. Heavy paper coming from the machine m a EACHUS v. BROOMALL. 435 Opinion of the Court. dry condition was cut, for similar purposes, in one direction by means of rolling shears; that is, revolving circular discs, operated on a shaft, their edges ground to an angle of about sixty degrees, the same as a pair of scissors; and in the other direction by straight shears, acting like ordinary scissors. It is manifest, from this state of the art, that it was not open to the appellant, at the time he applied for his patent, to claim as his invention the discovery that heavy paper, intended for the use of bookbinders and box-makers, could best be cut into proper shapes and sizes, while in wet sheets, as they came from the machine, nor that the cutting could best be performed by cutters with serrated edges. For this was matter of general knowledge and common practice. Accordingly, in the specification to his original patent, he declared the nature of his invention to consist “ in combining six adjustable circular saws upon two shafts, set at any angle to each other, and a two-way carriage supported by a frame, and provided with guides so as to work easily and carry the material to be cut.” Then follows a description of the machine which contains this combination, and of the mode of operating it, so as to effect the result, of cutting the large wet sheets of heavy paper, placed on the frames for that purpose, in both directions, into smaller sheets of any desired sizes. This description refers to the drawings, which show the machine with all its parts, and their relations to each other, in their combination. But none of these parts, either in their construction or mode of operation, or general function, are novel; for saws and shafts, and frames for carrying material to be cut, had been in common use for cutting other material, and were well known. Accordingly, the appellant, in his specification, enters an express disclaimer as to all such uses, and the combinations and arrangements of well-known machinery by which they had been effected. He says: “ I make no claim to the arrangement of circular saws and carriages, working upon guides for the purpose of cutting logs, blocks of wood, wood of any kind, or any other material except paper.” And thereupon states bis claim, precisely, as follows : “ The combination of shaft J), 436 OCTOBER TERM, 1885. Opinion of the Court. shaft F, saws S S S and C C C, carriage A, and frame E, for the purpose of cutting binders’ and box-makers’ paper, substantially as shown and described.” . It is plain, then, that the only invention exhibited in the drawings, or described in the specifications of the original patent, consists in the particular organization of the machine described, whereby the various parts are combined and adjusted, so as to fit it to accomplish the specific result of cutting heavy paper when in large sheets and in a wet condition, as received from the paper-making machine, into smaller sizes and other shapes, for use as boards in book-binding and box-making. Whether the particular construction and arrangement of the parts forming the combination and adjustment described was, of itself, something novel, requiring invention, or whether the adaptation and application of such a combination to the particular use declared was an invention by reason of the novelty of the use and the new result obtained, within the principle of the cases of Stimpson v. Woodman, 10 Wall. 117; Tucker v. Spalding, 13 Wall. 453; Brown n. Piper, 91 IT. S. 37; Roberts n. Ryer, 91 IT. S. 150, 157; Heald v. Rice, 104 IT. S. 737, 754; Hall v. Macneale, 107 IT. S. 90; Atlantic Works v. Brady, 107 IT. S. 192, and Pennsylvania Railroad v. Locomotive Truck Co., 110 IT. S. 490, are questions not before us. It is sufficient to say that, whether for such an alleged invention the original patent could or could not be upheld, it cannot be construed as good for anything more or other than that. We turn now, for the purpose of comparison, to the reissued patent. In the specification thereto the patentee declares that he has invented, not a machine, but “ a new and improved process of cutting paper boards,” of which a description follows; that the drawings referred to are views of “ my machine for conducting my process; ” that the invention consists m subjecting paper, while in a wet state, as it is taken from the paper-making machine, to the action of circular cutters having serrated edges, whereby the sheets are cut evenly and economically, and the trimmings can be returned to the paper machine without regrinding or other treatment; ’’ that, in the annexed drawings, “ I have represented one practical form of a machine EACHUS v. BROOMALL. 437 Opinion of the Court. for conducting my process, but I desire to be understood as not confining myself to the precise construction of such machine, nor to the number of serrated cutters shown.” After describing the construction and operation of the machine, by reference to the drawings, the specification proceeds: “ It will be seen from the above description that I take sheets of paper, while they are in a wet condition, directly from the papermaking machine and pass the saws over them, thereby trimming their edges and leaving them of an equal thickness throughout and dividing them into smaller sheets. This process of sawing cannot be performed successfully and without tearing the surface of the sheets, unless the sheets are wet and in the condition in which they leave the paper-making machine.” Then follow these disclaimers: “ I make no claim to the arrangement of circular saws and carriages for the purpose of sawing logs or any kind of wood; nor do I broadly claim the machine herein described for sawing wood. I am aware that paper board has heretofore been sawed when in a dry state, and I therefore lay no claim to such invention, which leaves the edges of the paper thus sawed in a jagged condition, the action of the saw-teeth tending to separate the fibres of the paper board in the line of the kerf; whereas, when the paper board is sawed in a wet state, directly after leaving the paper machine, the’ edges are left smooth, the saws causing an interlocking of the fibres in its path through the paper, and the trimmings of the paper being in a condition to be returned to the vat without regrinding, which would not be the case with trimmipgs of paper board sawed in a dry state.” The specification then concludes with the claim, as follows: “ What I claim as new and desire to secure by letters patent, is— “The process of sawing paper board as herein described, consisting in sawing the paper board while it is in the wet state in which it is taken from the paper-making machine, substantially as described, and for the purposes set forth.” A comparison of the two patents makes it very clear, that, if the patentee had in fact conceived the idea of enlarging the 438 OCTOBER TERM, 1885. Opinion of the Court. scope of his invention by development from a machine into a process, he has taken no pains to conceal or disguise his purpose. For he entitled his original patent as for a new and useful machine for cutting paper boards, while w’ith equal explicitness, in his reissue, he declared that he had invented a new and improved process of cutting paper boards. This is at least a prima facie departure from the original grant, which would seem to be serious, if not fatal, under a law that limits the power of the Commissioner of Patents so as to issue a new patent only for the same invention, when the original has been surrendered, as inoperative or invalid, by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new, if the error has arisen by inadvertence, accident or mistake, and without any fraudulent or deceptive intention. If there had been any doubt, as to how the matter was understood by the patentee himself, it has been removed by his testimony in the case, in which, in answer to the question, “ For what purpose did you ask a reissue of your patent?” he said, “ I was told that a process would cover more than a mere machine, and so I applied for a process.” Taken in this obvious sense, the reissued patent falls directly under the condemnation of the law as declared in Powder Co. n. Powder Works, 98 U. S. 126, and other similar cases not necessary to be cited. The attempt is made, in argument on behalf of the appellant, by construction to convert the original patent into a patent for a process, in which the real invention described “ consisted in operating upon a peculiar kind of material with a peculiar kind of cutter,” and in which the claim was inadvertently framed, so as to cover merely the machine itself, and not the process in which it was one only of the factors. But we have already shown, by reference to the state of the art, according to which heavy paper in a wet condition was cut by means of a saw, that the original patent could not be construed as including such a process without invalidating it; and, from the terms of the specification itself, that no such process is described as the invention intended to be claimed. The patent GIBSON v. LYON. 439 Syllabus. is plainly limited by its language to the combination, arrangement and adjustment of the particular parts of the very machine described, for the uses to which it is declared to be applicable. On the other hand, the claim of the reissued patent is broad enough to cover the process of sawing paper boards in a wet state by means of a hand-saw; and if, for the purpose of saving it from the necessary consequences of such a claim, it is restrained by construction so as to include only the process described when performed by means of circular cutters having serrated edges—terms of limitation to be found in the specification—it is still broad enough to cover every arrangement, combination and adjustment in which these elements may be found; and this surely is not the same invention as that described in the original patent. The decree of the Circuit Court dismissing the bill is Affirmed. GIBSON v. LYON & Others. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. Argued March 13,16,1885.—Resubmitted October 22,1885.—Decided November 23, 1885. The assignee of a mortgage in Pennsylvania obtained judgment of foreclosure against the mortgagor, and, by injunction, issued in a proceeding in equity, at the suit of the assignee of the equity of redemption, was restrained from sale under the judgment. It was ordered in this suit in equity that the injunction stand until the holder of the mortgage transfer the bond and mortgage, and assign the mortgage suit, on receiving full payment of debt, interest, and costs. Subsequently the injunction was dissolved and the mortgagee was authorized to proceed upon the mortgage unless the defendant in the foreclosure suit should pay the same before a day named in the order, which time was extended by a subsequent order to another day named. No payment or tender of payment was made by any one until after the expiration of the last-named day. Held, That after the last-named day the mortgagee was not bound to transfer the debt and suit, but could proceed at law on the mortgage and judgment. A single verdict and judgment in ejectment in Pennsylvania, not being conclusive under the laws of that State, is not conclusive in the courts of the 440 OCTOBER TERM, 1885. Statement of Facts. United States, although entitled to peculiar respect, when the questions decided arise upon the local law of the State. The sanction of the court to a conveyance under proceedings and judgment for foreclosure of a mortgage in the Orphans’ Court of Philadelphia, being a judicial act, such a de’ed describing the estate as conveyed subject to an outstanding mortgage, estops the grantee from denying the validity of the mortgage. If a mortgage in Pennsylvania covers two or more tracts of land, and a sheriff under judgment for foreclosure, and execution, sells one tract for more than enough to pay the mortgage debt, and then proceeds to sell the other tracts, and all the sales are duly completed, and the deeds to the purchasers duly executed and delivered, without objection on the part of the owners, it is too late to object to the regularity of the proceedings. In Pennsylvania the fact that a judgment for foreclosure of a mortgage was erroneous, and could have been reversed upon a writ of error, does not invalidate a sheriff’s sale, made under the judgment, while the same stands in full force and unreversed. This was an action of ejectment to recover possession of certain real estate in Philadelphia, brought by the plaintiff in error, a citizen of New Jersey, against the defendants in error, citizens of Pennsylvania, in which there was judgment for the defendants below, which was brought here for review by this writ of error. The cause was submitted to the court, on the trial below, a jury being waived in writing, where judgment was rendered upon the following findings of fact: 1. In 1861 George W. Roberts was seized of the premises in dispute, situate at the southeast comer of Broad and Oxford Streets, containing in front on Broad Street forty-eight feet, and extending in depth on Oxford Street one hundred and forty-three feet. On April 13, 1861, the said George W. Roberts mortgaged the same to the Reliance Insurance Company, of Philadelphia, to secure the sum of $5000. 2. In 1862 George W. Roberts died, and on the 17th of December, 1863, his heirs presented a petition to the Orphans Court of Philadelphia County for leave to sell the above premises under the act of April 18, 1853, clear and discharged of all liens in the hands of the purchaser. On January 13, 1864, the said premises were sold, to John Rice for the sum of $10,500, which sale was, on January 15, 1864, approved and GIBSON v. LYON. 441 Statement of Facts. confirmed by the Orphans’ Court aforesaid, and security approved and entered in the sum of $21,000. The conveyance to the said John Rice was made January 30, 1864, in consideration of the sum of $5500, “ and under and subject to the payment of the mortgage debt or sum of $5000, with interest, made and executed by the said George W. Roberts to the Reliance Mutual Insurance Company, of Philadelphia, dated April 13, 1861, and recorded in mortgage-book A. C. H., No. 9, page 71, &c.” This provision is made in the habendum of the deed, but not in the premises. On the fifth day of February, a.d. 1864, this conveyance was duly acknowledged before the Orphans’ Court aforesaid. 3. On February 11, 1865, John Rice and wife conveyed the said premises to Sarah A. Jerraon, in consideration of $8000, “under and subject to the payment of the said mortgage of $5000,” held by the Reliance Insurance Company. 4. On June 5, 1867, the said mortgage of $5000 was duly assigned by the Reliance Insurance Company aforesaid to the defendants, who subsequently foreclosed the same by proceedings in the Supreme Court of Pennsylvania to July Term, 1867, No. 154. The action was brought against George W. Roberts, and judgment was duly obtained upon two returns of “ nihil” but after judgment, both the said Sarah A. Jermon and J. Wagner Jermon appeared and made several applications to open the judgment, which were refused. 5. On February 17,1868, J. Wagner Jermon and Sarah Ann, his wife, filed a bill in equity in the Supreme Court for the Eastern District of Pennsylvania, to January Term, 1868, No. 60, averring that the defendants were creditors of J. Wagner Jermon, and were proceeding upon the mortgage for the purpose of realizing their claims against J. Wagner Jermon, and also averring that Sarah A. Jermon had caused a tender to be made of principal, interest, costs, &c., to the defendants, and requested them to execute an assignment of the mortgage prepared and presented to them, which they refused. Whereupon a decree was entered “that an injunction be granted as prayed for to restrain the sheriff’s sale, of the property mentioned and referred to in the bill, and that the said 442 OCTOBER TERM, 1885. Statement of Facts. injunction do stand until the defendants, Lyon and Taylor, do execute an assignment of the bond and mortgage referred to in the bill, and a transfer of the suit brought upon the said mortgage, upon receiving payment of the debt and interest secured thereby, together with all costs, upon the execution of which assignment and transfer the said injunction shall be dissolved, &c.,” which said decree was affirmed by the Supreme Court, February 23, 1869, and & procedendo awarded. On April 3, 1869, the Supreme Court aforesaid decreed that the injunction should be dissolved, and the defendants hereto should be at liberty to proceed upon their said mortgage, unless the said J. Wagner Jermon or Sarah A. Jermon should pay the same before the 20th of April, 1869. On April 20, 1869, the time was, upon the application of J. Wagner Jermon, extended to May 10, 1869. No payment or tender was made on or before May 10, 1869. 6. On September 18, 1869, a levari facias was issued in the action to foreclose the mortgage, wherein the premises were described as three properties, viz: Lot No. 1. S. E. corner of Broad and Oxford streets, fortyeight feet on Broad street by one hundred and eleven feet on Oxford street. Lot No. 2. South side Oxford street one hundred and eleven feet east of Broad street, sixteen by forty-eight feet. Lot No. 3. South side Oxford street one hundred and twenty-seven feet east of Broad street, sixteen by forty-eight feet. Lot numbered 1 was purchased by the defendants at the sheriff’s sale, made October 4, 1869, for the sum of $10,000; and No. 2 was purchased at the same sale, by the defendants, for the sum of $2000. The sheriff’s return to the writ of levari facias was, inter alia, “ and it appearing that the plaintiffs in the writ are entitled to be paid the sum of $5748T40V, being the amount of principal and interest to day of sale of the mortgaged premises sued on this case, I have taken their receipt for the same, and balance of purchase money I have as within commanded.” On December 4, 1869, the sheriff’s deed for the premises GIBSON v. LYON. 443 Argument for Plaintiff in Error. Nos. 1 and 2 was duly acknowledged and delivered to the said defendants. No disposition was made of lot No. 3. 7. As to lot No. 3: By virtue of certain proceedings in the District Court of Philadelphia County, of December Term, 1866, No. 1421, the premises situate on the south side of Oxford street, one hundred and twenty-seven feet east of Broad street, sixteen feet by forty-eight feet, were exposed to sheriff’s sale on January 3, 1870, upon a venditioni exponas, issued December 3, 1869, under a judgment obtained by W. A. Arnold against J. Wagner Jermon and Sarah A. Jermon, his wife. The first count of the narr. filed in this action was for materials furnished to the said premises at the request of said Sarah A. Jermon. The second count was for materials furnished at the request of J. Wagner Jermon and Sarah A. Jermon, and the judgment was confessed in open court. At the sale the premises were purchased by defendant, and on January 22, 1870, the sheriff’s deed therefor was duly acknowledged and delivered to defendants. 8. That on the 3d July’, a.d. 1872, an ejectment was brought in the Supreme Court of Pennsylvania,- sitting at nisi prius to July Term, 1872, No. 130, by J. Wagner Jermon and Sarah A. Jermon against these defendants, wherein a verdict was rendered for these defendants, and on March 6, 1876, this was affirmed by the Supreme Court of Pennsylvania sitting in banc. 9. On March 7, 1876, Sarah A. Jermon, wife of J. Wagner Jermon, conveyed the premises in dispute to William L. Gibson, a citizen of the State of New Jersey, for the consideration of five hundred dollars. This conveyance purports to be made by Sarah A. Jermon alone. J. Wagner Jermon joined in the covenants, and both she and her husband signed and sealed the deed, and it was separately acknowledged. Mr. David C. Harrington [Mr. J. Carroll Brewster and Mr. George W. Biddle were with him] for plaintiff in error, cited Lyon’s Appeal, 61 Penn. St. 15; Brewer v. Fleming, 51 Penn. St. 102; Gilbert v. Hoffman, 2 Watts, 66; Mevey's Appeal, 4 Penn. St. 80; Quinn? s Appeal, 86 Penn. St. 447; 444 OCTOBER TERM, 1885. Opinion of the Court. Menges v. Oyster, 4 W. & S. 20; Cadmus n. Jackson, 52 Penn. St. 295, 303; McLanahan v. McLanahan, 1 Penn. 96; Bowen v. Oyster, 3 Penn. 239; Mode's Appeal, 6 W. & S. 280; Kinley n. Hill, 4 W. & S. 426; Anderson v. Neff, 11 S. & R. 208; Maule v. Weaver, 7 Penn. St. 329; Shoenberger v. Hay, 40 Penn. St. 132; Samms v. Alexa/nder, 3 Yeates, 268; Fetterman v. Murphy, 4 Watts, 424; Hoffman v. Shohecker, 7 Watts, 86; Caldwell v. Walters, 18 Penn. St. 79; Swayne n. Lyon, 67 Penn. St. 436; Parke v. Kleeber, 37 Penn. St. 251; Finley's Appeal, 67 Penn. St. 453; Keiper v. Helf richer, 42 Penn. St. 325; Steinman v. Ewing, 43 Penn. St. 63; Hecker v. Haak, 88 Penn. St. 238; Hugus n. Dithridge Glass Co., 96 Penn. St. 160; Gilmore v. Rodgers, 41 Penn. St. 120; Dixey v. Laning, 49 Penn. St. 143 ; Leedom v. Lombeart, 80 Penn. St. 381; Lockhart v. John, 1 Penn. St. 137; West v. Cockran, 104 Penn. St. 482; Gardner v. Sisk, 54 Penn. St. 506; Simons v. Kern, 92 Penn. St. 455; Girard Life Ins. Co. v. Farmers' do Mechanics' Ba/nk, 59 Penn. St. 388; Thompson v. Lorein, 82 Penn. St. 432. Mr. William Henry Rawle for defendants in error. Mb. Justice Matthews delivered the opinion of the court. After stating the facts in the language above reported, he continued : Before proceeding to consider this case, as presented by the findings of fact, it is necessary to dispose of an assignment of error based on a ruling of the Circuit Court during the progress of the trial. It appears from a bill of exceptions that “ the plaintiff offered to prove that a tender of the money, under decree of the Supreme Court of Pennsylvania, in suit No. 60, January term, 1868, was made about the end of May, 1869, by Charles H. Muirhead; that the assignment was returned from Lyon and Taylor executed in blank; that said C. H. Muirhead required that an assignment of said mortgage, with the blanks filled in, should be signed by said Lyon and Taylor; that A. V. Parsons, Esq., representing the parties, Lyon and Taylor, agreed to procure the assignment so com- GIBSON v. LYON. 445 Opinion of the Court. pleted, but that such an assignment was not made, and the parties, Lyon and Taylor, absolutely refused to make the assignment and receive the money. Counsel, on being asked, say that the money was ready, but was not actually shown Lyon and Taylor, or their attorney, and aver that an actual tender was not necessary under the refusal of Lyon and Taylor to take the money and make the assignment.” It will be observed that the tender referred to in this offer was not made by the party obliged to pay the debt or entitled to do so, for the purpose of removing the encumbrance of the mortgage upon the property, nor in payment of the mortgage debt, and in satisfaction of the mortgage and the judgment rendered thereon, but was an offer made by a stranger to pay the amount due on account thereof, accompanied with a demand to execute an assignment to a named third party of the debt and securities, compliance with which was a condition of the offer of payment. If accepted, the effect would have been to transfer the debt and mortgage and judgment rendered thereon to an assignee, and not to extinguish it. This the plaintiffs were under no legal obligation to do, neither by contract, nor by the terms of the decree referred to, inasmuch as the time within which such payment might be made for that purpose was limited by the decree to May 10, 1869. After that they were expressly left at liberty by the decree itself to proceed, at law, upon the mortgage and judgment previously rendered thereon. This question being removed from the controversy, it is urged by counsel for defendants in error, that the judgment of the Supreme Court of Pennsylvania in the ejectment in favor of the defendants against the immediate grantors of the present plaintiff below, referred to in the eighth finding of fact, if not entitled to the force of an estoppel as res judicata, is at least an authoritative decision of the highest court of the State upon the law of the case, which, as it involves only questions of title to real estate within its territory dependent on its local jurisprudence, ought to furnish the obligatory rule of decision for the courts of the United States. The former judgment in ejectment is not a bar to the present action, according to the law of Pennsylvania, where the subject 446 OCTOBER TERM, 1885. Opinion of the Court. is regulated by statute. 1 Brightly’s Burdon’s Digest Laws of Pennsylvania, 535. By the act of April 13, 1807, two successive verdicts and judgments in favor of the same party will defeat a third ejectment ; but where there is verdict against verdict, and judgment thereon, a verdict and judgment in a third ejectment is conclusive. Britton v. Thornton, 112 U. S. 526. As a precedent, the decision of the Supreme Court of the State, though single, is entitled to peculiar respect, because all the questions decided arise upon the local law of the State; but it cannot have conclusive force in the courts of the United States, unless it has become a rule of property. Burgess y. Seligman, 107 U. S. 20; Ca/rroll County n. Smith, 111 U. S. 556. The plaintiff in error, being a citizen of New Jersey, had a constitutional right, by virtue of that fact, to invoke the jurisdiction of the courts of the United States, and is entitled to their judgment upon his rights under the laws of Pennsylvania. The title of the plaintiff is derived from Sarah A. Jermon. Her title was vested in her by the deed from Rice mentioned in the third finding of fact, and that of Rice was acquired by the conveyance described in the second finding, and the proceedings in the Orphans’ Court of Philadelphia from which it resulted. Each of these conveyances contains a recital that it is made under and subject to the payment of the mortgage under which the defendants claim. It is contended, on behalf of the plaintiff in error, that he is not estopped by these recitals to deny the existence of the mortgage, and to assert that, in point of law, it was extinguished by the sale ordered by the Orphans’ Court, such sales being required by law to be clear and discharged of all liens in the hands of the purchaser, and that consequently he is at liberty to insist that the subsequent sale, made under the mortgage as a subsisting and valid lien, was void. It is true that the statute of Pennsylvania, by which the sale ordered by the Orphans’ Court was authorized, act of April 18, -1853, 2 Brightly’s Purdon’s Digest of Pennsylvania Laws, 10th ed. 1242, Section 5, p. 1244, provides that “by every such GIBSON v. LYON. 447 Opinion of the Court. public sale the premises sold shall be discharged from all liens; ” and it is also true that the sale prayed for in this instance was of the premises, “ clear and discharged of all liens in the hands of the purchaser,” and that the sale to Rice, approved and confirmed by the court, was for the sum of $10,-500, the full price and consideration of the purchase; yet, it is equally true, as appears from the recitals in the deed to Rice, which was duly acknowledged before the Orphans’ Court, that of the consideration, as finally agreed upon between the parties, there was actually paid in cash only $5500, the remainder being represented by the existing mortgage to the Reliance Mutual Insurance Company, under and subject to which the conveyance was made, approved, and accepted. The proceedings,and judgment of the Orphans’ Court must be taken as a whole, and to include the execution, acknowledgment, and delivery of the deed. The sanction of the court to the fact and form of the conveyance was a judicial act, necessary to perfect the proceeding, for, without the deed, the sale would not have been consummated, and no title would have been divested and passed. Foster v. Gray, 22 Penn. St. 9, 15; Brown's Appeal, 68 Penn. St. 53. If the whole proceeding be void, because the court confirmed a sale upon terms not authorized by law, the plaintiff below had no title on which to base a recovery, and the defendants below were mortagees in possession within the protection of the decision in Brobst v. Brock, 10 Wall. 519; if it be erroneous merely, and therefore only voidable, it is good and stands until reversed, and cannot be questioned collaterally. If it be contended that the sale is good, but had the necessary legal effect of discharging the preexisting mortgage, it cannot be denied that the mortgage debt was unpaid, and the mortgage security continued, in the face of the recital in the conveyance, under which the plaintiff in error claims his title. If that recital does not create a personal liability for the payment of the debt, enforceable against the purchaser in an action of covenant, it is, nevertheless, a condition upon which his title vested and depends. He certainly cannot be permitted to claim both under and against the same deed; to insist upon its efficacy to confer a benefit and re- 448 OCTOBER TERM, 1885. Opinion of the Court. pudiate a burden with which it has qualified it; to affirm a part and reject a part. The whole title of the plaintiff in error rests upon that conveyance, and the continued existence of the mortgage as an encumbrance forms part of it. The deed comes into the case as evidence on behalf of the plaintiff, as the necessary support of any title whatever, and when he proves it for that purposej he proves the existing mortgage of the defendant by the same act. The defendant’s title, in other words, is part of the plaintiff’s title, and by the very document relied on to establish the latter, the former is shown to be its superior, for it declares the title of the plaintiff to be subject to that of the defendant. It is a plain case of an estoppel. This view is supported by the decisions of the Supreme Court of Pennsylvania, in which the objections to it, presented in argument here, have been fully met. Stackpole v. Glassford, 16 S. & R 163; Zeigler’s Appeal, 35 Penn. St. 173; Crooks v. Douglass, 56 Penn. St. 51; Ashmead v. McCarthur, 67 Penn. St. 326. In Crooks n. Douglass, ubi supra, it was said to be “ just a case, when, if the price of the estate belonging to the mortgagee is still in the purchaser’s hand, he is in equity estopped from denying that the sale was made subject to the mortgage: ” and, “ having bought the estate with the understanding that he bids so much less for it, and should hold that much in his hands to be applied to the excepted mortgage, it does not lie in his mouth, at least, to say he takes the land discharged of it, under the operation of the general rule, that a judicial sale discharges all encumbrances except those expressly saved by statute.” In that case the circumstances of the sale rested in parol, proof being admitted of what took place, while here they constitute recitals in the very deed which furnishes to the plaintiff in error the foundation of his title. It follows, therefore, that the defendant in error had a lawful right to proceed upon his mortgage; that the judgment thereon was valid, and that the execution sale in pursuance thereof, so far at least as lot No. 1 is concerned, was effectual, when confirmed and executed by the sheriff’s deed, to pass the legal title, and to cut off and destroy that of the plaintiff in error. GIBSON v. LYON. 449 Opinion of the Court. But other objections are made to the validity of the proceedings under the execution, in reference to that part of the premises described as lot No. 2. The levari facias issued upon the judgment upon the mortgage, directed the sale of the mortgaged premises for the satisfaction of the debt, describing them as divided into three lots. Lot No. 1 was purchased by the defendants, the owners of the mortgage, and plaintiffs in the action, for the sum of $10,000, and lot 2, at the same sale, was also purchased by them for the sum of $2000. The sheriff’s return showed that he took from the purchasers their receipt as plaintiffs in the writ for the amount of the debt, and interest, and that he had the balance of the purchase money as commanded. It is now contended, on behalf of the plaintiff in error, that the sale of lot No. 1, being for more than was due to the defendants herein on the mortgage debt, satisfied the judgment and exhausted the authority to proceed further under the writ, and that the sale of lot No. 2 to the plaintiffs in the execution was therefore void for want of power in the sheriff to make it. Under the laws of Pennsylvania, the proceeding upon a mortgage was by scire facias, in which, judgment having been rendered for the amount of the debt, interest, and costs, the mortgaged premises are directed to be seized and sold on execution by a levari facias for the satisfaction thereof. 1 Bright-ly’s Purdon’s Digest, Laws of Pennsylvania, 483, § 122. In case there shall be a surplus of the proceeds of the execution sales after satisfaction of the judgment, the sheriff is bound to pay the same to the debtor or defendant. Ib. 484, § 123. And in all cases, where there shall be disputes concerning the distribution of the money arising from sales on execution, the court from which the execution shall have issued is invested with power, upon notice to parties interested, to hear and determine the same according to law and equity. Ib. 656, § 107. The sheriff makes return of the sale, with the proceeds, to the court whence it issued, and gives to the purchaser a deed for the premises so sold, but not until it has been formally acknowledged in court, as required by law. Ib. 658, § 119. This acknowledgment is a public, judicial act, made in open court, VOL. cxv—29 450 OCTOBER TERM, 1885. Opinion of the Court. and only after notice to all parties in interest. Ib. 658, §122. To this proceeding the judgment debtor is a party, and at the hearing, may make any objection to the confirmation of the sale. The action of the court has all the effect of a judicial decree. Foster n. Gray, 22 Penn. St., above cited. It was said in Shields v. Miltenberger, 14 Penn. St. 77, 7'8 : “ Most of them [the cases] recognize the deliberative and judicial character of an acknowledgment taken in open court, founded upon the conceded right of all parties having an interest in the question, to appear and dispute the propriety or regularity of the official sale; and all of them, from Murphy v. Cleary, 3 Yeates, 405, to Dale v. Medcalf, 9 Barr, 108, distinguish between those objections that touch the foundation of the proceeding, by impeaching the authority of the officer or establishing the existence of fraud, and those which simply suggest irregularities in the process or sale. The absence of authority, or the presence of fraud, utterly frustrates the operation of the sale as a means of transmission of title, and avoids it from the beginning. Either may, therefore, be insisted on, even after the formal acknowledgment of the conveyance; but mere irregularities, whether of omission or commission, which do not render the officer powerless, or taint the transaction with turpitude, may be cured by the tacit acquiescence of those who ought to speak in time.” The correctness of this rule, that the acknowledgment of the sheriff’s deed in consummation and confirmation of the sale cures all defects, except want of power to sell in the officer, or fraud in making it, being conceded, it is still contended that, in the present case, the power of the sheriff to proceed with the sale of lot No. 2 ceased after he had made enough by the sale of lot No. 1 to pay the judgment debt, with interest and costs; and that consequently the sale of the latter was void for want of authority to sell. But the sheriff acted strictly within the command of his writ. That was to seize and sell the mortgaged premises. If be proceeded to sell more than was sufficient to pay the debt, it was at most but a mere irregularity, even if it could be so con- GIBSON v. LYON. 451 Opinion of the Court. sidered. He had no judicial authority to determine questions that might arise upon the sale, or questions of distribution. The sale of lot No. 1 might, so far as he or any one could know, be set aside, and the proceeds of lot No. 2 might prove to be necessary to satisfy the execution. His duty was merely ministerial, and so long as he pursued only the literal precept of the writ, he cannot be said to have acted without authority, and be converted thereby into a wrongdoer. For aught that he might know, and for aught that we can tell from the present record, the whole proceeds of the sale of both lots may have been necessary to pay other liens upon the property, entitled to satisfaction on distribution. The presumption certainly is, in accordance with the maxim, Omnia pr&sumuntur rite et solenniter esse acta, that the surplus was either so applied, in which case, no more property was sold than was necessary; or, it was paid, as the law directs, to Mrs. Jermon, its owner, and in that event, she certainly is not in a situation to complain of the invalidity of a sale the fruits and proceeds of which she received, and has ever since continued, to claim and hold as her property. She was a party to the proceeding, and had the opportunity then to present to the court the very objection now made to the validity of the sale, that more property had been sold than was in fact necessary to answer the exigency of the writ and satisfy the demands entitled to the proceeds. That was a question peculiarly for that court to determine, and that was the appropriate time for its determination. It was either then made or waived, and, in either view, the action and judgment of the court in directing the acknowledgment and delivery of the deed was conclusive. We conclude, therefore, that the objections to the title acquired by the sale of these two lots cannot be maintained. A different question arises upon the title to lot No. 3. Although part of the mortgaged premises, it was not included in the sheriff’s sale under the judgment and execution for the mortgage debt. It was sold in virtue of the judgment and proceedings described in the seventh finding of fact, being an action by one Arnold against Jermon and his wife to charge the wife’s property. It is objected that this judgment, and 452 OCTOBER TERM, 1885. Opinion of the Court. consequently all proceedings under it, including the sale on execution to the defendants, are void, because the declaration, one count of which was for materials furnished to the premises sold at the request of the wife, does not sufficiently allege a contract binding upon her as a married woman, and because the judgment was confessed, and not rendered upon a verdict or finding of the facts. These questions, as to this very proceeding, were fully considered and, as we think, satisfactorily decided by the Supreme Court of Pennsylvania in the case of Swayne n. Lyon., 67 Penn. St. 436. That was an action by Lyon, the purchaser at this sale of the property in question, against the defendant, who had entered into a contract for its purchase, to compel a specific performance of that agreement. The defence which prevailed was that the title was not marketable. The court held that, although the title might be good, yet, if the purchaser would be exposed to litigation to support it, he ought not be compelled to take it. Shaeswood, J., delivering the opinion of the court, said: “ Unless, then, in this case, Mrs. Jermon, or those claiming under her, would be absolutely concluded by the judgment under which the sheriff’s sale took place, which constitutes the foundation of the vendor’s title, from controverting her liability for the debt for which that judgment was confessed, in an action of ejectment to be hereafter brought for the property, the purchaser will be exposed to the annoyance and peril of such litigation,” pp. 439-40. The first and second counts of the declaration, it is then stated, set out a contract by Mrs. Jermon, or by her husband at her instance and request, for materials furnished and work and labor done in and about the improvement, and for the benefit of her real estate; and as a married woman is liable on such a contract, it is further said, that it may logically follow that a judgment rendered against her for it, whether by default, confession or verdict, will have all the leading characteristics of a judgment against a person sui juris. The case, therefore, was made to turn upon the question whether Mrs. Jermon or those claiming under her, in an action of ejectment to be brought against the vendee, could be permitted to show that the debt for which GIBSON v. LYON. 453 Opinion of the Court. the judgment was confessed was not contracted by herself or her husband at her instance for the improvement of her separate estate. This question was answered in the affirmative, on the ground that evidence to that effect would not contradict the record. This was apparent, for the reason that the third count, which was the common count for goods sold and delivered on the joint promise of herself and husband, showed no good cause of action against her; and in a collateral proceeding, she would be at liberty to prove that the recovery was upon this count, and not upon the first or second, which would be consistent with the record. It was accordingly held that this judgment might be avoided by Mrs. Jermon in a collateral proceeding, but only by proof that the actual recovery was upon a contract void as to her, that is, under the third count. In that event, it would not be supported by her confession, and on the other hand, it was not invalidated thereby, so far as it rested upon the counts which set forth a good cause of action against her. This judgment was followed by the decision of the same court, in the case of Jermon n. Lyon, 81 Penn. St. 107, where, speaking of the title to this lot, it said: “ As to the premises number three, it may be conceded that the judgment against Mrs. Jermon was erroneous and might have been reversed upon a writ of error, but this would not destroy the sheriff’s sale made under the judgment while standing in full force and unreversed. This judgment was obtained by W. A. Arnold, with whom Lyon and Taylor had no connection.” The opinion in Swayne v. Lyon, ubi supra, is cited with approval also in Quints Appeal, 86 Penn. St. 447, 453. We have examined with care all the decisions of the Supreme Court of Pennsylvania cited by counsel for the plaintiff in error, and do not find any that are inconsistent with its judg-ments upon the title here in question, in Swayne v. Lyon, and Jermon v. Lyon, to which we have referred. We find no error in the judgment of the Circuit Court, and it is accordingly Affirmed. 454 OCTOBER TERM, 1885. Statement of Facts. GAGE v. PUMPELLY & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. . Submitted November 2, 1885.—Decided November 23, 1885. In Illinois a judgment by default in a proceeding in a county court under the statutes of that State for the collection of taxes on real estate, by sale of the property, is not conclusive upon the tax-payer, and may be impeached collaterally. Under the laws of that State, as construed by its courts, if. any portion of a tax assessed upon real estate, and levied and collected by sale of the property, is illegal, the sale and the tax deed are void, and may be set aside by bill in equity. In a proceeding in equity in a court of the United States to set aside a tax sale in Illinois as illegal, the complainant should offer to reimburse to the purchaser all taxes paid by him, both those for which the property might have been legally sold, and those paid after the sale. Appellees’ testator, plaintiff below, was in the possession, and claiming to be the owner, of a certain lot of ground in Chicago, for which the appellant, who was defendant below, held deeds executed by the county clerk of Cook County, Illinois, on the 6th of September, 1877, and 4th of February, 1880; which deeds were based on sales made October 27,1874, and October 3, 1877, for the non-payment of taxes. These sales were in pursuance of judgments of the County Court, rendered at the instance of the treasurer of Cook County, who was, ex officio, the collector of its revenue. To the proceedings in the County Court the plaintiff did not appear, nor was he a party thereto otherwise than by publication in a newspaper, giving notice of the application for judgments, and, subsequently, of the order for the sale of the property for non-payment of the taxes assessed against it. The present suit was brought for the purpose of removing the cloud on the plaintiff’s title, arising from the before-mentioned sales and tax deeds, and to obtain a decree requiring the defendant to convey to the plaintiff such rights and interests as he had thus acquired. The plaintiff in the bill avows his readiness and willingness GAGE v. PUMPELLY. 455 Argument for Appellant. to pay not only the defendant’s disbursements for the legal taxes included in the judgments of the county court, but such additional sum as to the court seemed proper. It was adjudged by the Circuit Court that the plaintiff should pay the redemption moneys allowed by statute, had the judgments and sales been only for legal taxes, with six per cent, interest, in each case, from the expiration of two years after the tax sale; also, such other taxes as defendant subsequently paid upon the lot in question, with interest at the like rate on the amount of each payment. The aggregate of such payments was ascertained to be $1118, as of May 1, 1882. The defendant, having declined to accept that sum with interest, and the same having been paid into court for his use, it was finally adjudged that the title acquired by defendant, in virtue of the sales and deeds, be set aside and held for naught as against plaintiff, and that the deeds be delivered up and cancelled. Hfr. Augustus N, Gage and Afr. Albert G. Riddle for appellant. I. The service of notice upon which the tax deed issued to appellant September 6,1877, and the affidavits filed with the county clerk to show such service of notice, were sufficient to authorize the county clerk to issue the deed to appellant. Garrick v. Chamberlain, 97 Ill. 620; Gage v. Bailey, 102 Ill. 11; Frew v. Taylor, 106 Ill. 159. II. It does not appear that any of the $3700 for excessive compensation to the county commissioners was extended as a tax. !i III. It does not appear that any of the items of the city taxes of 1875, charged by the bill to be in excess of the constitutional limits, were extended with the taxes against this property, and for which the property was sold and the deed issued to appellant February 4, 1880. The county clerk makes a voluntary statement that the records of his office show the valuation of the property of Chicago to have been $174,556,474, in 1875; by a similar statement of what he considers a fair deduction from his records, the county clerk states in other cer- 456 OCTOBER TERM, 1885. Argument for Appellant. tificates that the items of the city tax complained of were extended on the collector’s warrant for 1875. These voluntary certificates of the county clerk are not evidence. 1 Greenleaf, Ev. § 498. By statute, certificates of various officers may be used as evidence, but only in such manner and to the extent prescribed by the statute. These certificates do not come within the statutory provisions. It is insisted that they are not competent evidence, as the records should have been produced in order that the court might pass upon the facts disclosed thereby. IV. The judgments of the County Court of Cook County, under which appellant purchased, are res judicata, and cannot be collaterally attacked. Under the statutes of Illinois this court is a court of record, with general original jurisdiction in the matter of the sale of lands for delinquent taxes. Grace-land Cemetery Co. v. People, 92 Ill. 619. Being a court of record, with jurisdiction over the subject-matter, its judgment is conclusive while in force. Mayo v. Ah Long, 32 Cal. 477; Porter n. Purdy, 29 N. Y. 106; Graceland Cemetery Co. v. People, above cited; Chicago Theological Seminary v. Gage, 12 Fed. Rep. 398. The action of the court in such matters is in rem. Rev. Stat. Ill. 1874, ch. 120, § 191; People v. Nichols, 49 Ill. 517; Pidgeon v. People, 36 Ill. 249. That being the case, the judgment is binding on all the world. Wells, Res Judicata, 504. For the binding force of judgments in rem see Croudson v. Leonard, 4 Cranch, 434. And the proceedings are binding against all, whether parties to the suit or not. See Gelston v. Hoyt, 13 Johns. 561 ; /S'. C., 3 Wheat. 246. Graceland Cemetery Co. v. People, above cited; Me Cahill n. Ins. Co., 11 C. E. Green (26 N. J. Eq.) 531. In Illinois it is held that a record of a court imports verity and must be tried by itself. Young n. Thompson, 14 Ill. 380. In Hobson v. Ewan, 62 Ill. 146, it was held that the finding of the court cannot be questioned in a collateral proceeding, when it has jurisdiction. See also Goudy n. Hall, 36 Ill. 313; Young n. Lorain, 11 UI. 624; Conover v. Musgrave, 68 Ill. 58; Osgood v. Blackmore, 59 Ill. 261; Prescott n. Chicago, 60 Ill. 121; Feaster n. Fleming, 56 Ill. 457. In Rogers v. Higgins, 57 Ill. 244, the court say: GAGE v. PUMPELLY. 457 Argument for Appellant. “ The principle of res judicata embraces not only what actually was determined in the former case, but also extends to any other matter, properly involved, and which might have been raised and determined in it. The valuation of property by the assessor for taxation is conclusive, and the courts have not jurisdiction to review or alter the same. A tax based upon the assessment is like a judicial sentence, and can be assailed only for fraud or want of jurisdiction. Spencer v. People, 68 Ill. 510, and cases cited ; Republic Life Ins. Co. n. Pollak, 75 Ill. 292 ; People v. Big Muddy Iron Co., 89 Ill. 116. When the opinion of the Supreme Court of Illinois in the Graceland Cemetery case was delivered, there was no question as to the effect to be given to a judgment of the County Court for taxes. Such judgment then stood upon the same footing as any other judgment in rem, or any judgment in personam. There is now a disposition to draw a distinction between a judgment rendered in a case where the owner of the land objected to the entry of the judgment, and a case where the judgment for the taxes was entered by default, and the authority for this distinction is traced to the opinion in the Graceland Cemetery Case. The cases of the Belleville Nail Co. v. People, 98 Ill. 399, and Gage v. Bailey, 102 Ill. 11, are relied upon for this distinction. But the cases of Gage v. Busse, 102 Ill. 592, and Gage v. Parker, 103 IT. S. 528, seem to dispose of the whole question.' Although the court was misled in two cases by an erroneous construction of a third, as soon as the matter was presented in its true light in the cases of Gage v. Busse and Gage v. Parker, supra, the court took steps immediately to correct the error of decision above referred to. Very shortly after the determination of the case at bar in the Circuit Court, the learned judge before whom it was tried had occasion to again pass upon the same questions here presented under this head, and after a more careful and elaborate argument by-counsel, he reviewed to some extent the questions here presented, and arrived at the conclusion now pressed. The opinion of the judge was subsequently published, and by reference to that additional light will be thrown upon the questions under discussion. Chicago Theological Seminary y. Gage, 12 Fed. Rep. 398. 458 OCTOBER TERM, 1885. Opinion of the Court. V. It does not appear by this record whether objection was made to the rendition of the judgments for the sale of the land for taxes. The records here show, in each case, certain objections were filed to the rendition of judgment for the delinquent taxes; this appears from the recitals in the judgment itself, without specifying for whom, or by whom, such objections were filed. It not appearing that the judgments in this case were entered by default, or that they were not entered upon a contest upon the merits, there cannot be (under any construction that may be given the decisions of the Supreme Court of Illinois) any right to grant relief in this case upon a collateral attack of the judgment of the County Court. J/r. Edward G. Mason for appellees. Me. Justice Harlan delivered the opinion of the court. After stating the facts in the language reported above, he continued : The Constitution of Illinois declares that the right of redemption from sales of real estate for the non-payment of taxes or special assessments of any character whatever, shall exist in favor of owners and persons interested for a period of not less than two years from such sales. And it imposes upon the general assembly the duty of providing by law “ for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes or assessments, and when the time of redemption shall expire: Provided, That occupants shall in all cases be served with personal notice before the time of redemption expires.” Art. IX, § 5. By the statutes in force when these sales were had, no purchaser, or the assignee of any purchaser, of land, town or city lot, at any sale for taxes or levies authorized by the laws of the State, was entitled to a deed for the lands or lots so purchased, until he served, or caused to be served, a written or printed, or partly written and partly printed, notice of his purchase “ on every person in actual possession or occupancy of such land or GAGE v. PUMPELLY. 459 Opinion of the Court. lot, and also the person in whose name the same was taxed or specially assessed, if, upon diligently inquiring, he can be found in the county, at least three months before the expiration of the time of redemption on such sale, in which notice he shall state when he purchased the land or lot, in whose name taxed, the description of the land or lot he purchased, for what year taxed or specially assessed, and when the time of redemption will expire. If no person is in actual possession or occupancy of such land or lot, and the person in whose name the same was taxed or specially assessed, upon diligent search and inquiry, cannot be found in the county, then such person or his assignee shall publish such notice in some newspaper printed in such county, . . . which notice shall be inserted three times, the first time not more than five months, and the last time not less than three months, before the time of redemption shall expire.” Rev. Stat. Ill. 1874, ch. 120, p. 893. The bill impeaches the defendant’s title, in respect of the first deed he received, upon the ground that it was acquired in violation of these constitutional and statutory provisions; and, in respect of his title under both deeds, upon the ground that the assessment of taxes upon the lot in question, for the nonpayment of which the County Court ordered the sales, included, in each instance, illegal taxes, for which the premises were not liable, and which the owner was not bound to pay. The appellant insists that these objections to his title are so far concluded by the judgments of the County Court that they cannot be urged in any collateral proceeding or suit, the only remedy of the owner of the property being, it is contended, by appeal to the Supreme Court of the State. His argument is, that by the Constitution and laws of the State, the County Court is a court of record, with general original jurisdiction in the matter of the sale of lands for delinquent taxes; that proceedings in such cases are in rem against the property assessed; and that judgment therein rendered is conclusive upon the taxpayer, so long as it remains unmodified by the court which rendered it, or until it is set aside in some direct mode for fraud or collusion, or is reversed upon appeal for error. In support of the general rule that forbids collateral attack upon the judg- 460 OCTOBER TERM, 1885. Opinion of the .Court. ments or decrees of a court having jurisdiction of the subject-matter and of the parties, and where the want of jurisdiction does not appear upon the record, numerous authorities are cited by appellant’s counsel. But they have no application to cases like the present one, as the settled course of decision in the highest courts of the State abundantly shows. It will be well to examine a few of the cases determined in that court. In McLaughlin v. Thompson, 55 Ill. 249, which was an action of ejectment, in which the plaintiff asserted a tax title, the validity of which the defendant disputed, upon the ground that the sale was, in part, for taxes levied by a county commissioner’s court, at a time other than that prescribed by the statute, the court said: “ The evidence shows that this county tax entered into and formed part of the judgment, and the sum for which the land was sold. That tax being illegal, appellant, or those under whom he claims, were not required to pay it, nor did the law impose the duty of redeeming from the sale. And it has been repeatedly held that, if any portion of the tax is illegal, or the judgment is too large, only to the extent of a few cents, the sale and tax deed will be void. This being so, the tax deed conveyed no title, and hence there could be no recovery under it, as the plaintiff in ejectment must, as in other cases, establish his right to recover.” A case much relied upon by counsel for appellant is Grace-land Cemetery Co. n. People, 92 Ill. 619. That was ah appeal from a judgment rendered by a County Court against certain lands belonging to the cemetery company for the taxes of 1871 to 1874 inclusive. It appeared that, in 1873, application was made to the County Court for judgment against the lands for the taxes of 1871. The company resisted judgment upon the ground that the lands were exempted by law from taxation. After trial the defence was sustained. A similar application was made for judgment for the taxes of 1872, 1873 and 1874. It was again resisted, and the exemption again sustained. No appeal or writ of error was prosecuted from either of those judgments. Nevertheless, in 1879, another application was made for judgment against the same lands for the taxes for 1871 to 1874 inclusive, and judgment was then rendered by GAGE v. PUMPELLY. 461 Opinion of the Court. the County Court against the company. The Supreme Court of Illinois reversed the latter judgment, upon the ground that the former judgments in favor of the company, in respect of its claim of exemption from taxation, having been rendered after a trial on the merits—the court having jurisdiction of the parties and the subject-matter—were, even if erroneous, conclusive so long as they were not reversed or modified in some legal proceeding instituted for that purpose. The court observed in that case, that it was “ clear, upon principle and authority, there is no difference between a judgment rendered in a proceeding to collect taxes and any other judgment, so far as being binding on the parties is concerned.” • That casie is cited by counsel in support of the proposition that the judgment of the County Court, in respect of the premises here in question, is conclusive against the owner, although he did not appear and resist the application for judgment. But that the court did not intend so to decide is clear from its language in Belleville Nail Co. v. People, 98 Ill. 399, 483, where it was said : “ In Graceland Cemetery Co. n. The People, 92 Ill. 619, we held, where the owner of the land appeared in such a proceeding, filed objections and contested the liability of his land for the tax claimed, that the judgment against the land for the tax was conclusive against him of the liability of the land for the tax, in a collateral proceeding. But it is only m the case of such appearance and defence that we regard the judgment as conclusive.” It was further observed in the same case, that the declaration of the statute that the tax deed made upon a sale under a judgment for taxes, shall beprima facie evidence of certain enumerated things requisite to a correct judgment, “shows the intention of the statute that the judgment was not to have the same effect of conclusiveness which is given, collaterally, to ordinary judgments rendered by default, where personal service has been had. There is in these cases no personal service, but only publication of notice in a newspaper that application will be made for judgment.” These principles were reaffirmed in Gag'ev. Bailey, 102 Ill. 11, which was a suit in equity to set aside the sale and conveyance of lands for taxes upon several grounds, which, as the owner 462 OCTOBER TERM, 1885. Opinion of the Court. did not appear in the County Court and contest the application for judgment for the tax assessed against his property, were fully considered and passed upon. But the latest adjudication by the State court of the question under consideration was Riverside Co. v. Howell, 113 Ill. 259. That was ejectment for the recovery of land, the defendant claiming title under a tax deed based upon a judgment of the County Court. The validity of the sale was questioned upon the ground, among others, that a part of the taxes, for the non-payment of which the sale was ordered, were illegal and void. The argument was made there, as in this case, that the judgment of the County Court was conclusive as to all matters that could, or ought to have been, passed upon in rendering it; and if it included too much taxes, or illegal taxes, it was only error to be remedied by appeal. But the court, finding that certain taxes included in the judgment were invalid, held that no title passed by the sale, observing that “ the authorities are to the effect, that when a part of the tax for which a sale of real estate is made is illegal, the sale is void,” citing McLaughlin v. Thompson, 55 Ill. 249 ; Kemper v. McClelland'’ s Lessee, 19 Ohio, 308; Gamble v. Witty, 55 Miss. 26 ; Cooley on Taxation, 295, 296; Hardenhurg n. Kidd, 10 Cal. 402. In the same case the court reaffirmed the doctrine laid down in Belleville Nail Co. n. People, 98 Ill. 399, Gage v. Bailey, 102 Ill. 11, and other cases, to the effect, that a judgment by default, in a tax sale proceeding, was not conclusive upon the taxpayer, but could be impeached collaterally—distinguishing that class of cases from those where sales are made to satisfy special assessments, in respect of which it was said, that “ if the property-owner fails to make his objections in the proper place, and the assessment is confirmed, then he may well not be permitted to go behind the confirmation,” when steps are taken to enforce payment. These decisions establish a rule of property which determines the present case; for, without reference to other objections urged to the validity df the sales and deeds under which appellant claims title, it satisfactorily appears from the proof: !• That the taxes, for the non-payment of which the first sale GAGE v. PUMPELLY. 463 Opinion of the Court. was had, included taxes to meet allowances for the per diem and mileage of county commissioners, in excess of what the statute authorized. 2. That a large part of the taxes, for the non-payment of which the second sale was had, was based upon items in the ordinances of the city of Chicago, representing as well indebtedness which that city could not, under any circumstances, legally contract, as indebtedness which was in excess of the limit imposed by the State Constitution upon counties, cities, and other municipal corporations. Law n. People, 87 Ill. 385. These grounds of objection to the title of the defendant were, under the settled law of the State, open for consideration in this suit. Being well founded, the conclusion must be that the sales at which the defendant purchased, and, consequently, the deeds which he received, were ineffectual to defeat the title of the owner of the lot in question. By the decree, the defendant receives all that he is entitled to demand as a condition precedent to his surrender of such title as he acquired by his purchase ; indeed, he received more than should have been awarded to him ; for, while, as a condition of granting the relief asked, the tax-payer was bound to do equity, and, therefore, should reimburse the purchaser to the extent of all taxes paid by him, whether those for which the property was sold, or those subsequently levied thereon and paid by him, with interest on each sum, Gage v. Busse, 102 Ill. 592; Smith V. Hutchinson, 108 Ill. 668 ; Peacock n. Carnes, 109 Ill. 100, the defendant seems to have been allowed, in the present case, among other sums, double the amount of the taxes for which the lot was sold. Of this error in the decree the appellees complain, but it cannot be considered upon this appeal by the purchaser at the tax sale; and, perhaps, under the statutes regulating the jurisdiction of this court, it could not have been the subject of a separate appeal by the owner of the lot. We perceive no error in the decree, and it is Affirmed. 464 OCTOBER TERM, 1885. Opinion of the Court. JONES, Executrix, v. VAN BENTHUYSEN. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA. Submitted November 18,1885.—Decided November 23,1885. Jones v. Van Benthuysen, 103 U. S. 87, affirmed. The facts are stated in the opinion of the court. Mr. Solicitor- General for plaintiff in error. Mr. J. D. Rouse and Mr. William Grant for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court. This was a suit brought by Van Benthuysen, the defendant in error, a commission merchant engaged in the sale of manufactured tobacco, to recover back from Stockdale, a collector of internal revenue, certain taxes paid under protest on the amount of sales of tobacco in a bonded warehouse. The sole controversy is about the liability of the merchant to pay taxes upon the amount of revenue stamps affixed to the tobacco at the time of its removal from the warehouse. The case was here at the October Term, 1880, and is reported in 103 U. 8. 87. We then decided that he was “ not liable to be taxed for the revenue stamps required to be affixed to the tobacco before the removal thereof from a bonded warehouse, unless they were at the time of such sales so affixed, whereby they entered into the value of the tobacco and formed a part of the price thereof.” Under this ruling the judgment of the court below was reversed, and the cause sent back for a new trial. The present writ of error was brought for a review of the judgment upon the second trial. The bill of exceptions shows that the charge to the jury was almost in the exact language of the opinion of this court construing the law on which the rights of the parties depend, and it covered the whole case. Affirmed. LEONARD v. OZARK LAND COMPANY. 465 Statement of Facts. LEONARD v. OZARK LAND COMPANY. LEONARD v. CHATFIELD, Trustee. ORIGINAL MOTIONS MADE IN CASES PENDING IN THIS COURT ON APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. Submitted November 16, 1885.—Decided November 23, 1885. It is settled in this court that injunctions ordered by final decree in equity in the courts below are not vacated by appeal. The judge in the court below who heard the case is empowered by Equity Rule 93, when allowing an appeal from a final decree granting or dissolving an injunction, to suspend or modify the injunction pending appeal, and upon such terms as may be considered proper. This was a motion for a modification of the supersedeas, or more properly, perhaps, for a modification of the injunction contained in the decree appealed from. The bill prayed, among other things, for an injunction restraining “ the defendant, Leonard, from cutting or removing any trees, logs or timber, or any staves manufactured from any trees or timber, from any of the lands ” in controversy. In the decree the defendants were “ perpetually enjoined from cutting or removing any timber from said lands.” The appeal operated as a supersedeas, it having been taken within sixty days after the disposition of the motion, which was made during the same term, to vacate the decree, and the bond being in the form required for that purpose. The decree was rendered by the judge of the District Court of Arkansas, sitting as circuit judge. The same judge allowed the appeal, and, in doing so, directed that it should “ not operate to suspend or affect so much of the decree • • . as enjoins the defendants from cutting or otherwise trespassing on the lands in controversy, ... or removing staves or timber cut thereon.” The appellant moves this court “ to vacate so much of the decree of the court below granting an appeal and accepting appeal bond as qualifies the said appeal and prevents the same from superseding the decree VOL. cxv—30 466 OCTOBER TERM, 1885. Argument for the Motion. rendered for the appellees, and especially so much of the said decree granting said appeal as prevents said appellant, J. W-Leonard, from removing the staves made on the land in controversy before service or entry of the decree in favor of the appellees.” Mr. T. IF. Brown for the motion.—I. Does the appeal in these causes operate as a suspension of the entire decree? “ The supersedeas attaches to so much of the final sentence as determines the ultimate rights of the party.” Bryan v. Bates, 12 Allen, 213 ; Nauer v. Thomas, 13 Allen, 574; Flensing v. Clark, 12 Allen, 191, cited by the successful counsel in the Slaughter-House Cases, 10 Wall. 273, 283-4, and recognized by this court. The bills in the cases now under consideration on the motion were filed to remove clouds from the alleged titles of the complainants in the bills. This was the only relief sought by final decree. The bill prayed for the issuance of “ a writ of injunction.” But this, by the very terms of the pleading, was a preliminary injunction, to stop pendente lite the “cutting of trees and the removing” of “ trees, logs or timber or staves.” It was no part of the final relief specifically prayed for. This court decided against the motion for restoration of injunction in the Slaughter-House Cases on the ground that the record showed that the status quo existing “ just prior to ” the final decree of the court from which the appeal was taken had been preserved, and that the court from which appeal had been taken had done nothing since appeal to execute its decree. What the appellant asks is just this and nothing more. The status quo “ just prior to the passing of the final decree ” was without injunction or restraint on the appellant in the use of the lands in controversy. The injunction or restraint comes alone with the final decree originating with it. The complainants, seeking decree against appellant, looked to this very use to relieve them of the necessity of paying him the tax liens which he had removed from the lands. The judge below seemed to think that the case of Hovey v. McDonald, 109 U. S. 150, which is cited by him in his opinion LEONARD v. OZARK LAND COMPANY. 467 Opinion of the Court. justifying his decree as to the operation of the supersedeas, supports him and reaffirms the Slaughter-House Cases. It is respectfully submitted that this last case is not in the line of the Slaughter-House Cases. It rested on certain peculiarities of judicial administration of the courts in the District of Columbia, from one of which this appeal was taken. The injunction was preliminary in that case, and was to only continue until further order of the court. It was an injunction obtained as auxiliary to preserve a fund until certain rights could be determined. By the terms of the order granting the injunction it could not be extended beyond the discretion of the court granting it. It is therefore respectfully submitted that the injunctive part of the decree in these cases is reached by the appeal, and as much superseded as any other part of the decree, and the order of the Circuit Court attempting to except this feature of the decree from the operation of the appeal is most irregular and oppressive. Of course it is to be understood from the context, that the “ removing any timber ” in the final decree is connected with the “ cutting,” and refers only to the timber cut after the decree. II. If, however, the legal effect of the appeal is not. a super-sedure of the injunctive part of the decree, yet appellant may still ask of this court such an order as to the decree pending the appeal as will relieve the appellant of unnecessary hardship, and will secure the rights of appellees. This power will hardly be denied to this court, especially when the application is for “such measures as may be necessary to preserve the condition of things which existed just prior to the passing of the final decree.” This much was conceded by the very able counsel who resisted the motion in the Slaughter-House Cases and recognized by this court. The application of appellant does not extend farther. Rule 93 cannot limit the power of this court in the exercise of the discretion invoked by this motion. Hr. John B. Jones opposing. Mr. Chief Justice Waite delivered the opinion of the court. After stating the facts in the language above reported, he continued: 468 OCTOBER TERM, 1885. Opinion of the Court. The injunction ordered by the final decree was not vacated by the appeal. Slaughter-House Cases, 10 Wall. 273, 297; Hovey v. McDonald, 109 U. S. 150, 161. It is true that in some of the Slaughter-House Cases the appeal was from a decree making perpetual a preliminary injunction which had been granted at an earlier stage of the case, but the fact of the preliminary injunction had nothing to do with the decision, which was “ that neither an injunction nor a decree dissolving an injunction is reversed or nullified by an appeal or writ of error before the cause is heard in this court.” This doctrine, in the general language here stated, was distinctly reaffirmed in Hovey n. McDonald, and it clearly refers to the injunction contained in the decree appealed from, without reference to whether that injunction was in perpetuation of a former order to the same effect, or was then for the first time granted. The injunction, therefore, which was granted by the final decree in this case, is in full force, notwithstanding the appeal. Construing the injunction as granted in connection with the averments in the bill, the prayer for relief, and the findings in the decree, we think it restrains the appellees from removing the staves manufactured from timber cut on the land, as well as the timber in its unmanufactured state, and the order made by the judge when he allowed the appeal is in reality nothing more than notice to the appellant that such was the effect of his decree. It wras not, and was not intended to be, an enlargement of the original scope of the injunction, but, under the circumstances, a justifiable precaution against a possible misunderstanding by the appellant of the extent and effect of the decree appealed from. This court no doubt has the power to modify an injunction granted by a decree below in advance of a final hearing of an appeal on its merits. An application to that effect was made to us at the October Term, 1878, in the case of the Sandusky Tool Co. v. Comstock [not reported], and finding that such a practice, if permitted, would oftentimes involve an examination of the whole case, and necessarily take much time, we promulgated the present Equity Rule 93, which is as follows: “When an appeal from a final decree in an equity suit, ST. LOUIS, &c., RAILWAY CO. v. McGEE. 469 Opinion of the Court. granting or dissolving an injunction, is allowed by a justice or judge who took part in the decision oi the cause, he may, in his discretion, at the time of such allowance, make an order suspending or modifying an injunction during the pendency of the appeal, upon such terms as to bond or otherwise, as he may consider proper for the security of the rights of the opposite party.” Here the judge who heard the case allowed the appeal, and instead of suspending or modifying the injunction, he took occasion to give special notice that it was to continue in force, and if the facts are correctly stated in his opinion, it was quite proper he should do so. The motion is denied. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. McGEE. IN ERROR TO THE SUPREME COUBT OF THE STATE OF MISSOURI. Argued November 11, 1885.—Decided November 23, 1885. In order that an act of Congress should work a reversion to the United States for condition broken of lands granted by them to a State to aid in internal improvements, the legislation must directly, positively, and with freedom from all doubt or ambiguity manifest the intention of Congress to reassert title and resume possession. No such intention is manifested in the act of July 28, 1866, 14 Stat. 338, so far as it affects the lands granted to the States of Arkansas and Missouri by the act of February 9, 1853, 10 Stat. 155, except as to mineral lands. The facts are stated in the opinion of the court. Mr. A. B. Browne \AIr. A. T. Britton and Air. Thomas J. Portis were with him on the brief] for plaintiff in error. No appearance for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court. This was an action of ejectment brought by the St. Louis, hon Mountain and Southern Railway Company against Hugh McGee, to recover the possession of the N. J of N. E. | sec. 17, 470 OCTOBER TERM, 1885. Opinion of the Court. T. 26, R. 11, in Stoddard County, Missouri. The Supreme Court of Missouri rendered judgment in favor of McGee. To reverse that judgment this writ of error was brought. The facts are these: On the 9th of February, 1853, Congress passed an act granting certain lands to the States of Arkansas and Missouri to aid in building a railroad from a point on the Mississippi opposite the mouth of the Ohio, by way of- Little Rock, to the Texas boundary line near Fulton. 10 Stat. 155. Sections 4 and 5 of that act are as follows: “ Sec. 4. That the said lands hereby granted to the said States shall be subject to the disposal of the Legislatures thereof, for the purposes aforesaid and no other; and the said railroad and branches shall be and remain a public highway for the use of the government of the United States, free from toll or other charge upon the transportation of any property or troops of the United States. “ Sec. 5. That the lands hereby granted to said States shall be disposed of by said States only in the manner following; that is to say, that a quantity of land not exceeding one hundred and twenty sections, and included within a continuous length of twenty miles of said road, may be sold; and when the Governors of said State or States shall certify to the Secretary of the Interior that twenty continuous miles of said road is completed, then another like quantity of land hereby granted may be sold; and so from time to time until said road is completed ; and if said road is not completed within ten years, no further sales shall be made, and the land unsold shall revert to the United States.” The land in dispute is within the limits of this grant. The Cairo and Fulton Railroad of Missouri was incorporated as a railroad company under the laws of Missouri, January 12, 1854, and on the 20th of February, 1855, the legislature of Missouri passed an act vesting in that company full and complete title to the lands granted to the State by the act of 1853, so far as the same were applicable to the building of the road from the northern boundary of Arkansas to the Mississippi, opposite the mouth of the Ohio. This grant by Missouri was ST. LOUIS, &c., RAILWAY CO. v. McGEE. 471 Opinion of the Court. made “ for the uses and purposes, and subject to the condition, reversion and provision set forth and contained in said act of Congress and of this act.” Section 5 is as follows: “ For the purpose of raising funds from time to time, for the construction of the said railroad, the said company may'sell the said lands, in the manner provided for by the said act of Congress, and may issue their bonds in such sums as they may deem proper, at rates of interest not exceeding seven per cent, per annum, payable semi-annually, and the principal of said bonds payable at such time and place as they may designate; and may secure the payment of said bonds by mortgage of said lands, or any part thereof, to be executed by said company, and may make the said bonds convertible into land or stock of the company within such periods as they may prescribe: Provided, that the faith of the State is in no manner pledged for the redemption of said bonds, or any part thereof: And provided further, that nothing in this act contained shall be construed to authorize said company to sell, dispose of, or apply the said lands, or the proceeds thereof, in any other manner, or to any other purpose, than as required and limited by the said act of Congress.” Laws of Missouri, 1855, 314. On the 3d of January, 1859, the company sold and conveyed the land sued for to McGee, who immediately went into possession, and has ever since occupied and improved it as his own, and paid the taxes and assessments thereon. This deed was duly recorded January 10, 1859. The land is more than forty miles from the starting point of the road on the Mississippi, and it does not appear that wThen it was sold a sufficient number of miles of the road had been built to authorize its sale. On the 19th of February, 1866, the legislature of Missouri directed the governor of the State to sell at auction the Cairo and Fulton Railroad of Missouri, so far as the same was “ constructed or projected, together with their appurtenances, rolling-stock, and property of every description, and all rights and franchises thereto belonging,” “ in pursuance of the provisions of the several acts creating a lien on said railroads, their appurtenances, rights, and franchises, in favor of the State.” Laws of Missouri 1865-1866, 107. 472 OCTOBER TERM, 1885. Opinion of the Court. On the 28th of July, 1866, Congress, 14 Stat. 338, ch. 300, enacted that the original act of February 9, 1853, granting lands to the States of Arkansas and Missouri, “ with all the provisions therein made, be, and the same is hereby, revived and extended for the term of ten years from the passage of this act; and all the lands therein granted, which reverted to the United States under the provisions of said act, be, and the same are hereby, restored to the same custody, control, and condition, and made subject to the uses and trusts in all respects as they were before and at the time such reversion took effect: Provided, that all mineral lands within the limits of this grant and the grant made in section two of this act, are hereby reserved to the United States: And provided further, that all property and troops of the United States shall at all times be transported over said railroad and branches, at the cost, charge, and expense of the company or corporation owning or operating said road and branches respectively, when so required by the government of the United States.” By § 2 of the same act an additional grant of lands was made, “ subject to the same uses and trusts, and under the same custody, control, and conditions, and to be held and disposed of in the same manner as if included in the original grant.” It was then provided “ that the lands embraced in this grant and the grant revived by section one of this act shall be disposed of only as follows: Whenever proof shall be furnished, satisfactory to the Secretary of the'Interior, that any section of ten consecutive miles of said road ... is completed in a good, substantial, and workmanlike manner as a first-class railroad, the Secretary of the Interior shall issue patents for all the lands granted as aforesaid, not exceeding ten sections per mile, situate opposite to and within the limits of twenty miles of the section of said road and branches thus completed,” and so on, as each section of ten miles was completed, until the end. It was then provided that, if the road was not constructed within ten years from the time the act went into effect, “ the lands granted, or the grant of which is revived or extended by this act, and which at the time shall be un patented to or for the benefit of the road or company, . . . shall revert to the ST. LOUIS, &c., RAILWAY CO. v. McGEE. 473 Opinion of the Court. United States.” By § 3 all lands “ mentioned in this act, and hereby granted, are hereby reserved from entry, pre-emption, or appropriation to any other purpose than herein contemplated, for the said term of ten years from the passage of this act: Provided, that all lands heretofore given to the State of Missouri for the construction of the Cairo and Fulton railroad, or for the use of said road lying in the State of Missouri, and all lands proposed to be granted by this act for the use or in aid of the road herein named, and lying in said State of Missouri, shall be granted and patented to the said State whenever the road shall be completed through said State, which lands may be held by said State and used toward paying the State the amount of bonds heretofore issued by it to aid said company, and all interest accrued or to accrue thereon.” After the passage of this act of Congress, the railroad property was sold and conveyed by the State to certain persons, under whom the St. Louis, Iron Mountain and Southern Railway Company claims title. The conveyance upon the sale was of “the said Cairo and Fulton Railroad of Missouri, with all the franchise, privileges, rights, title and interest appertaining to said road, and all roads, road-bed, rolling stock, machine shops, and all other property, both real and personal, of every description, belonging or in any wise appertaining thereto.” The railroad was completed by the purchasers, or those claiming under them, and, on the 23d of January, 1877, the lands in dispute were paterited, with others of the same class, to the St. Louis, Iron Mountain and Southern Company. The first question presented by the assignment of errors is whether the act of July 28, 1866, was such a legislative declaration by Congress of a forfeiture of the grant of 1853 as would divest the title of the State to unearned lands, and defeat conveyances thereof by the railroad company before that time. It has often been decided that lands granted by Congress to aid in the construction of railroads do not revert after condition broken until a forfeiture has been asserted by the United States, either through judicial proceedings instituted under authority of law for that purpose, or through some legislative action legally equivalent to a judgment of office found at com- 474 OCTOBER TERM, 1885. Opinion of the Court. mon law. United States v. Repentingny, 5 Wall. 211, 267,268; Schulenberg v. Harriman, 21 Wall. 44, 63; Farnsworth v. Minnesota & Pacific Railroad Co., 92 U. S. 49, 66; M^Micken v. United States, 97 U. S. 217, 218; Van Wyck v. Knevals, 106 U. S. 360. Legislation to be sufficient must manifest an intention by Congress to reassert title and to resume possession. As it is to take the place of a suit by the United States to enforce a forfeiture, and a judgment therein establishing the right, it should be direct, positive, and free from all doubt or ambiguity. In the present case no such intention appears. On the contrary, the evident purpose of Congress was to waive a forfeiture and extend the time for earning the lands under the original act. The language is that the provisions of the act of 1853 be “revived and extended for the term of ten years from the passage of this act.” If this had been all, no one could doubt that it was the intention of Congress to place all parties interested in the grant just where they would be if the act of 1853 had fixed July 28, 1876, as the time for the completion of the railroad. What follows does not, in our opinion, manifest- any different intention. The words are: “ and all the lands therein granted, which reverted to the United States under the provision of said act, be, and they are hereby, restored to the same custody, control and condition, and made subject to the uses and trusts in all respects as they were before and at the time such reversion took effect.” When this act was passed the property of the original company had not been sold by the State under its act of February, 1866. There had been no proceedings by the United States to enforce a forfeiture, and the possession of the lands under the original grant had not been changed. Everything, so far as the United States were concerned, remained after the original limit of time for building the road had been passed, as it was before. Neither had the State done anything to take back its transfer of title to the company. Its legislation looked only to a sale and to the passing of the franchises and property of the company into the hands of those who would go forward and complete the road. This implied a preservation of the title of the com- ST. LOUIS, &c., RAILWAY CO. v. McGEE. 475 Opinion of the Court. pany to the lands rather than its destruction. The language of the new act is to be construed with reference to these facts, and, inasmuch as there had not been in law any reversion of the lands to the United States when the act was passed, the words “ reverted,” “ reversion,” and “ restored,” are to be understood as implying nothing more than that no advantage was to be taken by the United States of the fact that the condition subsequent in the grant had been broken by the failure of the company to complete the road within the time originally limited. Certainly there is nothing in the language employed to show an intention of Congress by that act to declare a forfeiture. Taken as a whole, this provision of the act of 1866 amounts to nothing more than an amendment of the act of 1853, striking out the original time of limitation and inserting in lieu, July 28, 1876. Other provisions of the act except from the grant of 1853, as well as that of 1866, all mineral lands within their respective limits, and also make patents necessary for the transfer of title from the United States. This shows an intention to take advantage of the breach of the conditions of the original grant, so far as was necessary to reassert title to, and reclaim possession of, any mineral lands that may have been included in that grant, and to change the mode of passing title, but it does not go further. To some extent, also, the obligations of the company for the transportation of the property and troops of the United States are changed. In this way the act of 1853 is amended, and the advantages, if any, gained by the United States may be looked upon as in the nature of concessions exacted in consideration of the additional grant which was made, and the extension of time which was given for the completion of the road. On the whole, we conclude that there has never been a forfeiture of the grant of 1853, so far as the lands now in dispute are concerned, and that the title of McGee stands precisely as it would if the original company had completed its road within the time fixed in the act of 1853. The purchasers at the sale made by the State in 1866 took subject to his rights, and the St. Louis, Iron Mountain and Southern Company got from these purchasers no better title than they had themselves. 476 OCTOBER TERM, 1885. Opinion of the Court. Under these circumstances, the patent which issued in 1877 inured to the benefit of McGee just as it would if it had issued to the Cairo and Fulton Railroad before the transfer under which the new company claims. The case of Wilson v. Boyce, 92 U. S. 320, is not in conflict with this. There the question was whether a purchaser from the company got title free of a lien of the State, as security for a loan of State bonds to the company. The controversy was about the construction of the words of description in the statute which created the State’s lien; one side claiming that the land grant was not included, and the other that it was. If it was included, the title of the purchaser from the company would be bad; if not, it would be good. We held that the grant was included, and gave judgment accordingly. Upon the facts as presented by this record, no such question arises. No title is set up under any lien in favor of the State superior to that of McGee. There is no dispute about the right of the State to sell under its act of 1866. If, at the time of such sale, the title of the company under the act of 1853 had been divested by forfeiture, and the company held only under the new grant of 1866, the St. Louis, Iron Mountain and Southern Company is entitled to judgment. If, however, the original grant had not been forfeited, and the Cairo and Fulton Company held under that grant when the sale was n^ade, the new company took title subject to the prior right of McGee, and must fail in this action. As we decide that the company held under the original title, the judgment of the Supreme Court of Missouri was right; and it is accordingly Affirmed. DREW v. GRINNELL. 477 Opinion of the Court. DREW & Another v. GRINNELL & Another. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Submitted November 2, 1885.—Decided November 23, 1885. Under § 8 of the act of June 80, 1864, ch. 171, 13 Stat. 210, imposing a duty of 60 per cent, on “silk laces,” and a duty of 50 percent, on “ all manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for,” an article of silk and cotton, bought and sold as “spotted or dotted net,” but which was a lace, in which silk was the component material of chief value, was a “ silk lace,” and subject to a duty of 60 per cent. The facts which make the case are stated in the opinion of the court. Mr. William Stanley and Mr. Edwin B. Smith for plaintiffs in error. Mr. Attorney-General for defendants in error. Mr. Justice Blatchford delivered the opinion of the court. This action was brought by the plaintiffs in error, against the collector of the port of New York, to recover $17.50 as duties illegally exacted on an importation of merchandise into New York, from Liverpool, England, in 1869. At the trial, in 1881, the defendants, executors of the collector, had a verdict, on which there was a judgment in their favor, to review which this writ of error is brought. The question involved arose under § 8 of the act of June 30, 1864, ch. 171, 13 Stat. 210, which provided that, on and after the 1st of July, 1864, in lieu of the duties theretofore imposed by law on the articles thereinafter mentioned, there should be collected, on the merchandise enumerated in that section, the following duties: “ On silk vestings, pongees, shawls, scarfs, mantillas, pelerines, handkerchiefs, veils, laces, shirts, drawers, bonnets, hats, caps, turbans, chemisettes, hose, mitts, aprons, stockings, gloves, sus- 478 OCTOBER TERM, 1885. Opinion of the Court. penders, watch-chains, webbing, braids, fringes, galloons, tassels, cords, and trimmings, 60 per centum ad valorem. On all manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for, 50 per centum ad valorem.” The merchandise was invoiced and entered as “ white cotton and silk spot net.” The collector exacted a duty on it of 60 per cent., as being “ silk laces.” The importers contended that it was a manufacture of which silk was the component material of chief value, not otherwise provided for, and subject to a duty of 50 per cent. The bill of exceptions contains the following statements: “ Plaintiffs produced witnesses who testified that the merchandise in question was a manufacture made partly of silk and partly of cotton; that the ground of the fabric was silk and the spot upon it was cotton, but the fabric was made substantially of silk, and the article was universally bought and sold under the name of ‘ spot or dotted net,’ and never by the name of £silk lace;’ and that there was, in 1864, and has been ever since that time, a well-known class of goods imported into this country, which was made wholly of silk, and other and different from the merchandise in question in this action, which was bought and sold under the name of ‘ silk lace.’ Plaintiffs offered testimony tending to show that the fabrics commercially regarded as ‘silk laces’ were finished on one side in figures in the form of a scollop, as a rule, and having finished edges, and that lace edgings were known as ‘ silk laces; ’ that, among laces known as ‘ silk laces,’ are Spanish laces, Pushee laces, blond laces; that all laces which are known in commerce as ‘ silk laces ’ are made on a machine ; that there were minor classes of laces included in the general class of ‘ silk laces,’ and each class is composed of several kinds of laces, which go by distinguishing names, so that, if a person should come into a store and ask for ‘ silk laces ’ it would not be possible to tell what particular silk lace he wanted until he should specify by its particular name the particular variety wanted ; that there were different names for different kinds of nets, and, if a person should simply ask for net goods, it could not be ascertained what particular article he required until he mentioned its DREW v. GRINNELL. 479 Opinion of the Court. specific distinguishing name; and that there were curtain nets, bobbinets, Brussels nets, Mechlin nets, zephyr nets, mohair nets, illusion nets, and a variety of others. But plaintiffs’ witnesses, upon cross-examination, testified, that the term ‘silk laces ’ was not a commercial term used to designate a particular article in trade, but was a general term, and that each particular silk lace had a specific tradename, such as Valenciennes, Bretonne, and a variety of other names. Plaintiffs’ counsel having rested their case, the defendants’ counsel called witnesses who testified, in behalf of the defendants, that they were, and had been for twenty years, wholesale dealers in, and importers of, silk laces, and were also wholesale dealers and importers of goods like the goods which were the subject of controversy in this action; that the term ‘ silk laces ’ was not generally regarded, in trade and commerce, in the United States, among wholesale dealers in and importers of laces, as a commercial term, used to designate any particular article of trade, but was generally understood to include all laces which were made wholly or substantially of silk; that each particular lace had a particular trade name; that the goods which were the subject of controversy in this suit were a particular kind of silk lace, called ‘ spotted or dotted net; ’ that they were made upon lace machines; that, in trade and commerce generally, in the United States, laces were understood to be delicate, thin ornamental net work, the meshes of which were formed by plaiting together threads of silk, cotton, or other material; and that the goods which were the subject of controversy in this suit corresponded with that definition.” Both parties having rested, the plaintiffs requested the court to direct a verdict for them. This was refused and they excepted. They then requested the court to charge the jury as follows: “1st. That, if the jury find that goods such as those in question were not generally known among wholesale dealers in, and importers of, the articles, in buying and selling, at and prior to June 30, 1864, in our markets, under the commercial name of ‘ silk lace,’ then the plaintiffs are entitled to recover. 2d. That, if the jury find that goods such as those in question 480 OCTOBER TERM, 1885. Opinion of the Court. were generally known, among wholesale dealers in, and importers of, the article, in buying and selling, at and prior to June 30, 1864, in our markets, under the name of 4 nets,’ or 4 spot nets,’ or (dotted nets,’ or 4 silk and cotton spot nets,’ and not as 4 silk laces,’ then the plaintiffs are entitled to a verdict. 3d. That, testimony having been given and not contradicted, that the goods in suit were manufactures of silk and cotton, in which silk was the component material of chief value, the plaintiffs are entitled to recover, unless the goods were known in trade and commerce, in this country, by importers, as 4 silk laces.’ 4th. That, if the jury find that the goods were not commercially known, among wholesale dealers, in this country, as ‘silk laces,’ at the time of the passage of the act of June 30, 1864, plaintiffs are entitled to recover. 5th. That it is immaterial whether goods like plaintiffs’ importations were or were not known as 4 laces,’ if they were not known commercially as 4 silk laces.’ 6th. That, plaintiffs having shown, without contradiction, that the articles in controversy were composed of silk and cotton, the presumption, in the absence of proof, would be, that the laces were not silk laces.” The court, as to each proposition, refused so to charge, and the plaintiffs excepted to each refusal. The court then instructed the jury 44 that, if the plaintiffs’ importation was not a silk lace within the meaning of the act of June 30, 1864, the plaintiffs were entitled to recover; that it was a silk lace within the meaning of the act, if it was a lace of which silk was the component material of chief value, unless, at the time the act was passed, it was commercially known, by importers and dealers in such articles, in this country, as a different article; that, if it was commercially known as 4 spot net ’ or 4 dotted net ’ instead of 4 lace,’ it would fall under the clause relating to manufactures of silk, not otherwise provided for ; but, if it was called by such name only to distinguish it from other varieties of silk lace, all silk laces being known by some particular name which distinguished one variety from the others, it was, nevertheless, a 4 silk lace,’ within the meaning of the act.” There was no exception taken to any part of those instructions. DREW v. GRINNELL. 481 Opinion of the Court. The jury having retired, came into court for further instructions, and the court charged them that the first clause of the 8th section imposed a duty of 60 per cent. “ upon articles which were made all of silk, or which were made of silk and cotton, in which silk was the controlling element, if they were known among merchants as silk goods.” To this charge the plaintiffs excepted. We think the case was, in view of the evidence, fairly and properly presented to the jury by the court. The jury were, in substance, told, {1) that the plaintiffs were entitled to recover if the article was not a silk lace ; (2) that it was a silk lace, if it was a lace of which silk was the component material of chief value, unless at the 4-ime the act was passed it was commercially known here as a different article; (3) that, if it was commercially known as “ spot net ” or “ dotted net,” it would fall under the 50 per cent, clause, but if it was so called as one of the varieties of silk lace, each of which had a particular distinguishing name, it was, nevertheless, a silk lace, within the meaning of the act. The instructions asked for went upon the erroneous view, that an article could not be a silk lace, within the act, unless it was bought and sold by the commercial name of “ silk lace.” This was the substance of all the instructions asked. Although the article was composed of silk and cotton, yet, if silk was the component material of chief value, and it was a lace, and was known among merchants as a silk lace, it clearly fell wjthin the 60 per cent, clause, although a lace wholly of silk also fell within that clause, as a silk lace. The evidence on both sides was to the effect that the term “ silk laces ” was not a commercial term for a particular article, but included all laces made wholly or substantially of silk, each particular lace having a particular trade name, and the article in question being a particular kind of silk lace, called “ spotted or dotted net.” Judgment affirmed. vol. cxv—31 482 OCTOBER TERM, 1885. Statement of Facts. BOHLEN v. ARTHURS & Others. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA. Submitted November 12, 1885.—Decided November 23,1885. A tenant in common cannot maintain replevin against a cotenant, because they have each and equally a right of possession; and that rule is recognized in Pennsylvania. Where, under an agreement for the purchase of an undivided interest in land to be conveyed to the purchaser on his paying for it, he acquires no right to cut timber on the land without the consent of the owners of the remaining interest, who are tenants in common with him of the land, if he cuts such timber, and removes it, and it is taken possession of by such owners of the remaining interest, he has no such right of possession in it as will sustain an action of replevin by him against them. The Pennsylvania act of May 15, 1871, No. 249, sec. 6, which provides as follows : “ In all actions of replevin, now pending or hereafter brought, to recover timber, lumber, coal or other property severed from realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute : Provided, said plaintiff shows title in himself at the time of the severance,” has no operation as between tenants in common. This was an action of replevin, brought in the Circuit Court of the United States for the Western District of Pennsylvania, to recover a quantity of square white pine timber logs, in rafts. At t^e trial the court directed a verdict for the defendants, and, after a judgment accordingly, the plaintiff brought this writ of error. The defendants who pleaded, setting up property in themselves, were one Arthurs, assignee in bankruptcy of Baum and Carrier, and one McClure. Each party, plaintiff and defendants, claimed title to the timber under Baum and Carrier and one Osborne, who had title, before December 18,1872, to the lands from which the timber was taken. On that day, Baum, Carrier and Osborne made a written agreement with one Phillips, to the effect that they would convey to him, his heirs and assigns, by warranty deed, in fee simple, the undivided one-half of certain specified lands, in the counties of Clearfield and Jefferson, in the State of Pennsylvania, on his paying the con- BOHLEN v. ARTHURS. 483 Statement of Facts. sideration, and performing the covenants, mentioned in the agreement. These were that he should pay them $125 per acre for such undivided one-half, amounting to $206,000, “ payment thereof to be made out of the proceeds of said lands, when and as soon as moneys shall be realized from the sale of any part of said lands, or from the sale of timber thereon, or coal or other minerals therein contained, or lumber manufactured upon said premises in mills thereon to be erected, as hereinafter mentioned and provided for.” Phillips was to pay no interest, and to have the right to pay at any time the consideration money for the whole or any part of the lands and receive a deed. Phillips agreed “ to advance and pay the one-half of such amounts of money as may be necessary to construct and erect a first-class saw-mill or saw-mills, and such fixtures and machinery appurtenant thereto, and such other and additional improvements,” as he, Phillips, might “ from time to time consider and determine to be advantageous and necessary for the profitable and full development ” of the lands. Then followed these clauses: “And the said saw-mills, machinery, and other improvements shall be located on such parts of said lands as may be mutually agreed upon by the said parties of the first and second parts herein named, holding as tenants in common, and not as partners. And it is hereby expressly covenanted and agreed, that the said Wm. Phillips, party of the second part named in this agreement, shall have the right and power to control all improvements made or to be made on said property, and to direct and manage the development of the lands herein described and held by said parties hereto as tenants in common, and not as partners.” Phillips died, and his administrators in June, 1874, assigned to the plaintiff and one Whitney all the interest of Phillips under the agreement of December, 1872, and in and to the lands described therein. At the same time, the heirs-at-law of Phillips quit-claimed to the plaintiff and Whitney the undivided one-half of the said lands, so agreed to be conveyed to Phillips. The timber in question was cut and taken from those lands. Under a contract between the plaintiff and Whitney, and one McCracken, made in September, 1876, the latter agreed to cut 484 OCTOBER TERM, 1885. Argument for Plaintiff in Error. from the lands a specified quantity of square pine timber, for a stipulated price, and deliver it to the plaintiff and Whitney at Pittsburg. In April, 1877, Whitney assigned to the plaintiff all his interest in that timber. McCracken, in pursuance of this contract, cut from the lands the timber in question. It was taken by the marshal under the writ in this suit, in April, 1877, and was bonded by the defendants and delivered to them. The foregoing facts being proved at the trial, the court instructed the jury that the plaintiff had failed to show sufficient property in the timber to sustain replevin, and directed a verdict for the defendants, to which direction the plaintiff excepted. Mr. Robert Arthurs and Mr. George Shiras, Jr., for plaintiff in error.—Under the provisions of the agreement it was Phillips’ duty to contract with third parties to cut and market the timber. His possession was that of a tenant in common, and his duty was to develop the property, and provide means for it by cutting and marketing the timber. Against third persons, such possession gave Phillips a title to the lumber cut and on its way to market which would sustain an action of replevin or trover. The act of assembly of May, 15, 1871, 2 Purdon’s Digest, 1266, provides in terms that “in all actions of replevin now pending or hereafter brought to recover timber, lumber coal, or other property severed from realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute; provided, said plaintiff shows title in himself at the time of severance.” Such legislation was deemed necessary because the Supreme Court of Pennsylvania, in several cases, had held that title to land could not be tried in and by transitory actions like replevin and trover. Mather n. Trinity Church, 3 S. & R. 509; Brown v. Caldwell, 10 S. & R. 114. But, in the present case, the record and evidence disclose no dispute about or concerning the title under the contract. Phillips had a right of possession. His agreement was to cut and market the lumber. The case of Harlan n. Harlan, 15 Penn. BOHLEN v. ARTHURS. 485 Opinion of the Court. St. 507, is applicable. It was there held that replevin would lie by a party having a right of possession of real estate to recover possession of lumber cut thereupon. No reason is seen why the title of Phillips to this lumber could be disturbed by the tenants in common, or any one claiming under them. It does not appear that the contract had been rescinded. The rights and estate of Phillips thereunder had, by his death, devolved upon his personal representatives and heirs, and by deed and assignments had become vested in Bohlen, the plaintiff. Mr. John Dalzell for defendants in error. Mr. Justice Blatchford delivered the opinion of the court. After stating the facts in the language above reported, he continued : It is contended, for the plaintiff, that Phillips acquired a right to the possession of the lands as a tenant in common, and a right to cut and market the timber, with a view to paying the consideration for the purchase ; that such rights had passed to the plaintiff; and that a verdict for the plaintiff should have been directed, or else the case should have been left to the jury under proper instructions. The most that was shown by the evidence was, that the plaintiff claimed title to the timber as being a tenant in common with the defendants of the lands from which it was cut (it being stated in the bill of exceptions that both plaintiff and defendants claimed under Baum, Carrier and Osborne); and that the suit was against the defendants, being such tenants in common with the plaintiff, and in possession of the timber. It is a well settled principle, that, to maintain an action of replevin, a person must have not only some right of property but the right of possession. Hence, a tenant in common cannot maintain replevin against a co-tenant, because they have each and equally a right of possession. This rule is recognized in Pennsylvania. In Wilson v. Gray, 8 Watts, 25, 35, it is said: “ The defendant may plead property in the plaintiff and himself, and, if true, it must not only defeat the plaintiff in his 486 OCTOBER TERM, 1885. Opinion of the Court. writ, but entitle the defendant to a return of the property ; because, the latter, having had the possession of it, coupled with an interest, which makes his case the stronger, until improperly deprived thereof by the sheriff, under the plaintiff’s writ, which he had no right to use for such purpose, has a right to be placed in statu quo, that is, restored to the possession of the property as the joint owner thereof.” The terms of the agreement with Phillips did not give him any title to, or right of possession in, any timber which might be cut from the premises. He was to have a deed of an undivided half of the lands when he should pay the consideration and perform the covenants. The purchase money could be paid out of the proceeds of the sale of the lands, or out of the sale of timber, coal or minerals, or lumber manufactured on the premises in mills to be erected thereon, as provided for in the agreement. But no land or timber could be sold unless the owners of the other undivided half of the lands should join with Phillips in a sale, and then one-half of the purchase money would belong absolutely to the former, and only the other half to Phillips, to be applied on his purchase. There was nothing in the agreement which gave Phillips any right to cut timber on the premises without the consent of the other parties, and their consent that McCracken or the plaintiff might cut and remove the timber is not shown. The plaintiff cites the Pennsylvania statute of May 15,1871, No. 249, Sess. Laws, 1871, p. 268; 2 Purdon’s Digest, 1266, § 6, which provides as follows: “ In all actions of replevin, now pending or hereafter brought, to recover timber, lumber, coal or other property severed from realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute : Provided, said plaintiff shows title in himself at the time of the severance.” This statute has no operation as between tenants in common, but applies only to actions against third persons; and its object is only to prevent a defendant in a replevin suit of the character mentioned, from setting up a dispute as to the title to the land, between the plaintiff and a person other than the defendant, if the plaintiff shows a title KURTZ v. MOFFITT. 487 Statement of Facts. to the land, as against the defendant, at the time of the severance. Besides, the plaintiff here showed no title at all to the land, in himself. Judgment affirmed. KURTZ v. MOFFITT & Another. IN ERROR TO THE SUPERIOR COURT OF THE CITY AND COUNTY OF * SAN FRANCISCO AND STATE OF CALIFORNIA. MOFFITT & Another v. KURTZ. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. Submitted October 14,1885.—Decided November 23,1885. A writ of habeas corpus is not removable from a State court into a Circuit Court of the United States under the act of March 3, 1875, ch. 137, § 2. A police officer of a State, or a private citizen, has no authority as such, without any warrant or military order, to arrest and detain a deserter from the army of the United States. A writ of habeas corpus was issued on April 8,1885, by and returnable before a judge of the Superior Court of the City and County of San Francisco, in the State of California, addressed to John Moffitt and T. W. Fields, citizens of that State, upon the petition of Stephen Kurtz, a citizen of Pennsylvania, alleging that he was by them unlawfully imprisoned and restrained of his liberty, inasmuch as they had arrested him as a deserter from the army of the United States, and had no warrant or authority to arrest him, and were not officers of the United States. Moffitt and Fields, at the time of entering their appearance m that court, filed a petition to remove the case into the Circuit Court of the United States, because the parties were citizens of different States, and because the suit involved a ques- 488 OCTOBER TERM, 1885. Statement of Facts. tion arising under the Constitution and laws of the United States, to wit, the question whether a person who is not an officer of the United States has authority to arrest a deserter from the army of the United States. The court ordered the case to be so removed. Moffitt and Fields thereupon signed and filed in the Circuit Court the following return: “Now come the respondents and make this their return to the writ of habeas corpus herein, and show that respondent J. Moffitt is a regular police officer of the city and county of San Francisco, and respondent T. W. Fields is a special police officer of said city and county; and being such officers as aforesaid, they arrested the petitioner, Stephen Kurtz, in the city and county of San Francisco, by the authority of the United States in this, to wit, that said Stephen Kurtz, under the name of Stephen Noll, on the 29th day of May, 1876, at Cleveland in the State of Ohio, enlisted in the Army of the United States for the term of five years, and on the 17th day of March, 1879, he being a soldier attached to Co. D of the 21st Regiment of Infantry of the Army of the United States, stationed at Vancouver Barracks in the Territory of Washington, deserted from the Army of the United States; and your respondents hold said petitioner for the purpose of delivering him to the military authorities of the United States to be tried according to the laws of the United States.” The Circuit Court, upon motion and hearing, made an order remanding the case to the Superior Court of San Francisco; and Moffitt and Fields sued out a writ of error from this court to reverse that order. After the case had been so remanded, Kurtz filed in the Superior Court of San Francisco a suggestion that the return was insufficient, and that he was entitled to be discharged, for the following reasons: “ First. It appears by said return that the defendants were not officers of the United States, but are police officers of the municipality of San Francisco, and as such they have no authority to arrest or detain the plaintiff, and as such officers they have been and are prohibited from arresting or detaining KURTZ v. MOFFITT. 489 Argument for Moffitt and Fields. the plaintiff as a deserter from the United States Army by a rule of the police department which was in force at the time of the arrest of the plaintiff, and still is in force, which rule was and is as follows: 4 Police officers are prohibited from arresting deserters from the United States Army or Navy without a warrant? 44 Second. The desertion set up in the return is an offence against the United States, and not against the State of California, of which Commonwealth the defendants are officers, and they are therefore incompetent to arrest or detain the plaintiff. “Third. The desertion set up in the return is barred by article 103 of section 1342 of the Revised Statutes of the United States.” The Superior Court, upon a hearing, ordered the writ of habeas corpus to be dismissed and Kurtz remanded to custody, and entered judgment accordingly; and he sued out a writ of error from this court to reverse that judgment, that court being the highest court of the State in which a decision on the merits of the case could be had. See Robbs Case, 64 California, 431, 433, and 111 U. S. 624, 627; Barbier n. Connolly, 113 U. S. 27. Mr. H. G. Sieberst and Mr. R. M. Swain for Kurtz. Mr. Alfred Clarice and Mr. S. IF. Sanderson for Moffitt & Another. I. The Superior Court of San Francisco had no jurisdiction to proceed with the hearing of the case on the merits, after the case was removed to the Circuit Court. The case was as clearly one involving a right under a law of the United States as was Gordon v. Longest, 16 Pet. 97. The writ of habeas corpus authorized by § 14 of the Judiciary Act of 1789,1 Stat. 81-82, reaches every case of unlawful imprisonment under Federal authority, and every case of imprisonment in contempt of the national authority. See Sturges v. Crowningshield, 4 Wheat. 122; Houston n. Moore, 5 Wheat. 1, 27; Prigg v. 490 OCTOBER TERM, 1885. Argument for Moffitt and Fields. Pennsylvania, 16 Pet. 531, 614; Ableman v. Booth, 21 How. 506, 523; Tarblds Case, 13 Wall. 397. The State writ reaches all cases not reached by the national writ—the latter all cases not reached by the former—and thus there is no hiatus or confusion. United States v. Cruikshank, 92 U. S. 542. As State courts were more numerous than Federal courts, and reflected local political opinion, a gradual encroachment on the sphere of Federal jurisdiction may be traced, which culminated in the Supreme Court of Wisconsin declaring an act of Congress to be unconstitutional. The decision in Ableman v. Booth, above cited, settled that in all matters in which the Federal government has exclusive control, the State shall abstain from interference, as the Federal government abstains from interference with the government of the States. The conflict of jurisdiction which resulted from this encroachment may be traced through the following leading cases. In the matter of Samuel Stacy, 10 Johns. 328 ; Ex parte Booth, 3 Wise. 145 ; In re Ta/rble, 25 Wise. 390 ; Casey's Case, reviewed in Neill's Case, 8 Blatchford, 156, 164. There is a line of decisions contrary to the above, which may be traced from 1807 to the present time, as follows : 1807, State v. Plime, T. U. P. Charton, 142; 1809, In re Roberts, 2 Hall’s Law Jour. 192; 1812, In re Ferguson, 9 Johns. 239; 1816, In re Rhodes, 2 Wheel. Cr. Cas. 567; 1819, Wright v. Beacon, 5 S. & R. 64; 1839, State v. McBride, Rice, 400; 1850, Norris n. Newton, 5 McLean, 92; 1851, Charge by Judge Nelson, 1 Blatchford, 635; 1851, Thomae Sims' Case, Cush. 285 ; 1852, Moore v. Illinois, 14 How. 13; 1853, In re Jenki/ns, 2 Wall. Jr. 521; 1856, In re Robinson, 1 Bond, 39, 44 ; 1856, In re Sifford, 5 Am. Law Reg. 659; 1858, Ableman v. Booth, above cited; 1861, Re Kelley, 37 Ala. 474; 1861, Re McDonald, 9 Am. Law Reg. 661; 1862, State v. Zulich, 5 Dutcher, 409, 413; 1863, In re Spa/ngler, 11 Mich. 298, 305; 1863, In re Shirk, 3 Grant Cas. 460; 1867, In re Farra/nd, 1 Abbott U. S. 142; 1867, United States v. Jailor, 2 Abbott U. S. 279 ; 1869, In re Hill, 5 Nev. 154; 1871, In re Neill, 8 Blatchford, 164; 1872, Tarblds Case, cited above. The latter line of decisions drown the first line so completely that the first are only interesting as relics of the past. But the KURTZ v. MOFFITT. 491 Argument for Moffitt and Fields. same causes which produced the first line of decisions are still operative, and produce irritation and confusion. It is contended on the other side that a municipal policeman cannot exercise Federal power; that all his acts are done in his character as a State officer. This proposition is not sustained by the following decisions of this court. Prigg v. Pennsylvania, 16 Pet. on page 614 et seq.; Tennessee v. Davis, 100 U. S. on page 263; Ex parte Virginia, 100 U. S. on page 346; Ex parte Yarbrough, 110 U. S. on page 662. See also In re Smith, and In re Spangler, above cited. Many statutes authorize both Federal and State officers to perform acts outside of the duties pertaining to their offices. Rev. Stat. §§ 1014, 1750, 1758, 1778, 2165, 2181, 3066, 3833, 4522, 4546, 4556, 4559, 4606, 5270, 5280. Ex parte Clodomiro Cota, 110 U. S. 385, is also instructive on this point. The Federal government still possesses all the jurisdiction which can be exercised by habeas corpus in any case arising under “ this constitution, the laws of the United States, and the treaties made, or which shall be made under their authority.” None of this power has been restored to the State judiciary by any act of Congress, and if it had been it would still be Federal power though exercised for the time being by a State officer. We have shown that many State courts failed to regard the proper limitations of State and Federal power in the use of the writ of habeas corpus, but we refer to the following leading cases, all cited above, to show that some of the State courts have been sound on this question: State v. McBride; In re Sims; Be Spangler. We claim that the jurisdiction which the State has surrendered, and parted with, and transferred to the United States, and which Congress has conferred on the Circuit and District Courts of the United States is not retained and cannot be exercised by the State courts. “ No court can exercise judicial power unless it is derived from some government or sovereignty.” Ableman v. Booth, cited above. The Superior Court had no power or authority under the Constitution and laws of California, to hear this case after the removal thereof to the Circuit Court. The Federal laws gave the Superior Court no power to hear it after the removal. The case was 492 OCTOBER TERM, 1885. Argument for Moffitt and Fields. one which belonged to the Federal judiciary and which did not belong to the State judiciary, and the Superior Court should have dismissed the case as moved by the defendants. II. As to the judgment remanding the prisoner. (1) Desertion is a crime against the United States, 2 Stat. 136, 302; Rev. Stat. § 1342, Art. 47, and may be punished by imprisonment with hard labor, which may extend to life. (2) The plea of the statute of limitations under the articles of war or the penal code cannot be received on habeas corpus. In re Arno White., 9 Sawyer, 49, 52; Ex parte Reed) 100 U. S. 13. (3) The defendants had the right to arrest the plaintiff. They were citizens of the United States; as such, parties to the Constitution, Dred Scott v. Sandford) 19 How. on page 404; and bound to observe its laws. Those laws forbid desertion, and offer rewards for the arrest of deserters. Rev. Stat. § 1120. Every citizen has a right to accept this offer, and becomes thereby the agent of the Federal government, with authority to use force to execute the supreme law. Ex parte Siebold, 100 U. S. 371, 395 ; Ex parte Yarbrough) 110 U. S. 651, 662. (4) Desertion is continuous, and is an infamous crime. Congress has given a legislative definition of crimes, “ not capital or otherwise infamous,” in Rev. Stat. Dist. Col. § 1049, “ that is to say” “all simple assaults and batteries and all other misdemeanors not punishable by imprisonment in the penitentiary.” This court has construed this language in Ex parte Wilson, 114 U. 8. 417. It has already been shown what the punishment for desertion may be. (5) No special warrant was necessary for the arrest of the deserter. A warrant in law exists when a statute authorizes the doing of an act. Under Rev. Stat. § 1014, for any crime against the United States, the offender may be arrested by #ny “ magistrate according to the usual mode of process in such State,” and § 836, Penal Code of California, prescribes that, in case of felony, or when the offender is arrested in the act, a special warrant is unnecessary, the statute being the warrant. Under the Fifth Amendment to the Constitution crimes are infamous or not infamous, or as designated in §§ 16,17, Penal Code, felonies and misdemeanors. Desertion has none of the indicia of a misdemeanor, but has KURTZ v. MOFFITT. 493 Argument for Moffitt and Fields. all the features of a felony, and we are authorized to apply to it the felony procedure which justifies an arrest without a special warrant in cases where the statute is the warrant. On this question, the State is not and cannot be neutral. The deserter is not a citizen, and the State can give him no asylum. The crime he has committed is not against a foreign government, but against a sovereignty whose dominion extends to every foot of territory which any State can claim. All State officers, under article 20, § 3, Constitution of California, are enlisted on the side of the Federal government. The defendants not only had the power, but it was highly proper for them, to make this arrest. In re Lafonte, 2 Rob. La. 498. In arresting a deserter the power and authority of the State is not exercised. The State legislature could not prohibit or punish the arrest of a deserter from the United States army, because any such law would interfere with the powers of the national government. The rule of the police department is of no more force than if it were an act of the legislature, and as an act of the legislature it would be unconstitutional, being contrary to the supreme law of the land. Tape v. Hurley, 5 West Coast Reporter, 692. Desiring to present all that may aid the court in the solution of the question, we also refer to the following State decisions : (1852.) Hutchings v. Van Bokkelen, 34 Maine, 126. The action was replevin for the person. The deserter was remanded, and it was held that no special warrant was required for the arrest of a deserter. (1863.) Trask v. Payne, 43 Barb. 569. The action was for damages which were given against a deputy sheriff. This case is cited by the plaintiff. We remark that the order of July 31, 1862, cited in that case, has been superseded by the act of Congress of March 3, 1863, § 7 of which made it “ the duty of the provost marshals to arrest all deserters and send them to the nearest military post.” The same act (§ 26) authorized the President to issue a proclamation in regard to deserters. The President accordingly did “ call on all good citizens to aid in restoring absent soldiers to their regiments.” See Gen. Order 325,1863, Army Reg. 1863, 156-7; Army Reg. 1881, p. 28, § 214. (1866.) Huber v. 494 OCTOBER TERM, 1885. Opinion of the Court. Riley, 53 Penn. St. 119. The action was for damages for not allowing plaintiff to vote. Defence that he was a deserter. Damages given in the sum of $1. (1869.) Hickey v. Huse, 56 Maine, 497. The action was for damages for arresting the plaintiff as a deserter. No damages given. (1869.) State v. Symonds, 57 Maine, 148, 150. Defendant was indicted for illegal voting. The State claimed that he was a deserter. Judgment reversed. Me. Justice Gray delivered the opinion of the court. After stating the facts in the language reported above, he continued: The first question to be considered is whether this case was rightly remanded to the State court, or should have been retained and decided in the Circuit Court of the United States, into which it had been removed on a petition filed under the act of March 3, 1875, ch. 137, § 2. In order to justify the removal of a case from a State court into the Circuit Court under this act, it is not enough that it arises under the Constitution and laws of the United States, or that it is between citizens of different States, but it must be a “ suit of a civil nature, at law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars.” 18 Stat. 470. A writ of habeas corpus, sued out by one arrested for crime, is a civil suit or proceeding, brought by him to assert the civil right of personal liberty, against those who are holding him in custody as a criminal. Ex parte Tom Tony, 108 U. S. 556. To assist in determining whether it is, within the meaning of the act of 1875, a “ suit at law or in equity where the matter in dispute exceeds the sum or value of five hundred dollars, it will be convenient to refer to the use and the interpretation of like words in earlier acts defining the jurisdiction of the national courts. The Judiciary Act of September 24, 1789, ch. 20, § 22, authorized “ final judgments and decrees in civil actions and suits in equity in a Circuit Court, where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs,” to be revised by this court on writ of error or appeal- KURTZ v. MOFFITT. 495 Opinion of the Court. 1 Stat. 84. The act of April 2,1816, ch. 39, § 1, provided that no cause should be brought to this court by appeal or writ of error from the Circuit Court for the District of Columbia “ unless the matter in dispute in such cause shall be of the value of one thousand dollars or upwards, exclusive of costs.” 3 Stat. 261. In Lee n. Lee, 8 Pet. 44, decided in 1834, a petition to the Circuit Court for the District of Columbia set forth that the petitioners were entitled to their freedom, and were held in slavery by the defendant; he pleaded that they were not entitled to their freedom as they had alleged; upon that plea issue was joined, and a verdict and judgment rendered for the defendant; and the petitioners sued out a writ of error. A preliminary objection to the jurisdiction of this court was overruled, and the judgment below considered on the merits and reversed. The ground of the decision upon the question of jurisdiction appears to have been that the single matter in dispute between the parties was the freedom or slavery of the petitioners—to the petitioners, the value of their freedom, not to be estimated in money; to the defendant, claiming to be their owner, the pecuniary value of the slaves as property, which, if he had been the plaintiff in error, might have been ascertained by affidavits. 8 Pet. 48. In Barry v. Mercein, 5 How. 103, decided in 1847, this court dismissed for want of jurisdiction a writ of error to reverse a judgment of the Circuit Court for the Southern District of New York, refusing to grant to a father a writ of habeas corpus to take his child out of the custody of his wife who was living apart from him. Chief Justice Taney, in delivering the opinion, after quoting the 22d section of the Judiciary Act of 1789, said: “ In order, therefore, to give us appellate power under this section, the matter in dispute must be money, or some right, the value of which in money can be estimated and ascertained.” “ The words of the act of Congress are plain and unambiguous. They give the right of revision in those cases only where the rights of property are concerned, and where the matter in dispute has a known and certain value, which can be proved and calculated, in the ordinary mode of 496 OCTOBER TERM, 1885. Opinion of the Court. a business transaction. There are no words in the law, which by any just interpretation can be held to extend the appellate jurisdiction beyond those limits, and authorize us to take cognizance of cases to which no test of money value can be applied. Nor indeed is this limitation upon the appellate power of this court confined to cases like the one before us. It is the same in judgments in criminal cases, although the liberty or life of the party may depend on the decision of the Circuit Court. And since this court can exercise no appellate power unless it is conferred by act of Congress, the writ of error in this case must be dismissed.” 5 How. 120, 121. In Pratt v. Fitzhugh, 1 Black, 271, decided in 1861, this court dismissed for want of jurisdiction a writ of error to reverse a judgment of the Circuit Court for the Northern District of New York, discharging on habeas corpus persons imprisoned upon an execution issued by that court directing the marshal to levy the amount of a decree for $21,581.28 out of their goods and chattels, and, for want thereof, to arrest and keep them until the moneys were paid. Mr. Justice Nelson, in delivering the opinion, said that the 22d section of the Judiciary Act had always been held to mean a property value; and he distinguished the case of Holmes n. Jennison, 14 Pet. 540, (which was a writ of error to reverse a judgment of the Supreme Court of Vermont on habeas corpus, remanding to custody a prisoner under a warrant of extradition from the Governor of that State,) upon the ground that it was brought up from a State court under the 25th section of the Judiciary Act, in which case no value was required. In DeKrafft v. Barney, 2 Black, 704, decided in 1862, an appeal was taken from a decree of the Circuit Court for the District of Columbia, awarding the custody of a child to the father as against the divorced mother; and Lee v. Lee, above cited, was referred to as supporting the right of appeal. But this court dismissed the appeal for want of jurisdiction, Chief Justice Taney saying that the case was not distinguishable from Barry v. Mercein, above cited, and in that case it wTas held “ that in order to give this court jurisdiction under the 22d section of the Judiciary Act of 1789, the matter in dispute must KURTZ v. MOFFITT. 497 Opinion of the Court. be money, or some right, the value of which could be calculated and ascertained in money.” The act of February 5, 1867, ch. 28, § 1, conferring power upon the judges of the national courts to issue writs of habeas corpus in cases of persons restrained of their liberty in violation of the Constitution, or of any treaty or law of the United States, expressly gave an appeal to this court from the judgment of a Circuit Court in such cases. 14 Stat. 385. Shortly after the passage of this act, Mr. Justice Nelson refused to allow an appeal from a judgment of the Circuit Court for the Southern District of New York upon a writ of habeas corpus issued under the 14th section of the Judiciary Act of 1789, because no appeal was provided by law in the case of a habeas corpus issued under that act, and the appeal given by the act of 1867 was confined to cases begun under it. In re Heinrich, 5 Blatchford, 414, 427. And within two years afterwards it was determined by this court that, independently of the act of 1867 (which was repealed by the act of March 27, 1868, ch. 34, 15 Stat. 44,) this court (except in a small class of cases of commitments for acts done or omitted under alleged authority of a foreign government, as to which provision was made by the act of August 29, 1842, ch. 257, 5 Stat. 539,) had no jurisdiction by direct appeal to revise the judgments of inferior courts in cases of habeas corpus, but could only do so by itself issuing writs of habeas corpus and certiorari under the general powers conferred by the Judiciary Act of 1789.. Ex parte HcCardle, 6 Wall. 318, and 7 Wall. 506 ; Ex parte Yer ger, 8 Wall. 85. See also Ex pa/rte Hoy all, 112 U. S. 181; Wales v. Whitney, 114 U. S. 564. Section 1909 of the Revised Statutes, substantially re-enacting provisions of earlier acts, and providing that writs of error and appeals from the final decisions of the Supreme Courts of certain Territories shall be allowed to this court in the same manner and under the same regulations as from the Circuit Courts of the United States, “ where the value of the property or the amount in controversy exceeds one thousand dollars, except that a writ of error or appeal shall be allowed ” to this court from the decisions of the courts or judges of the Territory vol. cxv—32 498 OCTOBER TERM, 1885. Opinion of the Court. “ upon writs of habeas corpus involving the question of personal freedom,” clearly implies that writs of habeas corpus would not be included if not specially mentioned. See also Potts v. Chumasero, 92 U. S. 358; Elgin v. Marshall, 106 U. S. 578, 580; Curtis on U. S. Courts, 65. From this review of the statutes and decisions, the conclusion is inevitable that a jurisdiction, conferred by Congress upon any court of the United States, of suits at law or in equity in which the matter in dispute exceeds the sum or value of a certain number of dollars, includes no case in which the right of neither party is capable of being valued in money; and therefore that writs of habeas corpus are not removable from a State court into a Circuit Court of the United States under the act of March 3,1875, ch. 137, § 2, and this case was rightly remanded to the State court. We are then brought to a consideration of the merits of the case, as presented by the writ of error sued out by the prisoner to reverse the judgment of the State court, remanding him to custody. The case, as shown by the record, is briefly this: Kurtz, a deserter from the army of the United States, was, without any warrant or express authority, arrested by Moffitt and Fields, police officers of the city of San Francisco, and citizens of the State of California and of the United States, and held by them for the purpose of being delivered to the military authorities of the United States to be tried according to the laws of the United States; and he claims immunity from being arrested for a military crime by persons not military officers of the United States and having no express authority from the United States or from such officers to arrest him. If a police officer or a private citizen has the right, without warrant or express authority, to arrest a military deserter, the right must be derived either from some rule of the law of England which has become part of our law, or from the legislation of Congress. By the common law of England, neither a civil officer nor a private citizen had the right without a warrant to make an arrest for a crime not committed in his presence, except in the KURTZ v. MOFFITT. 499 Opinion of the Court. case of felony, and then only for the purpose of bringing the offender before a civil magistrate. 1 Hale P. C. 587-590; 2 Hale P. C. 76-81; 4 Bl. Com. 292, 293, 296; Wright v. Court, 6 D. &R. 623; 8. C., 4 B.& C. 596. No crime was considered a felony which did not occasion a total forfeiture of the offender’s lands, or goods, or both. 4 Bl. Com. 94,95; Ex pa/rte Wilson, 114 U. S. 417, 423. And such a forfeiture did not follow upon conviction by a court martial of a crime not punishable by the courts of common law. Co. Lit. 391 a.; 1 Clode’s Military Forces of the Crown, 176. By some early English statutes, which appear to have been in force down to the Revolution of 1688, desertion was made felony, punishable in the civil courts. 3 Inst. 86, 87; 1 Hale P. C. 671-680; The King n. Beal, 3 Mod. 124; 8. C. nom. The King v. Dale, 2 Shower, 511; 12 Howell’s State Trials, 262, note; 4 Bl. Com. 102; Tyler v. Pomeroy, 8 Allen, 480, 487-490. But those statutes fell into disuse after Parliament by the Mutiny Acts, beginning with the statute of 1 W. & M., ch. 5, and re-enacted almost every year since, for the first time authorized mutiny and desertion to be punished at the sentence of a court martial in time of peace. Lord Hardwicke, in 14 Pari. Hist. 453; 1 Clode’s Military Forces of the Crown, 19, 55, 56, 143, 154. From 1708, the English Mutiny Acts have repeatedly, if not uniformly, contained provisions by which persons reasonably suspected of being deserters might be apprehended by a constable, and taken before a justice of the peace, and the fact of their desertion established to his satisfaction, before their surrender to the military authorities. Stats. 7 Anne, ch. 4, § 43, and 10 Anne, ch. 13, § 42, 9 Statutes of the Realm, 58, 576; Clode on Military Law, 93, 209; Tytler on Military Law (3d Ed.) 200. By the recent acts, provision is made for their apprehension by a military officer or soldier, if a constable cannot be immediately met with; and it is at least an open question whether a man whom a military officer causes to be apprehended as a deserter and delivered to an officer of the guard, without having him brought before the civil magistrate, may not maintain an action against the officer who causes his arrest, 500 OCTOBER TERM, 1885. Opinion of the Court. although he cannot sue the officer of the guard if it is the duty of the latter under the Articles of War to receive and hold all prisoners so delivered to him by a military officer. Wotton v. Gavin, 16 Q. B. 48, 81; Wotton v. Freese, 16 Q. B. 81, note. It does not appear to have ever been the law of England that a peace officer or a private citizen could as such, and without any warrant or order either from a civil magistrate or from a military officer, lawfully arrest a deserter for the purpose of delivering him to the military authorities for trial by court martial. In the United States, the line between civil and military jurisdiction has always been maintained. The Fifth Article of Amendment of the Constitution, which declares that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” expressly excepts “ cases arising in the land or naval forces; ” and leaves such cases subject to the rules for the government and regulation of those forces which, by the eighth section of the First Article of the Constitution, Congress is empowered to make. Courts martial form no part of the judicial system of the United States, and their proceedings, within the limits of their jurisdiction, cannot be controlled or revised by the civil courts. Dynes v. Hoover, 20 How. 65; Ex parte Mason, 105 U. S. 696; Wales v. Whitney, 114 U. S. 564. Congress has never conferred upon civil officers or magistrates or private citizens any power over offenders punishable only in a military tribunal. Section 1014 of the Revised Statutes, which provides that, “ for any crime or offence against the United States, the offender may, by any justice or judge of the United States,” or commissioner of a Circuit Court, or by any judge, mayor, justice of the peace or magistrate of any State where he may be found, “and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offence,” and that “ copies of the process, shall be returned as speedily as KURTZ v. MOFFITT. 501 Opinion of the Court. may be into the clerk’s office of such court,” manifestly applies to proceedings before the civil courts only. From the very year of the Declaration of Independence, Congress has dealt with desertion as exclusively a military crime, triable and punishable, in time of peace, as well as in time of war, by court martial only, and not by the civil tribunals ; the only qualification being that since 1830 the punishment of death cannot be awarded in time of peace. Articles of War of September 20, 1776, sect. 6, art. 1, 2 Journals of Congress, 347, continued in force by the act of September 29, 1789, ch. 25, § 4, 1 Stat. 96; acts of March 16, 1802, ch. 9, § 18; April 10, 1806, ch. 20, art. 20; January 11, 1812, ch. 14, § 16; January 29, 1813, ch. 16, § 12; 2 Stat. 136, 362, 673, 796; May 29, 1830, ch. 183, 4 Stat. 418; Rev. Stat. § 1342, arts. 47, 48. The provisions of the Revised Statutes concerning the trial and punishment of deserters are as follows: By § 1342, “ the armies of the United States shall be governed by the following rules and articles; ” “ and the convictions mentioned therein shall be understood to be convictions by court martial.” By article 47, any officer or soldier who deserts the service of the United States “shall, in time of war, suffer death, or such other punishment as a court martial may direct; and in time of peace, any punishment, excepting death, which a court martial may direct;” and by article 48, every soldier who deserts “shall be tried by a court martial and punished, although the time of his enlistment may have elapsed previous to his being apprehended and tried.” The provisions of §§ 1996 and 1998, which re-enact the act of March 3, 1865, ch. <9, § 21,13 Stat. 490, and subject every person deserting the military service of the United States to additional penalties, namely, forfeiture of all rights of citizenship, and disqualification to hold any office of trust or profit, can only take effect upon conviction by a court martial, as was clearly shown by Mr. Justice Strong, when a judge of the Supreme Court of Pennsylvania, in Huber v. Reily, 53 Penn. St. 112, and has been uniformly held by the civil courts as well as by the military authorities. State v. Symonds, 57 Maine, 148; Severance 502 OCTOBER TERM, 1885. Opinion of the Court. v. Healey, 50 N. H. 448; Goetcheus v. Matthewson, 61 N. Y. 420; Winthrop’s Digest of Judge Advocate General’s Opinions, 225. The Articles of War have likewise always provided that any officer or soldier who advises or persuades any other officer or soldier to desert the service shall be punished by court martial. Articles of War of September 20, 1776, sect. 6, art. 4; act of April 10, 1806, ch. 20, art. 23; Rev. Stat. § 1342, art. 51. Section 5455 of the Revised Statutes, which re-enacts the act of March 3, 1863, ch. 75, § 24,12 Stat. 735, embracing the provisions of earlier statutes, and by which every person who entices or procures a soldier to desert the military service of the United States, or who aids a soldier in deserting, or knowingly harbors a soldier who has deserted, “ or who refuses to give up and deliver such soldier at the demand of any officer authorized to receive him,” is to be punished by fine and imprisonment, merely provides for the punishment of civilians, not subject to the Articles of War, who are accessories to the crime of desertion by a soldier, or who do any of the acts specified tending to promote his commission of that crime. It has no application to the crime of the soldier himself, and no tendency to show that he may be arrested by a private citizen without authority from a military officer. Indeed, the last clause above quoted has rather the opposite tendency. The respondents contend that their authority to make this arrest is to be implied from the usage of offering rewards for the apprehension of deserters, which has existed from a very early date. On May 31, 1786, the Congress of the Confederation passed the following resolve: “ Resolved, That the commanding officer of any of the forces in the service of the United States shall, upon report made to him of any desertions in the troops under his orders, cause the most immediate and vigorous search to be made after the deserter or deserters, which may be conducted by a commissioned or non-commissioned officer, as the case shall require. That, if such search should prove ineffectual, the officer commanding the regiment or corps to which the deserter or deserters belonged shall insert in the nearest gazette KURTZ v. MOFFITT. 503 Opinion of the Court. or newspaper an advertisement, descriptive of the deserter or deserters, and offering a reward, not exceeding ten dollars, for each deserter who shall be apprehended and secured in any of the gaols of the neighboring States. That the charges of advertising deserters, the reasonable extra expenses incurred by the person conducting the pursuit, and the reward, shall be paid by the Secretary at War, on the certificate of the commanding officer of the troops.” 11 Journals of Congress, 81. Since the adoption of the Constitution, Congress has never passed any similar resolve or statute : and the only legislation upon the subject, that has come to our notice, is in the provision made in the annual army appropriation acts from 1844 to 1876, “for the apprehension of deserters, and the expenses incidental to their pursuit,” and from 1877 to the present time, “for the apprehension, securing and delivery of deserters, and the expense incident to their pursuit.” Acts of June 17, 1844, ch. 106, 5 Stat. 697; July 24, 1876, ch. 226, 19 Stat. 98; November 21, 1877, ch. 1, 20 Stat. 2; 1885, ch. 339, 23 Stat. 359. These acts clearly confer no authority upon any one, not otherwise lawfully authorized, to arrest a deserter. For many years, the Army Regulations, promulgated by the Secretary of War under authority of the President, have generally provided, as in those of 1821 and 1841, that a certain pecuniary reward “ shall be paid to any person who may apprehend and deliver a deserter ” to an officer of the army ; or, as in the later regulations, that a like reward “ will be paid for the apprehension and delivery of a deserter to an officer of the army at the most convenient post or recruiting station.” Army Regulations of 1821, art. 69, § 104; 1841, art. 30, § 123 ; 1857, art. 18, § 152 ; 1861, art. 18, § 156; 1863, art. 18, § 156, and appx. B, § 48 ; 1881, art. 22, § 214. The Army Regulations derive their force from the power of the President as commander-in-chief, and are binding upon all within the sphere of his legal and constitutional authority. United States v. Eliason, 16 Pet. 291; United States v. Free-man, 3 How. 556. Whether they could, in time of peace, and without the assent of Congress, confer authority upon civil officers or private citizens to enforce the military law need not 504 OCTOBER TERM, 1885. Opinion of the Court. be considered, because the regulations in question cannot be construed as undertaking to confer such authority. They do not command or authorize any civilian to arrest or detain deserters, but merely direct the payment of a reward for every deserter actually brought in, and justify the military officers in paying the reward and receiving and holding the deserter. The President’s proclamation and order of March 10, 1863, 13 Stat. 775, commanding all soldiers absent without leave to return to their regiments, on pain of being arrested and punished as deserters, and calling upon all good citizens “ to aid in restoring to their regiments all soldiers absent without leave,” is not now in force. It was issued in time of war, for a temporary purpose, under § 26 of the act of March 3, 1863, ch. 75, 12 Stat. 731, which has been repealed by §§ 5595 and 5596 of the Revised Statutes. The rule of the common law, that a peacQ officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several States to be in force in cases of felony punishable by the civil tribunals. Wakely v. Hart, 6 Binney, 316; Holley v. Mix, 3 Wend. 350; Rohani. Sawin, 5 Cush. 281; Brockway n. Crawford, 3 Jones (No. Car.) 433; Reuck v. McGregor, 3 Vroom, 70; Burns v. Erben, 40 N. Y. 463; State n. Holmes, 48 N. H. 377. But that rule has never, so far as we are informed, been judicially extended to the case of an offender against .the military law, punishable exclusively by court martial. In Hutchings v. Van Bokkellen, 34 Maine, 126, in which it was held that an officer of the army might lawfully arrest a deserter and hold him for trial by court martial, without a warrant, and that proof that the person making the arrest was de facto such an officer was sufficient, it was not even suggested that the arrest could be supported without any evidence of his military authority. And in Trask v. Payne, 43 Barb. 569, it was decided that a civil officer or private citizen could not lawfully arrest a deserter without express order or warrant. Sections 836, 837, 849, of the Penal Code of California of 1872, affirming the authority of a peace officer, without a warrant, or a private person, to make an arrest “ for a public SHEPHERD v. MAY. 505 Syllabus. offence committed or attempted in his presence,” as well as in cases of felony, and requiring the person arrested to be taken forthwith before a magistrate, evidently have in view civil offences only, and if they could be construed to include such offences against the United States, certainly do not include offences which are not triable and punishable except by court martial. Upon full consideration of the question, and examination of the statutes, army regulations, and other authorities, cited in the elaborate argument for the respondents, or otherwise known to us, we are of opinion that by the existing law a peace officer or a private citizen has no authority as such, and without the order or direction of a military officer, to arrest or detain a deserter from the army of the United States. Whether it is expedient for the public welfare and the good of the army that such an authority should be conferred is a matter for the determination of Congress. It is therefore ordered that the judgment of the Circuit Court, remanding the case to the Superior Court of the City and County of San Francisco, be affirmed ; and that the final judgment of said Superior Court be reversed, and the case remanded to that court for further proceedings in conformity with this opinion. SHEPHERD v. MAY. IN EEROE TO THE SUPEEME COUET OF THE DISTEICT OF COLUMBIA. Argued November 11,1885.—Decided November 23, 1885. A conveyance of real estate subject to a deed of trust executed by the vendor to secure the payment of a note, does not, without words importing that the vendee assumes the payment of the note, subject the latter to any liability to pay it. An express promise made to the vendor by the vendee of real estate conveyed to him subject to a deed of trust executed to secure a debt, that he will pay the debt, does not, without the assent of the creditor, make the vendee the principal debtor, and the vendor the surety. 506 OCTOBER TERM, 1885. Statement of Facts. Where a deed of trust, executed to secure the note of the grantor, provided that in default of payment the trustee should sell the property on these terms : “ The amount of indebtedness secured by said deed of trust unpaid, with expenses of sale, in cash, and the balance at twelve and eighteen months,” and the proceeds of the sale made by the trustee were less than the amount due on the note, the holder was not estopped to deny that his note was satisfied by the payment to him of such proceeds. This was an action at law brought by John Frederick May, the defendant in error, against Alexander R. Shepherd, the plaintiff in error, to recover a balance due on a promissory note. The facts disclosed by the bill of exceptions were, in substance, as follows: On April 26, 1875, May lent Shepherd $10,000, whereupon Shepherd made and delivered to May a note of that date and amount-, payable to his order two years after date, with interest at ten per cent, per annum, payable quarter-yearly until paid. To secure the payment of the note, Shepherd on the same day conveyed to two trustees, with power to sell, in default of the payment of the note, a certain improved lot in the city of Washington of which he was the owner, and which May at that time believed to be good security for the money lent. This deed of trust provided that, if default was made in the payment of the note or the interest, the trustees should sell the property thereby conveyed at public sale, on the following terms: “ The amount of indebtedness secured by said deed of trust unpaid, with the expenses of sale, in cash, and the balance at twelve and eighteen months, for which the notes of the purchaser, bearing interest from the day of sale, . . . shall be taken.” Before the maturity of the note, Shepherd sold the lot to Gilbert C. Walker, and by deed dated August 1,1876, for the consideration, as stated in the deed, of $30,000, the receipt of which was acknowledged, conveyed the same to him. The deed to Walker was made “ subject to a certain deed of trust dated the twenty-sixth day of April, A. D. 1875, . . . f°r the sum of ten thousand dollars,” being the same deed of trust executed by Shepherd to secure his note to May. The deed contained a covenant by Shepherd to defend the premises con- SHEPHERD v. MAY. 507 Argument for Plaintiff in Error. veyed against the claim of all persons claiming under the grantor, “ save and except the aforesaid deed of trust.” Shepherd paid the interest on his note to May as it accrued up to the time of his sale to Walker, and after that time Walker paid the interest until the maturity of the note. When the note fell due, Walker came to May and told him that “he had the note to pay,” and asked May to extend the time of payment for one year; and thereupon May extended the note for one year, Walker agreeing to pay interest thereon at the rate specified in the note. Walker paid the interest upon the note for the year, and at the end of that time asked a further extension for another year. May agreed to extend the time of payment for nine months at the same rate of interest, which Walker agreed to pay, but he paid no interest for this period. There was no evidence that Shepherd consented to these extensions of time for the payment of his note. At the end of the nine months allowed by May to Walker for the payment of the note, upon default made, the property covered by the deed of trust was advertised and sold by the trustees. It was purchased by May for the sum of $8500, to whom it was conveyed by the trustees by deed dated May 19, 1879. After crediting the note with the net proceeds of sale, May brought this suit against Shepherd to recover the balance which he claimed to be due thereon. The jury returned a verdict for May for $3163.28, on which the court rendered judgment. Shepherd, by the present writ of error, challenged the correctness of that judgment. Mr. William, F. Mattingly and Mr. A. C. Bradley for plaintiff in error.—Walker having purchased the property from Shepherd subject to the indebtedness secured thereon, which he agreed to pay, May, with full knowledge of these facts, acquiesced in the arrangement, and agreed with Walker to extend the time of payment of the note, first for one year, and then for nine months, at the same rate of interest, ten per cent. We claim that under these circumstances Walker became the principal debtor, and Shepherd the surety for the payment of the note, and that the extension for a definite time, for a valid con- 508 OCTOBER TERM, 1885. Argument for Plaintiff in Error. sideration, without Shepherd’s consent, released him from all liability on the note. Millerd v. Thorn, 56 N. Y. 402; Col-grove v. Tallman, 67 N. Y. 95; Oakeley v. Pashlee, 10 Bligh. N. S. 548, 580, 581; Metz v. Todd, 36 Mich. 473; Calvo v. Davies, 73 N. Y. 211; George n. Andrews, 60 Maryland, 26. Formal words need not be used to show that the purchaser of mortgaged premises assumed the payment of the mortgage. The assumption may be established by circumstances, and a parol or verbal promise is sufficient. Moore's Appeal, 88 Penn. St. 450; Bolles v. Beach, 2 Zabr. (22 N. J. L.) 680; Drury v. Tremont Improvement Co., 13 Allen, 168; Brewer v. Dyer, 7 Cush. 337. It is competent to show by parol testimony the true relations that parties to commercial paper bear to the debt evidenced by it; that one who signs as maker is in fact a surety, and the holder of the note, with notice of this relation, is bound to act accordingly. Harris v. Brooks, 21 Pick.-195 ; Guild n. Butler, 127 Mass. 386; Wheat v. Kendall, 6 N. H. 504; Ilubbard v. Gurney, 64 N. Y. 457, 460; Lime Rock Bank n. Mallett, 34 Maine, 547. In this case, under his assumed relations to the debt, Walker became liable upon it to suit at law by May. Brewer n. Dyer, supra’ Barker v. Bucklin, 2 Denio, 45; Lawrence v. Fox, 20 N. Y. 268.; Burr V. Beers, 24 N. Y. 178 ; Ross v. Kennison, 38 Iowa, 396 ; Crum-baugh v. Kugler, 3 Ohio St. 544; Thompson n. Thompson, 4 Ohio St. 333. Walker, a stranger to the note, thus becoming liable to May for its payment, this of itself was a new consideration to May, and a good consideration for the extension. Boyd v. Freizc, 5 Gray, 653. The note bore ten per cent, interest until paid, and its extension, at the same rate of interest, for Walker, was for a sufficient consideration and binding. German Savings Association v. Helmrick, 57 Missouri, 100; Wood v. Newkirk, 15 Ohio St. 295, 298; Fawcett v. Freshwater, 31 Ohio St. 637; Fay v. Tower, 58 Wise., 293. Our usury law is contained in §§ 713, 714, 715, 716, Rev. Stat. IT. S. relating to the District of Columbia. The contract for the extension was not for a usurious consideration; but even if it were, the payments implied, and were each a sufficient consideration for a promise to SHEPHERD v. MAY. 509 Argument for Plaintiff in Error. forbear for the respective periods for which the interest was paid, and each of such extensions was sufficient to discharge the surety, Shepherd. Oates n. National Bank, 100 U. S. 239, 248; Wild v. Howe, 74 Missouri, 551. The authorities are uniform upon this question. For each quarter of the first extension of one year the entire interest specified in the note and agreed to be paid by Walker, in consideration of the extension, was paid. The contract if usurious was not void, it was voidable at the option of the debtor, and not at the option of the creditor. Such payment discharged the surety. Lemmon v. Whitman, 75 Ind. 318, and cases cited therein. The plaintiff claims a balance due on the note after, crediting what he says were the proceeds of sale under the deed of trust of the property of which he became the purchaser, and obtained a deed which recites that the property was sold in accordance with the terms prescribed by the deed of trust, and that he became the purchaser at such sale, and has fully complied with the terms of sale. The deed of trust prescribed that the terms of sale shall be the amount of the note and expenses of sale in cash, and the plaintiff is estopped to say that the note is not paid. Fitch v. Baldwin, 17 Johns. 161, 166; Freeman v. Auld, 44 N. Y. 50; Dundas n. Hitchcock, 12 How. 256. A party cannot occupy inconsistent positions, and where one has an election between inconsistent courses of action he will be confined to that which he first adopts. Any decisive act of the party done with knowledge determines his election and works an estoppel. The plaintiff cannot hold that property, and say that the note is not paid. Breeding n. Stamper, 18 B. Mon. 175; Phillips v. Bogers, 12 Met. 405; Horton n. Davis, 26 N. Y. 495. The 4th and 5th exceptions show that the property was worth more than sufficient to pay the debt, and that the plaintiff bought it in at such bid as he saw fit to make, and in view of the terms of the deed of trust the evidence was admissible to show payment of the debt by the sale. Mr. Andrew B. Duvall for defendant in error. 510 OCTOBER TERM, 1885. Opinion of the Court. Mr. Justice Woods delivered the opinion of the court. After stating the facts in the language above reported, he continued: The first contention of the plaintiff in error is, that by reason of the transactions stated in the bill of exceptions, Walker became the principal debtor of May, and Shepherd became his surety, and as May, upon a valid contract with Walker, extended the time for the payment of the note without the consent of Shepherd, the latter was thereby discharged. The plaintiff in error sought upon the trial to give effect to this contention by asking the court to direct the jury to render a verdict in his favor. The court having refused to do this, the refusal is now assigned for error. We have under this assignment of error to decide whether, by the mere conveyance of the premises in question to Walker by Shepherd, subject to the encumbrance created by the deed of trust, Walker became bound to May as principal debtor, and Shepherd became his surety. We are of opinion that the conveyance of the premises to Walker did not subject him to any liability to May whatever. To raise such a liability as is contended for by Shepherd there must be words in the deed of conveyance from which, by fair import, an agreement to pay the debt can be inferred. This was expressly held in ElliottN. Sackett, 108 U. S. 132, where Mr. Justice Blatchford, in delivering the judgment of this court, said : “ An agreement merely to take land, subject to a specified encumbrance, is not an agreement to assume and pay the encumbrance. The grantee of an equity of redemption, without words in the grant importing in some form that he assumes the payment, does not bind himself personally to pay the debt. There must be words importing that he will pay the debt to make him personally liable.” To the same effect see Belmont n. Coman, 22 K. Y. 438; Fiske v. Tolman, 124 Mass. 254; Hoy v. Bramhall, 4 C. E. Green, 74, 78; Fowler v. Fay, 62 Ill. 375. There are no such words in the deed made by the plaintiff in error to Walker. Neither is there any other sufficient evidence of any agreement between Walker and Shepherd, whereby the former undertook to pay the debt of the latter to May. The remark SHEPHERD v. MAY. 511 Opinion of the Court. made by Walker to May, when he asked to have the time for the payment of the note extended, that “ he had it to pay,’* falls far short of showing any such agreement. As he had bought the property, subject to the encumbrance of the deed of trust, for the consideration of $30,000, which, as appears by the deed to him, he had paid to Shepherd, he might well say that he had the encumbrance to pay without admitting or meaning that he had become personally liable to Shepherd to pay it. His words may be fairly construed to mean that he had the encumbrance to pay or would have to lose the property on which he had already paid $30,000 of the purchase money. But, even if Walker had said to May that he was liable for the debt, his admission would not have been binding on May so as to establish the fact without other proof. And if Walker had expressly promised May to pay the debt, that would not, without the assent of May, have converted Shepherd from a principal debtor into a surety merely. Cucullu v, Hernandez, 103 U. S. 105 ; Rey v. Simpson, 22 How. 341. The only way in which Walker could become the principal debtor of May, and Shepherd the surety, was by the mutual agreement of all three. There is no proof of any such agreement. It follows that, as the relation of principal and surety did not exist between Walker and Shepherd, the latter was not discharged from his liability to May by the contract of May with Walker to extend the time for the payment of the money due on Shepherd’s note. But even if it had been shown that Shepherd had become the surety of Walker it was incumbent on the former to show as a part of his defence that the indulgence given by May to Walker was without his assent. Sprigg v. Bank of Mount Pleasant, 14 Pet. 201; Bangs v. Strong, 1 Hill, 250; & C., 42 Am. Dec. 64; Cox n. Mobile <&c. Railroad Co., 37 Ala. 320, 323. There was no proof of want of assent. The defence therefore failed. It is next contended by the plaintiff in error that May is estopped to deny that the note sued on is not paid in full, because the deed of conveyance made to him by the trustees recites that the property was sold to him in accordance with the terms of the deed of trust, and the deed of trust declared 512 OCTOBER TERM, 1885. Syllabus. that the terms of sale should be the amount due on the note of Shepherd, and the expenses of sale in cash, and the balance on a credit of twelve and eighteen months. This contention is based on the theory that the clause of the deed of trust executed by Shepherd prescribing the terms of sale, and which merely showed his expectation that the property would bring, at least, the amount of the note and expenses of sale, estopped May from denying that the property would, and actually did, bring that amount. There is no estoppel. The proposition amounts to this, that when a mortgagor represents to his mortgagee that the property mortgaged is sufficient security for the debt, and the mortgagee, relying upon the representation, accepts the security, and it turns out that the proceeds of the mortgaged property are insufficient to pay the debt, he is estopped to deny that his debt is paid. The statement of the proposition is its answer. The authorities referred to upon this contention* by counsel for Shepherd are cited to sustain the proposition, that a person who accepts a deed of conveyance is estopped to deny recitals therein contained. But as there is no recital in the deed that May had agreed that the property should bring a sum sufficient to pay his note, he is not estopped to deny that the note is paid. Judgment affirmed. MISSOURI PACIFIC RAILWAY COMPANY HUMES. IN ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI- Argued November 13, 1885.—Decided November 23,1885. A statute of a State requiring every railroad corporation In the State to erect and maintain fences and cattle guards on the sides of its road, and, if it does not, making it liable in double the amount of damages occasioned thereby and done by its agents, cars, or engines, to cattle or other animals on its road, does not deprive a railroad corporation, against which such * Note by the Court.—Filch v. Baldwin, 17 Johns. 161; Freeman v. Auld, 44 N. Y. 50 ; Dundas v. Hitchcock, 12 How. 256. MISSOURI PACIFIC RAILWAY CO. v. HUMES. 513 Statement of Facts. double damages are recovered, of its property without due process of law, or deny it the equal protection of the laws, in violation of the Fourteenth Article of Amendment of the Constitution of the United States. The legislature of a State may fix the amount of damages beyond compensation to be awarded to a party injured by the gross negligence of a railroad company to provide suitable fences and guards of its road, or prescribe the limit within which the jury, in assessing such damages, may exercise their discretion. The additional damages are by way of punishment to the company for its negligence; and it is not a valid objection that the sufferer instead of the State receives them. The mode in which fines and penalties shall be enforced, whether at the suit of a private party, or at the suit of the public, and what disposition shall be made of the amounts collected, are matters of legislative discretion. This case came from the Supreme Court of Missouri. It was an action against ’the Missouri Pacific Railway Company, a corporation created under the laws of that State, to recover in double its value damages for killing a mule, the property of the plaintiff below, of the value of $135. It was brought in the Circuit Court of St. Louis under a statute of the State which provided that: “ Every railroad corporation formed or to be formed in this State, and every corporation formed or to be formed under this chapter, or any railroad corporation running or operating any railroad in this State, shall erect and maintain lawful fences on the sides of the road where the same passes through, along, or adjoining inclosed or cultivated fields or uninclosed lands, with openings and gates therein to be hung, and have latches or hooks, so that they may be easily opened and shut at all necessary farm crossings of the road, for the use of the proprietors or owners of the lands adjoining such railroad, and also to construct and maintain cattle guards, where fences are required, sufficient to prevent horses, cattle, mules, and all other animals from getting on the railroad; and until fences, openings, gates, and farm crossings, and cattle guards as aforesaid, shall be made and maintained, such corporation shall be liable in double the amount of all damages which shall be done by its agents, engines, or cars to horses, cattle mules, or other animals on said road, or by reason of any horses, cattle, mules, or other animals escaping from or coming upon said lands, fields, or inclosures, occasioned in either case by the failure to construct or maintain such fences or cattle guards. ^ol. cxv—33 514 OCTOBER TERM, 1885. Statement of Facts. After such fences, gates, farm, crossings, and cattle guards shall be duly made and maintained, said corporation shall not be liable for any such damages, unless negligently or wilfully done.” Session Laws of 1875, p. 131. The petition averred the incorporation of the defendant below, the plaintiff in error here; its ownership of a railroad running into and through the city of St. Louis; the ownership of the mule by the plaintiff below on the 1st of August, 1877, and its value; the failure of the company to construct and maintain the fences, gates and cattle guards required by the above statute, at the point on the line of the road in the city where it passed through, along and adjoining cultivated fields, and that the mule was on that day run over and killed by the agents, engines and cars of the company on the road; that the killing was occasioned by the failure of the company to construct and maintain such fences, cattle guards and gates, and that the plaintiff was damaged thereby in the sum of $135. He therefore prayed judgment for $270 and costs. The defendant answered the petition, denying generally all its material allegations; and averring, as a further defence, that such injuries or damages as were sustained by the plaintiff were caused by his own careless, negligent, and unlawful acts directly contributing thereto. The plaintiff, in reply, traversed the averments of this second defence. The action was tried by the court without a jury by stipulation of the parties. The allegations of the petition were established, and the court found the issues in favor of the plaintiff, and assessed his damages at $135. Thereupon, on his motion, the damages were doubled, and judgment was rendered in his favor for $270 and costs. On the trial, objections were taken by the defendant to the admission of evidence on the part of the plaintiff, and, also, m various stages of its progress, to the prosecution of the action, and to the entry of judgment against the company, on the ground that the statute upon which the action is brought is in violation of and in conflict with: 1st. Section 1, Article 14, of the Constitution of the United MISSOURI PACIFIC RAILWAY CO. v. HUMES. 515 Statement of Facts. States, in that it was depriving the defendant of its property, so far as it exceeded the value of the stock killed or injured, without due process of law, and in that it denied to the defendant the equal protection of the laws. 2d. Section 20, Article 2, of the Constitution of the State of Missouri, in that it was taking the private property of the defendant against its consent for the private use and benefit of the plaintiff, so far as the amount claimed by plaintiff exceeded the value of the stock killed or injured, and was so far taking and appropriating, without due process of law, the property of the defendant to the use of the plaintiff, which use was private within the meaning of said provision. 3d. Section 30, Article 2, of the Constitution of the State of Missouri, in that, so far as plaintiff sought to recover in excess of the value of the stock killed or injured, it was depriving the defendant of its property without due process of law, and against the law of the land. 4th. Section 53, Article 4, of the Constitution of the State of Missouri, in that it was granting to a class of persons, of which plaintiff was one, a special and exclusive right, privilege, and immunity. 5th. Section 7, Article 11, of the Constitution of the State Missouri, in that it was giving the clear proceeds of the penalty, to wit, the amount over and above the value of the stock killed or injured, to the plaintiff, and not to the school fund, as provided by said section, and that the legislature had provided no remedy, or party plaintiff, for the recovery of such penalty for said school fund. But the court overruled the objections in each instance, as they were made, and the defendant below excepted to the rulings. A motion for a new trial, and also in arrest of judgment, was made on similar grounds, and was disposed of in the same way against the exception of the defendant. The case being taken to the Court of Appeals of St. Louis, the judgment was there affirmed pro forma without prejudice to either party in the appellate court, both parties waiving any error in such affirmance. The case was then carried to the Supreme Court of the State, where the judgment of the lower 516 OCTOBER TERM, 1885. Argument for Plaintiff in Error. court was affirmed after full consideration and argument; and thereupon this writ of error was brought. J/r. A. B. Browne [J/r. A. T. Britton and Mr. Thomas J. Portis were with him on the brief] for plaintiff in error.—The statute is repugnant: (1.) To Article 5 of the Amendments to the Constitution, which provides that no person shall “ be deprived of life, liberty, or property, without due process of law;” and—(2.) To § 1, of Article 14, which provides that “ no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Article 5 is a direct guaranty of a right. Article 14 is a direct prohibition against its invasion. To bring this plaintiff in error within the right guaranteed is to bring this statute within the prohibition declared. A railway company is a “ citizen and a person,” within the meaning of the terms as used in these articles. Railroad Tax Case, 8 Sawyer, 238, 265, by Mr. Justice Field; Bank of the United States v. Deveaux, 5 Cranch, 61, 86; Society for Propagating the Gospel v. New Haven, 8 Wheat. 464; Marshall v. Baltimore & Ohio Railroad Co., 16 How. 314. The act in question imposes upon the railroad companies (1) the duty of maintaining fences; (2) liabilities in double the amount of damage done in certain cases when the duty is not performed. The power of the State to impose the duties enjoined by this statute is not questioned. Its power to inflict double damage therefor, and hand over to the injured party that which represents double the amount of his injury, is directly challenged, because depriving the corporation of its property without “ due process of law,” and denying to it the “ equal protection of the laws.” In Barnett v. Atlantic & Pacific Railroad, 68 Missouri, 56, the statute is declared a penal one upon the authority of Gorman n. Pacific Railroad, 26 Missouri, 441, 450; Trice v. Hannibal & St. Joseph Railroad, 49 Missouri, 438, 440; Seaton n. Chicago, Rock Island & Pacific Railroad, 55 Missouri, 416; Parish n. Missouri, MISSOURI PACIFIC RAILWAY CO. y. HUMES. 517 Argument for Plaintiff in Error. Kansas & Texas Railway, 63 Missouri, 284, 286. It by no means follows thafy considered either as a penal statute or an exercise of police power, the penalty affixed thereto and the mode of its enforcement is a lawful exercise of legislative power. The police power of the State is defined by Chief Justice Shaw, in Commonwealth v. Alger, 7 Cush. 84, as “ the power vested in the legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.” The limitation of such power, is thus defined by Cooley. “ If the power only extends to a regulation of rights with a view to the due protection and enjoyment of all without depriving any one of that which is justly and properly his own, then its possession and exercise by the State, in respect to the persons and property of its citizens, cannot well afford a basis for an appeal to the protection of the national authorities.” Constitutional Limitations, 575. Similar enactments, imposing similar duties, have been upheld, where the statute gives the injured party the actual amount of his damage. Thorpe v. Rutland de Burlington Railroad, 27 Vt. 140; Suydam v. Moore, 8 Barb. 358; Corwin n. Erie Railroad Co., 13 X. Y. 42. In Cole v. La Grange, 113 U. S. 1, the court says (at page 7) of the Constitution of Missouri: “ The express provisions of the Constitution of Missouri tend to the same conclusion. It begins with a Declaration of Rights, the sixteenth article of which declares that ‘ no private property ought to be taken or applied to public use without just compensation.’ This clearly presupposes that private property cannot be taken for private use. St. Louis County Court v. Griswold, 58 Missouri, 175, 193; 2 Kent Com. 339 note, 340. Otherwise, as it makes no provision for compensation except when the use is public, it would permit private property to be taken or appropriated for private use without any compensation whatever.” The same provision in the Federal Constitution should have the same construction. We deny, however, that this statute is a penal one. The declara- 518 OCTOBER TERM, 1885. ’ Opinion of the Court. tion of the court below is not binding on this court. The terms of the act are penal, but its effect i» remedial and it is consequently a remedial statute. See Cooley on Constitutional Limitations, 596; Potter’s Dwarris, 74. The liability created by it is to an indivi4ual. It is not contended that he has suffered a wrong for which, by natural rules of right or artifical rules of conduct, he is to be compensated. The law discharges its obligation to him and fully protects his rights of property by giving full damages for the injury. Beyond that limit he has suffered no injury, and has no right, natural or otherwise, to demand more. Hence a statute which attempts to give him more cannot be regarded as penal unless it be upon the ground that a public in jury may be fully compensated by an individual benefit, and to give a gratuity7 to one operates as a common benefit to all. Reed n. Northfield, 13 Pick. 94, does not conflict with this doctrine. As against a municipality, and for personal injuries, such a statute could be upheld. The court below cite a large number of State laws providing double damages or other penalties as upholding the constitutionality of this statute. By examination thereof it will be found that they all relate to acts of wilful wrong, things forbidden by positive law, and equally obnoxious to good morals and natural right. Such is not this case. The decision and opinion in Atchison & Nebraska Railroad Co. v. Baty, 6 Neb. 37, is in point. It is there held that “ the excess beyond the damage sustained, whatever it may be, is so much property taken from one person and given to another.” The statute is further obnoxious on the ground that it applies only to railroad corporations, and not to individuals operating railroads. The court declined to hear argument for defendant in error. Mr. George P. Jackson, appeared for the defendant in error, and Mr. T. K. Skinner filed a brief for same. Mr. Justice Field delivered the opinion of the court. After stating the facts in the language reported above, he continued : The ruling below on the objections to the validity of the MISSOURI PACIFIC RAILWAY CO. v. HUMES. 519 Opinion o£ the Court. statute of Missouri, so far as they are founded on its asserted conflict with the Constitution of that State, is not open to review here. As the case comes from a State court, our jurisdiction is limited to the objection that the statute violates the 1st section of the Fourteenth Amendment of the Constitution of the United States, in that it deprives the defendant of property without due process of law, so far as it allows a recovery of damages for stock killed or injured in excess of its value, and also in that it denies to the defendant the equal protection of the laws. That section, in declaring that no State shall “ deprive any person of life, liberty or property without due process of law,” differs from similar clauses in the Constitution of every State, only in that they apply merely to the State authorities. The same meaning, however, must be given to the words “ due process of law,” found in all of them. It would be difficult and perhaps impossible to give to those words a definition, at once accurate, and broad enough to cover every case. This difficulty, and perhaps impossibility, was referred to by Mr. Justice Miller, in Davidson v. New Orleans, 96 U. S. 97, where the opinion was expressed that it is wiser to ascertain their intent and application by the “ gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.” p. 104. In England the requirement of due process of law, in cases where life, liberty and property were affected, was originally designed to secure the subject against the arbitrary action of the Crown, and to place him under the protection of the law. The words were held to be the equivalent of “ law of the land.” And a similar purpose must be ascribed to them when applied to a legislative body in this*country; that is, that they are intended, in addition to other guaranties of private rights, to give increased security against the arbitrary deprivation of life or liberty, and the arbitrary spoliation of property. But, from the number of instances in which these words are invoked to set aside the legislation of the States, there is abundant evidence, as observed by Mr. Justice Miller in the case referred 520 OCTOBER TERM, 1885. Opinion of the Court. to, that there exists some strange misconception of the scope of this provision, as found in the Fourteenth Amendment.” It seems, as he states, to be looked upon “ as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court, of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.” This language was used in 1877, and now, after the lapse of eight years, it may be repeated with an expression of increased surprise at the continued misconception of the purpose of the provision. If the laws enacted by a State be within the legitimate sphere of legislative power, and their enforcement be attended with the observance of those general rules which our system of jurisprudence prescribes for the security of private rights, the harshness, injustice, and oppressive character of such laws will not invalidate them as affecting life, liberty or property without due process of law. Within the present century, the punishment of death or long imprisonment was inflicted in England for many offences which are not now visited with any severer penalty than a fine or a short confinement, yet no one has ever pretended that life or liberty was taken thereby without due process of law. And it often happens that heavy and oppressive burdens are imposed by statute upon residents of cities and counties, not merely to meet the necessary expenses of government, but for buildings and improvements of doubtful advantage, which sometimes, as in changing the grade of streets, seriously depreciate the value of property. Yet, if no rule of justice is violated in the provisions for the enforcement of such a statute, its operation, in lessening the value of the property affected, does not bring it under the objection of depriving a person of property witfibut due’process of law. It is hardly necessary to say, that the hardship, impolicy, or injustice of State laws is not necessarily an objection to their constitutional validity; and that the remedy for evils of that character is to be sought from State legislatures. Our jurisdiction cannot be invoked unless some right claimed under the Constitution, laws, or treaties of the United States is invaded. This MISSOURI PACIFIC RAILWAY CO. v. HUMES. 521 Opinion of the Court. court is not a harbor where refuge can be found from every act of ill-advised and oppressive State legislation. It is the duty of every State to provide, in the administration of justice, for the redress of private wrongs ; yet the damages which should be awarded to the injured party are not always readily ascertainable. They are in many cases a matter of conjectural estimate, in relation to which there may be great differences of opinion. The general rule undoubtedly is that they should be precisely commensurate with the injury. Yete in England and in this country, they have been allowed in excess of compensation, whenever malice, gross neglect, or oppression has caused or accompanied the commission of the injury complained of. “ The law,” says Sedgwick in his excellent treatise on damages, “ permits the jury to give what it terms punitory, vindictive, or exemplary damages; in other words, blends together the interests of society and of the aggrieved individual, and gives damages, not only to recompense the sufferer but to punish the offender.” The discretion of the jury in such cases is not controlled by any very definite rules; yet the wisdom of allowing such additional damages to be given is attested by the long continuance of the practice. “We are aware,” said Mr. Justice Grier, in Day v. Woodworth, 13 How. 362, speaking for this court, “ that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By the common as well as by statute law, men are often punished for aggravated misconduct or lawless acts by means of a civil action, and the damages, inflicted by way of penalty or punishment, given to the party injured.” p. 371. See also Milwaukee de /St. Paul Railway Co. v. Arms, 91 U. S. 489. For injuries resulting from a neglect of duties, in the discharge of which the public is interested, juries are also permitted to assess exemplary damages. These may perhaps be considered as falling under the head of cases of gross negligence, for any neglect of duties imposed for the protection of life dr property is culpable, and deserves punishment. 522 OCTOBER TERM, 1885. Opinion of the Court. The law of Missouri, in requiring railroad corporations to erect fences where their roads pass through, along or adjoining inclosed or cultivated fields or uninclosed lands, with openings or gates at farm crossings, and to construct and maintain cattle guards, where fences are required, sufficient to keep horses, cattle and other animals from going on the roads, imposes a duty in the performance of which the public is largely interested. Authority for exacting it is found in the general police power of the State to provide against accidents to life and property in any business or employment, whether under the charge of private persons or of corporations. Under this power the State, or the municipality exercising a delegated authority, prescribes the manner in which buildings in cities shall be constructed, and the thickness and height of their walls; excludes the use of all inflammable materials, forbids the storage therein of powder, nitro-glycerine and other explosive substances, and compels the removal of decayed vegetable and animal matter, which would otherwise infect the air and engender disease. In few instances could the power be more wisely or beneficently exercised than in compelling railroad corporations to inclose their roads with fences having gates at crossings, and cattle guards. The speed and momentum of the locomotive render such protection against accident in thickly settled portions of the country absolutely essential. The omission to erect and maintain such fences and cattle guards in the face of the law would justly be deemed gross negligence, and if, in such cases, where injuries to property are committed, something beyond compensatory damages may be awarded to the owner by way of punishment for the company’s negligence, the legislature may fix the amount or prescribe the limit within which the jury may exercise their discretion. The additional damages being by way of punishment, it is clear that the amount may be thus fixed; and it is not a valid objection that the sufferer instead of the State receives them. That is a matter on which the company has nothing to say. And there can be no rational ground for contending that the statute deprives it of property without due process of law. The statute only fixes the amount of the penalty in damages pro- MISSOURI PACIFIC RAILWAY CO. v. HUMES. 523 Opinion of the Court. portionate to the injury inflicted. In actions for the injury the company is afforded every facility for presenting its defence. The power of the State to impose fines and penalties for a violation of its statutory requirements is coeval with government; and the mode in which they shall be enforced, whether at the suit of a private party, or at the suit of the public, and what disposition shall be made of the amounts collected, are merely matters of legislative discretion. The statutes of nearly every State of the Union provide for the increase of damages where the injury complained of results from the neglect of duties imposed for the better security of life and property, and make that increase in many cases double, in some cases treble, and even quadruple the actual damages. And experience favors this legislation as the most efficient mode of preventing, with the least inconvenience, the commission of injuries. The decisions of the highest courts have affirmed the validity of such legislation. The injury actually received is often so small that in many cases no effort would be made by the sufferer to obtain redress, if the private interest were not supported by the imposition of punitive damages. The objection that the statute of Missouri violates the clause of the Fourteenth Amendment, which prohibits a State to deny to any person within its jurisdiction the equal protection of the laws, is as untenable as that which we have considered. The statute makes no discrimination against any railroad company in its requirements. Each company is subject to the same liability, and from each the same security, by the erection of fences, gates, and cattle guards, is exacted, when its road passes through, along or adjoining inclosed or cultivated fields or uninclosed lands. There is no evasion of the rule of equality where all cojnpanies are subjected to the same duties and liabilities under similar circumstances. See on this point, Barbier v. Connolly, 113 U. S. 27, and Boon Hing v. Crowley, 113 U. S. 703. Judgment affirmed. Missouri Pacific Railway Company v. Terry. In error to the Supreme Court of the State of Missouri. This case involves the 524 OCTOBER TERM, 1885. Statement of Facts. same questions presented and determined in Missouri Pacific Bailway Co. n. Humes. The judgment is, therefore, Affirmed. Mr. A. B. Browne, Mr. A. T. Britton, and Mr. Thomas J. Porter for plaintiff in error. Mr. George P. B. Jackson for defendant in error. DAVIS SEWING MACHINE COMPANY v. RICHARDS & Another. IN ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Argued November 10, 11, 1885.—Decided December 7, 1885. An agreement in writing between a manufacturing corporation and its agent for a certain district, by which it agreed to sell him its goods at certain prices, and he agreed to sell the goods and pay it those prices, was signed by the agent. A guaranty of his future performance of his agreement was signed by another person on the same day, and delivered by the guarantor to the agent. The agreement and guaranty were delivered by the agent to an attorney of the corporation, who two days afterwards .wrote under the guaranty his certificate of the sufficiency of the guarantor, and forwarded the agreement and guaranty to the corporation, which thereupon signed the agreement, but gave no notice to the guarantor of its signature of the agreement or acceptance of the guaranty. Held, That the contract of guaranty was not complete, and the guarantor was not liable for the price of goods sold by the corporation to the agent and not paid for by him. This was an action, brought in the Supreme Court of the District of Columbia, upon a guaranty of the performance by one John W. Poler of a contract under seal, dated December 17, 1872, between him and the plaintiff corporation, by which it was agreed that all sales of sewing machines which the corporation should make to him should be upon certain terms and conditions, the principal of which were that Poler should use all reasonable efforts to introduce, supply and sell the machines of the corporation, at not less than its regular retail prices, throughout the District of Columbia and the counties of Prince George and Montgomery in the State of Maryland, and should pay all indebtedness by account, note, indorsement or otherwise, which should arise from him to the corporation under DAVIS SEWING MACHINE CO. v. RICHARDS. 525 Statement of Facts. the contract, and should not engage in the sale of sewing machines of any other manufacture; and that the corporation, during the continuance of the agency, should sell its machines to him at a certain discount, and receive payment therefor in certain manner; and that either party might terminate the agency at pleasure. The guaranty was upon the same paper with the above contract, and was as follows : “For value received, we hereby guarantee to the Davis Sewing Machine Company of Watertown, N. Y., the full performance of the foregoing contract on the part of John W. Poler, and the payment by said John W. Poler of all indebtedness, by account, note, indorsement of notes (including renewals and extensions) or otherwise, to the said Davis Sewing Machine Company, for property sold to said John W. Poler, under this contract, to the amount of three thousand ($3000) dollars. Dated Washington, D. C., this 17th day of December, 1872. “ A. Rothwell. “ A. C. Richards.” Under the guaranty were these words: “I consider the above sureties entirely responsible. Washington, December 19,1872. J. T. Stevens.” At the trial the above papers, signed by the parties, were given in evidence by the plaintiff, and there was proof of the following facts: On December 17, 1872, at Washington, the contract was executed by Poler, and the guaranty was signed by the defendants, and the contract and guaranty, after being so signed, were delivered by the defendants to Poler, and by Poler to Stevens, the plaintiff’s attorney, and by Stevens afterwards forwarded, with his recommendation of the sureties, to the plaintiff at Watertown in the State of New Yoric, and the contract there executed by the plaintiff. The plaintiff afterwards delivered goods to Poler under the contract, and he did not pay for them. The defendants had no notice of the plaintiff’s execution of the contract or acceptance of the guaranty, and no notice or knowledge that the plaintiff had furnished 526 OCTOBER TERM, 1885. Statement of Facts. any goods to Poler under the contract or upon the faith of the guaranty, until January 1875, when payment therefor was demanded by the plaintiff of the defendants, and refused. At the time of the signing of the guaranty, the plaintiff had furnished no goods to Poler, and the negotiations then pending between the plaintiff and Poler related to prospective transactions between them. The court instructed the jury as follows: “ It appearing that, at the time the defendants signed the guaranty on the back of the contract between the plaintiff and Poler, the plaintiff had not executed the contract or assented thereto, and that the contract and guaranty related to prospective dealings between the plaintiff and Poler, and that subsequently to the signing thereof by the defendants the attorney for the plaintiff approved the responsibility of the guarantors and sent the contract to Watertown, N. Y., to the plaintiff, which subsequently signed it, and no notice having been given by the plaintiff to the defendants of the acceptance of such contract and guaranty, and that it intended to furnish goods thereon and hold the defendants responsible, the plaintiff cannot recover, and the jury should find for the defendants.” A verdict was returned for the defendants, and judgment rendered thereon, which on exceptions by the plaintiff was affirmed at the general term, and the plaintiff sued out this writ of error, pending which one of the defendants died and his executor was summoned in. Mr. James G. Payne for plaintiff in error cited Whitney v. Groot, 24 Wend. 82; Union Bank v. Costar, 3 Comst. 203; Mitchell v. McCleary, 42 Maryland, 374; Caton v. Shaw, 2 Har. & Gill, 13; Ndbb v. Koontz, 17 Maryland, 283, 288; Case v. Howard, 41 Iowa, 479; Carman n. Elledge, 40 Iowa, 409; Busfyiell v. Church, 15 Conn. 406; Davis Sewing Machine Co. v. Jones, 61 Missouri, 409; Wadsworth v. Allen, 8 Grattan, 174, 178; Mathews v. Chrisman, 12 Sm. & Marsh. 595; Sanders v. Etcherson, 36 Geo. 404. Mr. W. A. Cook and Mr. C. C. Cole for defendants in error. DAVIS SEWING MACHINE CO. v. RICHARDS. 527 Opinion of the Court. Mk. Justice Gray delivered the opinion of the court. After stating the facts in the language above reported, he continued: The decision of this case depends upon the application of the rules of law stated in the opinion in the recent case of Davis v. Wells, 104 IT. S. 159, in which the earlier decisions of this court upon the subject are reviewed. Those rules may be summed up as follows: A contract of guaranty, like every other contract, can only be made by the mutual assent of the parties. If the guaranty is signed by the guarantor at the request of the other party, or if the latter’s agreement to accept is contemporaneous with the guaranty, or if the receipt from him of a valuable consideration, however small, is acknowledged in the guaranty, the mutual assent is proved, and the delivery of the guaranty to him or for his use completes the contract. But if the guaranty is signed by the guarantor without any previous request of the other party, and in his absence, for no consideration moving between them except future advances to be made to the principal debtor, the guaranty is in legal effect an offer or proposal on the part of the guarantor, needing an acceptance by the other party to complete the contract. The case at bar belongs to the latter class. There is no evidence of any request from the plaintiff corporation to the guarantors, or of any consideration moving from it and received or acknowledged by them at the time of their signing the guaranty. The general words at the beginning of the guaranty, “ value received,” without stating from whom, are quite as consistent with a consideration received by the guarantors from the principal debtor only. The certificate of the sufficiency of the guarantors, written by the plaintiff’s attorney under the guaranty, bears date two days later than the guaranty itself. The plaintiff’s original contract with the principal debtor was not executed by the plaintiff until after that. The guarantors had no notice that their sufficiency had been approved, or that their guaranty had been accepted, or even that the original contract had been executed or assented to by the plaintiff, .until long afterwards, when payment was demanded of them for goods supplied by the plaintiff to the principal debtor. Judgment affirmed. 528 OCTOBER TERM, 1885. Statement of Facta. TRAER & Another v. CLEWS. IN ERROR TO THE SUPREME COURT OF THE STATE OF IOWA. Argued November 9, 10, 1885.—Decided November 23,1885. A suit in which the purchaser from a trustee in bankruptcy of property of the bankrupt estate asserts title against a defendant claiming an adverse interest therein, though brought more than two years after the cause of action accrues to the trustee, is not barred by the limitation of two years prescribed by Rev. Stat. § 5057, if the defendant acquired title by a fraud practised by him on the trustee, and the fraud was concealed by the defendant from the trustee and the purchaser, until within two years before the suit was brought. When an incorporated company has been dissolved, and its affairs are in the course of liquidation, a sale and transfer by a stockholder of all his claims and demands on account of his stock is not void, because the vendee may be compelled to bring suit to enforce his right to such claims and demands. There is nothing in the policy or terms of the bankrupt act which forbids the bankrupt from purchasing from the trustee property of the bankrupt estate. A trustee in bankruptcy may sell the unencumbered property of the estate on credit, when he thinks it most for the interest of the creditors. Henry Clews, the defendant in error, on January 17,1878, brought this suit in the Circuit Court of Linn County, Iowa, against John W. Traer and others, to recover the value of fifty shares, of one thousand dollars each, of capital stock in the Cedar Rapids Northwestern Construction Company, and the dividends which had been declared thereon. The stock had been originally subscribed and owned by Clews. The Construction Company was organized in 1870. The dividends sued for were declared, ten thousand dollars in December, 1873, and five hundred dollars in January, 1874, and were in the treasury of the company ready to be paid out to the holder of the stock. On November 28,1874, Clews was adjudicated a bankrupt, and his stock in the Construction Company, with the dividends which had been declared thereon, passed to J. Nelson Tappan, trustee of his bankrupt estate. In February, 1875, the Construction Company went into voluntary dissolution and liquidation, and John W. Traer, John F. Ely, and William TRAER v. CLEWS. 529 Argument for Plaintiffs in Error. Green were appointed trustees to settle up its affairs and divide its assets among its stockholders, according to their interest therein. Traer, knowing that the dividends above mentioned’had been declared, and the same being unknown to Clews and Tappan, his trustee in bankruptcy, on March 4, 1876, for the consideration of twelve hundred dollars, through the intervention of one Armstrong, who did not disclose his agency, purchased of Tappan, the trustee, the fifty shares of stock above mentioned. Traer alleged, and it appeared, that the purchase was made by him for his wife, Mrs. Alla D. Traer. Afterwards, on December 6, .1877, Tappan, the trustee in bankruptcy, assuming, as it may be supposed, that the sale of the stock made at the instance of Armstrong was void for fraud, sold all his claims and demands on account of the stock to Clews, who, on January 17, 1878, brought this suit. John W. Traer and others, who had been officers and trustees of the Construction Company, were made defendants to the original petition. The defendants demurred to the petition on the ground that it did not state facts sufficient to entitle the plaintiff to the relief demanded. The court overruled the demurrer. Afterwards, the plaintiff having discovered that, on March 4, 1876, the stock in the Construction Company had been assigned to Alla D. Traer, on October 28, 1879, amended his petition by making her a party defendant to his suit. Upon final bearing in the Circuit Court for Linn County, the suit was dismissed as to all the defendants except John W. Traer and Alla D. Traer, and judgment was rendered against them for fifteen thousand dollars. Traer and his wife appealed from this judgment to the Supreme Court of Iowa, which affirmed the judgment of the Circuit Court. By the present writ of error Traer and wife ask a review of the judgment of the Supreme Court of Iowa. Hr. N. H Hubbard and Hr. Charles A. Clark for plaintiffs in error.—I. The jurisdiction of this court arises under Rev. Stat. § 709, and is invoked upon two grounds. (1) To review the action of the court below in deciding against defendants’ plea of the two years statute of .limitations contained in the vol. cxv—34 530 OCTOBER TERM, 1884. Argument for Plaintiffs in Error. bankrupt act, Rev. Stat. § 5057. This section applies to suits by and against trustees, as well as assignees in bankruptcy. Rev. Stat. § 5103. No question can arise as to the jurisdiction under this head. (2) The plaintiffs in error specially'set up and claimed title to the stock and dividends under a written assignment from Tappan, trustee in bankruptcy, who held his commission, and exercised his authority under the United States, and the decision below was “ against the title thus specially pleaded and claimed.” This action of the State court is subject to review in this court under the statute cited, which confers jurisdiction to review the action of the State courts, “ Where any title, right ... is claimed under any commission held, or authority exercised under the United States, and the decision is against the title, right, . . . specially set up or claimed by either party under such . . . commission or authority.” The decisions fully sustain the jurisdiction of this court upon the last-mentioned ground. New Orleans, (&e.. Railroad Co. v. Delamore, 114 U. S. 501; Factord <& Traders' Ins. Co. v. Murphy, 111 U. S. 738; Ray n. Norseworthy, 23 Wall. 128; Crapo v. Kelly, 16 Wall. 610; Green v. Van Bus-kirk, 5 Wall. 307; Sharpe v. Doyle, 102 U. S. 686. II. As to the statute of limitations. (1) The stock and accrued dividends were assigned to Mrs. Traer March 4, 1876. The dividends were paid to her March 20, 1876. The suit, as to her, was begun October 28, 1879. In the absence of fraud it was barred in two years from the time when the cause of action accrued as to Tappan by the statute; and consequently as to Clews who stood in his shoes. Gifford n. Harris, 98 U. S. 248; Bailey v. Glover, 21 Wall. 342. Thus the bar was complete as to Mrs. Traer when the suit against her was commenced. To avoid this Clews alleged against her fraudulent concealment, by amendments to his petition. The- rules laid down by this court in Wood v. Carpenter, 101 U. S. 135, as to the fraud and concealment which will take a case out of the statute of limitations hold the party attempting it to stringent rules of pleading and evidence. He must declare what his discovery is, how it was made, why it was not made sooner, and that he used due diligence to detect. As to all these the circum- TRAER y. CLEWS. 531 Argument for Plaintiffs in Error. stances must be fully stated and proved, and the delay which has occurred must be shown to be consistent with the requisite diligence. Now the allegations as to the discovery are that “Mrs. Traer’s connection with the transaction was studiously concealed from plaintiff and his assignor,” and that plaintiff had no knowledge of it previous to his discovery, September 24,1879. The only proof to sustain this is the stipulation that the plaintiff’s attorneys, who “ conducted all the investigations touching such stock and dividends as such attorneys,” had no such knowledge or information. Here there is neither pleading nor proof to avoid the bar, under the rulings above cited. (2) As to Traer, the cause of action was first set up in the amendment filed February 9, 1880. It accrued in March, 1876, when the dividends were paid over. The statute continued to run, after the commencement of the action and until the amendment was filed. Holmes n. Trout, 7 Pet. 171, 213; Illinois Central Railroad Co. v. Cobb, 64 Ill. 128, 140; Commissioners of Delaware County v. Andrews, 18 Ohio St. 49; Marble v. Hinds, 67 Maine, 203; Wooddridge v. Hathaway, 45 Texas, 380; Lansford n. Scott, 51 Ala. 557; Hawthorne v. State, 57 Ind. 286; Selma Railroad Co. n. Lacey, 49 Geo. 106. Clews did not attempt to remove the bar as to Traer, by charging discovery of the fraud within two years. He only attempted it as to Mrs. Traer. Hence as to Traer the charge is complete so far as the dividends are concerned. An assignment of the stock would not carry accrued dividends unless specially included. Jermain v. Lake Shore de Mich. Sou. Rail Toad Co., 91 N. Y. 483; Bright Nf Lord, 51 Ind. 272. III. The alleged assignment to Clews was not a conveyance of the stock, nor of the dividends, but only a transfer of a right of action to set aside a conveyance of the legal title to them without the right of possession which alone gives a party a standing place, even in a court of equity. Brace n. Reid, 3 Greene (Iowa), 422; French v. Shotwell, 5 Johns. Ch. 555, 566; & C., 20 Johns. 668; Shufelt v. Shufelt, 9 Paige, 144, 146; Te Hoyton n. Money, 2 L. R. Ch. 164; Prosser v. Edmonds, 1 Young. & Col. Exch. Eq. 481; Dickinson v. Beaver, 44 Mich. 631; Crocker v. Bellangee, 6 Wise. 645; Graham v. 532 OCTOBER TERM, 1885. Argument for Plaintiffs in Error. Railroad Co., 102 IT. S. 148. It does not admit of question that Mrs. Traer took title to the stock and dividends by the assignment. Johnston v. Laflin, 103 U. S. 800; National Bank v. Watsontown Bank, 105 IT. S. 217. IV. The assignment to Mrs. Traer in no event was void. At most it was voidable. For decisions in parallel cases see Tippecanoe County v. Reynolds, 44 Ind. 509, 514, 516; Carpenter v. Danforth, 52 Barb. 581; Wardell v. Railroad Co., 103 U. S. 651; Thomas v. Brownville Railroad Co., 109 IT. 8. 522; Pneumatic Gas Co. v. Berry, 113 IT. S. 322, 327; and especially Twin Lick Co. n. Marbury, 91 IT. S. 587. Mrs. Traer is not a trustee. If she were so in any sense, she did not unite the character of purchaser and seller at her own sale, but purchased of Tappan, who was sui juris ; and if there was fraud, that rendered her solemn written muniment of title subject to impeachment therefor, but not a nullity. Of course an action at law for damages for the alleged fraud might be maintained by the defrauded party if he elected not to avoid the contract. But there can be no pretence that this is such an action. This is in fact a suit to rescind and avoid the assignment of the legal title to Mrs. Traer. Before any other relief than an award of damages could be given, such rescission must take place. As is said in Twin Lick Co. n. Marbury, the doctrine is well settled that the option to avoid such a contract must be exercised within a reasonable time. Grymes n. Sanders, 93 U. S. 55, says, on page 62, it must be exercised at once. V. There could be no rescission without tender. The party seeking to avoid a contract for fraud must avoid in toto, if at all. If he treats the property as his own he will be held to have waived the objection, and will be bound as if the fraud or mistake had not occurred. Mason n. Bonet, 1 Denio, 74; Grymes v. Sanders, cited above. See also Coolidge v. Brigham, 1 Met. 547; Perley v. Balch, 23 Pick. 283 ; Thayer v. Turner, 8 Met. 550; Bowen n. Schuler, 41 Ill. 192; Buchenau n. Horney, 12 Ill. 336; Cooley v. Harper, 4 Ind. 454; Moore n. Bare, 11 Iowa, 198; Baker v. Robbins. 2 Denio, 136; Bisbee n. Ham, 47 Maine, 543; Potter v. Monmouth Ins. Co., 63 Maine, 440. TRAER v. CLEWS. 533 Opinion of the Court. VI. Clews has no title. (1) As has been pointed* out, Clews does not show that he had received his discharge in bankruptcy when he procured from Tappai^ trustee in bankruptcy of his estate, the assignment on which he sues, paying therefor one dollar “ and a certain bond.” It was surely not competent for Clews while a bankrupt to purchase anything belonging to his own estate from his own trustee, and pay for it with his own bond, due in the future, on which nothing had been paid when Tappan’s deposition was taken, and on which it is inconceivable that anything ever will be paid for the benefit of Clew’s creditors. (2) If Tappan held a valid claim against the Traers he was without authority of law to sell it to Clews for a bond or obligation to pay. His powers in this respect were those of an assignee in bankruptcy, Rev. Stat. § 5103, who can only sell for cash. Under the law, Clews has taken nothing by his alleged purchase. The payment of one dollar gives him no standing in equity. His situation seems to be aptly described by the language of Lord Abinger in Prosser v. Edmonds, cited above, quoted by this court with approval in Graham, v. Railroad Co., cited above: “ All our cases of maintenance and champerty are founded on the principle that no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce. 'There are many cases where the acts charged may not amount properly to maintenance or champerty, yet of which upon general principles, and by analogy to such acts, a court of equity will discourage the practice.” Mr. Frank G. Clark and Mr. Llewellyn Deane for defendant in error. Mr. Justice Woods delivered the opinion of the court. After stating the facts in the language above reported, he continued : The defendant in error questions the jurisdiction of this court. As the record shows that the plaintiffs in error dispute the validity of a transfer to the defendant in error of the property in controversy, made to him by a trustee in bankruptcy, appointed under and deriving his authority from the bankrupt 534 OCTOBER TERM, 1885. Opinion of the Court. act, and a^ the question is made whether the suit is barred by the limitation prescribed by the same act, we are of opinion that the jurisdiction of the murt to decide these questions is clear. Factord & Trader^ Insurance Co. n. Murphy, 111 U. S. 738; New Orleans, Spanish Fort & Lake RaiVroad Co. v. Delamore, 114 IT. S. 501. The record does not leave it in doubt that the purchase by Traer from Tappan of the rights incident to the stock in the Construction Company belonging to the bankrupt estate of Clews was brought about by the fraudulent practices of Traer. As stated by the Supreme Court of Iowa, he was a stockholder, officer, and trustee of the Construction Company, and had been, from the first, actively engaged in the management of its affairs. As trustee he was solely intrusted with the custody of the assets, books, and papers of the corporation, and had full and complete knowledge of all matters pertaining to the assets and business of the company. He knew that the plaintiff or his bankrupt estate was entitled to dividends amounting to at least $10,500, received by Traer upon entering upon the discharge of his duties as trustee. The assets of the company, much of them being in money, he held as a trustee for the stockholders, being so constituted by the act of dissolution of the corporation. He misrepresented the value of these assets to both Tappan and Clews, and induced them to believe that the sum to which they were entitled did not greatly exceed $1200 in value, the amount of the consideration of the assignment of the stock by Tappan. He employed attorneys and agents to negotiate for the purchase of the stock, who concealed from Tappan that the purchase was made for Traer or his wife. These agents knew that they were making the purchase for Traer or his wife, and neither of them at any time was a good faith purchaser. In all of the transactions connected with the purchase of the stock Traer acted as the agent of his wife, who knew that her husband was a trustee holding the assets for the stockholders of the Construction Company, and knew their value, and was guided in her purchase by his advice and direction. She knew that Tappan was ignorant of the value of the assets, and she had knowledge of TRAER v. CLEWS. 535 Opinion of the Court. » the devices used by her husband to secure the purchase of the stock and dividends. By means of these fraudulent devices she purchased from Tappan, for the price of $1200, property which the State Circuit Court found to be of the value of $15,000. The charge of fraud made in the petition was, therefore, fully sustained. Among other defences pleaded by Alla D. Traer was the following: That plaintiff’s pretended right of action herein accrued in favor of plaintiff’s assignor, J. Nelson Tappan, as trustee in bankruptcy of plaintiff’s estate, more than two years before the commencement of this suit against this defendant, and more than two years before she was made a party defendant herein, and that this action is fully barred as to her by the provisions of the act of Congress in that behalf, and was so barred before she was made a party defendant herein.” This plea sets up the bar prescribed by the second section of the bankrupt act, now forming § 5057 of the Revised Statutes, which declares: “No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.” The suit was brought against John D. Traer within two years after the fraudulent purchase and transfer of the stock and dividends, but Mrs. Traer was not made a party to the suit until after the lapse of three years and a half from the time of the purchase and transfer. The question is presented by one of the assignments of error whether, upon the circumstances of this case, the suit was barred as to Mrs. Traer. The amended petition filed in the case on October 28, 1879, the day after Mrs. Traer had been made a defendant, averred that John W. Traer, while holding the office of trustee of the Construction Company, falsely represented to Tappan that there were no dividends due the estate of Clews from the stock held by him in the Construction Company, and falsely and fraudulently concealed from him the true condition of the company with the intent of undervaluing the stock and divi- 536 OCTOBER TERM, 1885. Opinion of the Court. dends declared thereon; that Traer and his wife employed one Armstrong to purchase for Mrs. Traer the said stock and dividends; that Armstrong took from Tappan an assignment of the certificate of stock to Mrs. Traer; that he forwarded the certificate to one Howard, whom Traer and his wife had previously employed, and Howard, following the instructions of Traer and his wife, carried the certificate to the headquarters of the Construction Company at Cedar Rapids, and demanded of Traer, as trustee, the dividends and interest thereon; whereupon Traer paid over to Howard, his own and his wife’s attorney, the sum of $11,913.75 on account of said dividends and interest, and Howard, while pretending to act for Armstrong, “ carefully concealed from those who might inform the said plaintiff’s trustee in bankruptcy, and from the papers and receipts, that , he was acting as the attorney for John W. Traer and Alla D. Traer, his wife,” and that after receiving said sum of money and receipting the vouchers prepared by Traer, as trustee, he paid back the money to Traer and his wife, less the amount of his own share as co-conspirator and attorney. Afterwards, it was alleged, Traer transferred the stock to his wife upon the books of the company. These averments show not only a fraudulent concealment of the value of the stock and dividends from Tappan by Traer, acting as agent for his wife, but a carefully devised plan by which the payment of the dividends to Mrs. Traer was concealed from Tappan, and no trace of such payment left upon the books and vouchers of the Construction Company. Subsequently, and before the trial of the case, the following amendment was made to the petition : “ That as to the matters and things herein set forth as a cause of action against the said Alla D. Traer, the said fraudulent transactions with which she was connected and her part therein were studiously concealed from the plaintiff and his assignor, and he had no means of discovering the same, nor had his assignor any means of discovering the same until the same were disclosed upon the examination of John W. Traer, as witness in this action, on the 24th day of September, 1879 ; that the plaintiff and his assignor did not know of the said fraud TRAER v. CLEWS. 537 Opinion of the Court. and the fraudulent acts of the defendant, Alla D. Traer, until the same were made known on the said examination.” No issue was taken on this amendment. The State court having entered a general finding and judgment against the defendants, John W. Traer and Alla D. Traer, his wife, the facts set out in the pleadings of the plaintiff, so far as they are necessary to support the judgment, must be taken as established by the evidence. The question is therefore, do the facts alleged constitute a good reply to the plea of the two years’ limitation filed by Mrs. Traer? We think they do. The fraud by which Mrs. Traer succeeded in purchasing from Tappan for $1200 property to which he had the title worth $15,000, must necessarily have been a fraud carried on by concealment from Tappan of the true value of the property purchased. Such is the averment of the plaintiff’s. pleadings. But not only was fraudulent concealment in accomplishing the fraudulent purpose averred, but also a studious concealment from the plaintiff Clews, and Tappan, the trustee, of the connection of Mrs. Traer with the fraud, and their want of means to discover the fraud, until it was revealed by the examination of John W. Traer on September 24, 1879. The case is substantially the same, so far as the question now in hand is concerned, as that of Bailey v. Glover, 21 Wall. 342. The averment of fraudulent concealment in that case was, as shown by the report, as follows: “ The bill alleged that the ” [defendants] “ kept secret their said fraudulent acts, and endeavored to conceal them from the knowledge, both of the assignee and of the said Winston & Co., [creditors of the bankrupt] whereby both were prevented from obtaining any sufficient knowledge or information thereof until within the last two years, and that, even up to the present time, they have not been able to obtain full and particular information as to the fraudulent disposition made by the bankrupt of a large part of his property.” The court in that case, upon demurrer, held in effect that these averments were sufficient to take the case from the operation of the same limitation which is set up in the present case. In delivering the judgment of the court, Mr. Justice Miller said: “We hold that, where there has been no negligence or 538 OCTOBER TERM, 1885. Opinion of the Court. laches on the part of a plaintiff in coming to a knowledge of the fraud which is the foundation of the suit, and when the fraud has been concealed, or is of such a character as to conceal itself, the statute does not begin to run until the fraud is discovered or becomes known to the party suing, or those in privity with him.” So in the case of Rosenthal v. Walker, 111 U. S. 185, the plaintiff averred that “ both the said Carney and the defendant kept concealed from him, the said plaintiff, the fact of the said payment and transfer of the aggregate sum of $30,000, . . . and the fact of the sale, transfer and conveyance of the said goods, . . . and that he, the said plaintiff, did not obtain knowledge and information of said matter until the 29th day of November,. 1879, and then, for the first time, the said matters were disclosed to him, and brought to his knowledge.” p. 187. These averments were held sufficient on exception to the petition to take the case out of the bar prescribed by § 5057 of the Revised Statutes. The case of Bailey v. Glover, has never been overruled, doubted, or modified by this court. On the contrary, in Rosenthal v. Walker, it was reaffirmed, and was distinguished from the case of Wood n. Carpenter, 101 U. S. 135, relied on by the appellants. The authorities cited are in point and fully support our conclusion that, upon the pleadings and evidence the suit of the plaintiff was not barred by the limitation prescribed by § 5057 of the Revised Statutes. The next contention of the appellants is that the transfer executed by Tappan to Clews was not a sale to him of a right of property in the stock of the Construction Company, and of the dividends, but merely the transfer of a right to sue Traer and his wife for a fraud, and was, therefore, void. The assignment was as follows: “ In consideration of the sum of $1.00 to me paid by Henry Clews, the receipt whereof is hereby acknowledged, and for other good and valuable considerations, I hereby sell, assign, transfer, and set over unto the said Henry Clews any and all claims and demands of every name, nature, and description that I may now have or be entitled to on account of the fifty shares of the capital stock in the Cedar Rapids & North- TRAER v. CLEWS. 539 Opinion of the Court. western Construction Company, which was subscribed for said Henry Clews.” This paper will not, in our opinion, bear the construction put upon it by the appellants. Treating the transfer to Mrs. Traer as void, its evident purpose is to assign to Clews whatever property and rights were incident to the ownership of the stock. When this paper was executed, the corporation known as the Construction Company had been dissolved and its affairs were in the course of liquidation. The ownership of the stock simply entitled the holder to a proportionate interest in the unpaid dividends which had been declared before the dissolution of the company, and to a pro rata share of the proceeds of the company’s assets, and in this consisted its sole value. The language of the assignment, by which Tappan undertook to transfer to Clews all claims and demands which Tappan then had or might be entitled to on account of the fifty shares of stock in the company which had been subscribed by Henry Clews, was aptly chosen to convey the dividends which had been declared, and an interest in the property of the company in proportion to the fifty shares of stock. It did not transfer a mere right to sue Traer and his wife. That right was simply an incident to the transfer of substantial and tangible property. The rule is that an assignment of a mere right to file a bill in equity for fraud committed upon the assignor will be void as contrary to public policy and savoring of maintenance. But when property is conveyed, the fact that the grantee may be compelled to bring a suit to enforce his right to the property, does not render the conveyance void. This distinction is taken in the case of Dickinson v. Burrell, L. R. 1 Eq. 337. The facts in that case were that a conveyance of an interest in an estate had been fraudulently procured from Dickinson, by his own solicitor, to a third party for the solicitor’s benefit, and for a very inadequate consideration. Dickinson, ascertaining the fraud, by a conveyance which recited the facts, and that he disputed the validity of the first conveyance, transferred all his share in the estate to trustees for the benefit 540 OCTOBER TERM, 1885. Opinion of the Court. of himself and children. The trustees filed a bill to set aside the fraudulent conveyance, upon repayment of the consideration money and interest, and to establish the trust. The Master of the Rolls, Lord Romilly, in sustaining the bill, said: “ The distinction is this: if James Dickinson had sold or conveyed the right to sue to set aside the indenture of December, 1860, without conveying the property, or his interest in the property, which is the subject of that indenture, that would not have enabled the grantee, A. B., to maintain this bill; but if A. B. had bought the whole of the interest of James Dick-inson in the property, then it would. The right of suit is a right incidental to the property conveyed.” The Master of the Rolls then refers to the cases of Cockell v. Taylor, 15 Beav. 103, and Anderson v. Radcliff, El. Bl. & El. 806, where he says the same distinction is taken. The rule was expounded by Mr. Justice Story in Come-gys v. Vasse, 1 Pet. 193, as follows: “ In general it may be affirmed that mere personal torts, which die with the party, and do not survive to his personal representative, are not capable of passing by assignment; and that vested rights, ad rem and in re, possibilities coupled with an interest and claims growing out of and adhering to the property, may pass by assignment.” p. 213. In Erwin v. United States, 97 U. S. 392, Mr. Justice Field, who delivered the opinion of the court, said: “ Claims for compensation for the possession, use, or appropriation of tangible property constitute personal estate equally with the property out of which they grow, although the validity of such claims may be denied, and their value may depend upon the uncertainties of litigation or the doubtful result of an appeal to the legislature.” p. 396. And see McMahon n. Allen, 35 N. Y. 403, decided in the State where the assignment in question was made; Weire v. The City of Davenport, 11 Iowa, 49; and Gray n. McCallister, 50 Iowa, 498, decided in the State where the suit was brought. See also a discussion of the subject in Graham n. Railroad Co., 102 IT. S. 148. Applying the rule established by these authorities, we are of opinion that, so far as the question under consideration is TRAER v. CLEWS. 541 Opinion of the Court. concerned, the assignment of Tappan to Clews was the transfer, not merely of a naked right to bring a suit, but of a valuable right of property, and was, therefore, valid and effectual. It is next insisted by the plaintiffs in error, that Clews acquired no title to the dividends and other property which Tappan attempted to transfer to him, because (1) he had not been discharged as a bankrupt at the time of the transfer, and (2) because Tappan had no authority to sell the stock and its dividends for a bond or obligation to pay, as the evidence shows was the case, but only for cash. Whether Clews had been discharged at the date of the transfer to him is immaterial. After his adjudication as a bankrupt, and the surrender of his property to be administered in bankruptcy, he was just as much at liberty to purchase, if he had the means, any of the property, so surrendered, as any other person. The policy of the bankrupt act was, after taking from the bankrupt all his property not exempt by law, to discharge him from his debts and liabilities, and enable him to take a fresh start. His subsequent earnings were his own. A bankrupt might often desire, out of the proceeds of his exempted property, or out of his means earned since his bankruptcy, to purchase property which he had surrendered to the assignee. This he might do, and there is nothing in the letter or policy of the bankrupt act which forbids his doing so until after his discharge. For, having complied with the law, as it must be presumed he has, he is, after the lapse of six months,' entitled, as a matter of course, to his discharge. His right to purchase property surrendered cannot, therefore, depend on his actual discharge, and, in this respect, he stands upon the same footing as any other person. As to the second ground upon which the validity of the title of Clews is questioned, it is sufficient to say that, by the bankrupt law, § 5062 Rev. Stat., it is provided: “The assignee shall sell all such unencumbered estate, real and personal, which comes to his hands, on such terms as he thinks most for the interest of the creditors.” If, therefore, the plaintiffs in error occupied the position of guardians for the creditors of the bankrupt estate, and had the 542 OCTOBER TERM, 1885. Counsel for Parties. right, in this suit, to question the administration of the trustee, the section referred to would be a sufficient answer to the exception taken to the sale by Tappan to Clews of the property which is the subject of this controversy. We think, therefore, that no ground is shown on which the title of Clews can be successfully assailed. Other points have been raised and argued by counsel, but as these do not present any Federal question, it is not our province or duty to pass upon them. Murdock v. City of Memphis, 20 Wall. 590. All the Federal questions presented by the record were, in our judgment, rightly decided by the Supreme Court of Iowa. Judgment affirmed. FERRY & Another v. LIVINGSTON. LIVINGSTON v. FERRY & Another. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN. Argued November 19,1885.—Decided December 7,1885. In this case, on the facts found, under Schedule N of section 2502 of Title XXXIII. of the Revised Statutes, as enacted by section 6 of the act of March 3, 1883, ch. 121, 22 Stat. 489, imposing a duty of 20 per cent, ad valorem on “garden seeds, except seed.of the sugar beet” and under “The Free List ” in section 2503 of the same Title, as enacted by said act of 1883, embracing “ seeds of all kinds, except medicinal seeds not specially enumerated or provided for in this act,” certain beet and cabbage seeds were held to be “garden seeds” and subject to 20 per cent, duty, and certain mangel-wurzel and turnip seeds were held not to be “garden seeds,” and to be exempt from duty. The facts are stated in the opinion of the court. Mr. Otto Kirchner for Ferry & Another. Mr. Solicitor-General for Livingston. FERRY v. LIVINGSTON. 543 Opinion of the Court. Me. Justice Blatchfoed delivered the opinion of the court. The question involved in this suit is as to whether under the present tariff of duties on imported merchandise, certain mangel-wurzel, turnip, beet, and cabbage seeds are subject to a duty of 20 per cent, ad valorem, or are free. In the Revised Statutes, as enacted in 1874, Title XXXIII., section 2504, Schedule M, p. 480, 2d ed., there was the following provision as to duty: “ Plants. Fruit, shade, lawn, and ornamental trees, shrubs, plants, and flower seeds, not otherwise provided for; garden seeds, and all other seeds for agricultural and horticultural purposes, not otherwise provided for: twenty per centum ad valorem.” In “ The Free List,” section 2505, p. 488, 2d ed., exempt from duty, were the following: “ Seeds: cardamon, caraway, coriander, fenugreek, fennel, cummin, and other seeds, not otherwise provided for. Seeds: anise, anise star, canary, chia, sesamum, sugar-cane, and seeds of forest trees.” By section 6 of the act of March 3, 1883, ch. 121, 22 Stat. 489, new sections, numbered from 2491 to 2513, both inclusive, were substituted, on and after July 1,1883, for Title XXXIII. of the Revised Statutes, thus repealing sections 2491 to 2516, both inclusive, of the Revised Statutes. In section 2502, Schedule N, as enacted in 1883, is the following provision for duty, p. 513: “ Garden seeds, except seed of the sugar-beet, twenty per centum ad valorem.” In “ The Free List,” section 2503, exempt from duty, are the following: “ Plants, trees, shrubs, and vines of all kinds, not otherwise provided for, and seeds of all kinds, except nledicinal seeds not specially enumerated or provided for in this Act.” p. 520. “ Seed of the sugar-beet.” p. 521. In section 2502, Schedule A, p. 494, a duty of 10 per centum ad valorem is imposed on “ seeds (aromatic, not garden seeds), and seeds of morbid growth, . . . which are not edible, but which have been advanced in value or condition by refining or grinding, or by other process of manufacture, and not specially enumerated or provided for in this Act.” In “ The Free List,” section 2503, exempt from duty, are the following, p. 517: “ Seeds aromatic, and seeds of morbid growth, • . . which are not edible and are in a crude state, and not 544 OCTOBER TERM, 1885. Opinion of the Court. advanced in value or condition by refining or grinding, or by any other process of manufacture, and not specially enumerated or provided for in this Act.” The question involved depends upon the mean'ng of the words “ garden seeds; ” and, with a view to determine whether that designation in the statute includes the seeds covered by this suit, it will be useful to see what was the course of decisions by the Treasury Department, under the act of 1883, prior to the importation in this case, which was in December, 1884. On November 2, 1883, 29 Int. Rev. Rec. 410, the Department decided that flower seeds were not to be regarded as “ garden seeds,” but were free, on the view that the term “ garden seeds ” was to be “ generally confined to those seeds which are produced from edible plants, and does not extend to flower seeds.” Subsequently, a collector exacted a duty of 20 per cent, on pease imported as seeds, and not for consumption as vegetables, and, the question being presented whether they were “ garden seeds,” the Department, on November 27, 1883, 29 Int. Rev. Rec. 419, made this ruling: “ The general and not the exceptional use must determine the classification of the article. As a rule, pease, beans, and many other vegetable products are more largely sown in the field or farm than in the garden, although some varieties may be specially adapted for garden planting. It is held by the Department, that all pease and beans imported for seeds are entitled to free admission under the provision in the free list . . . for seeds of all kinds not specially enumerated or provided for in that act. . . . I may add, for your further information, that the Department regards seeds such as barley, beans, beets, carrots, cabbage, clover, corn, cane, grass, mangel-wurzel, oats, onions, potatoes, pumpkins, rye, tobacco, turnip, wheat, and other like products, as belonging to the category of agricultural seeds which are not garden seeds; and that seeds of the artichoke, asparagus, borecole, Brussels sprouts, cauliflower, celery, cucumber, egg-plant, lettuce, leek, okra, parsley, pepper, rhubarb, radish, salsify, and tomato belong to the category of garden seeds. It is impossible to enumerate all the seeds which belong FERRY v. LIVINGSTON. 545 Opinion of the Court. to either of these divisions in detail, and the above is given for information as to the principle upon which collectors of customs must act.” It is thus seen that these instructions classified beet, cabbage, mangel-wurzel, and turnip seeds, as free, because not garden seeds; and as not garden seeds, because they were agricultural seeds, and were more largely sown in the field or farm than in the garden, and because the general use and not the exceptional use must determine the classification. On December 28, 1883, a collector having exacted a duty on cabbage seeds and beet seeds as garden seeds, the Department, 30 Int. Rev. Rec. 24, referring to its decision of November 27,1883, held that the seeds were free, and directed the duty to be refunded. On March 8, 1884, the Department, 30 Int. Rev. Rec. 77, held that lettuce seeds and spinach seeds were dutiable as “garden seeds; ” and, on March 18, 1884, Id. 95, it held that nasturtium seeds, being generally planted in gardens, and producing not only flowers, but seeds or berries which, when green, are largely used for cooking purposes, and in the manufacture of sauces, were dutiable as “ garden seeds.” Afterwards, a collector exacted a duty of 20 per cent, on certain beans, as “ garden seeds.” On the view that they were the seeds of the bean plant, and were intended for food or for planting or sowing, the Department, on March 28, 1884, 30 Int. Rev. Rec. 109, reconsidered to some extent its rulings of November 27, 1883. It held that the beans, being edible, were not within the specific provisions as to beans, which made beans not edible free of duty; and that they were not vegetables, but were the seeds of a vegetable. On the question of whether they were “ garden seeds,” it is said: “ In common speech, ‘ garden seeds ’ are seeds used either for planting or sowing in the gardens adjacent to dwelling-houses, small spaces of land, and in the large spaces of land called market gardens, lying about cities or other large places of numerous and condensed population. The common notion of garden seeds is this, that they are those from which are raised, in the growing season of the year, the vegetable VOL. CXV—85 546 OCTOBER TERM, 1885. Opinion of the Court. products which, before complete maturity, are used upon the table as part of the customary food of mankind, and in distinction from those seeds which, sowed or planted on a broader scale in the fields, produce the vegetables which are stored for winter use as food. Yet it is to be taken note of, that, by extended field culture, there is produced much of the seed which finds its way to market and to sale as ‘ garden seeds,’ in the common notion thereof above stated. It is not easy, therefore, to say of any importation, on general principles, that it is of garden seeds or of field seeds, nor to frame a rule, on general principles and general knowledge, which will always exactly apply. We are constrained, therefore, to see if we can, by interpretation, get at the purpose of Congress, and if it did not intend to charge the phrase ‘ garden seeds,’ in paragraph 465, with an arbitrary meaning. It has made an exception of the seed of one vegetable from the general expression ‘ garden seeds.’ It must have been thought bv Congress that there was need of that exception, or that else the seed excepted would properly and necessarily be treated by the administrative officers of the government as ‘ garden seeds.’ It follows, then, that Congress thought that seeds like the seed of the sugarbeet were ‘ garden seeds.’ W e have, then, an idea of what kind of seeds Congress meant when it spoke the phrase 1 garden seeds.’ Now, the sugar-beet is not a plant or a vegetable exclusively, nor mostly, of the growth of gardens. It is, on the contrary, mostly the growth of the field or of the market garden. If the sugar-beet is, in the view of Congress, a garden plant or vegetable, as well as, or in contrast with, a field plant, and its seed garden seed as well as, or in contrast with, field seed, surely the bean is, in legislative contemplation, a garden plant or vegetable, and the bean of the market, which is the seed of the bean plant, is a garden seed, as well as, or rather than, a field seed. We know that, in fact, the bean, as a seed of the bean plant or vegetable, is planted in the garden, and is largely planted in the field also; in the former case, generally, to be eaten green in the pod, as a green esculent, though sometimes, as with liiiia beans, in the form of the seed FERRY v. LIVINGSTON. 547 Opinion of the Court. of the plant; in the latter case, for the production of seed for subsequent planting, and for food in the form of the matured seed. It is to be noticed, too, that elsewhere in the act, when ‘ garden seeds ’ are mentioned, they are so in contrast or opposition to seeds which are not of the character of beans or other seeds used for sowing or planting both in field and garden. As, in paragraph 94, where the phrase is ‘ seeds (aromatic, not garden seeds),’ and ‘ seeds of morbid growth ; ’ and so, in paragraph 636, the seeds put in the free list are ‘ seeds aromatic, and seeds of morbid growth.’ As the beans are garden seeds in some of the uses of them, and as it is to be got, by interpretation, that Congress meant to include such seeds as that of the bean in the phrase ‘ garden seeds,’ in paragraph 465, the conclusion must be that the article under consideration is properly classified under paragraph 465. This ruling applies equally to pease, and the duty of 20 per cent, ad valorem will, therefore, be exacted on both, on entries of such merchandise.” On November 8, 1884, the Department, 30 Int. Rev. Rec. 357, ruled that beet, carrot, cabbage, onion, and turnip seeds were dutiable at 20 per cent, ad valorem, as “ garden seeds.” This reversed the prior rulings of November 27, 1883, and, under the new ruling a duty of 20 per cent, was imposed by William Livingston, Jr., collector of customs at Detroit, Michigan, on importations, by D. M. Ferry & Co., a corporation, of mangel-wurzel, turnip, beet, and cabbage seeds, entered at the custom-house at Detroit, in December, 1884. The importer claiming that all the seeds were exempt from duty, brought a suit, in the Circuit Court of the United States for the Eastern District of Michigan, against Livingston, to recover $560.40, which had been paid as the duty. The case was tried before the court without a jury, and, on special findings of fact, the court held that the mangel- wurzel and turnip seeds, the duty exacted on which amounted to $332.60, were exempt from duty; and that the cabbage and beet seeds, the duty exacted on which amounted to $227.80, were subject to that duty. A judgment having been entered against Livingston 548 OCTOBER TERM, 1885. Opinion of the Court. for $332, he and Ferry & Co. have each brought a writ of error. The facts found by the court, so far as they need be recited, were these: “ That beets, except sugar-beets, are almost altogether raised from seeds of the kind in the declaration mentioned, in gardens, for the table, although they are also raised in fields, for cattle, to a limited extent. That mangel-wurzels are cultivated wholly in fields, from seeds of the kind in the declaration mentioned, and not in gardens, and they are not used as food for man, but for cattle. That turnips are largely raised from seed of the kind in the declaration mentioned, in fields, for cattle, and comparatively small quantities are also raised in gardens, for the table, the proportion being at least twenty to one. Most of those consumed on the table are raised in fields. That cabbages are cultivated from seeds of the kind in the declaration mentioned, in fields as well as in gardens. They are used to a small extent as food for cattle, but to a much larger extent as food for man. That turnip seeds, beet seeds, and cabbage seeds generally are, and have been, catalogued, by prominent seedsmen in America, England, and Germany, both as garden and agricultural seeds.” On these facts, the Circuit Court found, as conclusions of law, (1) that the turnip and mangel-wurzel seeds were not garden seeds, and were not subject to any duty; (2) that the cabbage and beet seeds were garden seeds, and subject to the duty exacted. The contention, on the part of Ferry & Co., is, that, if the seeds which are cultivated in the garden are also cultivated in the field, they are not “ garden seeds,” within the statute, but, being field seeds, are free, as being seeds not otherwise provided for, that is, not provided for as “ garden seeds; ” and that, otherwise, seeds which are cultivated in both garden and field would at the same time be subject to duty and be free. In this view, it is claimed by Ferry & Co. that, as the Circuit Court has found that beet and cabbage seeds are cultivated in fields as well as gardens, they are exempt from duty. But we are unable to concur in this view. In the superseded Title XXXIII. of the Revised Statutes, a duty of 20 per cent, was imposed on flower seeds, “ garden seeds, and all other seeds for FERRY v. LIVINGSTON. 549 Opinion of the Court. agricultural and horticultural purposes, not otherwise provided for,” while the free list included only seeds “ not otherwise provided for.” In the act of 1883, the duty of 20 per cent, on “ garden seeds, except seed of the sugar-beet,” was left, while the exemption from duty was enacted to cover “ seeds of all kinds, except medicinal seeds not specially enumerated or provided for in this act.” From this change in the statute, it cannot be inferred that seeds which are used for agricultural purposes are to be exempt from duty because of such use, if they are also used for garden purposes. The inference would rather be that, if they are used at all for garden purposes, they are subject to 20 per cent, duty, although they are also used for agricultural purposes. But we are of opinion that the conclusion arrived at by the Circuit Court, based on the facts it found, was correct. Beets, other than sugar-beets, being almost altogether raised in gardens, although raised to a limited extent in fields, their seeds are “ garden seeds.” Mangel-wurzels being cultivated wholly in fields, and not in gardens, their seeds are not “garden seeds.” Turnips being largely raised in fields, and comparatively small quantities being also raised in gardens, their seeds are not “ garden seeds.” As to the cabbage seeds, it is found that cabbages from the seeds in question are cultivated in both gardens and fields, and, while it is not found which is the larger in proportion, it is found that cabbages are used to a small extent as food for cattle, but to a much larger extent as food for man ; and, in the absence of any finding that the seed in question belongs to a variety which is not intended to raise cabbages to be consumed by man, it must be regarded as a “ garden seed.” We are unable to concur in the view that the free list in the act of 1883 is to be read as including seeds of all kinds, with the exception of medicinal seeds which are not specially enumerated or provided for in the act. The proper reading is, that it includes seeds of all kinds (other than medicinal seeds) which are not specially enumerated or provided for in the act. Garden seeds are specially provided for. As this case rests for decision on the facts found, it is not 550 OCTOBER TERM, 1885. Counsel for Parties. possible for this court to lay down any general rule which will apply to cases differing in their facts from this case. The judgment of the Circuit Court is affirmed, the plaintiff in err ar in each case to pay the clerics costs taxed therein, and the plaintiff in error in No. 875 [Ferry & Another v. Livingston] to recover one-half of the expense of printing the record, paid by it. THOMPSON v. ALLEN COUNTY & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY. Argued November 13,13, 1885.—Decided November 23, 1885. The proposition that the levy and collection of taxes, though they are to be raised for the satisfaction of judgments against counties or towns, is not within the jurisdiction of a court of equity, reviewed and re-affirmed. The fact that the remedy at law by mandamus for levying and collecting taxes has proved ineffectual, and that no officers can be found to perform the duty of levying and collecting them, is no sufficient ground of equity jurisdiction. The principle is the same where the proper officers of the county or town have levied the tax and no one can be found to accept the office of collector of taxes. This gives no jurisdiction to a court of equity to fill that office or to appoint a receiver to perform its functions. The inadequacy of the remedy at law, which sometimes justifies the interference of a court of equity, does not consist merely in its failure to produce the money, a misfortune often attendant upon all remedies, but that in its nature or character it is not fitted or adapted to the end in view ; for, in this sense, the remedy at law is adequate, as much so, at least, as any remedy which chancery can give. The facts which make the case are stated in the opinion of the court. Mr. Charles Eginton [Mr. TP. 0. Dodd was with him on the brief] for appellant. Mr. John Mason Brown [Mr. Alexander P. Humphrey and Mr. George M. Davie were with him on the brief] for appellees. THOMPSON v. ALLEN COUNTY. 551 Opinion of the Court. Me. Justice Millee delivered the opinion of the court. This was an appeal from a decree of the Circuit Court of the United States for the District of Kentucky, dismissing the bill of the appellant, who was plaintiff in that court. The case was tried on bill, answer, exceptions to the answer, and a stipulation as to the facts. The substance of the bill was, that plaintiff had obtained against Allen County, in that court, two judgments at law, amounting to over $27,000, on coupons for interest on bonds issued by the county to pay for subscription to the stock of the Cumberland and Ohio Railroad Company. That, after executions on these judgments had been duly returned “ no property found,” the court, at the instance of the plaintiff, issued writs of mandamus to the justices of the Allen County Court, under which they levied a tax of $2.08 on every hundred dollars’ worth of taxable property in the county to pay said judgments. That, at the same time, they elected one J. T. Stork collector of said tax levy, and made an order that he give bond with good security as such collector, and proceed to collect the levy and pay it over in satisfaction of the judgments. That Stork refused to give bond as required, and refused to accept and qualify as such collector; and that, by reason of the hostility of the citizens and tax-payers of Allen County, no one could be found in the county who would perform the duty of collector. The bill then gave the names of about thirty of the principal tax-payers of the county, with the value of the assessed property of each, and the amount of tax due from him under said levy, alleging that the tax-payers were too numerous to be sued, and praying that these might be sued as defendants representing all others in like circumstances, and be required, with the county, to answer the bill. The prayer of the bill for relief was, that, inasmuch as the complainant was without remedy at law, the court sitting in chancery would appoint a receiver, who should collect these taxes, and that the money arising therefrom be from time to time paid over in satisfaction of plaintiff’s judgments, and that the several tax-payers of said county, made defendants, be re- 552 OCTOBER TERM, 1885. Opinion of the Court. quired to pay into court, with like effect the sums due by them as alleged in the bill. A joint answer was filed by Allen County and the other defendants who were served with process. They admitted the recovery of the judgments, the return of the executions “ nulla J)ona” the issue of the writs of mandamus, and the levy of the tax by the County Court. They also admitted the election of Stork as collector and his refusal to serve, and they denied everything else. They said that the bonds were procured by fraud and without consideration, the road was never built, the tax was unjust and oppressive, and they denied the jurisdiction of the court, sitting as a court of equity, to collect these taxes, which could only be done by a collector of taxes for said county, appointed according to law, and not otherwise. Exceptions were filed to this answer, which were not passed upon, but the case was heard on bill, answer, exceptions, and the following stipulation : “ By leave of the court the parties now stipulate of record in this cause: “ 1. That the county court of Allen County has in good faith and diligently endeavored to find a fit and proper person to act as collector of the railroad taxes in said county, and of the special levies of taxes in the bill of complaint set forth. “ 2. That no such fit and proper person can be found who will undertake and perform the office and duty of such collector. “ 3. That the complainant is without remedy for the collection of its debt herein, except through the aid of this court in the appointment of a receiver, as prayed for in the bill, or other appropriate order of the court.” The hearing was had before the circuit justice and the circuit judge, who certified that they were opposed in opinion on the following questions occurring in the progress of the case: “ 1. Whether taxes levied under judicial direction can be collected through a receiver appointed by the court of chancery, if there is no public officer with authority from the legislature to perform the duty. “ 2. Whether taxes levied by State officers under judicial THOMPSON v. ALLEN COUNTY. 553 Opinion of the Court. direction can be collected through, a receiver appointed by the United States court, where the legislature has provided an officer to collect, but there is a vacancy in office and no one can be found who is willing to accept the office. “ 3. Whether a court of chancery can grant any relief to complainant upon the facts recited in the bill, answer, and stipulation, as presented in this record.” A decree was rendered in accordance with the view of Presiding Justice Matthews, whose opinion is found in the record, by which the bill was dismissed. 13 Fed. Rep. 97. An appeal was taken to this court. The questions on which the judges of the Circuit Court divided are not new in this court, for, while the subject, in the precise form presented in the first and second questions, may not have been decided, the whole subject has been often before us, and the principles which govern it have been well considered. The cases in which it has been held that a court of equity cannot enforce the levy and collection of taxes to pay the debts of municipal corporations began with Walkley v. City of Muscatine, 6 Wall. 481. In that case, the complainant Walkley had procured judgments against the city of Muscatine for interest on bonds of the city, executions had been returned “nulla bona” the mayor and aidermen had refused to levy a tax for the payment of the judgments, and had used the annual tax for other purposes and paid nothing to plaintiff. Walkley then filed his bill in equity praying a decree that the mayor and aidermen be compelled to levy a tax and appropriate so much of its proceeds as might be necessary to pay his judgments. This court said, by Mr. Justice Nelson, that the remedy was by mandamus at law, and “ we have been furnished with no authority for the substitution of a bill in equity and injunction for the writ of mandamus,” p. 483; and he adds, that “ a court of equity is invoked as auxiliary to a court of law in the enforcement of its judgments only when the latter is inadequate to afford the proper remedy,” pp. 483-4. 554 OCTOBER TERM, 1885. Opinion of the Court. By inadequacy of the remedy at law is here meant, not that it fails to produce the money—that is a very usual , result in the use of all remedies—but that in its nature or character it is not fitted or adapted to the end in view. This is clearly stated in the next case in this court on the same subject, namely, Rees v. Watertown, 19 Wall. 107. In that case, as in this, execution on a judgment against the city of Watertown had been returned “no property found.” Writs of mandamus had been issued requiring the levy of a tax to pay the judgment. These writs had failed by reason of resignations of the officers of the city to whom they were directed, and this had occurred more than once. The court was pressed with the doctrine that, the writ of mandamus having proved inadequate, a court of equity should provide some other remedy. To this it replied: “We apprehend also that there is some confusion in the plaintiff’s proposition, upon which the present jurisdiction is claimed. It is conceded, and the authorities are too abundant to admit of question, that there is no chancery jurisdiction where there is an adequate remedy at law. The writ of mandamus is, no doubt, the regular remedy in a case like the present, and ordinarily it is adequate and its results are satisfactory. The plaintiff alleges, however, in the present case, that he has issued such a writ on three different occasions; that by means of the aid afforded by the legislature, and by the devices and contrivances set forth in the bill, the writs have been fruitless; that in fact, they afford him no remedy. The remedy is in law and in theory adequate and perfect. The difficulty is in its execution only. The want of a remedy, and the inability to obtain the fruits of a remedy, are quite distinct, and yet they are confounded in the present proceeding. To illustrate: the writ of habere facias possessionem is the established remedy to obtain the fruits of a judgment for the plaintiff in ejectment. It is a full, adequate, and complete remedy. Not many years since there existed in central New York combinations of settlers and tenants disguised as Indians, and calling themselves such, who resisted the execution of this process in their counties, and so effectually that for some years no landlord could gain possession of his land. There was a THOMPSON v. ALLEN COUNTY. 555 Opinion of the Court. perfect remedy at law, but through fraud, violence or crime, its execution was prevented. It will hardly be argued that this state of things gave authority to invoke the extraordinary aid of a court of chancery. The enforcement of the legal remedies was temporarily suspended by means of illegal violence, but the remedies remained as before. It was the case of a miniature revolution. The courts of law lost no power, the court of chancery gained none. The present case stands upon the same principle. The legal remedy is adequate and complete, and time and the law must perfect its execution,” pp. 124-5. The language here used is not only applicable to the case under consideration, but in regard to the facts they are the same. In that case the court said: 44 The plaintiff invokes the aid of the principle that, all legal remedies having failed, the court of chancery must give him a remedy; that there is a wrong which cannot be righted elsewhere, and hence the right must be sustained in chancery. The difficulty arises from too broad an application of a general principle. . . . Generally its jurisdiction [chancery] is as well defined, and limited as is that of a court of law. . . . Lord Talbot says, 4 There are cases, indeed, in which a court of equity gives remedy where the law gives none; but where a particular remedy is given by law, and that remedy bounded and circumscribed by particular rules, it would be very improper for this court [chancery] to take it up where the law leaves it, and extend it further than the law allows.’ Generally its jurisdiction depends upon legal obligations, and its decrees can only enforce remedies to the extent and in the mode by law established. ... A court of equity cannot, by avowing there is a right but no remedy known to the law, create a remedy in violation of law, or even without the authority of law. It acts upon established principles not only, but through established channels.” pp. 121-122. • The court also said the power to direct a tax to be levied is the highest attribute of sovereignity, and is exercised by legislative authority only. It is a power that has not been extended to the judiciary. 44 Especially,” says the opinion,44 is it beyond 556 OCTOBER TERM, 1885. Opinion of the Court. the power of the Federal judiciary to assume the place of a State in the exercise of this authority at once so delicate and so important.” pp. 116-117. These propositions are reasserted in a later case of the same term of the court. Heine n. The Levee Commissioners, 19 Wall. 655. It was, like the present, a bill in chancery to enforce collection of taxes where no officers could be found whose duty could be enforced by mandamus. “ There does not,” said the court, “ appear to be any authority, founded on the recognized principles of a court of equity, on which this bill can be sustained. If sustained at all, it must be on the very broad ground that, because the plaintiff findshimself unable to collect his debt by proceedings at law, it is the duty of a court of equity to devise some mode by which it can be done. It is, however, the experience of every day and of all men, that debts are created which are never paid, though the creditor has exhausted all the resources of the law. It is a misfortune which, in the imperfection of human nature, often admits of no redress. The holder of a corporation bond must, in common with other men, submit to this calamity when the law affords no relief.” p. 660. The court added that the exercise.of the power of taxation belonged to the legislature and not to the judiciary, and, in that case, it had delegated the power to the Levee Commissioners. “ If that body has ceased to exist, the remedy is in the legislature, either to assess the tax by special statute, or to vest the power in some other tribunal. It certainly is not invested as in the exercise of an original jurisdiction in any Federal court.” p. 661. “ It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the Federal government of the legislative functions of the State government.” Ib. And it cites Walkley v. Muscatine, and Rees n. Watertown, as in point. Mr. Justice Bradley, who decided this case on the circuit, had there elaborately discussed the whole subject. See Heme n. Levee Commissioners, 1 Woods, 246. This language is re- THOMPSON v. ALLEN COUNTY. ' 557 Opinion of the Court. peated and approved in State Railroad Tax Case, 92 U. S. 575, 615. The same principles are laid down in Barkley n. Levee Commissioners, 93 U. S. 258, in which the whole subject is reviewed. It is said there that the power to compel, by mandamus, municipal officers to perform the ministerial duty of levying proper taxes is a distinct power from the levy and collection of taxes by a court of chancery, and “ the truth is, that a party situated like petitioner ” (where there were no such officers) “ is forced to rely on the public faith of the legislature to supply him a proper remedy. The ordinary remedy having failed by the lapse of time and the operation of unavoidable contingencies, it is to be presumed that the legislature will do what is equitable and just, and, in this case, legislative action seems to be absolutely requisite.” pp. 265-6. In the case of Meriwether v. Garrett, 102 U. S. 472, the legislature of Tennessee had repealed the charter of the city of Memphis and abolished the city organization, at a time wThen there were taxes assessed and uncollected amounting to several millions of dollars, and debts of the city to a much larger amount. Some of these taxes had been levied under compulsion of writs of mandamus from the Circuit Court of the United States. A bill in chancery was filed in that court by some of these creditors praying the appointment of a receiver, who should take charge of all the assets of the city of Memphis, collect these taxes, and pay them over to the creditors, and generally administer the finances of the extinct city as a court of equity might administer the insolvent estate of a dead man. The decree of the Circuit Court, granting relief according to the prayer of the bill, was reversed in this court, and the bill dismissed. Owing to a division in the court no elaborate opinion representing the. whole court was given, but the chief justice announced eight propositions, on which the majority were agreed. Of these propositions the following are pertinent here: “ 3. The power of taxation is legislative and cannot be exercised otherwise than under the authority of the legislature. 558 OCTOBER TERM, 1885. Opinion of the Court. “ 4. Taxes levied according to law before the repeal of the charter, other than such as were levied in obedience to the special requirement of contracts entered into under the authority of law, and such as were levied under judicial direction for the payment of judgments recovered against the city, cannot be collected through the instrumentality of a court of chancery at the instance of the creditors of the city. Such taxes can only be collected under authority from the legislature. If no such authority exists, the remedy is by appeal to the legislature, which alone can grant relief. Whether taxes levied in obedience to contract obligations, or under judicial direction, can be collected through a receiver appointed by a court of chancery, if there be no public officer charged with authority from the legislature to perform that duty, is not decided, as the case does not require it.’’ p. 501. But though the question was not then decided, and it is urged upon us now, we see no more reason to hold that the collection of taxes already assessed is a function of a court of equity than the levy or assessment of such taxes. A court of law possesses no power to levy taxes. Its power to compel officers who are lawfully appointed for that purpose, in a case where the duty to do so is clear, and is strictly ministerial, rests upon a ground very different from and much narrower than that under which a court of chancery would act in appointing its own officer either to assess or collect such a tax. In the one case the officers exist, the duty is plain, the plaintiff has a legal right to have these officers perform that duty for his benefit, and the remedy to compel this performance, namely, the writ of mandamus, has been a well known process in the hands of the courts of common law for ages. In the other there exists no officer authorized to levy the tax or to collect it when levied. The power to enforce collection when the tax is levied, or to cause it to be levied by existing officers, is a common-law power, strictly guarded and limited to cases of mere ministerial duty, and is not one of the powers of a court of chancery. It would require in this court, not the compulsory process against some existing officer to make him THOMPSON v. ALLEN COUNTY. 559 Opinion of the Court. perform a recognized duty, but the appointment by the court of such an officer and a decree directing him what to do. In the one case, his power proceeds from the law, and he is compelled to exercise it; in the other, it proceeds from the court which first makes its own decree, and makes an officer to enforce it. No such power has ever yet been exercised by a court of chancery. The appointment of its own officer to collect taxes levied by order of a common-law court is as much without authority, as to appoint the same officer to levy and collect the tax. They are parts of the same proceeding, and relate to the same matter. If the common law court can compel the assessment of a tax, it is quite as competent to enforce its coUection as a court of chancery. Having jurisdiction to compel the assessment, there is no reason why it should stop short, if any further judicial power exists under the law, and turn the case over to a court of equity. Its sheriff or marshal is as well qualified to collect the tax as a receiver appointed by the court of chancery. The difficulty is, that no power exists in either court to fill the vacancy in the office of tax collector; and the case of Lee County Supervisors v. Rogers, 1 Wall. 175, where the laws of the State of Iowa expressly authorized the court to enforce its writ of mandamus by making such appointment, the only case in which it has ever been done, shows that without such leffis-lative authority it cannot be done. It is the duty of the marshals of the Federal courts and the sheriffs of State courts to levy executions issuing from these courts on the property of defendants, and sell it, to raise money to pay their judgments. Let us suppose that, for some reason or other, the office of marshal or sheriff became vacant for a while. Would that authorize the court of equity of the Federal or State government to appoint a sheriff or marshal ? or to appoint a receiver to levy the execution? or, if it had been levied, to sell the property, collect the purchase-money, and pay it to plaintiff? If this cannot be done, if it never has been done, why can it do a much more unjudicial act, by appointing a collector to collect the taxes, or, what is still less appropriate, appointing a receiver, and endow him with that power ? 560 OCTOBER TERM, 1885. Opinion of the Court. To appoint a marshal or a sheriff to execute the process of a court to enforce the judgment of that court, is not such a wide departure from the judicial function as to appoint a receiver to collect taxes; but no case has been cited of the exercise of even the former power by the court, much less the appointment, by a court of chancery, of an officer to execute the processes of a court of law. The appointment of special masters or commissioners to make sales under decrees in chancery, is the ordinary mode of that court to enforce its decrees in cases where the court has jurisdiction of the subject matter of the suit. Not only are the decisions here reviewed of our own court clearly opposed to the exercise of this power by the court of equity, but the decisions of the highest court of the State of Kentucky are equally emphatic. It is the powers derived from the statute law of that State under which alone this tax can be collected. The issue of the bonds on which the judgment was obtained was by virtue of a special statute, and that statute prescribed the mode of levying and collecting this tax. It enacted that its collection should not be by the sheriff who collected the ordinary taxes for the State and county, but that a special tax collector should be appointed for that purpose by the justices of the County Court who levied the tax. The Court of Appeals, construing this statute, which was in existence when the bonds were issued, holds that no other officers but these can collect the taxes, and has decided, both in reference to this law and the Constitution of the State, that a court of chancery cannot appoint such an officer or exercise this function of tax collector. McLean County Precinct v. Peposit Bank, 81 Ky. 254. This decision, if not conclusive, is entitled to great weight as construing the statute under which alone this tax can be levied and collected. These considerations require that the answers to each of the three questions certified to us by the judges of the Circuit Court be in the negative, and that the decree of that court dismissing the bill be Affirmed. THOMPSON v. ALLEN COUNTY. 561 Dissenting Opinion : Harlan, J. Me. Justice Haelan dissenting. The present case presents a question not heretofore decided by this court. The appellant has judgments against the county of Allen, in the Commonwealth of Kentucky, which were rendered in the Circuit Court of the United States for the Kentucky District, for the amount of unpaid interest on bonds issued by that county in payment of its subscription to the capital stock of a railroad company, the subscription having been made and the bonds issued under express legislative authority. The County Court refused to levy a tax to satisfy such judgments, although it was authorized and required by the act, in virtue of which the bonds were issued, to levy “ as listed and taxed under the revenue laws of the State, a sum sufficient to pay the interest on such bonds as it accrues, together with the costs of collecting the same.” It was further provided, by the same act, that the County Court “ may appoint collectors for said tax,” or may require the sheriff to collect the tax. In 1876 the General Assembly of Kentucky passed a special act releasing the sheriff of Allen County from the duty of giving bond for the collection of any railroad tax, and providing that the “ County Court shall, at the instance or motion of any person, or by request, appoint a special collector to collect all taxes or levies on said county for railroad purposes; and shall require bonds, with security, to be approved by the court, for the faithful discharge of all duties incumbent on him.” Execution upon Thompson’s judgments having been returned “ no property,” and the County Court having refused to levy a tax to pay them, the Circuit Court, upon Thompson’s application, issued a mandamus against the judge and justices constituting the County Court, commanding them to perform the duty, enjoined by statute, of levying and causing to be collected, from the taxable property of the county, a sum sufficient to satisfy the before-mentioned judgments, and the costs of collecting the same. Subsequently, on May 28, 1881, the County Court, in conformity with the foregoing order, made a levy upon the taxable property of the tax-payers of the county “ to pay the judgments in favor of T. W. Thompson against said vol. cxv—36 562 OCTOBER TERM, 1885. Dissenting Opinion : Harlan, J. county.” It was further ordered by the County Court “ that J. T. Stark be, and is hereby, appointed collector of said levy, upon his executing bond, with approved security, before the County Court, and he will proceed at once to collect said levy, and pay the same over in satisfaction of the judgments heretofore named in favor of T. W. Thompson or his attorney.” Stark declined to accept the office of collector. It is alleged in the bill, and admitted in the answer, “ that the sentiments and feelings of a large majority of the citizens and tax-payers of the said Allen County are very hostile and outspoken against the collection or payment of the said tax.” The County Court having announced that it was unable to find any person who was willing to accept the appointment of collector and undertake the collection of the levy, and Thompson being unable, as he alleges, to find any person within the county who is willing to qualify as collector, the present suit in equity was commenced against the county, and a large number of its tax-payers, whose names are given in the bill, together with the amount of their taxable property, as assessed by the proper county authorities, with the taxes due from each, as shown by the public records of the county. The bill sets out the foregoing facts, and asks that the several tax-payers, who are made defendants, be required to pay into court the several sums due from them, as shown by the levy made by the County Court, and that other tax-payers, not specifically named as defendants, be required to pay into court, or to some person appointed by it as receiver, the amount due from them respectively—such sums to be applied in satisfaction of Thompson’s judgments. There is, also, a prayer for general relief. The parties, by their counsel, stipulated at the hearing of the cause, and it is to be taken as true, that the County Court “ has in good faith and diligently endeavored to find a fit and proper person to act as collector of the railroad taxes in said county, and the special levies of taxes in the bill of complaint set forth ; ” that “ no such fit and proper person can be found who will undertake and perform the office and duty of such collector; ” and that “ the complainant is without remedy for the collection of the debt herein, except through the aid of this THOMPSON v. £LLEN COUNTY. 563 * Dissenting Opinion : Harlan, J, court in the appointment of a receiver, as prayed for in the bill, or other appropriate orders of the court.” Under this state of facts my brethren, affirming the decree below, hold that the Circuit Court, sitting in equity, was entirely without authority, in any way, to cause the tax-payers of Allen County to bring into court the sums due from them, respectively, that the same may be applied in satisfaction of Thompson’s judgments. In my judgment, there is nothing in our former decisions which prevents a court of equity from giving substantial relief to the complainant. In Walkley v. City of Muscatine, 6 Wall. 482, the application was to a court of equity to compel the levy of a tax. The only point decided was, that where «a municipal corporation refused to levy a tax to satisfy a judgment against it, the remedy of the creditor was a mandamus to compel such levy; and that “ a court of equity is invoked as auxiliary to a court of law in the enforcement of its judgments in cases only where the latter is inadequate to afford the proper remedy.” In Rees v. City of Watertown, 19 Wall. 107, a Federal court, sitting in equity, was asked, in the absence of a levy, to subject the property of the tax-payers of a city to the payment of complainant’s judgments against it, and that the marshal of the district be empowered to seize and sell so much of their property as might be necessary for the satisfaction of such judgments. In other words, the court was asked to make a levy of taxes. And in Heine v. The Levee Commissioners, 19 Wall. 655, it appears that holders of bonds issued by the Levee Commissioners—no judgment at law having been recovered on the bonds, nor any attempt made to collect the amount due by suit in g common-law court—brought a suit in equity, ‘and prayed that the commissioners be required to assess and collect the tax necessary to pay the bonds and interest, and if, after reasonable time, they failed to do so, that the district judge of the parish, who was by statute authorized to levy the tax when the commissioners failed to do so, be ordered to make the levy. It was decided that the power of taxation belonged to the legislative, not to the judicial branch of the government; that, in that case, the 564 OCTOBER T^RM, 1885. Dissenting Opinion : Harlan, J. power must be derived from the legislature of the State; if the body known as Levee Commissioners had, by resignation of their members, ceased to exist, the remedy was in the legislature either to assess the tax by special statute, or to vest the power in some other tribunal; that, in any event, a Federal court was without power to levy and collect a tax authorised by a State law. That such was the extent of the decision in that case is shown in State Railroad Tax Cases, 92 U. S. 575, where, referring to Heine v. The Levee Commissioners, it was said: “ The levy of taxes is not a judicial function. Its exercise, by the Constitutions of all the States and by the theory of our English origin, is exclusively legislative.” p. 615. •In Barkley v. Levee Commissioners, 93 U. S. 258, the court was asked to compel, by the process of mandamus, a board of levee commissioners, the members of which had resigned, to assess and collect a tax for the payment of a certain judgment against the parish; or, if that could not be done, that the police jury of the parish be required to make such assessment and collection; or, if that could not be done, that the United States marshal should be required to assess at once or by instalments, from year to year, and collect sufficient taxes upon the property subject to taxation for levee purposes to pay the judgment. It was held that a mandamus could not issue, because the Board of Levee Commissioners had become extinct as a body, and that the court had no general power to commission the marshal to levy taxes for the purpose of satisfying a judgment. These cases only establish the doctrine that the levying of taxes is not a judicial function. It seems to me that the granting of relief to Thompson will not, in any degree, disturb the principles announced in the foregoing cases. The bill does not ask the court to usurp the function of levying taxes. That duty has been performed by the only tribunal authorized to do it, viz., the County Court of Allen County. Nothing remains to be done, except to collect from individuals specific sums of money which they are under legal obligation to pay. The collections of these sums will not interfere with any discretion with which THOMPSON v. ALLEN COUNTY. 565 Dissenting Opinion : Harlan, J. the Allen County Court is invested by law; for, by its own order, made in conformity with the law of the State, and by the judgment in the mandamus proceedings, the sums due from the individual defendants, and from other tax-payers, has been set apart for the payment of Thompson’s judgments. Those sums, when collected, cannot be otherwise used. As the County Court cannot find any one who will accept the office of special collector, and as the parties agree that there is no mode of collecting the sums set apart in the hands of the individual defendants and other tax-payers, for the payment of Thompson, I am unable to perceive why the Circuit Court, sitting in equity, may not cause these sums to be applied in satisfaction of its judgments at law. The plaintiff has no remedy at law; for, the common-law court in rendering judgment has done all that it can do, and the local tribunal, by levying the required tax and seeking the aid of a special collector to collect it, has done all that it can do. There is no suggestion, or even pretence, that the tax-payers who are sued dispute the regularity of the assessment made against them by the County Court. Admitting their legal liability for the specific amounts assessed against them, and conceding that what they owe must, when paid, go in satisfaction of Thompson’s judgments, they dispute the authority of any judicial tribunal to compel them to pay it over. With money in their hands, equitably belonging to the judgment creditor, they walk out of the court whose judgments remain unsatisfied, announcing, in effect, that they will hold negotiations only with a “ special collector,” who has no existence. That the court below, sitting in equity—after it has given a judgment at law for money, and after a return of nulla bona against the debtor—may not lay hold of moneys set apart, by the act of the debtor, in the hands of individuals exclusively for the payment of that judgment, and which money, the parties agree, cannot be otherwise reached than by being brought into that court, under its orders, is a confession of helplessness on the part of the courts of the United States that I am unwilling to make. I, therefore, dissent from the opinion and judgment in this case. 566 OCTOBER TERM, 1885. Statement of Facts. EFFINGER v. KENNEY, Trustee. IN ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OP VIRGINIA. Argued November 10,11,1885.—Decided December 7,1885. Contracts made in the insurgent States, during the late civil war, between residents of those States, with reference to Confederate notes as a standard of value, and not designed to aid the insurrectionary government, may be enforced in the National courts; and the value of the contracts is to be determined by the value of the Confederate notes in lawful money of th United States at the time when and place where such contracts were made. A statute of Virginia, of February, 1867, after declaring that, in an action or suit or other proceeding for the enforcement of any contract, express or imphed, made between the 1st day of January, 1862, and the 10th of April, 1865, it shall be lawful for either party to show, by parol or other relevant testimony, what was the understanding and agreement of the parties, either express or implied, in respect to the kind of currency in which the same was to be performed, or with reference to which, as a standard of value, it was made, provides “ that when the cause of action grows out of a sale or renting or hiring of property, whether real or personal, if the court, or, when it is a jury case, the jury, think that, under all the circumstances, the fair value of the property sold, or the fair rent or hire of it would be the most just measure of recovery in the action, either of these principles may be adopted as the measure of the recovery instead of the express terms of the contract:” Held, That the statute in this provision sanctions the impairment of contracts, which is not, under the Federal Constitution, within the competency of the legislature of the State. Accordingly, in a suit to enforce a lien for unpaid purchase money of real estate sold during the war, for which a note was given payable in dollars, but shown to have been made with reference to Confederate notes, a decision that the plaintiff was entitled to recover the value of the land at the time of the sale, instead of the value of Confederate notes at that time, was erroneous. This case came from the Supreme Court of . Appeals of Virginia. It was brought in one of the Circuit Courts of that State to enforce a vendor’s lien claimed by James Kenney, the plaintiff below, defendant in error here, as trustee of one Allen C. Bryan, for the unpaid portion of the purchase money of certain real estate sold to Jacob P. Effinger, the defendant below and plaintiff in error here. The material facts of the EFFINGER v. KENNEY. 567 Statement of Facts. case were these : On the 7th of January, 1861, Allen 0. Bryan and wife conveyed all their estate, real and personal, to James Kenney, in trust for the benefit of the wife and creditors of Bryan. The real estate was situated in Rockingham County, Virginia, and a portion of it, consisting of about 100 acres, was known as the “Home Farm” of Bryan. On the 30th of March, 1863, Kenney, the trustee, sold this farm at public auction to the highest bidder, pursuant to the deed of trust; and at that’ sale Effinger became the purchaser, at $210 per acre, one-third to be paid in cash and the balance in one and two years from the date of sale, with the privilege of paying in cash the first of these deferred payments. Effinger made the cash payment and the first of the deferred payments, and executed to the trustee his promissory note, or bond, as it is termed in the record, for the second deferred payment, amounting to $7067.72, payable on the 30th of March, 1865, with interest from date, stating in the instrument that the amount was the deferred payment on the “ Home Farm ” of Bryan. The trustee and the purchaser were at the time residents and citizens of Virginia. The first and second payments were made in treasury notes of the Confederate States, but after the maturity of the bond the third payment in such notes was refused by the trustee, and no payment in any other currency being made the present suit was brought. The Circuit Court was of opinion that the sale was made with reference to notes of the Confederate States as a standard of value ; that the fair value of the property on the day of sale “ was the most just measure of recovery; ” and that such value was $80 an acre in lawful currency of the United States. This conclusion as to value was drawn from the fact that the land was assessed for taxation at that sum before the civil war, and that during the continuance of the war its value had not materially depreciated, the court observing that, “ whilst the war had a tendency to impair the value of all kinds of property, yet, as to lands, that tendency was counteracted by the fact that they were not liable to be destroyed, and, therefore, afforded a safer means of investment than any other kind of property.” It accordingly awarded judgment for one-third the value of the 568 OCTOBER TERM, 1885. Statement of Facts. land at the time of sale, estimating it to have been then worth $80 an acre in lawful currency, with interest on the sum thus adjudged to be due, and decreed a sale of the property to pay the amount unless the same was paid within a time designated. In adopting the rule stated to arrive at what it deemed the “ most just measure of recovery,” the court acted in conformity with a statute of Virginia, passed on the 28th of February, 1867, amending and re-enacting sections of an act of the previous year “ providing for the adjustment of liabilities arising under contracts or wills made between the first day of January, 1862, and the tenth day of April, 1865.” This act of 1867 provided: “ Seo. 1. That in any action or suit, or other proceedings for the enforcement of any contract, express or implied, made or entered into between the first day of January, eighteen hundred and sixty-two and the tenth day of April, eighteen hundred and sixty-five, it shall be lawful for either party to show, by parol or other relevant testimony, what was the true understanding and agreement of the parties thereto, either express or to be implied, in respect to the kind of currency in which the same was to be fulfilled or performed, or with reference to which as a standard of value it was made or entered into; and in any action at law or suit in equity it shall not be necessary to plead the agreement specially in order to admit such evidence : Provided, that when the cause of action grows out of a sale or renting or hiring of property, whether real or personal, if the coui;t (or when it is a jury case, the jury) think that, under all the circumstances, the fair value of the property sold, or the fair rent or hire of it, would be the most just measure of recovery in the action, either of these principles may be adopted as the measure of the recovery instead of the express terms of the contract. “ Seo. 2. Whenever it shall appear that any such contract was, according to the true understanding and agreement of the parties, to be fulfilled or performed in Confederate States treasury notes, or was entered into with reference to such notes as a standard of value, the same shall be liquidated and settled by reducing the nominal amount due or payable under such contract in Confederate States treasury notes to its true value at EFFINGER v. KENNEY. 569 Opinion of the Court. the time they were respectively made or entered into, or at such other time as may to the court, or if it be a jury case, to the jury, seem right in the particular case. . . .” Session Laws of 1866-7, 694; Code of 1873, ch. 138, §§ 1, 2. The judgment of the Circuit Court was affirmed by the Supreme Court of Appeals of the State, and to review the judgment of the latter court this writ of error was brought. Mr. Jacob P. Effinger in person; Mr. Assistant Attorney-General Maury was with him. Mr. William B. Compton, for defendant in error. Me. Justice Field delivered the opinion of the court. After stating the case in the language above reported, he continued: The contract of sale, which is the subject of consideration in this case, was made in Virginia, between citizens of that State, pending the late civil war, and with reference to notes of the Confederate States as the standard of value. These notes had, at that time, almost entirely superseded the use of coin, and they constituted the principal currency within those States. Not only the ordinary purchases of the necessaries of life, but contracts of every description, which were to be performed there, were made with reference to them. Such contracts were not invalid between the parties because payable in those notes, when not made in aid of the insurrectionary government. It was so held by this court in Thorington v. Smith, 8 Wall. 1, where it was declared that they must be regarded as a currency imposed on the community by irresistible force; and that this currency must therefore be considered, in the courts of law, in the same light as if it had been issued by a foreign government temporarily occupying a part of the territory of the United States. “Contracts stipulating for payments in this currency,” said Mr. Chief Justice Chase, speaking for the entire court, “ cannot be regarded, for that reason only, as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relation to the hostile government, whether invading or 570 OCTOBER TERM, 1885. Opinion of the Court. insurgent. They are transactions in the ordinary course of civil society, and, though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection. We cannot doubt that such contracts should be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligation,” pp. 11,12. That case, like the present, was a suit to enforce a vendor’s lien for the unpaid purchase money of real estate. The property was situated in Alabama and was sold during the civil war for $45,000, of which sum all but $10,000 was on the execution of the deed paid in Confederate treasury notes. For the residue the promissory note of the purchaser was given. The parties were both residents and citizens of that State. The plaintiff sought to enforce the note for the full amount in lawful money of the United States. The defendant proved that, at the time of sale, treasury notes of the Confederate States constituted the only currency in ordinary use in Alabama, and that, with few exceptions, all business transactions were conducted in them; that the land was then worth only $3000, in lawful money, and that the contract price of $45,000 was, by agreement, to be paid in those notes. When the case came to this court the question was considered as to the admissibilit}7 of evidence to prove that the promise for the payment of dollars, without qualifying words, was in fact made for the payment of other than lawful dollars of the United States. The court held that the evidence was admissible, observing that, whilst it is clear that a contract to pay dollars, made between citizens of any State of the Union maintaining its constitutional relations with the National government, is a contract to pay lawful money of the United States, and could not be modified or explained by parol evidence, “ it is equally clear, if in any other country coins or notes denominated dollars should be authorized of different value from the coins or notes which are current here under that name, that, in a suit upon a contract to pay dollars made in that country, evidence would be admitted to prove what kind of dollars were intended, and, if it should turn out that foreign dollars EFFINGER v. KENNEY. 571 Opinion of the Court. were meant, to prove their equivalent value in lawful money of the United States,” p. 12; that such evidence does not modify or alter the contract, but simply explains an ambiguity which, under the general rules of evidence, may be removed by parol evidence. And the court added, that the people in the insurgent States under the Confederate government were, in legal contemplation, substantially in the same situation as inhabitants of districts of a country occupied and controlled by an invading belligerent; that contracts among them must be interpreted and enforced with reference to the condition of things created by the acts of the ruling power; and that in their light it was hardly less than absurd to say that the dollars used in the insurgent States should be considered identical in kind and value with the dollars constituting the money of the United States. It being thus held that a contract made during the war, in one of the insurgent States, between parties residing therein, payable in Confederate notes, is not for that reason invalid, and that parol evidence is admissible to show that by “ dollars,” used without qualifying words in a contract of that character thus made, those notes were intended, it becomes important to ascertain and lay down some definite rule, if possible, to determine their value, when the enforcement of such a contract is sought in a Federal court, or damages are claimed for its breach. In ThoringUm, v. Smith, above cited, the court held that the plaintiff was entitled to recover the actual value of the Confederate notes at the time and place of contract in lawful money of the United States. In Wilmington & Weldon Railroad Co. v. King, 91 U. S. 3, the contract made in North Carolina during the war was for wood, and by its terms the wood was to be paid for in Confederate notes. In an action upon the contract the court below refused to instruct the jury that the plaintiff was entitled to recover only the value of the currency stipulated for the wood sold, but stated that he was entitled to recover the value of the wood without reference to the value of that currency. This court held this to be nothing less than instructing the jury that 572 OCTOBER TERM, 1885. Opinion of the Court. they could put a different value upon the property from that placed by the parties at the time of the purchase. In its opinion the court referred to contracts made during the war in the insurgent States between residents there, payable in Confederate notes, which of course became worthless at the close of the war, and said it was manifest that, if these contracts were to be enforced with anything like justice to the parties, evidence must be received as to the value of the notes at the time and in the locality where the contracts were made ; and added, that “ in no other mode could the contract as made by the parties be enforced. To have allowed any different rule in estimating the value of the contracts, and ascertaining damages for their breach, would have been to sanction a plain departure from the stipulations of the parties and to make for them new and different contracts.” p. 4. In reference to the statute of North Carolina which allowed the jury to place their own judgment upon the value of the contract, and did not require them to take the value stipulated by the parties, t^e court said: “A provision of law of that character, by constituting the jury a revisory body over the indiscretions and bad judgments of contracting parties, might in many instances relieve them from hard bargains, though honestly made upon an erroneous estimate of the value of the articles purchased, but would create an insecurity in business transactions which would be intolerable. It is sufficient, however, to say that the Constitution of the United States interposes an impassable barrier to such new innovation in the administration of justice, and with its conservative energy still requires contracts, not illegal in their character, to be enforced as made by the parties, even against any State interference with their terms.” p. 5. The judgment was accordingly reversed. In Stewart v. Salamon, 94 U. S. 434, the court held that the amount in actual money represented by a promissory note, executed during the war in the insurgent States, payable in Confederate treasury notes, was to be determined by the value of those notes in coin or legal currency of the United States at the time when, and the place where the promissory note was made. In Cook v. Lillo, 103 U. S. 792, the doctrines declared in the EFFINGER v. KENNEY. 573 Opinion of the Court. decisions mentioned were referred to as settled, although Thor-ington v. Smith was alone cited for them. The Chief Justice, after observing that it had long been settled in this court, that transactions in Confederate money during the late civil war between the inhabitants of the Confederate States, within the Confederate lines, not intended to promote the ends of the Confederate government, could be enforced.in the courts of the United States, after the restoration of peace, to the extent of their just obligation, said: “ It is equally well settled that, if a contract entered into under such circumstances, payable in dollars, was, according to the understanding of the parties, to be paid in Confederate dollars, upon proof of that fact, the party entitled to the payment can only recover the value of Confederate dollars in the lawful money of the United States,” pp. 792-793. In Rives n. Dfke, 105 U. S. 132, the same doctrines were stated and followed. Mr. Justice Gray, in delivering the opinion of the court, said: “ It is settled by the decisions of this court that a contract, made within the so-called Confederate States during the war of the rebellion, to pay a certain sum in dollars, without specifying the kind of currency in which it was to be paid, may be shown, by the nature of the transaction and the attendant circumstances, as well as by the language of the contract itself, to have contemplated payment in Confederate currency; and, if that fact is shown, in an action upon the contract, no more can be recovered than the value of that currency in lawful money of the United States,” p. 140, citing the cases of Thorington v. Smith, 8 Wall. 1; The Confederate Note Case, 19 Wall. 548, 559; and Wilmington & Weldon Railroad Co. v. King, 91 U. S. 3. In The Confederate Note Case, the doctrines of the previous decisions were also stated and approved, but the bonds there in suit were distinguished from obligations payable, in Confederate notes. The several decisions mentioned, with one exception, were rendered by the court with the concurrence of all its members. In the excepted case only one judge dissented. It would seem, therefore, to be no longer open to question, that where contracts were made in the insurgent States during the war be- 574 OCTOBER TERM, 1885. Opinion of the Court. tween residents of those States, with reference to Confederate notes as a standard of value, and were not designed to aid the insurrectionary government, they may be enforced in our courts; and that the value of the contracts is to be determined by the value of the Confederate notes in lawful money of the United States. The measure of valuation adopted by the court below was not in. conformity with this rule. It allowed a recovery for the value of the land instead of treasury notes, which was nothing less than substituting for the contract of the parties a new and different one. The statute of the State w’hich permitted this estimate, whenever the court might think that the fair value of the property would be “ the most just measure of recovery,” and pursuant to which the court acted, sanctions the impairment of contracts, which is not, under the Federal Constitution, within the competency of the State legislature. It follows that the judgment must be reversed and the case remanded for a new trial, in which the plaintiff will be permitted to recover the value of the Confederate notes in lawful money of the United States, and not the value of the land at the time of sale. There is, however, a further question for consideration which is not free from difficulty. The bond of the defendant, dated March 30, 1863, is payable two years thereafter, that is, on the 30th of March, 1865. At these respective dates the value of the Confederate notes was materially different. At the date of the bond their purchasing power was in Virginia at least one-third less than that of lawful money of the United States of the same nominal amount. At the maturity of the bond it wTas greatly less, not more than one-twentieth of that of lawful money. The Confederacy was then in the throes of dissolution; a few days afterwards it ceased to be an organized power, and the notes lost all appreciable value. The condition upon which their payment was promised— “ after the ratification of a treaty of peace between the Confederate States and the United States of America ”—had become impossible. It is evident, therefore, that, if their value in lawful money is to be estimated at the maturity of the bond, a nominal sum, not more than one-twentieth of its amount in EFFINGER v. KENNEY. 575 Opinion of the Court. Confederate currency, can be recovered. In the case of contracts maturing after the overthrow of the Confederacy, no value whatever can be given to that currency. In some of the cases decided by this court, to which we have referred, it is said that the value of the Confederate notes was to be estimated at the date and in the locality of the contract. Such is the language used in Thorington v. Smith, Wilmington & Weldon Railroad Co. v. King, and Stewart v. Salomon. In the first case, the note was payable one day after date. In the second case, it does not appear that the time of payment was fixed. But in the third case, the note was payable one year after date, and the court is careful to state that the value of the Confederate currency was to be estimated in lawful money of the United States at the time when and the place where the note was made. And this rule was prescribed in estimating the value of the Confederate currency for the balance due on the note after its maturity. Where a contract is for the delivery of specific articles, the rule undoubtedly is that the damages recoverable for its breach are to be determined by the value of the articles at the time and place of their delivery. Where a contract is payable in a specified currency, the rule is also clear that such currency is demandable and receivable at the maturity of the contract, whatever change in its value by increase or depreciation may have taken place in the mean time. The damages recoverable for a breach of the contract are to be measured by the value of the currency at its maturity. But in these rules it is assumed that the articles to be delivered are lawful property, and that the currency to be paid is a lawful currency, and that, therefore, in the creation and exchange of both no public duty is violated. The treasury notes of the Confederate States constituted, under the laws of the United States, neither lawful property nor lawful currency. They were the promises of an insurgent and revolutionary organization, payable only ■when its success should be established by a treaty of peace with the United States. Of the value of such promises the National courts will make no inquiry, except as they were receivable in contracts not designed to further the insurrection. They were 576 OCTOBER TERM, 1885. Opinion of the Court. receivable in such, contracts because imposed as a currency upon the community by irresistible force. Their intrinsic value was nothing, but their exchangeable value, by reason of their enforced circulation, was the estimate of them at the time in lawful money of the United States. The relation between them and coin and other lawful money was well known in the community, as it was only with coin or other lawful money as a standard of value that commerce was conducted between the insurgents and persons outside of the Confederacy. Persons then parting with lands and goods for Confederate notes, or for the promise of them, attached to them this exchangeable value, and expected to receive it then or afterwards. They did not intend to surrender, or suppose they were surrendering, their property without any consideration, if the Confederacy should fail, and its notes lose this exchangeable value. They expected an equivalent in any event. Therefore, as having the value thus given to them at the time and place of their receipt, or the promise of them, the National courts will treat them, but not as having a value at any other time or place. Any other rule would involve considerations of inextricable difficulty, and would be inconsistent with justice in determining the value of contracts thus payable, where they matured near the close or after the overthrow of the Confederacy. It follows, therefore, that on the new trial the plaintiff will be allowed to recover for this exchangeable value of Confederate notes, in which the bond was payable, estimated at the time and place of its execution, in lawful money of the United States. Decree reversed, and cause remanded for further proceedings. HARRISON v. MERRITT. 577 Syllabus. KENNEY, Trustee, v. EFFINGER. IN ERROR TO THE SUPREME • COURT OF APPEALS OF THE STATE OF VIRGINIA. Argued November 10,11, 1885.—Decided December 7, 1885. A writ of error to a State court does not bring up for review a question of fact whether a contract was made with reference to Confederate notes. This case was argued with the preceding case. Mr. IF. B. Compton for plaintiff in error. Mr. Jacob P. Effinger in person. Mr. Justice Field delivered the opinion of the court. The writ of error brought by the trustee raises no Federal question which we can consider. Whether the bond of Effinger was or was not executed with reference to Confederate notes is a question of fact for the State court, and not one of law for this court. The writ is dismissed. HARRISON & Others v. MERRITT, Collector. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Submitted November 18,1885.—Decided December 7, 1885. Bone-black, imported for use in decolorizing sugar, in the process of manufacturing it, made by subjecting bones after they were steamed and cleaned, to destructive distillation by heat, in close vessels, until everything but the inorganic matter was expelled, and then crushing the residuum, and.assorting the pieces into proper sizes, was liable to a duty of 25 per cent, ad valorem, as “ black of bone,” under Schedule M, section 2504, of the Revised Statutes, p. 473, 2d Ed., and was not exempt from duty, as bones “burned” or “calcined,” under “The Free List,” in section 2505, p. 483, 2d Ed., nor subject to a duty of 35 per cent., as “manufactures of bones,” under Schedule M of section 2504, p. 474, 2d Ed. vol. cxv—37 578 OCTOBER TERM, 1885. Opinion of the Court. The facts are stated in the opinion of the court. Mr. Charles C. Suydam and Mr. Henry E. Davies for plaintiffs in error. Mr. Attorney-General for defendant in error. Mk. Justice Blatchford delivered the opinion of the court. This is an action brought in November, 1881, by the members of the firm of Harrison, Havemeyer & Co., against Edwin A. Merritt, collector of the port of New York, in a court of the State of New York, and removed into the Circuit Court of the United States for the Southern District of New York, to recover back duties exacted, in May and June, 1881, at the rate of 25 per cent, ad valorem, on imported merchandise, some of which was invoiced as “ animal charcoal,” some as “ calcined bones,” and some as “ burnt bones.” The duty was exacted on the view that the article fell under the head of “ black of bone, or ivory drop black: twenty-five per centum ad valorem,” in Schedule M of Rev. Stat. § 2504, p. 473, 2d Ed. The defendants contended that it fell within “ The Free List ” in § 2505, and was exempt from duty, p. 483, 2d Ed., as “ bones, crude and not manufactured ; burned ; calcined; ground; or steamed.” Schedule M of § 2504, p. 474, 2d Ed., imposed a duty of 35 per centum ad valorem on “manufactures of bones, horn, ivory, or vegetable ivory;” and “The Free List,” § 2505, p. 482, 2d Ed., exempted from duty “ bone dust and bone ash for manufacture of phosphates and fertilizers.” At the trial, before a jury, the evidence showed that the article in question, which was black, was to be used to decolorize sugar, in the process of manufacturing it; that it was made by subjecting bones, after they were steamed and cleaned, to destructive distillation by heat in close vessels, until everything but the inorganic matter was expelled, and then crushing the residuum, and assorting the pieces into proper sizes; and that calcined or burned bones were prepared by subjecting them, in open vessels, to the direct action of fire, and thus rendering them friable, so that they became bone-ash, which was not black. On these facts the court held that the article was not burned or calcined bones, and free, but had been ARNSON v. MURPHY. 579 Syllabus. manufactured into bone-black. A refusal by the court to direct a verdict for the plaintiffs was excepted to, and it directed a verdict for the defendant, which was also excepted to. After such verdict and a judgment for the defendant, the plaintiffs have brought a writ of error. We are of opinion that the article was not free, nor liable to a duty of 35 per cent, as a manufacture of bones, but that, being bone-black, it was liable, as “ black of bone,” to the duty imposed on it; and that it was proper to direct a verdict for the defendant. Objection was made to the admission of evidence to show the difference in value between bone-black and crude bone; and that between bone-black and white calcined bone-ash; and that between bone-black before its use by sugar refiners and after it was spent. We see no good objection to the evidence. It went to show the character of the article in question. Judgment affirmed. ARNSOK & Another u. MURPHY, Collector. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Argued November 19,1885.—Decided December 7, 1885. Where an action is brought, under section 3011 of the Revised Statutes, as amended by section 1 of the act of February 27,1877, ch. 69, 19 Stat. 247, to recover back an excess of duties paid under protest, the plaintiff must, under section 2931 of the Revised Statutes, as a condition precedent to his recovery, show not only due protest and appeal to the Secretary of the Treasury, but also that the action was brought within the time required by the statute. It is not necessary, under section 2931, that the decision of the Secretary on the appeal should, in order to be operative, be communicated to the party appealing. The facts are stated in the opinion of the court. 580 OCTOBER TERM, 1885. Opinion of the Court. Mr. Lewis Sanders [Mr. George M. Sanders was with him on the brief] for plaintiff in error. Mr. Solicitor-General for defendant in error. Mr. Justice Blatchford delivered the opinion of the court. This suit was commenced in May, 1879, in a State court of New York, by Bernhard Arnson and Ellis Wilzinski, against Thomas Murphy, and removed into the Circuit Court of the United States for the Southern District of New York, to recover moneys paid to the defendant, as collector of the port of New York, between April 25, 1871, and November 30, 1871, as duties on several importations of nitro-benzole. The defendant set up, in his answer, that the moneys received were for lawful duties, and also pleaded the six years’ limitation of the New York statute. The suit was tried, resulting in a verdict for the defendant, by direction of the court, followed by a judgment, to review which the plaintiffs sued out a writ of error, which came before this court at October term, 1883, and the decision on which is reported in 109 U. S. 238. It is there stated, that there had been due protests and appeals to the Secretary of the Treasury, but that no decision had been rendered by him thereon prior to the commencement of this action, and that it was not brought until after ninety days had elapsed from the date of the latest appeal, and not until after the lapse of more than six years from the expiration of that period. The Circuit Court having sustained thb bar by the New York statute, this court reversed that ruling. The cause of action arose while § 14 of the act of June 30, 1864, ch. 171, 13 Stat., 214, now embodied in Rev. Stat. § 2931, was in force, providing as follows: “ On the entry of any vessel, or of any goods, wares, or merchandise, the decision of the collector of customs at the port of importation and entry, as to the rate and amount of duties to be paid on the tonnage of such vessel, or on such goods, wares, or merchandise, and the dutiable Cust and charges thereon, shall be final and conclusive against all persons interested therein, unless the owner, master, commander, or consignee of such vessel, in the case of ARNSON th MURPHY. 581 Opinion of the Court. duties levied on tonnage, or the owner, importer, consignee, or agent of the merchandise, in the case of duties levied on goods, wares, or merchandise, or the costs and charges thereon, shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well in cases of merchandise entered in bond, as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objection thereto, and shall, within thirty days after the date of such ascertainment and liquidation, appeal therefrom to the Secretary of the Treasury, whose decision on such appeal shall be final and conclusive; and such vessel, goods, wares, or merchandise, or costs and charges, shall be liable to duty accordingly, any Act of Congress to the contrary notwithstanding, unless suit shall be brought within ninety days after the decision of the Secretary of the Treasury on such appeal for any duties which shall have been paid before the date of such decision on such vessel, or on such goods, wares, or merchandise, or costs or charges, or within ninety days after the payment of duties paid after the decision of the Secretary. And no suit shall be maintained in any court for the recovery of any duties alleged to have been erroneously or illegally exacted, until the decision of the Secretary of the Treasury shall have been first had on such appeal, unless the decision of the Secretary shall be delayed more than ninety days from the date of such appeal in case of an entry at any port east of the Rocky Mountains, or more than five months in case of an entry west of those mountains.” Section 2931 was in force when this suit was brought. Section 3011 of the Revised Statutes, as amended by § 1 of the act of February 27, 1877, ch. 69, 19 Stat. 247, was also in force when this suit was brought, reading as follows : “ Any person who shall have made payment under protest, and in order to obtain possession of merchandise imported for him, to any collector, or person acting as collector, of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the 582 OCTOBER TERM, 1885. Opinion of the Court. validity of such demand and payment of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one.” In view of these provisions, it was held by this court, in this case, that a suit against the collector was barred unless brought within ninety days after an adverse decision by the Secretary of the Treasury on an appeal; and that, while a suit might be brought after the expiration of ninety days from the appeal, in case there had not been a decision on the appeal, the claimant was not obliged to bring a suit until after such decision had been made. It was further held, that the effect of the legislation cited had been to convert the prior common-law action into one based wholly on a statutory liability, and regulated, as to all its incidents, by express statutory provisions, and, among them, “ the conditions which fix the time when the suit may begin, and prescribe the period at the end of which the right to sue shall cease and that the legislation of Congress on the subject was exclusive of State laws. As, therefore, it appeared that this suit had been brought in time, under the act of Congress, because it appeared that no decision had been made on the appeals before this suit was brought, although more than seven years had elapsed, and the Circuit Court had applied the New York statute as a bar, this court reversed the judgment, and awarded a new trial. That trial has been had, resulting in a verdict for the defendant by direction of the court, and a judgment accordingly, to review which the plaintiffs have brought this writ of error. The plaintiffs proved necessary preliminary matters and due protests and appeals to the Secretary of the Treasury. The latest of the appeals was taken November 29, 1871. The plaintiffs rested their case without having given any evidence as to whether there had or had not been any decision on any of the appeals. The defendant then offered in evidence decisions made by the Secretary on the appeals, one on July 12, 1871, and the rest on May 10, 1872, affirming the decisions of the collector. The evidence consisted of certified copies from ARNSON v. MURPHY. 583 Opinion of the Court. the Treasury Department, of letters of the above dates, from that Department to the collector of customs at New York, which letters were recorded in the Department. It was conceded by the plaintiffs that those letters were the decisions of the Secretary on the appeals in question, but the evidence was objected to by them on these grounds: (1) That the defence was not pleaded, it being one arising under a statute of limitation, and the object being to show that the suit was not brought within ninety days after decisions on the appeals: (2) That it did not appear that the decisions had been communicated to the plaintiffs. The court, without then ruling on the admissibility of the evidence, held that the plaintiffs, in addition to showing due protest and appeal, must, as a condition precedent to recovery, show either that the suit had been brought within ninety days after an adverse decision on the appeal, or that there had been no such decision, and the suit had been brought after the expiration of ninety days from the appeal. The plaintiffs excepted to this ruling, and then called as a witness one of the plaintiffs, and asked him if he had received any notice, before the suit was brought, of the decisions of the Secretary on the appeals. On an objection by the defendant that the evidence was immaterial, it was excluded, and the plaintiffs excepted. The defendant then again offered the decisions in evidence, and the plaintiffs objected on the grounds before stated. The objection was overruled, the plaintiffs excepted, and the papers were read in evidence. The court then directed a verdict for the defendant, on the ground that, the action being a statutory one, the plaintiffs had not complied with the statutory conditions, and the plaintiffs excepted. The statute makes the decision of the collector final and conclusive as to the rate and amount of duties, unless there is a specific protest made to the collector within ten days after the liquidation, and an appeal taken to the Secretary of the Treasury within thirty days after the liquidation. The decision of the Secretary on the appeal is made final and conclusive, unless a suit is brought within ninety days after such decision, in the case of duties paid before the- decision, or within ninety days after the payment of duties paid after the decision; and no suit 584 OCTOBER TERM, 1885. Opinion of the Court. can be brought before a decision on the appeal, unless the decision is delayed for the time specified in the statute. We are of opinion that it is incumbent upon the importer to show, in order to recover, that he has fully complied with the statutory conditions which attach to the statutory action provided for. He must show not only due protest and appeal, but also a decision on the appeal, and the bringing of a suit within the time limited by the statute after the decision, or else that there has been no decision, and the prescribed time after the appeal has elapsed. The decision on the appeal is, necessarily, a matter of record in the Treasury Department, and, as is shown in the present case, it is communicated to the collector by a letter to him, the letter itself being the decision. The letter is a matter of record in the custom house. Inquiry there or at the Treasury Department would always elicit information on the subject; and the importer, knowing when his appeal was taken, can always protect himself by bringing his suit after the expiration of the time named after the appeal, although he has not heard of a decision, being thus certain that he will have brought it within the time prescribed after a possible decision. The conditions imposed by the statute cannot, any of them, be regarded as matters a failure to comply with which must be pleaded by the defendant as a statute of limitation. The right of action does not exist independently of the statute, but is conferred by it. There is no right of action on showing merely the payment of the money as duties, and that the payment was more than the law allowed, leaving any statute of limitation to be set up in defence, as in an ordinary suit. But the statute sets out with declaring that the decision of the collector shall be final and conclusive against all persons interested, unless certain things are done. The mere exaction of the duties is, necessarily, the decision of the collector, and, on this being shown in any suit, it stands as conclusive till the plaintiff shows the proper steps to avoid it. These steps include not only protest and appeal, but the bringing of a suit within the time prescribed. They are all successively grouped together in one section, not only in § 14 of the act of 1864, but in § 2931 of ARNSON v. MURPHY. 585 Opinion of the Court. the Revised Statutes; and the “ suit ” spoken of in those sections is the “ action” given in Rev. Stat. § 3011. The question involved is analogous to the one presented in Cheatham v. United States, 92 U. S. 85, which arose under § 19 of the act of July 13, 1866, ch. 184, 14 Stat. 152, in regard to internal revenue taxes. That section provided, that no suit should be maintained in any court for the recovery of any tax, until after an appeal to the Commissioner of Internal Revenue and his decision thereon, unless the suit should be brought within six months from the decision, provided that, if the decision should be delayed more than six months from the date of the appeal, the suit might be brought within twelve months from the date of the appeal. In that case, there was an assessment of a tax, a proper appeal, a setting aside of the assessment on appeal, a second assessment, less in amount, a payment of the second assessment, and a suit to recover back the money paid. But the suit was not brought within six months from the appeal taken, and there was no appeal from the second assessment. The court below having instructed the jury that the statute imposed a condition without which the plaintiffs could not recover, and was not merely a statute of limitation, and that the plaintiffs had no right of action, this court affirmed that ruling. It was urged that the requirement of bringing a suit within six months from the decision was a statute of limitation, and that the time under it could not begin to run till the cause of action accrued, which was not till the money was paid, and that time was, as to a larger part of the money, within six months before the suit was brought; and that the first appeal was the only one necessary to a right of action, because the modified assessment was paid under protest. But this court, while holding that an appeal from the second assessment was necessary to warrant a suit, also held, the opinion of the court being delivered by Mr. Justice Miller, that, if the appeal taken could be regarded as sufficient, the suit could not be maintained, because it was not brought within six months after the decision on that appeal. The view taken was, that the government had, by statute, as to both the customs and the internal revenue departments, prescribed the conditions on 586 OCTOBER TERM, 1885. Opinion, of the Court. which it would subject itself to the judgments of the courts in the collection of its revenues; and that the prescription of a time within which a suit must be brought for the purpose, is a condition on which alone the government consents to litigate the lawfulness of the original tax. We are, therefore, of opinion that the Circuit Court properly held that it was incumbent on the plaintiffs, as a condition precedent to their recovery, to show not only due protests and appeals, but that the action was brought within the time required by the statute. This they failed to show, and it was proper to direct a verdict for the defendant. In regard to the point taken, that, when the defendant introduced in evidence the decisions on the appeals, he did not show that they had been communicated to the plaintiffs, although this case is disposed of on the failure of the plaintiffs to make the proof necessary to recover, it is proper to say, as the question has been argued, that we see nothing in the statute which requires that the decision on the appeal shall be communicated to the claimant by any action of the officers of the government. All that the statute requires is that the Secretary shall make the decision. It is to be made in the usual way in which the decisions of the department are made. If, in any case, it should appear that, on due inquiry of the proper officers, a party had been misled to his prejudice, in regard to a decision on an appeal, a different question would be presented from any now before us. We find no error in the record and the judgment is , Affirmed. PULLMAN CAR CO. v. MISSOURI PACIFIC CO. 587 Statement of Facts. PULLMAN’S PALACE CAR COMPANY v. MISSOURI PACIFIC RAILWAY COMPANY & Another. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. Argued November 6, 9,1885.—Decided December 7, 1885. The consolidation of two or more railroad companies in Missouri, under authority derived from Rev. Stat. Missouri 1879, § 789, works a dissolution of the old corporations and the creation of a new corporation to take their place, subject to the then existing obligations of the old companies. An agreement made by one of such companies before the consolidation, to be carried out over its entire line of railway, and on all roads which it then controlled or might thereafter control by ownership, lease, or otherwise, does not affect roads not so owned, leased or acquired at the time of the consolidation, but acquired by the new company subsequently to it. An agreement by a railway company to haul cars over all roads which it controls or may control by ownership, lease or otherwise, does not oblige it to haul cars over the connecting road of another company in whose stock it acquires, subsequently to the agreement, a controlling interest, if the other company maintains its corporate organization, and its directors retain the control of its road. This was a suit in equity brought by Pullman’s Palace Car Company to enjoin the Missouri Pacific Railway Company and the St. Louis, Iron Mountain and Southern Railway Company from discontinuing the use of the drawing-room cars and sleeping cars of the Pullman Company on the line of the St. Louis, Iron Mountain and Southern Company ; from refusing to haul such cars on passenger trains running on such line; and from contracting with aiiy other person for supplying like cars for that use. The court below dismissed the bill on demurrer, and from a decree to that effect this appeal was taken. The case made by the bill was in substance this : On the 8th of March, 1877, the Missouri Pacific Railway Company was a Missouri corporation owning and operating a railroad between St. Louis and Kansas City, and Pullman’s Palace Car Company, an Illinois corporation, engaged in the business of manufacturing drawing-room cars and sleeping cars, and hiring them to, or otherwise arranging with, railway '588 OCTOBER TERM, 1885. Statement of Facts. companies for their use upon railroads under written contracts for a term of years. By a written contract entered into on that day the Pullman Company agreed to furnish the Missouri Pacific Company, for fifteen years, upon certain specified terms, with drawing-room and sleeping cars sufficient to meet all the requirements of travel, and the Missouri Pacific Company agreed “ to haul the same on the passenger trains on its own line of road, and on all roads which it now controls, or may hereafter control, by ownership, lease, or otherwise.” The railway company also agreed that the Pullman Company “ shall have the exclusive right, for a term of fifteen years from the date, ... to furnish for the use of the railway company drawing-room or parlor and sleeping cars on all the passenger trains of the railway company, and over its entire line of railway, and on all roads which it controls, or may hereafter control, by ownership, lease, or otherwise, . . . and that it will not contract with any other party to run said class of cars on and over said lines of road during said period of fifteen years.” Some time during the summer or autumn of 1880, and as early as October 7th, the Missouri Pacific Company “consoli-ated with itself certain other companies, under the laws of Missouri, retaining its former name; and . . . said consolidated company assumed all the obligations of the separate consolidating companies, and continued to use and operate the former road, together with other consolidated lines.” The St. Louis, Iron Mountain and Southern Railway Company was, and for many years had been, a corporation owning and operating a railroad from 'St. Louis, in a southwesterly direction, to Texarkana. On the 20th of November, 1871, that company entered into a contract with the Pullman Company, similar to the one with the Missouri Pacific Company, for the hauling of the Pullman cars on its line until November 20, 1881. In or about the month of December, 1880, the Missouri Pacific Company “ acquired and became the owner of more than a majority of the stock of said St. Louis, Iron Mountain and Southern Railway Company,” and this, as the bill alleges, PULLMAN CAR CO. v. MISSOURI PACIFIC CO. 589 Statement of Facts. was done “ with the intent and purpose of controlling the management and administration of the said St. Louis, Iron Mountain and Southern Railway Company, and for the purpose of subordinating, in effect, the said St. Louis, Iron Mountain and Southern Railway Company and the Missouri Pacific Railway Company to the same management and control, and of running and operating said roads as one line, and in the interest of the Missouri Pacific Railway Company.” Since that time the Missouri Pacific Company had acquired all but about 1195 of the 220,682 shares of the capital stock of the St. Louis, Iron Mountain and Southern Company. Five of the directors of the Missouri Pacific were also directors in the St. Louis, Iron Mountain and Southern Company, and the two roads were operated under the same general management. The general offices of the two companies were kept together, and both roads were managed substantially by the same persons. All this was brought about and done, as was alleged, in pursuance of an arrangement between the Missouri Pacific Company and persons who were at the time the holders of nearly all the stock of the St. Louis, Iron Mountain and Southern Company “ for the transfer of the ownership and control of the franchises, property, and business of said last-named corporation to the said Missouri Pacific Railway Company,” it being part of the arrangement that the “ stockholders of the said St. Louis, Iron Mountain and Southern Railway Company should not divest themselves altogether of their interest in the franchises, property, and business thereof, but that they should place the same under the control and management of the said Missouri Pacific Railway Company, by the method of the transfer of their stock in said St. Louis, Iron Mountain and Southern Railway Company to the said Missouri Pacific Railway Company, and retain their interest therein by receiving in exchange therefor the stock of the said Missouri Pacific Railway Company, in the proportion of three shares of the stock of the Missouri Pacific to four shares of said St. .Louis, Iron Mountain and Southern; and it was understood that, as a part of said arrangement, the stock of said Missouri Pacific Railway Company received in exchange for said stock of said St. Louis, Iron 590 OCTOBER TERM, 1885. Statement of Facts. Mountain, and Southern would represent in the hands of its holders a combined interest in the properties of both of said corporations ; and that the stock of said St. Louis, Iron Mountain and Southern which was by the arrangement aforesaid acquired by the said Missouri Pacific Railway Company should be retained, held, and used by it to control the franchises, property, and business of the said St. Louis, Iron Mountain and Southern Railway Company, in pursuance and execution of the purpose aforesaid, through the authority of the board of directors of said Missouri Pacific Railway Company, and in the interest of all persons so holding as aforesaid stock of the Missouri Pacific Railway Company.” And this, it was further alleged, was done in pursuance “ of a general purpose to place the affairs aforesaid of said St. Louis, Iron Mountain and Southern Railway Company under the control of the said Missouri Pacific Railway Company, that they might be operated together as one institution as nearly as possible, and was a mode adopted to that end in lieu of various other methods and modes proposed and considered, namely, by consolidation, by lease, and otherwise, as being least subject to objection, based upon considerations of policy or legality.” At the expiration of the contract between the Pullman Company and the St. Louis, Iron Mountain and Southern Company, the president of the last-named company notified the Pullman Company that the further right of that company to have its cars hauled over the line of the St. Louis, Iron Mountain and Southern road was denied, and that the railroad company would cease to operate its road with the cars of the Pullman Company. As a ground of equitable relief, the bill contained the following allegations: O O - V ' “ Your orator further shows that the refusal to operate your orator’s cars upon the St. Louis, Iron Mountain and Southern Railway, and the, denial of your orator’s right as aforesaid, is a plain and palpable violation of the provisions of the contract between your orator and said Missouri Pacific Railway Company ; that such contract cannot be violated without the great- PULLMAN CAR CO. v. MISSOURI PACIFIC CO. 591 Statement of Facts. est and most irreparable damage to your orator; that the cars constructed for the operation of your orator’s business are of a very costly sort; that your orator has invested a very large capital in the construction and operation of said cars; that the business of your orator, under its charter, and for which it is incorporated, is of such a nature that it can be transacted only through the instrumentality of contracts of the character herein set forth with railroad companies engaged in the business of running railway passenger trains; that by means of such contracts it can run through cars between remote points and over distances far greater than the length of the separate lines of road, to the great convenience of the public ; and that the upholding and enforcement of such contracts is of vital importance and relation to the exercise of the corporate franchises of your orator, and to the public convenience; that if said contracts can be violated as is threatened in the matters hereinbefore stated, the facilities of through travel aforesaid will be broken up, and the property and estate of your orator, to the extent of very many thousands of dollars, which largely exists and inheres in such contracts, will be destroyed in value, and the corporate franchises of your orator practically destroyed ; that by reason of the magnitude of the investment as aforesaid, and the cost of operating such cars, your orator cannot receive a fair return, unless it can have the exclusive operation of said business, as provided in said contracts, with the several companies over whose roads it operates, and that the exclusive right bargained for, and obtained by your orator in said contracts, as in the contract hereinbefore mentioned, is not only reasonable but absolutely necessary for the success of your orator’s business, without which your orator could not make desirable contracts, and would not have made the agreement with the said Missouri Pacific Railway Company hereinbefore mentioned. “ Your orator further shows that in making the contract hereinbefore set forth with said railroad companies, and in making the provisions therein contained, for the extension of the operation of your orator’s cars upon such roads as should come within their control, it has had in contemplation the 592 OCTOBER TERM, 1885. Argument for Appellant. growth and development of the business which, in the performance of said contract for many years past, it has been building up and developing in the region of country through which the said lines of railway hereinbefore mentioned run; that said business has been largely built up and developed by the efforts and instrumentality of your orator; that, in the hope and prospect of its future development, your orator has borne the burden of sustaining and upholding it, when the business was comparatively small and unremunerative; and that it will be a gross injustice and inequity to permit said railroad companies, by violation of contract, as aforesaid, to remove at the present time the cars of your orator from the line of the said St. Louis, Iron Mountain and Southern Railway Company, or to discontinue operating them thereon, or to substitute the cars of any other party thereon.” Mr. Edward 8. Isham for appellant.—The burden of this bill is that the road of the Iron Mountain Railway Company has by virtue of an executed agreement passed into the actual control of the Missouri Pacific Railway Company. The bill does not set out a written contract, and then aver its meaning by the construction of its terms. It avers a contract, whose terms are shown only by its averments; and in this respect none of the authorities cited by appellees apply. The substantial averments are (1.) An agreement to unite the Iron Mountain Road with that of the Missouri Pacific, under the common management of the Missouri Pacific Railway Company, as a part of one line with its own road. (2.) The massing of all or substantially all the stock of the Iron Mountain Road in the treasury of the Missouri Pacific, and a substitution by exchange of the stock of the Missouri Pacific therefor, as one step taken in carrying that agreement into effect. (3.) “The purpose on the part of both of said corporations of putting the control” of the property of the Iron Mountain into the hands of the said Missouri Pacific “ and of subordinating in effect the roads of both the said corporations to one and the same management and control,” namely, that of the Missouri Pacific. (4.) The consummation of that intent and purpose; in that im- PULLMAN CAR CO. v. MISSOURI PACIFIC CO. 593 Argument for Appellant. mediately upon the acquisition by the Missouri Pacific of the control of the affairs of the Iron Mountain Company, “and in the exercise of the control of said Missouri Pacific Railway Company, they proceeded to put the persons who were charged with the management of the affairs of the Missouri Pacific Railway Company, into the actual control and management of the franchises, property, business and road of the Iron Mountain Company.” (5) The actual fact of the present control and management of the business and road of the Iron Mountain by the Missouri Pacific; that the general offices of the Iron Mountain have been everywhere abandoned and closed and their business has been transferred to the offices of the Missouri Pacific, and in every respect there has been effected and brought about a complete absorption of the said St. Louis, Iron Mountain and Southern Railway Company, and a complete amalgamation of the said two companies, so far as the actual conduct and administration of their business is concerned. These averments (1) as to an agreement; (2) as to the intention of the parties; (3) as to the consummation of the agreement, are all questions of fact, not traversed, and are admitted by the demurrer. Intention is a traversable fact. Moss n. Riddle, 5 Cranch, 351, 357; Thurston v. Cornell, 38 N. Y. 281; Haight n. Haight, 19 N. Y. 464, 468; Miller v. Miller, 15 Barb. 203; Forces v. Waller, 25 N. Y. 430, 439; Clift v. White, 12 N. Y. 519, 538; De Ridder v. McKnight, 13 Johns. 294; Walker v. Sedgwick, 8 Cal. 398. These averments, therefore, are matters of substantive fact. If the appellees were not to treat them as assumed to be true on demurrer, they ought to have traversed them. If they are true the Iron Mountain road is within the control of the Missouri Pacific. Mr. Isham also argued that appellant’s only remedy for the enforcement of those parts of the contract which were negative was by injunction, citing Western Union Tel. Co. v. Union Pacific Railway Co., 1 McCrary, 418, 558, and 581; Pomeroy on Specific Performance, §§ 24, 25, 310, 311, 312; Singer Co. v. Union Co., 1 Holmes, 253, 256; Jones n. North, L. R. 19 Eq. 426; De Mattos v. Gibson, 4 DeG. & J. 276, 279; Vincent vol. cxv—38 594 OCTOBER TERM, 1885. Opinion of the Court. v . Chicago de Alton Railroad Co., 49 Ill. 33; Fra/nk v. Brun-nemann, 8 W. Va. 462; Hankin v. Huskisson, 4 Sim. 13; Cole Mining Co. v. Virginia dec. Water Co., 1 Sawyer, 470 and 685; Memphis do Little Rock Railroad Co. v. Southern Express Co., 8 Fed. Rep. 799. Mr. John F. Dillon and Mr. A. T. Britton for appellees. Mr. Chief Justice Waite delivered the opinion of the court. After stating the facts in the language reported above, he continued : The main questions involved in the merits of this case are, 1, whether the contract between the Missouri Pacific and Pullman Companies, made before the consolidation, binds the consolidated company to haul the Pullman cars over the road of the St. Louis, Iron Mountain and Southern Company, if that road is controlled by the consolidated company within the meaning of the contract; and, 2, whether it is so controlled by the consolidated company. The present Missouri Pacific Company is a different corporation from that which contracted with the Pullman Company. The original company owned and operated a railroad between St. Louis and Kansas City. This company owns and operates that road and others besides. It is a new corporation created by the dissolution of several old ones, and the establishment of this in their place. It has new powers, new franchises, and new stockholders. Clearwater n. Meredith, 1 Wall. 25,42; Shields v. Ohio, 95 U. S. 319, 323; Railroad Co. v. Maine, 96 U. S. 499, 508; Railroad Co. v. Georgia, 98 U. S. 359, 364; Louisville & Nashville Railroad Co. n. Palmes, 109 U. S. 244, 254. The bill does indeed aver that the Missouri Pacific Company “ consolidated with itself certain other companies, . . r retaining its former name,” but, as this was done under the laws of Missouri, the effect of the consolidation depends on those laws. Central Railroad Co. v. Georgia, 92 U. S. 665, 670. They provide that “ any two or more railroad companies in this State, existing under either general or special laws, and owning railroads constructed wholly or in part, which, when PULLMAN CAR CO. v. MISSOURI PACIFIC CO. 595 Opinion of the Court. completed and connected, will form, in the whole or in the main, one continuous line of railroad, are hereby authorized to consolidate in the whole or in the main, and form one company owning and controlling such continuous line of road, with all the powers, rights, privileges and immunities, and subject to all the obligations and liabilities to the State, or otherwise, which belong to or rested upon either of the companies making such consolidation.” In order to accomplish such consolidation an agreement to that effect must be entered into by the companies interested. “ A certified copy of such articles of agreement, with the corporate name to be assumed by the new company, shall be filed with the secretary of state when the consolidation shall be considered duly consummated, and a certified copy from the office of the secretary of state shall be deemed conclusive evidence thereof.” “ The board of directors of the several companies may then proceed to carry out such contract according to its provisions, calling in the certificates of stock then outstanding in the several companies or roads, and issuing certificates of stock in the new consolidated company under such corporate name as may have been adopted.” Rev. Stat. Missouri 1879, § 789. This clearly contemplates the actual dissolution of the old corporations and the creation of a new one to take their place. The new company assumed on the consolidation all the obligations of the old Missouri Pacific. This requires it to haul the Pullman cars, under the contract, on all roads owned or controlled by the old company at the time of the consolidation, but it does not extend the operation. of the contract to other roads which the new company may afterwards acquire. The power of the old company to get the control of other roads ceased when its corporate existence came to an end, and the new company into which its capital stock was merged by the consolidation undertook only to assume its obligations as they then stood. It did not bind itself to run the cars of the Pullman Company on all the roads it might from time to time itself control, but only on such as were controlled by the old Missouri Pacific. Contracts thereafter made to get the control of other roads would be the contracts of the new consolidated 596 OCTOBER TERM, 1885. Opinion of the Court. company, and not of those on the dissolution of which that company came into existence. It follows that the present Missouri Pacific Company is not required, by the contract of the old company, to haul the Pullman cars on the road of the St. Louis, Iron Mountain and Southern Company, even if it does now control that road, within the meaning of the contract. We are also of opinion that the railroad of the St. Louis, Iron Mountain and Southern Company is not controlled by the present Missouri Pacific Company in such a way as to require that company to haul the Pullman cars over it, if the contract is binding on the new company to the same extent it would be on the old were that company still in existence and standing in the place of the new. Confessedly the St. Louis, Iron Mountain and Southern Company keeps up its own corporate organization. It operates its own road. It has its own officers and makes its own bargains. The Missouri Pacific owns all, or nearly all, its stock, and in that way can determine who shall constitute its board of directors, but there the power of that company over the management stops. The board when elected has controlling authority, and for its doings is not necessarily answerable to the Missouri Pacific Company. The two roads are substantially owned by the same persons and operated in the same interest, but that of the St. Louis, Iron Mountain and Southern Company is in no legal sense controlled by the Missouri Pacific. It is true the bill avers in many places and in many ways that the purchase of the stock of the St. Louis, Iron Mountain and Southern Company was made by the Missouri Pacific Company for the purpose and with the intent of getting the control of the road of the St. Louis, Iron Mountain and Southern, and that the case is before us on demurrer to the bill. A demurrer admits all facts stated in the bill which are well pleaded, but not necessarily all statements of conclusions of law. What was actually done is stated clearly and distinctly. The effect of what was done is a question of law, not of fact. It is a matter of no importance what the purpose of the parties was if what they did was not sufficient in law to accomplish what they wanted. When there is doubt, the purpose and intention PULLMAN CAR CO. v. MISSOURI PACIFIC CO. 597 Opinion of the Court. of the parties may sometimes aid in explaining what was done, but here there is no need of explanation. The Missouri Pacific Company has bought the stock of the St. Louis, Iron Mountain and Southern Company, and has effected a satisfactory election of directors, but this is all. It has all the advantages of a control of the road, but that is not in law the control itself. Practically it may control the company, but the company alone controls its road. In a sense, the stockholders of a corporation own its property, but they are not the managers of its business or in the immediate control of its affairs. Ordinarily they elect the governing body of the corporation, and that body controls its property. Such is the case here. The Missouri Pacific Company owns enough of the stock of the St. Louis, Iron Mountain and Southern to control the election of directors, and this it has done. The directors now control the road through their own agents and executive officers, and these agents and officers are in no way under the direction of the Missouri Pacific Company. If they or the directors act contrary to the wishes of the Missouri Pacific Company, that company has no power to prevent it, except by the election, at the proper time and in the proper way, of other directors, or by some judicial proceeding for the protection of its interest as a stockholder. Its rights and its powers are those of a stockholder only. It is not the corporation, in the sense of that term as applied to the management of the corporate business or the control of the corporate property. Something was intimated in argument about the duty of the railway company to haul the cars of the Pullman Company, because of the nature of the business in which the latter company was engaged, which consisted “of hiring or otherwise arranging with railway companies to use its cars,” “ under written contracts, for a term of years.” The bill also alleges that, “ by reason of the magnitude of the investment ” “ and the cost of operating such cars,” the Pullman Company “ cannot receive a fair return unless it can have the exclusive operation of said business, as provided in said contracts with the several companies over whose roads it operates.” It may be, as is also alleged, that it has “ become indispensable, in the conduct of 598 OCTOBER TERM, 1885, Syllabus. the business of a railroad company, to run on passenger trains sleeping and drawing-room cars, with the conveniences usually afforded by such cars for night travel,” but it by no means follows that the railway is, in law, obliged to arrange with the Pullman Company for such accommodations. According to the bill itself, two such car companies cannot successfully carry on a competing business on the same road, and the custom has been for the Pullman Company, if possible, to contract for the exclusive right. The business is always done under special written contracts. These contracts must necessarily vary, according to the special circumstances of each particular case. Certainly, it cannot be claimed that a court of chancery is competent to require these companies to enter into such a contract for the furnishing' and hauling of Pullman cars, as the court may deem reasonable. A mere statement of the proposition is sufficient to show that it*is untenable. An objection was raised to the jurisdiction of a court of equity to grant relief such as is asked. This we do not consider, as we are all agreed that the demurrer was properly sustained upon the other grounds. Decree affirmed. HASSALL, Trustee, v. WLWO'X. & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE WESTERN DISTRICT OF TEXAS. Submitted November 23, 1885.—Decided December 7, 1885. When separate judgments, for separate creditors, on separate claims, are rendered in one decree in equity, and a general appeal is taken, the appeal will, on motion, be dismissed for want of jurisdiction as to all who do not recover more than $5000, and will be retained as to those who recover in excess of $5000. Farmers' Loan & Trust Co. n. Waterman, 106 U. S. 265, approved and applied. This was a motion to dismiss, with which was united a HASSALL v. WILCOX. 599 Opinion of the Court. motion to affirm. The facts are stated in the opinion of the court. J/r. W. Hallett Phillips for the motions. Hr. George Biddle opposing. Mr. Chief Justice Waite delivered the opinion of the court. The grounds of the motion to dismiss are: 1. That the appeal is improperly taken in the name of Hassall, trustee, as it is apparent he has no interest in the decree; and 2. That the amounts involved are not sufficient to give this court' j urisdiction. The controversy is between Hassall, the trustee in a railroad mortgage, who intervened in a suit brought by one of the bondholders for a foreclosure,, and certain creditors of the railroad company claiming superior liens on the mortgaged property. The trustee came into the suit by agreement, and, with leave of the court, “as a party complainant.” Necessarily, as trustee, he represents all the bondholders, there being no conflicting interests among them. The demand of each creditor is separate and distinct from all the others. Each claim depends on its own facts, and a recovery by one does not necessarily involve a recovery by any other. The decree is in favor of each creditor separately. The total amount of all the recoveries is $19,043.45, or thereabouts, but, save the appellee A. W. Wilcox, no one creditor gets more than $5000. The mortgaged property has been sold, and the questions arise upon the distribution of the proceeds in court. The claimants are each severally demanding payment of their respective claims, and the trustee is resisting them all. If the claimants are paid, the trustee gets less for the bondholders. If they are defeated, or either of them is, the amount going to the bondholders will be correspondingly increased. It is clear that, as to all the creditors whose several decrees do not exceed $5000, this case cannot be distinguished from Farmer^ Loan de Trust Co. v. Waterman, 106 U. S. 265, 600 OCTOBER TERM, 1885. Syllabus. and that, so far as those creditors are concerned, the motion to dismiss must be granted. With Wilcox it is different. He has recovered more than $5000. In Waterman’s case the dispute was between the several creditors and the purchasers who bought at the foreclosure sale subject to their liens. It is true the purchasers were a part of the bondholders, but in the controversy then before us they appeared as purchasers and not as bondholders. The amount for distribution to the bondholders from the proceeds of the sale would be the same whether the creditors succeeded on the appeal or not. In this case, however, the question is between the creditors and the bondholders, as bondholders. If the creditors succeed, the amount realized from the sale will be correspondingly reduced for the purposes of distribution to the bondholders. Hassall stands in the place of the bondholders on the record. Hence it is his duty to do for the bondholders what they would do for themselves if they were parties instead of himself. His appeal is, therefore, their appeal, and is to be treated as such. It follows that, as to all the parties except Wilcox, the motion to dismiss the appeal must be granted, but that as to him it must be denied. The questions arising on the appeal from the decree in favor of Wilcox are not such as ought to be disposed of on a motion to affirm. The motion to that effect is denied. Dismissed as to all the appellees except Wilcox. NORTHERN PACIFIC RAILROAD COMPANY 0. TRAILL COUNTY. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF DAKOTA. Submitted November 17, 1885.—Decided December 7, 1885. The provisions in the act of July 17, 1870, 16 Stat. 291 (on page 305), that the lands granted to the Northern Pacific Railroad Company by the act of July 2, 1864, 13 Stat. 365, shall not be conveyed to the company or any party entitled thereto, “ until there shall first be paid into the treasury of NORTHERN PACIFIC R. R. CO. v. TRAILL COUNTY. 601 Statement of Facts. the United States the cost of surveying, selecting, and conveying the same by the company or party in interest,” exempts these lands from State or Territorial taxation until such payment is made into the treasury. The Northern Pacific Railroad Company has acquired no equitable interest in the lands so granted to it, by reason of completing its road and thus earning the granted lands, which is subject to State or Territorial taxation before such payment is made into the treasury of the United States. When an act granting public lands to aid in the construction of a railroad provides that patents shall issue from time to time, as sections of the road are completed, but reserves to Congress the'right at any time “ to add to, alter, amend, or repeal this act,” “ having due regard for the rights of the company,” Congress may, without violating the Constitution of the United States, by subsequent act passed before any of the road is constructed, or any of the land earned, require the cost of surveying, selecting, and conveying the land to be paid into the treasury of the United States before the conveyance of the granted lands to any party entitled thereto. The principles on which Railway Co. v. Prescott, 16 Wall. 603, and Railway Co. v. McShane, 22 Wall. 444, were decided, are restated, so far as they are applied to this case. Suit to enjoin the collection of taxes levied upon lands of plaintiff in error. A jury being waived, the court made a finding of facts of which the following are the material ones, in view of the opinion of the court. First. That the plaintiff is a corporation duly organized and existing under that certain act of Congress, approved July 2, 1864, entitled “ An Act granting land to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific coast, by the northern route, and under those certain subsequent acts and joint resolutions of Congress relating to the same subject-matter.” Second. That in and by the said act of July 2, 1864, among other things, it is provided as follows : “ And be it further enacted, That there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line, . . . alternate sections of public land, not mineral, designated by odd numbers, to the amount of 20 .alternate sections per mile on each side of said railroad line as said company may adopt, through the territory of the United States, and 10 alternate sections of land per mile on each side of said railroad whenever it passes through any 602 OCTOBER TERM, 1885. Statement of Facts. State,” etc. Then follow the conditions subsequent to be performed by the said railroad company to give it a complete title to the said lands, and to a patent as the evidence of such title. Section 20 is as follows : “ And be it further enacted, That the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the Government at all times (but particularly in time of war) the use and benefits of the same for postal, military, and other purposes, Congress may at any time, having due regard for the rights of said Northern Pacific Railroad Company, add to, alter, amend, or repeal this act.” By an act of Congress approved July 15, 1870, among other things appropriating money for the survey of the public lands within the limits of the land grant of the Northern Pacific Railroad Company, it is provided, “ that before any land granted to said company by the United States shall be conveyed to any party entitled thereto under any of the acts incorporating or relating to said company, there shall first be paid into the Treasury of the United States the cost of surveying, selecting, and conveying the same by the said company or party in interest.” Third. That under and in pursuance of said several acts and resolutions of Congress the plaintiff has built and caused to be built and put in operation a continuous line of railroad and telegraph, extending from the waters of Lake Superior, at Duluth, in the State of Minnesota, westerly, across the said State and across the Territory of Dakota, to and beyond the Missouri River, and of the character and materials specified in the said acts ; and everything has been done by the said railroad company required by the terms of the grant, to enable the said company to acquire a complete and perfect title to the lands in controversy in this action, except as respects the payment of the costs of survey, &c., required by the act of July 15, 1870, above mentioned. All that part of th^ said railroad within the Territory of Dakota has been located and built since July 15, 1870. The government of the United States, since the passage of the said act of Congress of July 15,1870, has NORTHERN PACIFIC R. R. CO. v. TRAILL COUNTY. 603 Statement of Facts. caused the lands described in the complaint to be surveyed at its own expense, no part of which has ever been repaid it by said company. The patents for the said lands described in the complaint, or any of them, have never been issued to the said railroad company, or to any person for said company, and the government refuses to issue said patents until the payment for survey and selecting the said lands, as above mentioned, and required by said law of 1870, has been made. Fourth. That the lands mentioned and described in the schedule annexed to the plaintiff’s complaint, and made a part thereof, were, at the time said acts were passed, and the said railroad located through the Territory of Dakota, a part of the public domain of the United States, and not any part of the right of way mentioned in said act, and had never been sold, reserved, granted, or otherwise appropriated, except as above mentioned, and, were free of pre-emption and other rights, and were situated within a distance of 40 miles of the line of the plaintiff’s said railroad. Fifth. That in the year 1880 the officers of the said county of Traill, authorized by the laws of this Territory to assess property therein for the purposes of taxation and to levy taxes therein, assessed and levied taxes upon said land for that year amounting in the aggregate to about the sum of $2000, all of which remain unpaid, and which the plaintiff refused, and still refuses, to pay; and the defendant, Iver L. Rockne, who is county treasurer of said county of Traill, did advertise and give public notice that on a certain day and place, to wit, on the first Monday in October, 1881, he would sell the said lands according to law, for the non-payment of the said taxes, and for the collection of the same. Judgment for defendant, which was affirmed on appeal in the Supreme Court of the Territory. Plaintiff below appealed to this court. Mr. W. P. Clough for appellant. Mr. M. S. Wilkenson, Mr. Miller and Mr. Greene for appellee. 604 OCTOBER TERM, 1885. Argument for Appellee. I. If the appellant owned the lands when the taxes were levied, they were taxable. It derives its interest in them solely through the act of July 2,1864, entitled “ An Act granting Lands to aid in the construction of a Railroad and Telegraph Line from Lake Superior to Puget’s Sound, on the Pacific coast, by the Northern Route.” 13 Stat. 365. The words, “ and be it further enacted that there be and hereby is granted to the Northern Pacific Railroad Company,” found in § 3, followed, as they are, by language defining the area of the lands granted, constitute the basis of all the wealth and power of this corporation. Without such words it would have had no property to protect, no rights to enforce; much less could this action have been maintained. No amendment to this original grant has added to their force, or impaired any rights vested by them. The words “that there be and hereby is granted ” are words of absolute donation, and import a grant in proesenti. Leavenworth &c. Railroad Co. v. United States, 92 U. S. 733 ; Railroad Co. v. Smith, 9 Wall. 95; Schulenberg\. Harriman, 21 Wall. 44. Such words vest a present title in the grantee, though a survey of the lands and a location of the road are necessary to give precision to it, and attach it to any particular tract. The grant, then, becomes certain, and by relation has the same effect upon the selected parcels as if it had specifically described them. In other words, the grant was afloat until the line of the road should be definitely fixed. Leavenworth &c. Railroad Co. v. United States, cited above; Lesseuir v. Price, 12 How. 59; Blair Land Co. v. Kitter-ingham, 43 Iowa, 462 ; Lee n. Summers, 2 Oregen, 260. Again, the title of the United States may pass as well by an act of Congress in the words of a present grant, as by patent. Wilcox v. Jackson, 13 Pet. 498 ; Stoddard v. Cha/mbers, 2 How. 284. And the position that the grant in question conveyed a present existing title to the Northern Pacific Railroad Co. of all the lands granted, is supported by the clear wTeight of authority. Schulenberg v. Harriman, above cited; Central Pacific Railroad Co. n. Dyer, 1 Sawyer, 641; Ballance v. Forsyth, 13 How. 18 ; Meegan v. Boyle, 19 How. 130, 132, 175 ; Railroad Co. v. Smith, cited above. NORTHERN PACIFIC R. R. CO. v. TRAILL COUNTY. 605 Argument for Appellee. But even if the grant in question did not vest the appellant with the legal title to the lands, still such lands may be taxed before the government has parted with the legal title, when the right to the title is complete. Carroll v. Safford, 3 How. 441; Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 Wall. 444. • It is conceded that except compliance with the provisions of the act of 1870, the company had done everything to perfect its title. As to that act we say: (a) Is it not a fair and rational construction of it to say that the law-making power intended thereby, not to divest the company, or persons interested in these lands, of any title given by the original grant, but simply to declare that neither the company nor persons claiming under it should receive from the United States the evidences of their previously acquired title to particular tracts of land until the costs of survey should be paid ? (J) If this construction be not correct, then the act of 1870 must be construed either as one by which the government sought to reinvest itself with the title to lands it had ceased to own—an act of. forfeiture or confiscation, and therefore absolutely void—or (c) An act impairing the obligation of the original grant, and therefore void not only as to the corporation not assenting thereto, but as to all interested in asserting its invalidity. II. The charter of the Northern Pacific Railroad Company, as to the matters here discussed, has been before but two courts for construction. The Supreme Courts of Minnesota and Dakota, the former court without a dissenting opinion, fully sustained the position here taken, that the grant operated to divest the government of ownership, and vested it in the company, and made the first judicial distinction between the charter of this company and that of the Union Pacific Railroad Company. The judges of the latter court were divided in their opinions in this case, hence no opinion was given ; but in Northern Pacific Railroad Co. V. Pera/nto, the Supreme Court of Dakota fully sustained the position here taken as to the nature and effect of the grant. The appellant bases its right to relief mainly on the authority of Railway Co. v. Prescott, and Railway Co. v. McShane, both cited above. 606 OCTOBER TERM, 1885. Opinion of the Court, As the latter case reverses the former, on a point not material here, and affirms it as to matters which the appellant insists are important in the case at bar, we shall consider only the case last cited. It has no application to this case. An examination of the charters shows that there is a difference between the grants to the Union Pacific and those to the Northern Pacific. (1) The grants to the former are by patent, those to the latter by statutory grant. (2) The former received additional grants by the act of 1864, and of course took subject to the conditions of the supplementary grant. The latter received no additional grants by the act imposing the conditions. These differences are sufficient to show the inapplicability of those cases to this one. Mr. Justice Miller delivered the opinion of the court. This is an appeal from a decree of the Supreme Court of the Territory of Dakota. A suit was brought by the appellant, in the District Court of Traill County, for the purpose of enjoining the authorities of that county from enforcing the collection of taxes assessed on lands of the company, on the ground that, by law and the acts of Congress to be hereafter considered, they were not subject to taxation. The District Court made a finding of the facts in the case, on which it declared the law to be for the defendant, and dismissed the bill. On appeal to the Supreme Court of the Territory, the case was twice argued, and, though the membership of that court was changed by the substitution of two new judges for two retiring judges between the two hearings, the court was, in each instance, equally divided, and the judgment it rendered of affirmance had but the assent of two judges out of the six who had heard it argued. The railroad company claims that the lands in question are not taxable under the decisions of this court in the cases of the Railway Co. v, Prescott, 16 Wall. 603, and Railway Co. v. McShane, 22 Wall. 444. In those cases taxes levied on lands granted by Congress to aid in building the roads were held to be void by reason of the fact that neither the companies, nor any one for them, had paid NORTHERN PACIFIC R. R. CO. v. TRAILL COUNTY. 607 Opinion of the Court. to the United States the costs of surveying those lands by the government. The taxes in the first case had been levied by authorities of the State, under the laws of Kansas, and in the second by like authorities of the State of Nebraska. These lands had originally been granted to the Union Pacific Railroad Company and other companies, to aid in building a road from the Iowa State line to the Pacific Ocean, by an act of Congress approved July 1, 1862. The company to which the grant was made for the branch of the road in Kansas was already in existence, and the company which received the grant to build the main road, namely, the Union Pacific Railroad Company, was chartered by this act, and the corporators immediately organized under it. In the year 1864, July 2, Congress, by an amendatory act, made additional grants to the companies, and made several changes in the charter or original act, one of which, found in § 21, reads as follows : “ That before any land granted by this act shall be conveyed to any company or party entitled thereto, . . . there shall first be paid into the Treasury of the United States the cost of surveying, selecting, and conveying the same, by the said company or party in interest, as the titles shall be required by said company.” 13 Stat. 365. In the case of Railway Co. v. Prescott, which was a writ of error ^o the Supreme Court of Kansas, this court held these lands could not be assessed and sold for taxes under State laws until this cost of surveying them was paid to the United States, because the government retained the legal title to the same to compel this payment. The case was decided in 1872. In 1874 the case of the Railway Co. v. McShane came before us, involving the same question, and because it also involved some other points decided in Railway Co. n. Prescott, which the court reconsidered and overruled, it necessarily received full consideration, the result of which was to reaffirm the proposition that, until the United States was reimbursed for the expenses of the survey of those lands, they were not subject to State taxation. By an act approved also July 2, 1864,13 Stat. 365, Congress passed a law chartering the Northern Pacific Railroad Com- 608 OCTOBER TERM, 1885. Opinion of the Court. pany to construct a road from Lake Superior to Puget’s Sound, on the Pacific coast, by the northern route, and made a munificent grant of the public lands to aid in this construction. The terms of the grant and its conditions were much the same as the original grant of 1862 to the Union Pacific Company and its branches. It contained the following provision: “ Seo. 20. And be it f urther enacted. That the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the government at all times (but particularly in time of war) the use and benefits of the same for postal, military, and other purposes, Congress may at any time, having due regard for the rights of said Northern Pacific Railroad Company, add to, alter, amend, or repeal this act.” p. 372. And in 1870, when making the appropriation for the survey of these lands within the limit of the grant to the Northern Pacific Railroad Company, Congress added this proviso: “ That before any land granted to said company by the United States shall be conveyed to any party entitled thereto under any of the acts incorporating or relating to said company, there shall first be paid into the Treasury of the United States the cost of surveying, selecting, and conveying the same by the said company or party in interest.” 16 Stat. 305. It will be seen that this language is almost identical with § 21 of the act of 1864 concerning the lands granted to the Union Pacific Company, which was construed in Railway Co. V. Prescott and in Railway Co. v. McShane. As the principle of the exemption of these lands from taxation until the costs of surveying them were paid received the full consideration of the court in two cases argued and decided two years apart, and as it received the unanimous approval of the court, it must govern the present case, unless a distinction can be shown. Such distinction is relied on, and has received the support of a decision of the Supreme Court of Minnesota in the case of Cass County v. Morrison, 28 Minn. 257. It is there held that the company, having built its road and earned the lands, had thereby acquired a complete equitable title, with right to de- NORTHERN PACIFIC R. R. CO. V. TRAILL COUNTY. 609 Opinion of the Court. mand a patent, though the costs of survey had not been paid, and this equitable title was subject to taxation. It was also held that, because the requirement to pay these costs was made in 1870, six years after the original grant, it was void as an unconstitutional exercise of power by Congress. But we think that the clause authorizing Congress “ to add to, alter, amend, or repeal the act of 1864,” clearly conferred this power on Congress, especially when exercised, as in this instance, before the company had built a mile of road, or earned an acre of land, or in any other manner secured an equitable right to the lands. Sinking-Fund Cases, 99 U. S. 700, 719. But this very question, in a little different form, was raised and decided in Railway Co. v. Prescott, 16 Wall. 603. In that case the original grant, made in 1862, contained no provision about the payment of the costs of survey. The act of 1864, which did contain this pro^sion, added very largely to the area of the land granted by the act of 1862, and the opening sentences of the opinion state the proposition whether the requirement that the costs of surveying must be paid before the patent shall issue, covers all of both grants or only that of 1864, and it is held that it covers both. We think this governs the present case. Independently of the clause of the act of 1864 authorizing amendments, additions, and repeals, we think that, until the lands were earned, and other acts that the law demanded that the company should do had been done, it had no such right in the lands as would prevent Congress from passing a remedial provision so eminently just as the one under consideration. Again, it is said that, since the road was built before this tax was levied and the company had earned the land, its equitable title was complete, and, according to the decisions of this court, it was subject to taxation. The same point was urged in Railway Co. n. Prescott. But the court said that “ this doctrine was only applicable to cases where the right to the patent is complete, the equitable title fully vested, without anything more to be paid or any act to be done going to the foundation of the right.” But it added, m that case, that two important acts remained to be done, the 610 OCTOBER TERM, 1885. Opinion of the Court. failure to do which might wholly defeat the company’s title. One of these was payment of the costs of surveying. It may be well to restate the grounds on which this decision rests. The United States made a magnificent grant to this company of lands equal in quantity to forty or fifty thousand square miles, an area as large as an average State of the Union. It thought proper to require of the grantee the payment of the costs of making the surveys necessary to the location and ascertainment of these lands. To secure the payment of those expenses, it decided to retain the legal title in its own hands until they were paid. The government was, as to these costs, in the condition of a trustee in a conveyance to secure payment of money. But, if the land was liable to be sold for taxes due to State, Territorial, or county organizations, this security would be easily lost. No sale of land for taxes, no taxes can be assessed on any property, but by virtue of the sovereign authority in whose jurisdiction it is done. If not assessed by direct act of the legislature itself, it must, to be valid, be done under authority of a law enacted by such legislature. A valid sale, therefore, for taxes, being the highest exercise of sovereign power of the State, must carry the title to the property sold, and if it does not do this, it is because the assessment is void. It follows that, if the assessment of these taxes is valid and the proceedings well conducted, the sale confers a title paramount to all others, and thereby destroys the lien of the United States for the costs of surveying these lands. If, on the other hand, the sale would not confer such a title, it is because there exists no authority to make it. At all events, the holder of the equitable title to these lands has a right to prevent a sale which would have the effect of impeding the United States in the assertion of the right to them until these costs are paid. We are aware of the use being made of this principle by the companies, who, having earned the lands, neglect to pay these costs in order to prevent taxation. The remedy lies with Congress and is of easy application. If that body will take steps BOWMAN v. CHICAGO & NORTHWESTERN R’Y CO. 611 Syllabus. to enforce its lien for these costs of survey, by sale of the lands or by forfeiture of title, the Treasury of the United States would soon be reimbursed for its expenses in making the surveys, and the States and Territories, in which the lands lay, be remitted to their appropriate rights of taxation. The courts can do no more than declare the law as it exists. The decree of the Supreme Court of the Territory of Dakota is reversed, and the cause remanded, with directions to cause a decree to he entered perpetually enjoining the Treasurer of Traill County from any further proceeding to collect the taxes in the hill mentioned. BOWMAN & Another v. CHICAGO & NORTHWESTERN RAILWAY COMPANY. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. Submitted November 17,1885.—Decided December 7,1885. Plaintiff’s declaration contained two counts, for the same cause of action, each seeking the recovery of $1200 from defendant. Defendant pleaded to the declaration, and plaintiffs demurred to the pleas. A few days later plaintiffs amended their declaration by leave of court so as to demand $10,000, and on the same day the demurrer was overruled. Parties then filed a stipulation that in making up the record to this court the clerk of the Circuit Court should only transmit the amended declaration and pleas thereto ; and judgment was then entered for defendant on the demurrer; Held, That it was apparent on the face of the record that the actual value of the matter in dispute was not sufficient to give this court jurisdiction. The right of a railroad corporation as a common carrier to carry goods for hire is not a right, privilege or immunity secured by the Constitution of the United States, within the meaning of Rev. Stat. § 699, conferring upon this court jurisdiction, without regard to the sum or value in dispute, for the review of any final judgment at law or final decree in equity of any Circuit Court, or of any District Court acting as a Circuit Court, brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States. 612 OCTOBER TERM, 1885. Opinion of the Court. The facts which make the case are stated in the opinion of the court. Mr. Louis J. Blum for plaintiff in error. Mr. B. C. Cook and Mr. A. J. Baker for defendant in error. Me. Chief Justice Waite delivered the opinion of the court. This suit was brought by George A. Bowman, a citizen of Nebraska, and Fred. W. Bowman, a citizen of Iowa, against the Chicago and Northwestern Railway Company, an Illinois corporation, doing business as a common carrier of goods for hire between Chicago, Illinois, and Council Bluffs, Iowa, to recover damages for a refusal of the company to receive and carry one thousand kegs of beer from Chicago to Marshalltown, a city on the line of its road, in the State of Iowa. There are two counts in the declaration on the same cause of action, and in each it is stated that the damages sustained amount to $1200. The suit was begun February 11, 1885, and the declaration was filed about that time. Pleas were filed by the company February 26, setting up as an excuse for not receiving and carrying the goods, a statute of Iowa which made it a penal offence for any railroad company to knowingly bring within that State any intoxicating liquors for a person who did not have a proper certificate authorizing him to sell such articles, and that the plaintiffs had no such certificate, and that the beer which was offered for transportation was an intoxicating liquor within the meaning of the statute. On the 8th of May the plaintiffs demurred to these pleas, and on the 11th of the same month amended their declaration, by leave of the court, so as to increase the damages demanded to $10,000. The demurrer to the pleas was overruled on the same day, and on the 23d of June a written stipulation was filed in the cause, as follows: “It is hereBy stipulated and agreed by and between the respective parties hereto that, in making up the record of this cause to be transmitted to the Supreme Court of the United BOWMAN v. CHICAGO & NORTHWESTERN R’Y CO. 613 Opinion of the Court. States, the clerk of this court shall only transmit or copy into the record the amended declaration showing the ad [quod] damnum to be $10,000, and the pleas of the defendant to said declaration, together with the demurrer thereto, and the ruling of the court thereon.” Afterwards, and on the 13th of July, judgment was entered in favor of the defendant. To reverse that judgment this writ of error was brought, and docketed here October 21. At a later day in the term the cause was submitted under Rule 20 on printed briefs. Upon the face of this record it is apparent that the actual value of the matter in dispute is not sufficient to give us jurisdiction. It is now well settled that our jurisdiction in an action upon a money demand is governed by the value of the actual matter in dispute in this court, as shown by the whole record, and not by the damages claimed or the prayer for judgment alone. Lee v. Watson, 1 Wall. 337; Schacker v. Hartford Fire Insurance Co., 93 U. S. 241; Gray n. Bla/nckard, 97 U. S. 564; Tintsma/n v. National Bank, 100 U. S. 6; Banking Association v. Insurance Association, 102 U. S. 121; Hilton v. Dickinson, 108 U. S. 165, 174; The Jesse Williamson, Jr., 108 U. S. 305, 309; Jenness v. Citizens' National Bank of Rome, 110 U. S. 52; Webster v. Buffalo Insurance Co., 110 U. S. 386, 388; Bradstreet Co. v. Higgins, 112 U. S. 227. As was said in Hilton n. Dickinson, “ It is undoubtedly true that until it is in some way shown by the record that the sum demanded is not the matter in dispute, that sum will govern in all questions of jurisdiction, but it is equally true that, when it is shown that the sum demanded is not the real matter in dispute, the sum shown, and not the sum demanded, will prevail.” Here'the suit is to recover damages for not transporting from Chicago to Marshalltown one thousand kegs of beer. There are no allegations of special damage or malicious conduct. In the original declaration the claim was for only $1200, and it wa^ not until the case was actually decided, or about to be decided on its merits, that application was made for leave to increase the amount of the demand. Then it was manifestly done, not in the expectation of recovering more than was orig- 614 OCTOBER TERM, 1885. Opinion of the Court. inally claimed, but to give color to the jurisdiction of this court. As it stands, the case is not materially different in principle from that of Lee v. Watson, supra, where, after a demurrer was sustained, the demand for damages was increased, by leave of the court, so as to be in excess of our jurisdictional limit, although it was apparent from the whole record that in no event could there be a recovery except for a much less sum. Under these circumstances, the court did not hesitate to dismiss the cause, for the reason that it was clear the amendment was made for the sole purpose of giving color of jurisdiction. Here the stipulation which was put on file, taken in connection with the time it was made, shows unmistakably that the purpose of the amendment was to make a case for our jurisdiction. In Smith n. Greenhow, 109 U. S. 669, the action begun in a State court was trespass for taking and carrying away personal property of the value of $100, but the damages were laid at $6000. On the removal of the case to the Circuit Court of the United States it was remanded, on the ground that the case was not one arising under the Constitution or laws of the United States. This we decided was error, and, therefore, reversed the order to remand, but, in doing so, remarked that, “ if the Circuit Court had found, as matter of fact, that the amount of damages stated in the declaration was colorable, and had been laid beyond the amount of reasonable expectation of recovery, for the purpose of creating a case removable under the act of Congress, . . . the order remanding it to the State court could have been sustained.” This was said in reference to the requirement of the removal act of 1875, which limits the jurisdiction of the Circuit Courts, under such circumstances, to cases “ where the matter in dispute exceeds . . . the sum of five hundred dollars,” but it is equally applicable to appeals and writs of error to this court where our jurisdiction depends on the money value of the matter in dispute. It is suggested, however, that the case falls within the fourth subdivision of Rev. Stat. § 699, which gives this court jurisdiction, “ without regard to the sum or value in dispute,” for the review of “ any final judgment at law or final decree in equity of any Circuit Court, or of any District Court acting as a Cir- BOWMAN v. CHICAGO & NORTHWESTERN R’Y CO. 615 Opinion of the Court. cuit Court, in any case brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States.” The authority for making this a part of the Revised Statutes is found in what are known as the “ Civil Rights ” acts of April 9, 1866, 14 Stat. 27, ch. 31, §§ 1, 3, 10; May 31, 1870, 16 Stat. 144, ch. 114, §§ 16, 18; and April 20,1871,17, Stat. 13, ch. 22, §§ 1, 2. In the original statutes this provision was applicable only to the particular rights, privileges and immunities therein mentioned. In the Revised Statutes it stands separate from the other parts of the old acts, and is to be construed accordingly, but with reference to the general rules of interpretation applicable to the revision. "We deem it unnecessary to consider now whether it has, in its present form, a more extended meaning than it had originally, because, in our opinion, this is not a case to which it can, in any event, be applied. The alleged right of which these plaintiffs have been deprived is one secured to them, if secured at all, not by the Constitution, but by that principle of general law which requires a common carrier of goods for hire to carry, whenever he is asked to do so, within the general scope of his professed business, and for a reasonable reward. It grows out of the duty which in law a common carrier owes to the public at large, and is no more secured by the Constitution than are any other of the ordinary transactions of business. Whether the railroad company is excused from the performance of that duty by the statute on which it relies may depend on the Constitution. If the statute is constitutional, the plaintiffs are deprived of the right which they would otherwise have had in law, but if not, the railway company must carry for them. This, not because the Constitution requires it, but because the statute does not furnish a sufficient excuse for not carrying. The question is hot, therefore, whether the plaintiffs have been deprived of a right which the Constitution has secured to them, but whether a right existing without the Constitution, has been lawfully taken away. The case may be one arising under the Constitution, within the meaning of that term, as used in other statutes, but 616 OCTOBER TERM, 1885. Opinion of the Court. it is not one brought on account of the deprivation of a right, privilege or immunity secured by the Constitution, within the meaning of this provision. The writ of error is Dismissed for want of jurisdiction. CLAY COUNTY v. McALEER & Another. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF IOWA. Argued November 18,1885.—Decided December 7,1885. Judgment was recovered in the Circuit Court against a county in Iowa, on which execution was issued, which was returned unsatisfied. By statute of Iowa the county was authorized to levy and collect a tax of six mills on the dollar of the assessed value of taxable property, for ordinary county revenue. The judgment creditor commenced proceedings in the same court for a mandamus commanding the county officers to set apart funds to pay the debt, or to levy and collect sufficient tax for the purpose. By the pleadings it was admitted that the whole amount of the tax for a current year was necessary for the ordinary current expenses of the county. On an application by a judgment creditor of the county to compel the levy of an amount sufficient to pay the judgment which was recovered in the Circuit Court of the United States : Held, That on the facts pleaded and admitted no case was made justifying a writ of mandamus. The facts which make the case are stated in the opinion of the court. Mr. George G. Wright for plaintiff in error. Mr. John Mitchell for defendants in error. Mr. Chief Justice Waite delivered the opinion of the court. This record shows that Michael McAleer recovered a judgment on the 21st of October, 1864, in the Circuit Court of the United States for the District of Iowa, against Clay County, for $9,112.50. Upon this judgment sundry payments have CLAY COUNTY v. McALEER. 617 Opinion of the Court. been made, but there still remains due more than $5000. When the debt in judgment was contracted, the power of the county to levy a tax for ordinary county revenue was limited to four mills annually on the dollar of the assessed value of taxable property; afterwards this was increased to six mills, which is the authorized rate now. On the 2d of May, 1881. the administrators of the judgment creditor, he being dead, petitioned the Circuit Court for a mandamus directing the county “ to set apart of the funds in their hands, and of the revenues collected and to be collected for and during the year 1881, and to pay over the same in an amount sufficient to satisfy said judgment, interest, and costs, and, if the amount shall not be sufficient, that then the defendant be compelled to levy for the year 1882 an amount sufficient to pay the said judgment and interest and costs, and for such other relief as may be proper in the premises.” The answer states that the full amount of taxes allowed by law for the ordinary revenue of the county was levied for the years 1880 and 1881, and that these levies were all required, and more too, for the proper maintenance of the county government. It is also stated that no part of the revenues for these years could have been devoted to the payment of the judgment “ without seriously impairing the efficiency of said government.” The answer concludes as follows: “ That the maximum levy for said purpose for the year 1882 will not be sufficient to pay the ordinary current expenses of said county, and that no part thereof can be applied for the payment of said judgment without seriously impairing the efficiency of said county government.” To this answer the relators demurred, and, upon the hearing, the court ordered “ that the peremptory writ of mandamus issue commanding the board of supervisors . . . forthwith to levy a tax of one mill on the dollar of the assessed valuation of the property of said Clay County . . . for 1882, and to be collected with the taxes of the current year, 1882, and to pay the same upon the judgment of relator, and that they levy and collect, and pay over a tax of one mill on the dollar each year until relator’s judgment, interest, and costs are fully paid.” To reverse this judgment the present writ of error was brought. 618 OCTOBER TERM, 1885. Opinion, of the Court. It is conceded “ that the court cannot order the hoard of supervisors to levy a tax in excess of the amount provided by statute in a case like the one under consideration.” Such was the effect of the decision of this court in United States v. Macon County, 99 U. S. 582, and the courts of Iowa have uniformly held the same way. Coffin v. Davenport, 26 Iowa, 515; Polk v. Winett, 37 Iowa, 34; Iowa Railroad Land Co. v. County of Sac, 39 Iowa, 124. It is claimed, however, that the court might properly order one mill of the six-mills tax authorized by law to be levied separately from the rest, and set apart specially for the payment of the judgment. It was- said in Beaulieu v. Pleasant Hill, 4 M’Crary, 554, that this might be done where the full levy was not required to defray the current expenses chargeable upon the ordinary revenue fund, and such is the effect of Coy v. City of Lyons, 17 Iowa, 1. But here the answer shows affirmatively that the whole of the six-mill levy of 1882 will not be sufficient to pay the ordinary current expenses of the county. No effort was made to have the answer more specific and certain, so as to show what the whole amount of the tax would be, and in what way it was to be expended, but the relators were content to go to a hearing upon a general demurrer to the answer as it stood. We must, therefore, assume the fact to be that a special tax cannot be levied to pay the judgment without embarrassing the county in the administration of its current affairs. It was held in East St. Louis v. United States ex rel. ZeHey, 110 U. S. 321, decided since the judgment in this case below, that “ the question what expenditures are proper and necessary for the municipal administration is not judicial; it is confided by law to the discretion of the municipal authorities. No court has the right to control that discretion, much less to usurp and supersede it. To do so, in a single year, would require a revision of the details of every estimate and expenditure, based upon an inquiry into all branches of the municipal service; to do it for a series of years, and in advance, is to attempt to foresee every exigency and to provide against every contingency that may arise to affect the public necessities.” This, we think, disposes of the present controversy. It is true CLAY COUNTY v. McALEER. 619 Opinion of the Court. that was a case in which a bondholder was seeking payment out of the ordinary revenue fund after the special tax authorized by law to be levied for his benefit had been exhausted, but the balance due him was just as much a charge on the ordinary revenue fund as if there had been no other provision in his favor. United States n. Clark County, 96 U. S. 211. In Coy n. City of Lyons, supra, the municipal authorities had levied a tax of five mills only, when by the charter they could have levied ten mills. In this way they showed that the full tax was not needed for current purposes, and the court was therefore free to require them to proceed with the execution of the power which had been conferred by law, until the judgment creditor was paid. But in Coffin v. Davenport, 26 Iowa, 515, the same court held that “when the ordinary expenses of carrying on the government of a municipal corporation require all the proceeds arising from a tax, which is the full limit the corporation is authorized to levy, it cannot be compelled to apply a part of such fund to the payment of a judgment held by a creditor against it.” The case of Beaulieu v. Pleasant Hill, supra, is to the same effect, for there the order was to levy the special tax for the payment of the judgment, unless it should be made to appear upon a further return that the power had been already exhausted, and that the fund raised had been properly appropriated. It follows that the judgment of the court below ordering the levy of a tax of one mill for the benefit of the relators, upon the facts stated in the answer and admitted by the demurrer, was erroneous, and that it must be reversed. The judgment is reversed, and the cause remanded for further proceedings according to law. 620 OCTOBER TERM, 1885. Opinion of the Court. CAMPBELL & Another v. HOLT. IN ERROR TO THE SUPREME COURT OF THE STATE OF TEXAS. Submitted April 17,1885.—Decided December 7,1885. , The repeal of a statute of limitation of actions on personal debts does not, as applied to a debtor, the right of action against whom is already barred, deprive him of his property in violation of the Fourteenth Amendment of the Constitution of the United States. The facts which make the case are stated in the opinion of the court. Mr. W. W. Boyce for plaintiffs in error. Mr. F. Charles Hume and Mr. Seth Shepard for defendant in error. Mr. Justice Miller delivered the opinion of the court. This is a writ of error to the Supreme Court of the State of Texas. The action was brought in the District Court of Washington County, Texas, May 16, 1874, by Holt, the defendant in error, against the present plaintiffs in error. Holt sued as devisee and legatee of his wife, Malvina, who was the daughter of John Stamps, deceased, of whose estate Moina and J. B. Campbell are administrators. The action was founded in the allegation that Malvina Stamps, afterwards Holt, inherited from her mother, Henrietta Stamps, the wife of John Stamps, an interest in lands and negroes which her mother owned at the time of her death; that the land was sold by her father, John Stamps, who received the money and converted it to his own use; and that he also received the hire and profits of the negroes so long as they remained slaves under the laws of Texas. The defendants set up several defences, among others the statute of limitations of the State of Texas, but, on a trial by CAMPBELL v. HOLT. 621 Opinion of the Court. jury, Holt recovered a judgment for $8692.93. From this judgment an appeal was taken to the Supreme Court of the State, and referred, by consent of parties, to the Commissioners of Appeal, by whom it was confirmed, and this affirmance was made the judgment of the Supreme Court. There were several assignments of error in the hearing before the Commissioners of Appeal, but the only one which we can consider is that growing out of the plea of the statute of limitations. The cause of action in this case accrued before the outbreak of the war, the mother having died in 1857, and Malvina Stamps was a minor during all the time preceding the insurrection. It seems that the legislature of Texas had passed several acts suspending the operation of the statutes of limitations during the war. But in 1866 a law was passed which enacted that these statutes, which had been suspended during this time, should again commence running on the 2d day of September of that year. At this time Malvina Stamps was of age and unmarried, and the statute then began to run against her in this case, and would become a bar in two years. This time elapsed without any suit brought on the claim. It was, therefore, as the Commissioners of Appeal admit, then barred by the statute. But in 1869 the State of Texas, which had not yet been reinstated and accepted by the two houses of Congress as in her old relations, made a new Constitution which, it was declared in the ordinance submitting it to the vote of the people, should take effect when it was accepted by Congress, which was afterwards done. Article 12, section 43, of this Constitution is in these words: ‘‘ The statutes of limitations of civil suits were suspended by the so-called act of secession of the 28th of January, 1861, and shall be considered as suspended within this State, until the acceptance of this Constitution by the United States Congress.” The District Court of Washington County, and the Commissioners of Appeal, following many previous decisions of the Supreme Court of the State, held that this provision removed the bar of the statute of limitations, though before its taking 622 OCTOBER TERM, 1885. Opinion of the Court. effect the time had elapsed necessary to make the bar complete in this case. The defendants, both by plea and by prayers for instruction to the jury, and in argument before the Commissioners of Appeal, insisted that the bar of the statute, being complete and perfect, could not, as a defence, be taken away by this constitutional provision, and that, to do so, would violate that part of the Fourteenth Amendment to the Constitution of the United States which declares that no State shall “ deprive any person of life, liberty, or property without due process of law.” This writ of error to the State court is founded on that proposition, and we must inquire into its soundness. The action is based on contract. It is for hire of the negroes used by the father, and for the money received for the land of his daughter, sold by him. The allegation is of indebtedness on this account, and the plea is that the action is barred by the statute of limitations. It is not a suit to recover possession of real or personal property, but to recover for the violation of an implied contract to pay money. The distinction is clear, and, in the view we take of the case, important. By the long and undisturbed possession of tangible property, real or personal, one may acquire a title to it, or ownership, superior in law to that of another, who may be able to prove an antecedent and, at one time, paramount title. This superior or antecedent title has been lost by the laches of the person holding it, in failing within a reasonable time to assert it effectively ; as, by resuming the possession to which he was entitled, or asserting his right by suit in the proper court. What the primary owner has lost by his laches, the other party has gained by continued possession, without question of his right. This is the foundation of the doctrine of prescription, a doctrine which, in the English law, is mainly applied to incorporeal hereditaments, but which, in the Roman law, and the codes founded on it, is applied to property of all kinds. Mr. Angell, in his work on Limitations of Actions, says that the word limitation is used in reference to “the time which is prescribed by the authority of the law (auctoritate legis, 1 Co. Litt. 113) during which a title may be acquired to property by CAMPBELL v. HOLT. 623 Opinion of the Court. virtue of a simple adverse possession and enjoyment, or the time at the end of which no action at law or suit in equity can be maintained; ” and in the Roman law it is called Proescriptio. “Prescription, therefore (he says), is of two kinds—that is, it is either an instrument for the acquisition of property, or an instrument of an exemption only from the servitude of judicial process.” Angell on Limitations, §§ 1, 2. Possession has always been a means of acquiring title to property. It was the earliest mode recognized by mankind of the appropriation of anything tangible by one person to his own use, to the exclusion of others, and legislators and publicists have always acknowledged its efficacy in confirming or creating title. The English and American statutes of limitation have in many cases the same effect, and, if there is any conflict of decisions on the subject, the weight of authority is in favor of the proposition that, where one has had the peaceable, undisturbed, open possession of real or personal property, with an assertion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title—a title superior to that of the latter, whose neglect to avail himself of his legal rights has lost him his title. This doctrine has been repeatedly asserted in this court. Leffingwell v. Warren, 2 Black, 599; Croxall v. Shererd, 5 Wall. 268, 289; Dickerson v. Cotgrove, 100 U. S. 578, 583; Bicknell v. Comstock, 113 U. S. 149, 152. It is the doctrine of the English courts, and has been often asserted in the highest courts of the States of, the Union. It may, therefore, very well be held that, in an action to recover real or personal property, where the question is as to the removal of the bar of the statute of limitations by a legislative act passed after the bar has become perfect, such act deprives the party of his property without due process of law. The reason is, that, by the law in existence before the repealing act, the property had become the defendant’s. Both the legal title and the real ownership had become vested in him, and to givp the act the effect of transferring this title to plaintiff, would be to deprive him of his property without due process of law. 624 OCTOBER TERM, 1885. Opinion of the Court. But we are of opinion that to remove the bar which the statute of limitations enables, a debtor to interpose to prevent the payment of his debt stands on very different ground. A case aptly illustrating this difference in the effect of the statute of limitations is found in Smart n. Baugh, 3 J. J. Marsh. 364, in which the opinion was delivered by Chief Justice Robertson, whose reputation as a jurist entitles his views to the highest consideration. The action was detinue for a slave, and the defendant having proved his undisturbed possession of the slave for a period of time which would bar the action, but having failed to plead the statute of limitations, the question was whether he could avail himself of the lapse of time. “ The plea (said the court) is non detinet in the present tense, and under this plea anything which will show a better right in the defendant than in the plaintiff may be admitted as competent evidence. The plea puts in issue the plaintiff’s right. Five years uninterrupted adverse possession of a slave not only bars the remedy of the claimant out of possession, but vests the absolute legal right in the possessor. Therefore, proof of such possession may show that the claimant has no right to the slave and cannot recover. Consequently it would seem to result, from the reason of the case, that the adverse possession may be proved under the general issue.” Answering the objection that in assumpsit and other actions the statute to be available must be pleaded, and by analogy should be pleaded in that case, he says : “ The same reason does not apply to assumpsit, because the statute of limitations does not destroy the right in foro conscientioe to the benefit of assumpsit, but only bars the remedy if the defendant chooses to rely on the bar. Time does not pay the debt, but time may vest the right of property^ Again he says : “ This is perfectly true in detinue for a slave, because, in such a case, the lapse of time has divested the plaintiff of his right of property, and vested it in the defendant. . . . But it is not so in debt, because the statute of limitations does not destroy nor pay the debt.” “ This (he says) has been abundantly established by authority. . . • A debt barred by time is a sufficient consideration for a new assumpsit. The statute of limitations only disqualifies the CAMPBELL v. HOLT. 625 Opinion of the Court. plaintiff to recover a debt by suit if the defendant rely on time in his plea. It is a personal privilege, accorded by law for reasons of public expediency; and the privilege can only be asserted by plea.” The distinction between the effect of statutes of limitation in vesting rights to real and personal property, and its operation as a defence to contracts, is well stated in Jones v. Jones, 18 Ala. 248. See also Langdell’s Equity Pleading, 118 et seq. We are aware that there are to be found, in the opinions of courts of the States of the Union, expressions of the idea that the lapse of time required to bar the action extinguishes the right, and that this is the principle on which the statutes of limitation of actions rest. But it will be found that many of these are in cases where the suits are for the recovery of specific real or personal property, and where the proposition was true, because the right of the plaintiff in the property was extinguished and had become vested in the defendant. In others, the Constitution of the State forbade retrospective legislation. That the proposition is sound, that, in regard to debt or assumpsit on contract, the remedy alone is gone and not the obligation, is obvious from a class of cases which have never been disputed. 1; It is uniformly conceded, that the debt is a sufficient consideration for a new promise to pay, made after the bar has become perfect. 2. It has been held, in all the English courts, that, though the right of action may be barred in the country where the defendant resides or has resided, and where the contract was made, so that the bar in that jurisdiction is complete, it is no defence, if he can be found, to a suit in another country. In the case of Williams n. Jones, 13 East, 439, the contract sued on was made in India, and by the law of limitations of that jurisdiction the right of action was barred. But the recovery on it was allowed in England on the ground that the bar did not exist in England, and the right itself had not been lost. Lord Ellenborough said: “ Here there is only an extinction of the remedy in the foreign court, according to the vol. cxv—40 626 OCTOBER TERM, 1885. Opinion of the Court. law stated to be received there, but no extinction of the right.” Bayley, Justice, said: “ The statute of limitations only bars the plaintiff’s remedy and not the debt, and the extent of the defendant’s argument is only to show, that the remedy is barred in India, but that does not show it to be barred here.” The decisions are numerous to the same effect in the American courts. In the case of Le Roy v. Crowninshield, 2 Mason, 151, Judge Story had conceded that the authorities were that way, but intimated that, if the question were res nova., sound principle might require a different decision. But in the case of Townsend v. Jemison, 9 How. 407, Mr. Justice Wayne says that, in the previous case of McElmoyle v. Cohen, 13 Pet. 312, in which Judge Story participated, he concurred in the doctrine that, on principle as well as authority, the bar of the statute in one State cannot be pleaded as a defence in the courts of another State, though the contract be made in the former. In this case of Townsend v. Jemison the opinion of the court contains an elaborate examination of the whole question. It explains the difference between statutes whose effect is to vest title to property by adverse possession, and those which merely affect the remedy, as in case of contract. The result of it is summed up in a single sentence : “ The rule in the courts of the United States, in respect to pleas of the statutes of limitation, has always been that they strictly affect the remedy and not the merits.” p. 412. Again: “ The rule is that the statute of limitations of the country in which the suit is brought, may be pleaded to bar a recovery upon a contract made out of its political jurisdiction, and that the limitation of the lex loci contractus cannot be.” p. 414. And it is said that in the cases decided in England on this subject there has been no fluctuation. The case before the court was an action brought in Alabama against a citizen of Mississippi, on a contract made in the latter State, and which, by the laws of that State, was barred by the lapse of time. . In the case of McElmoyle n. Cohen, the question was “ whether the statute of limitations of the State CAMPBELL v. HOLT. 627 Opinion of the Court. of Georgia can be pleaded to an action in that State upon a judgment rendered in the State of South Carolina.” The court, in its opinion, says this “ will be. determined by settling what is the nature of a plea of the statute of limitations. Is it a plea that settles the right of a party on a contract or judgment, or one that bars the remedy ? Whatever diversity of opinion there may be among jurists on this point, we think it well settled to be a plea to the remedy; and, consequently, that the lex fori must prevail.” p. 327. So well is this doctrine established, that many States of the Union have made it a part of their statute of limitations, that, when the action is barred by the law of a State in which defendants had resided, it shall also be a bar to an action in those States. There are numerous cases where a contract incapable of enforcement for want of a remedy, or because there is some obstruction to the remedy, can be so aided by legislation as to become the proper ground of a valid action; as in the case of a physician practising without license, who was forbidden to compel payment for his service by suit. The statute being repealed which made this prohibition, he recovered in the court a judgment for the value of his services on the ground that the first statute only affected the remedy. Hewitt n. Wilcox, 1 Met. (Mass.) 154. Of like character is the effect of a repeal of the laws against usury, in enabling parties to recover on contracts in which the law forbade such recovery before the repeal. Wood v. Kennedy, 19 Ind. 68; Welch n. Wadsworth, 30 Conn. 149 ; Butler v. Palmer, 1 Hill, 324; Harmpton v. Commonwealth, 19 Penn. St. 329 ; Baugher v. Nelson, 9 Gill, 304. In all this class of cases the ground taken is, that there exists a contract, but, by reason of no remedy having been provided for its enforcement, or the remedy ordinarily applicable to that class having, for reasons of public policy been forbidden or withheld, the legislature, by providing a remedy where none exists, or removing the statutory obstruction to the use of the remedy, enables the party to enforce the contract, otherwise unobjectionable. Such is the precise case before us. The implied obligation 628 OCTOBER TERM, 1885. Opinion of the Court. of defendant’s intestate to pay his child for the use of her property remains. It was a valid contract, implied by the law before the statute began to run in 1866. Its nature and character were not changed by the lapse of two years, though the statute made that a valid defence to a suit on it. But this defence, a purely arbitrary creation of the law, fell with the repeal of the law on which it depended. It is much insisted that this right to defence is a vested right, and a right of property which is protected by the provisions of the Fourteenth Amendment. It is to be observed that the word vested right is nowhere used in the Constitution, neither in the original instrument nor in any of the amendments to it. We understand very well what is meant by a vested right to real estate, to personal property, or to incorporeal hereditaments. But when we get beyond this, although vested rights may exist, they are better described by some more exact term, as the phrase itself is not one found in the language of the Constitution. We certainly do not understand that a right to defeat a just debt by the statute of limitations is a vested right, so as to be beyond legislative power in a proper case. The statutes of limitation, as often asserted and especially by this court, are founded in public needs and public policy—are arbitrary enactments by the law-making power. Tioga Railroad v. Blossburg and Corning Railroad, 20 Wall. 137, 150. And other statutes, shortening the period or making it longer, which is necessary to its operation, have always been held to be within the legislative power until the bar is complete. The right does not enter into or become a part of the contract. No man promises to pay money with any view to being released from that obligation by lapse of time. It violates no right of his, therefore, when the legislature says, time shall be no bar, though such was the law when the contract was made. The authorities we have cited, especially in this court, show that no right is destroyed when the law restores a remedy which had been lost. An instructive case on this subject is that of Foster et al. v. CAMPBELL v. HOLT. 629 Opinion of the Court. The Essex Bank^ 16 Mass. 245. The charter of the bank being about to expire in 1819, the legislature of Massachusetts passed a law continuing the existence of all corporations for the space of three years after the expiration of their charters, for the purpose of prosecuting and defending suits, and enabling them to settle and close their concerns and divide their capital stock. To a suit brought against the bank after its charter had expired, but within the three years allowed by this statute, it was insisted that the statute of 1819 was void, as being retro-spective in its operation, and interfering with vested rights. The court said: “We cannot discover any principle by which it can be decided that this statute is void. It does not infringe or interfere with any of the privileges secured by the charter, unless it be considered a privilege to be secured from payment of debts or the performance of contracts, and this is a kind of privilege which, we imagine, the Constitution was not intended to protect; . . . and a legislature which, in its acts not expressly authorized by the Constitution, limits itself to correcting mistakes, and providing remedies for the furtherance of justice, cannot be charged with violating its duty or exceeding its authority.” We are unable to see how a man can be said to have property in the bar of the statute as a defence to his promise to pay. In the most liberal extension of the use of the word property, to choses in action, to incorporeal rights, it is new to call the defence of lapse of time to the obligation to pay money, property. It is no natural right. It is the creation of conventional law. We can understand a right to enforce the payment of a lawful debt. The Constitution says that no State shall pass any law impairing this obligation. But we do not understand the right to satisfy that obligation by a protracted failure to pay. We can see no right which the promisor has in the law which permits him to plead lapse of time instead of payment, which shall prevent the legislature from repealing that law, because its effect is to make him fulfil his honest obligations. In the Supreme Court of the State of Texas this question came up, within two years after the adoption of the new Con- 630 OCTOBER TERM, 1885. Dissenting Opinion: Bradley, Harlan, J J. stitution, in the case of Bender v. Crawford, 33 Texas, 745, and the constitutional provision repealing all statutes of limitation formerly in existence was held valid. The case was well considered, and has been adhered to ever since. Among the cases on the subject referred to in the opinion of the Commissioners of Appeal in the present case, are Rivers n. Washington, 34 Texas, 267; Dwight v. Overton, 35 Texas, 390; Moseley v. Lee, 31 Texas, 479; Bentinck v. Franklin, 38 Texas, 458; Wood v. Welder, 42 Texas, 396; and Lewis v. Davidson, 51 Texas, 251. The judgment of the Supreme Court of Texas is Affirmed. Mr. Justice Bradley, with whom concurred Mr. Justice Harlan, dissenting. I feel obliged to dissent from the opinion of the court in this case. I think that when the statute of limitations gives a man a defence to an action, and that defence has absolutely accrued, he has a right which is protected by the Fourteenth Amendment of the Constitution from legislative aggression. That clause of the amendment which declares that “ no State shall deprive any person of life, liberty, or property without due process of law,” was intended to protect every valuable right which a man has. The words life, liberty, and property are constitutional terms, and are to be taken in their broadest sense. They indicate the three great subdivisions of all civil right. The term “ property,” in this clause, embraces all valuable interests which a man may possess outside of himself, that is to say, outside of his life and liberty. It is not confined to mere tangible property, but extends to every species of vested right. In my judgment, it would be a very narrow and technical construction to hold otherwise. In an advanced civilization like ours, a very large proportion of the property of individuals is not visible and tangible, but consists in rights and claims against others, or against the government itself. Now, an exemption from a demand, or an immunity from prosecution in a suit, is as valuable to the one party as the right to the demand or to prosecute the suit is to the other. CAMPBELL v. HOLT. 631 Dissenting Opinion: Bradley, Harlan, JJ. The two things are correlative, and to say that the one is protected by constitutional guaranties and that the other is not, seems to me almost an absurdity. One right is as valuable as the other. My property is as much imperiled by an action against me for money, as it is by an action against me for my land or my goods. It may involve and sweep away all that I have in the world. Is not a right of defence to such an action of the greatest value to me ? If it is not property in the sense of the Constitution, then we need another amendment to that instrument. But it seems to me that there can hardly be a doubt that it is property. The immunity from suit which arises by operation of the statute of limitations is as valuable a right as the right to bring the suit itself. It is a right founded upon a wise and just policy. Statutes of limitation are not only calculated for the repose and peace of society, but to provide against the evils that arise from loss of evidence and the failing memory of witnesses. It is true that a man may plead the statute when he justly, owes the debt for which he is sued; and this has led the courts to adopt strict rules of pleading and proof to be observed when the defence of the statute is interposed. But it is, nevertheless, a right given by a just and politic law, and, when vested, is as much to be protected as any other right that a man has. The fact that this defence pertains to the remedy does not alter the case. Remedies are the life of rights, and are equally protected by the Constitution. Deprivation of a remedy is equivalent to a deprivation of the right which it is intended to vindicate, unless another remedy exists or is substituted for that which is taken away. This court has frequently held that to deprive a man of a remedy for enforcing a contract is itself a mode of impairing the validity of the contract. And, as before said, the right of defence is just as valuable as the right of action. It is the defendant’s remedy. There is really no difference between the one right and the other in this respect. It is said that the statutory defence acquired and perfected in one State or country is not, or may not be, a good defence in another. This, if it were true, proves nothing to the pur- 632 OCTOBER TERM, 1885. Dissenting Opinion: Bradley, Harlan, J J. pose. It is a vested right in the place where it has accrued and is an absolute bar to the action there. This is a valuable right, although it may be ineffective elsewhere. Again, it is said that a debt barred by the statute is a good consideration for a promise to pay it; which shows that the statute does not extinguish the debt. This is no answer to the position that the statutory defence is a valuable and an absolute right. A new promise is an implied admission that the debt has not been paid, and amounts to a voluntary waiver of the statute. I am unable to yield assent to any of the specious arguments advanced to show that the defence of the statute, when it has once vested, is an imperfect right which the legislature may, at its mere will, abrogate and take away. I think it is then a vested right, and that vested rights are a species of property which the Fourteenth Amendment of the Constitution was intended to protect from adverse* State legislation. The suggestion that the words “ vested rights ” are not to be found in the Constitution does not prove that there are no such rights. The name of the Supreme Being does not occur in the Constitution; yet our national being is founded on a tacit recognition of His justice and goodness, and the eternal obligation of His laws. A few of the authorities sustaining the views which I entertain on this subject will be referred to. On the purpose and object of statutes of limitation, Chief Justice Marshall, in Clementson v. Williams, 8 Cranch, 72, 74, says : “ The statute of limitations was not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of which may be lost.” In the following cases the general principle is laid down, Ihat, if the time limited by statute for commencing a suit expires whilst the statute is in force, and before the suit is brought, the right to bring the suit is barred, and no subsequent statute can renew the right: McKinney v. Springer, 8 Blackford, 506; Piatt n. Wattier, 1 McLean, 146; Stipp v. Brown, 2 Ind. 647 ; Davis v. Minor, 1 How. (Mississippi) 183; Bradford v. Brooks, 2 Aiken (Vt.) 284; Baldro n. Tolmie, 1 CAMPBELL v. HOLT. 633 Dissenting Opinion: Bradley, Harlan, JJ. Oregon, 176 ; Girdner n. Stephens, 1 Heiskell, 280; Bigelow v. Bemis, 2 Allen, 496; Ryder n. Wilson, 12 Vroom (41 N. J. L.) 9, 11. See also Prentice v. Dehon, 10 Allen, 353, and Ball v. Wyeth, 99 Mass. 338. In Bigelow v. Bemis, which was an action on contract, the Supreme Judicial Court of Massachusetts, speaking by Ch. J. Bigelow, says : “ It is well settled that it is competent for the legislature to change statutes prescribing a limitation to actions, and that the one in force at the time of suit brought is applicable to the cause of action. The only restriction on the exercise of this power is, that the legislature cannot remove a bar or limitation which has already become complete, and that no new limitation shall be made to affect existing claims without allowing a reasonable time for parties to bring actions before their claims are absolutely barred by a new enactment.” In Ryder v. Wilson's Executors, which was a suit on promissory notes, the Supreme Court of New Jersey, speaking by Ch. J. Beasley, says: “ The decisions of the courts, so far as my research has extended, are wholly in accord on this subject, and, with one voice, they declare that, when a right of action has become barred under existing laws, the right to rely upon the statutory defence is a vested right that cannot be rescinded or disturbed by subsequent legislation.” In Davis v. Minor, which was an action on contract, Chief Justice Sharkey says: “ A bar created by the statute of limitations is as effectual as payment; and a defendant cannot be deprived of the benefit of such payment, nor of the evidence to support it; and, having provided himself with evidence sufficient and legal at the time of payment, no law can change the nature, or destroy the sufficiency, of the evidence.” Judge Cooley, discussing this subject, says: “ Regarding the circumstances under which a man may be said to have a vested right to a defence against a demand made by another, it is somewhat difficult to lay down a comprehensive rule which the authorities will justify. It is certain that he who has satisfied a demand cannot have it revived against him, and he who has become released from a demand by the operation of the statute of limitations is equally protected. In both cases the demand 634 OCTOBER TERM, 1885. Opinion of the Court. is gone, and to restore it would be create a new contract for the parties—a thing quite beyond the power of the legislature.” Cooley’s Const. Lim., 3d Ed. [429]* 369. In my opinion the judgment of the Supreme Court of Texas should be reversed. I am authorized to say that Mr. Justice Harlan concurs in this opinion. BALTZER & Another v. RALEIGH & AUGUSTA RAILROAD COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH CAROLINA. Argued November 18, 1885.—Decided December 7, 1885. To entitle a plaintiff to relief in equity on the ground of mistake or fraud, the mistake or fraud must be clearly established. On the voluminous facts in this case the court is of opinion that the plaintiffs have not established any mistake or fraud which entitles them to the relief-for which they pray. The facts which make the case are stated in the opinion of the court. Mr. Attorney-General and Mr. John N. Staples for appellants. Mr. Edmund Randolph Robinson \Mr. Thomas G. Fuller was with him on the brief] for appellees. Mr. Justice Woods delivered the opinion of the court. This bill was filed October 18, 1878, by Herman R. Baltzer and William G. Taaks, the appellants, against the Raleigh and Augusta Air Line Railroad Company, a corporation of the State of North Carolina, and others, for a decree against the railroad company for $93,615.62, with interest thereon from November 2, 1868, that sum being the balance due them, as the plaintiffs alleged, for iron furnished the Chatham Railroad BALTZER V. RALEIGH & AUGUSTA RAILROAD. 635 Opinion of the Court. Company, whose name, on December 1,1871, was changed by an act of the legislature of North Carolina to the name under which the company is sued in this case. The Chatham Railroad Company was authorized to build a railroad from Raleigh to the South Carolina State line. To help the company to construct its road, the State of North Carolina, by an ordinance of its convention passed on March 11, 1868, authorized its public treasurer to issue to the qpmpany bonds of the State for $1,200,000, and by an act of its general assembly, passed August 15th of the same year, authorized the same officer to issue to the company other bonds of the State for the additional sum of $2,000,000. The bonds of both issues were for $1000 each, were payable in thirty years, and were secured by a like amount of bonds of the company deposited with the public treasurer, and were also secured by statutory liens and by mortgages on the franchises and property of the company. On September 1, 1868, ‘the company had received the $1,200,000 authorized by the convention, and on October 19, 1868, the company having complied with the conditions prescribed by the act of the general assembly, the $2,000,000 in bonds of the State authorized by the general ^assembly were delivered to it. On September 1, 1868, the defendant, John F. Pickrell, who was a resident of the city of New York, doing business in Wall Street as a banker and broker, and being in good credit, made an offer in writing in which he represented himself and John D. Whitford, of North Carolina, to W. J. Hawkins, the president of the Chatham Railroad Company, to do the entire work on the Chatham Railroad, such as grading, superstructure, and masonry, and furnish all material for the same, including the iron rails, and to take the State bonds in payment. This proposition was accepted by resolution adopted by the board of directors of the railroad company on September 4, 1868. The firm of Greenleaf, Norris & Co. and Charles Gould, of New York, were interested with Pickrell and Whitford in the performance and profits of the contract. Having thus bound themselves to build the railroad and furnish the iron, Pickrell and Whitford began negotiations for 636 OCTOBER TERM, 1885. Opinion of the Court. the purchase of the iron with Schepeler & Co., a firm engaged in the iron trade in New York. This latter firm asked Balt-zer & Taaks, the plaintiffs, to join them in a contract to sell the iron, which they agreed to do. The parties, Pickrell and Whitford on one side, and Schepeler & Co. and Baltzer & Taaks on the other, met at the office of the counsel of Baltzer & Taaks, in New York, and, in the presence of and with the concurrence of the counsel, a draft of the intended contract for the purchase and sale of the iron was made. In the draft the names of Pickrell and Whitford both appeared as parties of the second part. This paper was taken by Pickrell and Whitford, who said, so the plaintiffs alleged, that they must send it to W. J. Hawkins, president of the Chatham Railroad Company. Afterwards the paper was returned to Baltzer & Taaks, with various changes, among which was the dropping of the name of Whitford, because he declined to sign the contract as a party. * From this paper the final agreement between the parties, dated September 11, 1868, was drawn up by the counsel of Baltzer & Taaks, and was dated and executed September 11, 1868. The introduction to this contract was as follows: “ This agreement, made this eleventh day of September, one thousand eight hundred and sixty-eight, by and between Messieurs Schepeler & Company and Messieurs Baltzer & Taaks, of the city of New York, parties of the first part, and John F. Pickrell, also of the city of New York, party of the second part, witnesseth.” By it the parties of the first part agreed to sell and deliver to the party of the second part, and the party of the second part agreed to purchase and receive of the parties of the first part, 10,000 tons of English or Welsh iron rails, at the price of $79.36 per ton. The contract then proceeded thus : “ The iron is to be paid for as follows: The party of the second part is to deposit with the Continental National Bank, on or before the execution of this agreement, such an amount of the bonds of the State of North Carolina as will, at the market price on the day of deposit, be equal to the whole purchase-money for the said ten thousand tons of iron, and fifteen BALTZER v. RALEIGH & AUGUSTA RAILROAD. 637 Opinion of the Court. per cent, in addition thereto, which margin of fifteen per cent, is to be kept good until the full performance of this contract. The said bonds are to be held by said bank, subject to the joint order of the parties of the first and second parts and William J. Hawkins, or his attorney, or the survivors of said parties respectively. On the presentation of a warehouse receipt or ship’s delivery order for any lot of said iron, the party of the second part and said William J. Hawkins, or the survivor of them, are to join with the parties of the first part in drawing an order on said bank, in favor of the parties of the first part, for so many of the said bonds as will, at the market price thereof on the day of drawing, equal the sum payable for such lot of iron at the price of seventy-nine dollars and thirty-six cents per ton as aforesaid, or pay that amount in money. “ Upon presentation of a bill of lading for any lot of such iron placed on shipboard for transportation to the port of New York or Norfolk, Virginia, the party of the second part and the said Hawkins, or the survivor of them, shall join with the parties of the first part in drawing an order on the said bank, in favor of the said parties of the first part, for so many of said bonds as will, at the market price thereof on the day of drawing, equal the sum due for the iron mentioned in the bill of lading, at forty-nine dollars and forty-six cents per ton; the balance payable for such iron, namely, twenty-nine dollars and ninety cents per ton, shall be paid in like manner on the arrival of the vessel containing the same at the port of New York or the port of Norfolk. Notice shall be given to the party of the second part, or his personal representatives, of the arrival of any ship containing iron, and he or they are to be ready to receive the same whenever ship is ready to discharge.” The contract further provided that “ in the event of the death of said party of the second part and no appointment of a personal representative at the time notice is required to be given,” notice might be given to Hawkins, and “ if at any time the party of the second part, or his personal representative,” or the said Hawkins or his attorney, or the survivor of them, should refuse to join in drawing an order for the amount due for iron, the parties of the first part might retain the ware- 638 OCTOBER TERM, 1885. Opinion of the Court. house receipt and sell the iron for which payment had been refused “ for and on account of the party of the second part, or his personal representatives,” who should be liable to reimburse the parties of the first part any loss from such resale, and notice of intention to sell should be given “ by depositing the same in the general post office, in the city of New York, addressed to the party of the second part, or his personal representatives, or the said William J. Hawkins, in the event of the death of the said party of the second part, and the nonappointment of any personal representative, in the city of New York.” The contract also contained the following stipulation: “ It is understood that the said bonds are deposited as a fund out of which to pay for said iron, and that the parties of the first part are to have a lien on the same, for the faithful performance of this contract, on the part of the party of the second part, but it is also understood that the parties of the first part do not look solely to the said bonds for payment, and if for any reason they should at any time fail to constitute a fund for payment, the parties of the first part are nevertheless to be paid for iron at the same rates and times as hereinbefore provided. “ The party of the second part reserves the right to sell any or all of the bonds deposited with said bank, and, in case of sale, the money realized for the same, or a sufficient amount to cover the price of all said iron, and fifteen per cent, in addition thereto, shall, be placed with said bank on the same terms, and represent the said bonds for all the purposes of this contract. “ The said bank shall deliver the bonds sold on the presentation and delivery of such joint order as aforesaid. The parties of the first part shall have their election to draw, in payment for iron, bonds, or money, the proceeds of bonds, if any shall have been substituted in the place of bonds sold.” The contract concluded, and was signed and witnessed, as follows: “In testimony whereof the said parties to these presents BALTZER v. RALEIGH & AUGUSTA RAILROAD. 639 Opinion of the Court. have hereunto subscribed their names the day and year first hereinbefore written. ScHEPELEE & Co., By John T. Schepeler. Baltzee & Taaks, ' • By H. R. Baltzer. John F. Pickeell. “ In presence of George H. Sturr.” The contract was, after its execution, acknowledged in the city of New York, on September 24, 1868, by the parties who signed it, before George H. Sturr, a notary public of New York County. Afterwards, but not on the same day, W. J. Hawkins executed a paper bearing the same date as the contract above mentioned, which opened with the following recital: “ Whereas Messrs. Schepeler & Co. and Baltzer & Taaks and John F. Pickrell have entered into an agreement of even date herewith, by which means the said Schepeler & Co. and Baltzer & Taaks agree to sell and deliver, on certain terms therein mentioned, ten thousand tons of iron rails to the said John F. Pickrell.” By this second contract Hawkins stipulated as follows: “ That fourteen hundred bonds of the State of North Carolina, each for $1000, numbered from 1600 to 3000, inclusive, which are now on deposit in the Continental Bank of the city of New York, subject to my order as president of the Chatham Railroad Company of North Carolina, shall remain on deposit in said bank, subject to the joint order of the parties mentioned in the said contract, as therein provided, while said contract is being performed, for the purpose of providing for the payment of said iron, and as security for the performance of said contract as therein provided; and I agree to unite in drawing the orders therein provided for at the times and in the manner therein set forth; provided, however, that it is hereby distinctly understood and agreed that whenever any delivery of said bonds is to be made, and any order for such delivery is required pursuant to said contract, I am to have the option and right to pay in money the sum payable under said contract for 640 OCTOBER TERM, 1885. Opinion of the Court. the iron, in respect to which such delivery of bonds is required, at the contract price; . . . and upon such money payments being made by me, I shall have the right to withdraw from deposit the bonds which otherwise would have been delivered under said contract, and such bonds shall be delivered to me by said Continental National Bank on the presentation of such joint order as aforesaid, such option and right to be exercised by me within five days after being notified in the manner provided in the contract of the right of said parties of the first part therein named to a delivery of bonds pursuant thereto. “ It is also hereby expressly provided that in case of loss of the iron or any part thereof, on shipboard between the port of shipment and the port of entry or delivery, all payments made on account thereof are to be refunded by said Schepeler & Co. and Baltzer & Taaks as soon as such loss is ascertained.” This contract was signed “ W. J. Hawkins, President Chatham Railroad Company.” These two contracts were designated in the record respectively as “ A ” and “ B.” On October 12, 1868, there were delivered to John F. Pickrell, by Schepeler & Co. and Baltzer & Taaks, under this contract with him, 630 tons of iron rails, and on November 2 following, in three lots, 2104 tons. The 630 tons delivered October 12, 1868, were paid for before any North Carolina bonds were issued or received in New York, by the check of Greenleaf, Norris & Co. for $63,593.46. This more than paid for the iron, and left a balance due Pickrell of $11,794.27, which was settled with him afterwards. The three deliveries made on November 2, the price of which was $167,098.73, were paid for in part by the check of Greenleaf, Norris & Co. for $75,000, which was cashed, leaving a balance of $92,098.73. For this balance Baltzer & Taaks received from Pickrell, between November 2 and November 20, one hundred and fifty North Carolina State bonds of $1000 each. The validity of the bonds of the State of North Carolina, issued by authority of the ordinance of the Convention of March 11,1868, and the act of the general assembly of August 15, * 1868, having been questioned in the latter part of the year BALTZER v. RALEIGH & AUGUSTA RAILROAD. 641 Opinion of the Court. ' 1868, they became discredited, and both the railroad company and Pickrell were embarrassed thereby. The contract between Pickrell and the railroad company was changed, and the length of the road to be built by Pickrell was, by contract dated March 6,1869, reduced. Under the contract as amended he built the railroad from Raleigh to Haw River, a distance of thirty miles, furnishing therefor the iron rails. The company paid him in full for the rails and for constructing the road. In consequence of the embarrassment resulting to Pickrell from the discrediting of the North Carolina bonds, no iron was received by him after November 2,1868, from Baltzer & Taaks on the contract of September 11, 1868; and on August 11, 1869, Baltzer & Taaks, by a letter of that date addressed to Pickrell, released him, as far as they were concerned, “from obligations of receiving any more iron under contract dated 11th September, 1868, and,” they added, “ we consider the same as closed.” The balance sued for was, therefore, for iron delivered on November 2, 1868. The bill in this case was based on the assumption and averment that the Chatham Railroad Company was a party to the contract of September 11, 1868, designated “ A,” and that all the stipulations therein made by Pickrell were made by him for the railroad company, acting by its authority and in its behalf, and that the Chatham Railroad Company was the party of the second part to the contract, and not Pickrell; that the contract was to be construed together with and as a part of the agreement of the same date, signed by W. J. Hawkins, President Chatham Railroad Company, and designated “ B ; ” and that, under the terms of these contracts, the railroad company had purchased, and received, and used 2734 tons of iron rails, on which there remained unpaid and due to the plaintiffs the sum of $93,615.57, with interest from November 2,1868. • * The bill prayed that the contract “ A ” might be reformed and corrected by the substitution of the name of the Raleigh and Augusta Air Line Railroad Company, formerly called the Chatham Railroad Company, for the name of John F. Pickrell, who, it was alleged, as the agent of said company, nomi-vol. cxv—41 642 OCTOBER TERM, 1885. Opinion of the Court. nally signed such agreement, at its procurement and request, and for its benefit and advantage, and that said agreement, when so reformed, might be enforced as the agreement and undertaking of the railroad company, the same as if its name had been signed thereto and its corporate seal affixed. The bill further prayed for a decree against the Raleigh and Augusta Air Line Railroad Company for the said sum of $93,615.57, and interest thereon from November 2, 1868, with the right to enforce a first lien therefor on all the franchises, estate, and property of the railroad company. The answers of the defendants, under oath, were called for. The railroad company answered under its corporate seal, and Hawkins and Whitford under oath. Pickrell failed to answer, and a decree pro confesso was taken against him. The railroad company averred in its answer that it was not a party to the contract of September 11, 1868, designated “A;” that Pickrell was not its agent and had no power or authority to enter into said contract, or any other contract for it; that the contract “ B ” was signed by the defendant Hawkins to enable Pickrell to carry out the contract “ A,” which he had previously made with the plaintiffs, by which he expected to procure the iron for the defendant company’s road, and with no purpose to become a party to the contract “ A ” or to bind the railroad company thereby. The answer of the railroad company further averred that Pickrell had paid the plaintiffs for all iron delivered by them under their contract “ A,” and that the company had paid Pickrell for all work done and materials furnished by him, including iron, under his construction contract with the company, and pleaded the North Carolina statute of limitation of three years in bar of the plaintiffs’ suit. Whitford answered that when the contract “ A ” was made and executed he was not the agent of the defendant company to make or execute the same, or for any purpose, and did not represent himself to be so to the plaintiff; and that he was not a party to said contract or interested therein. Hawkins in his answer denied that Pickrell was the agent of the defendant company, or that he had any authority to BALTZER v. RALEIGH & AUGUSTA RAILROAD. 643 Opinion of the Court. make any contract in behalf of the company for the purchase of iron, and averred that Pickrell made the contract for himself to procure iron to perform his own contract with the railroad company. He denied that the contract “ B,” signed by himself as president of the Chatham Railroad Company, was a part of the contract “ A,” but averred that it was a separate and independent contract, made by him to enable Pickrell to pay for the iron which he had purchased from Baltzer & Taaks and Schepeler & Co., and that the two contracts were not, at the time of their execution, regarded by any of the parties thereto as forming parts of the same contract, but as distinct, each binding upon the party or parties signing the same, and upon him or them alone, and that he had fully performed every part of the agreement “ B ” signed by him. To these answers replications were filed by the plaintiffs. Upon final hearing the Circuit Court dismissed the bill, and the plaintiffs appealed. It is plain that the relief prayed for by plaintiffs in their bill of complaint cannot be granted unless they establish the fact that the Chatham Railroad Company contracted with them for the purchase of iron rails, and that the rails were delivered by them to the railroad company and have not been paid for. The agreements set out in the record do not show upon their face any contract by which the railroad company agreed to purchase iron rails of the plaintiffs. The plaintiffs, however, insist that taking contracts “ A ” and “ B ” together • and construing them as one contract, an agreement of the railroad company to buy ten thousand tons of iron from the plaintiffs can be made out. We think otherwise. If both contracts had been written on the same sheet of paper and executed at the same time, that fact would not have changed the obligations which the parties assumed. Reading both contracts, it appears that the plaintiffs, the parties of the first part, sold and agreed to deliver to Pickrell ten thousand tons of iron rails. Pickrell agreed to receive the rails and pay for them at a certain price in bonds of the State of North Carolina, and Hawkins, as agent of the Chatham Railroad Company, agreed to join with the 644 OCTOBER TERM, 1885. Opinion of the Court. other parties in an order for the withdrawal of the bonds from their place of deposit, to be handed over to Pickrell, and by him handed over to the plaintiffs. In this manner the debt of the company to Pickrell, and the debt of Pickrell to the plaintiffs for the iron, would be paid. There is nothing in either of the two contracts, considered separately or as one, which discloses any contract between the plaintiffs and the railroad company for the sale and purchase of iron. On the contrary, contract “ A ” is a contract for the sale and purchase of iron, to which the plaintiffs and Schepeler & Co., on one part, and Pickrell, on the other, were the only parties, and Exhibit “B” opens with a recital of the fact that, by contract “ A,” the plaintiffs and Schepeler & Co. had agreed to. sell and deliver to Pickrell ten thousand tons of iron rails. The railroad company was not mentioned in contract “ A,” and all that it agreed to do by contract “ B ” was to unite in an order for the bonds. But the plaintiffs contend that the two contracts are to be so read that Pickrell, who, according to contract “ A,” agreed to buy and pay for ten thousand tons of iron, is not to buy the iron or pay for it, or do anything which the contract requires him to do, but that the railroad company, which is not named as a party to it at all, is to do everything which the contract requires of Pickrell. On the theory that the two contracts were one contract, to which the railroad company and not Pickrell was a party, the inquiry is pertinent, what was the necessity of its execution by Pickrell at all, when it was signed by Hawkins, the president of the company, and why should the railroad company, having two agents fully authorized to make the entire contract, execute one part of it by one agent, and the other part by the other ? In the light of the surrounding circumstances, the meaning of the two contracts is plain and is not open to construction, especially to a construction which relieves one party of all the obligations assumed by him and puts them upon another, who had not assumed them at all. Pickrell having made a contract with the railroad company to construct its road and furnish the iron therefor, and to take his pay in North Carolina State BALTZER v. RALEIGH & AUGUSTA RAILROAD. 645 Opinion of the Court. bonds, makes another with the plaintiffs for the iron and agrees to pay for it with the same class of bonds which he was to receive from the railroad company. Now, in order to secure to the plaintiffs their pay for the iron sold, and to Pickrell pay for his work done and materials furnished, and to protect the railroad company from a misappropriation of its State bonds, the contract “ A ” provided that, upon presentation of a warehouse receipt or ship’s delivery order for any lot of iron, all three parties, the plaintiffs, Pickrell, and Hawkins, the president of the railroad company, should join in an order for the withdrawal from the bank of so many bonds as would pay for such lot of iron. It was because the railroad company was not a party to contract “ A ” that the contract “ B ” was executed by Hawkins, its president, whereby he agreed to join in an order for the withdrawal of bonds when the plaintiffs were entitled to them by the terms of their contract “ A ” with Pickrell. It is plain, therefore, that, as they stand, the contracts mean, what their language imports, that Pickrell contracted with the plaintiffs for the purchase of the iron, and the railroad company did not. But the plaintiffs contend that contract “ A ” should be reformed by substituting therein the name of the defendant railroad company the real party of the second part, for the name of John F. Pickrell, and, being thus reformed, that they are entitled to the further relief prayed in their bill. To entitle the plaintiffs to this relief, they must show that the name of Pickrell, as the party of the second part, was inserted, and the name of the railroad company left out of the contract, by mistake or fraud. In such a case, it is well settled that equity would reform the contract, and enforce it, as reformed, if the mistake or fraud were shown. Bradford v. The Union Bank, 13 How. 57, 66; O'1 Neil v. Teague, 8 Ala. 345. But the mistake must be clearly shown. If the proofs are doubtful and unsatisfactory, and if the mistake is not made entirely plain, equity will withhold relief. Shelburne v. Inehiquin, 1 Bro. Ch. 338; Henkle v. Royal Assurance Co., 1 Ves. Sen. 317; Gilles- v . Moon, 2 Johns. Ch. 585 ; Lyman v. United Ins. Co., 2 Johns. Ch. 630; Clopton n. Martin, 11 Ala. 187; Stockbridge 646 OCTOBER TERM, 1885. Opinion of the Court. Iron Co. v. Hudson Iron Co., 107 Mass. 290. Even without the application of this strict rule the case of the plaintiff fails. In the first place, there is no averment in the bill that the name of Pickrell was inserted in the contract by mistake or fraud forthat of the railroad company, and, as far as the record shows, the plaintiffs never asserted in any way that such was the case until after the bringing of this suit, more than ten years subsequently to the execution of the contract. The facts already stated and not disputed show that there was no fraud or mistake in drafting the contract. Both the original draft and the final contract were drawn under the supervision of counsel for the plaintiffs, and the latter was signed by the parties on September 11, 1868, and nearly two weeks later was acknowledged by them before a notary public. The record shows that the plaintiffs, so far as the contract was carried out, performed it precisely as its terms required. The iron delivered was delivered to Pickrell, the payments made were made by Pickrell and receipted for to him, the accounts in reference to the business were kept in his name on the books of the plaintiffs, an over-payment made on the iron delivered was returned to him, and a final settlement and adjustment of the business, and a statement of the account of the plaintiffs writh him arising out of the contract, was made nearly a year after the last delivery of iron. It is necessary, in order to sustain their contention that the name of Pickrell was inserted in the contract when that of the railroad company should have been, for the plaintiffs to show that Pickrell was the agent of the railroad company, authorized by it to make the contract, and that he used his own name in the contract instead of the name of his principal. There is no proof in the record to show that the defendant company ever authorized Pickrell to act as its agent in any matter whatever; on the contrary, it is established beyond question that Pickrell was not the agent of the railroad company. The company denies it in its answer; Hawkins, the president of the company, denies it; Whitford, the associate of Pickrell, denies it; and Pickrell himself does not assert the contrary, and he swears he did not, in purchasing the iron of the plaintiffs, rep- BALTZER y. RALEIGH & AUGUSTA RAILROAD. 647 Opinion of the Court. resent himself or Whitford to be the agent of the railroad company. There is no proof in the record which tends to rebut this evidence; on the contrary, all the dealings of the plaintiffs with Pickrell, the letters, accounts, payments, and settlements relating to the contract “ A,” show that Pickrell was acting for himself, and the plaintiffs so understood it, and that the contract was what it purports on its face and in all its provisions to be, namely, the contract of Pickrell, and not of the railroad company. If John F. Pickrell, party of the second part in contract “A,” means the Chatham Railroad Company, then the execution of contract “ B ” was a vain and futile act. It is only on the theory that Pickrell, and not the railroad company, was the party of the second part in contract “ A ” that the necessity for contract “ B ” becomes apparent. For the railroad company having, according to the contention of plaintiffs, consented to the method for the withdrawal of the bonds provided in contract “ A,” it was bound and protected thereby, and there was no necessity for the preparation and execution of another contract, whereby the railroad company bound itself to substantially the same thing. It is also apparent upon the most cursory reading of contract “ A,” that the substitution of the name of the railroad company for that of Pickrell would render several of its provisions nugatory and impossible of execution, and the paper generally incongruous and absurd. But if anything further were needed to show how baseless is the contention of the plaintiffs, that the name of Pickrell was inserted in the contract “ A ” in place of that of the railroad company by mistake or fraud, it is found in the deposition of Baltzer, one of the plaintiffs, who testifies that contract “ A ” was prepared by the counsel of the plaintiffs, and that the contracts “ A ” and “ B ” express in exact words the final agreement of the parties with reference to the matters embraced therein. As, therefore, the contract expressed the agreement of the parties, no court has power to change it. Courts of equity may compel parties to execute their agreements, but have no 648 OCTOBER TERM, 1885. Opinion of the Court. power to make agreements for them. Hunt v. Rousmaniere^ 1 Pet. 1. The evidence which was offered of the understanding between Baltzer and Pickrell that the covenants of Pickrell were the covenants of the railroad company was inadmissible, first, because it is a general rule that when a contract has been reduced to the form of a document or series of documents, no evidence can be given of the terms of such contract, except the document itself; and, second, the railroad company could not be bound by the understanding of other* persons to which it wras not a party. The only covenant of the railroad company appearing upon the face of the papers was that contained in contract “ B,” and that covenant Baltzer, one of the plaintiffs, and Hawkins, who signed it as president of the railroad company, both testified had been fully performed. The plaintiffs, therefore, fail in the first step necessary to entitle them to the relief prayed by their bill; they show no contract between themselves and the railroad company. But their case must fail for another reason. The evidence in the record shows conclusively that the plaintiffs were paid by Pickrell, in accordance with the terms of their contract with him, for all the iron bought by Pickrell and used by him in the construction of the road of the defendant company. It is not disputed that for the balance now sued for Baltzer & Taaks received from Pickrell, between November 2 and November 20, 1868, one hundred and fifty North Carolina bonds of $1,000 each. On November 20, they reported in writing to Pickrell that they had sold one hundred of the bonds at 64 cents on the dollar, amounting to $62,493.40, and on November 21, that they had sold the remaining fifty bonds for 63| bents on the dollar, amounting to $30,996.82, “producing to” his “ credit ” $93,490.22. The proceeds of the bonds, with the over-payment made by Pickrell on the first lot of iron delivered, more than paid the amount due on the lots delivered November 2, 1868. On November 23, 1868, Baltzer & Taaks stated their account with Pickrell, which showed there was due to him on account of over-payment for the iron delivered $937.44, and this sum they paid him on December 28,1868. BALTZER v. RALEIGH & AUGUSTA RAILROAD. 649 Opinion of the Court. By a final balance-sheet, made out by themselves in September, 1869, more than ten months after the bonds were received by them, and nine months after the North Carolina bonds had, according to the averments of their bill, become discredited and of little value, they credited Pickrell with the amounts for which, on November 20 and 21, 1868, they reported that the bonds had been sold by them, and such balance-sheet showed that they had been paid in full for all the iron furnished by them. There is no averment in the bill that the plaintiffs did not sell the one hundred and fifty bonds as they reported to Pickrell they had done, or that they still have them in their possession, and there is no offer to, return them either to Pickrell or the railroad company. These facts, considered in connection with the further fact that the contract for the sale of the iron provided that payment therefor should be made in North Carolina State bonds, leave no ground for the contention that there is anything due the plaintiffs from any one for the iron furnished under contract “ A.” Therefore, without considering the fact that the plaintiffs have never, either in their bill or at any time, tendered back the one hundred and fifty bonds of the State of North Carolina, which they admit they received on account of the iron furnished, or the fact that Schepeler & Company, who were parties to the contract on which the suit is based, are not made parties plaintiff, and without considering the statute of limitations of North Carolina, which is pleaded by the railroad company, we are of opinion that the plaintiffs have failed to maintain their suit, and their bill was properly dismissed. Decree affirmed. 650 OCTOBER TERM, 1885. Statement of Facts. NEW ORLEANS GAS COMPANY v. LOUISIANA LIGHT COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA. Argued March 27, 30, 1885.—Decided December 7, 1885. A gas company incorporated in 1835, with the exclusive privilege of making and selling gas in New Orleans, its faubourgs and Lafayette, up to April 1, 1875, and another gas company incorporated in 1870, with a like exclusive privilege in New Orleans on and after that day, could, just before that day, consolidate under the provisions of the act of December 12, 1874, of the legislature of Louisiana, which provided that “any two business or manufacturing companies now existing, whose objects and business are in general of the same nature, may amalgamate, unite and consolidate.” A legislative grant of an exclusive right to supply gas to a municipality and its inhabitants, through pipes and mains laid in the public streets, and upon condition of the performance of the service by the grantee, is a grant of a franchise vested in the State, in consideration of the performance of a public service, and, after performance by the grantee, is a contract protected by the Constitution of the United States against State legislation to impair it. In granting the exclusive franchise to supply gas to a municipality and its inhabitants, a State legislature does not part with the police power and duty of protecting the public health, the public morals and the public safety, as one or the other may be affected by the exercise of that franchise by the grantee. The prohibition in the Constitution of the United States against the passage of laws impairing the obligation of contracts applies to the Constitution, as well as the laws, of each State. The Louisiana Light and Heat Producing and Manufacturing Company, a corporation of Louisiana, was organized in the year 1881, by H. S. Jackson, W. Van Benthusen, and their associates, under a general law providing for the formation of corporations for certain purposes, among which are the construction and maintenance of works for supplying cities or towns with gas. These associates and their successors, transferees, and assigns, had previously been authorized, by an ordinance of the common council of New Orleans passed January 25, 1881, for the period of fifty years, and upon specified conditions, to lay mains, pipes, and conduits in the streets, alleys, NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 651 Statement of Facts. sidewalks, bridges, avenues, parks, gardens, and other places in that city, for the purpose of supplying the public with gas. Among the conditions was one to the effect that the rights and privileges defined in the ordinance were granted and accepted without liability upon the part of the city to any other gas company to which franchises had been granted by legislative enactment. The consideration to be paid for these privileges was the sum of $20,000. The benefit of this municipal grant having been transferred to the Louisiana Light and Heat Producing and Manufactur-ing Company, and that corporation being about to proceed with the construction of its mains, pipes, and conduits, the present suit was commenced against it and its directors in the Civil District Court of the Parish of New Orleans, by the New Orleans Gas-Light Company, which had been created, as will be presently explained, by the consolidation of other corporations. The plaintiff claimed to be entitled, for the term of fifty years from April 1, 1875, to the sole and exclusive privilege of manufacturing and distributing gas in that city by means of pipes, mains, and conduits laid in its streets, to such persons or corporate bodies as might choose to contract for the same. The relief asked was a decree perpetually enjoining defendant from digging up the streets, and other public ways or places of the city for the purpose of laying pipes, conduits, or mains for supplying illuminating gas, and from asserting any right to do so until after the lapse of fifty years from the latter date. An application for an injunction having been denied, the suit was thereafter removed by the plaintiff into the Circuit Court of the United States, upon the ground that it was one arising under the Constitution of the United States. In the latter court a bill was filed, so as to conform to the general rules of equity practice. A statement of the history of the corporations concerned in the before-mentioned consolidation is necessary to a clear understanding as well of the grounds upon which the court below proceeded, as of the questions argued in this court. By an act of the legislature of Louisiana, passed April 1, 652 OCTOBER TERM, 1885. Statement of Facts. 1835, the New Orleans Gas-Light and Banking Company was incorporated and was given “ the sole and exclusive privilege of vending gas-lights in the city of New Orleans and its faubourgs and the city of Lafayette, to such persons or bodies corporate who may voluntarily choose to contract for the same; ” to which end it was authorized to lay pipes or conduits at its own expense in any of the public ways or streets of those localities, having due regard to the public convenience. The right was reserved to the city, after the expiration of forty years, to buy such gas-works as the company constructed, and pay for the same in city bonds. If the city declined to purchase, then its bonds, which the company had received in payment of its subscription of stock, were to be renewed for twenty years. By amendments of its charter made in 1845 and 1854, the company’s right to engage in banking, was, by its consent, withdrawn, and the remaining rights granted by the original act were continued to the corporation under the name of the New Orleans Gas-Light Company, to be enjoyed until April 1,1875, when its corporate privileges were to expire. This change was made subject to the condition that the company should assume all the debts and engagements of the original company, release its claims against the Charity Hospital, and, during the continuance of its charter, furnish that institution with necessary gas and fixtures free of charge. By amendments made in 1860 its charter was extended to April 1, 1895, the exclusive privileges granted by the original charter not, however, to exist beyond the time fixed in the act of incorporation. By an act approved April 20,1870, another company, under the name of the Crescent City Gas-Light Company, was incorporated. The charter provided that that company, its successors and assigns, should, for fifty years from the expiration of the charter of the New Orleans Gas-Light Company, have the sole and exclusive privilege of making and supplying gas-lights in the city of New Orleans, by means of pipes or conduits laid in the streets, to such persons or bodies corporate as might voluntarily choose to contract for it. By a subsequent enactment, in 1873, it was given authority to issue bonds NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 653 Statement of Facts. to an amount not exceeding $1,000,000, secured by mortgage of its works and property; and it was declared that the charter of the New Orleans Gas-Light Company should expire on April 1, 1875, from which latter date, and for the term fixed in the act of 1870, the franchise and privileges granted to the Crescent City Gas-Light Company were confirmed. By a judgment rendered February 1,1875, in a suit brought by the Crescent City Gas-Light Company against the New Orleans Gas-Light Company, and which involved their respective rights to manufacture and sell gas in New Orleans, the Supreme Court of the State held, that the former company “has the sole and exclusive privilege to make and sell illuminating gas in the city of New Orleans for fifty years from 1st April, 1875; ” also, that the act of March 1, 1860, extending the charter of the New Orleans Gas-Light Company from April 1, 1875, until April 1, 1895, “is unconstitutional and void,” as having a title that did not declare the object of the act. The latter company was also enjoined from conducting business after April 1, 1875, while the other company was confirmed in its exclusive right, after that date, to manufacture and distribute gas in New Orleans. Crescent City Gas-Light Co. n. New Orleans Gas-Light Co., 27 La. Ann. 138. The bill set out the foregoing facts, and alleged that during February and March, 1875, the directors of the two companies, by means of conferences with each other and with their respective stockholders, concluded to consolidate the two corporations under the name of the New Orleans Gas-Light Company, which should hold and enjoy the rights, privileges, franchises, and property of each; that they determined the amount of its capital, the number of directors, and the persons to compose a board before an election; that the two boards made an agreement, in writing, to which the owners of all the stock of either company had assented; that there had been no contestation by any stockholder of either of the two corporations of the consolidation or consolidation agreement ; that “ there was a formal vote, comprising more than three-fifths of all owners of stock, ratifying and confirming the articles, and the agreement and certificate of consolidation 654 OCTOBER TERM, 1885. Opinion of the Court. have been filed and recorded in the office of the secretary of state; ” that “ the corporation thus organized and conducting business, from the 29th of March, 1875, has manufactured and sold gas throughout New Orleans without question or opposition,” supplying the city, its officers, the officers of the State, and the public generally, and collecting its monthly bills; that there had been no suit by the State or the city questioning its capacity as a corporation, or its title to all the franchises, privileges, rights, or property in its possession; that its possession of “ the sole and exclusive right aforesaid has existed from the agreement of the 29th of March, 1875that the State regularly assessed the property of the corporation and its franchise for taxation, and compelled it by suit to pay such taxes on property amounting to $3,750,000, of which the franchise was charged to be worth $1,250,000; and that the city of New Orleans, in like manner, assessed the consolidated company, and required from it the performance of the obligations of its charter in supplying gas throughout the city and on the public streets and in public buildings ever since the beforementioned consolidation. The defendants filed a demurrer and plea to the bill. The case was determined upon the demurrer, which was sustained and the bill dismissed, without any mention being made of the plea. The Circuit Court was of opinion that the consolidation was entirely without legal authority, and, consequently, that there was, in law, no such corporation as the one which instituted this suit. Upon that ground alone the bill was dismissed. Mr. John A. Campbell and Mr. William D. Shipman for appellant. Mr. E. Howard McCaleb for appellee. * Mr. Justice Harlan delivered the opinion of the court. After stating the facts in the language above reported, he continued : The effect of the consolidation of March 29, 1875, is the first question to be considered. NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 655 Opinion of the Court. By an act of the General Assembly of Louisiana of December 12, 1874, and entitled “ An Act to authorize the consolidation of business or manufacturing corporations or companies,” it is provided : “ That any two business and manufacturing corporations or companies now existing under general or special law, whose objects and business are in general of the same nature, may amalgamate, unite, and consolidate said corporations or companies, and form one consolidated company, holding and enjoying all the rights, privileges, powers, franchises, and property belonging to each, and under such corporate name as they may adopt or agree upon. Such consolidation shall be made by agreement in writing, by or under the authority of the board of directors, and the assent of the owners of at least three-fifths of the capital stock of each of said corporations or companies, and a certificate of the fact of such consolidation, with the name of the consolidated company, shall be filed and recorded in the office of the secretary of state: Provided, no such consolidation shall in any manner affect or impair the right of any creditors of either of said companies. In the agreement of consolidation the number of directors of the consolidated company shall be specified, and the capital stock may be any amount agreed upon by the companies or corporations, and set forth in the articles of consolidation.” It will be observed that a consolidated company formed under this act acquires all the rights, privileges, and franchises possessed by its constituent companies. It is contended—and such was the view taken by the Circuit Court—that, as the original New Orleans Gas-Light Company had, until April 1, 1875, the exclusive right to manufacture, and distribute gas in New Orleans, and as the like exclusive right of the Crescent City Gas-Light Company did not come into existence until that day, the latter was not, when the act of 1874 was passed, an “ existing” business or manufacturing corporation entitled to the privilege of consolidating with another company. In this interpretation of the statute we do not concur. The original and amended charters of the Crescent City Gas-Light Company invested it with powers of an important character, 656 OCTOBER TERM, 1885. Opinion of the Court. capable of being effectively exerted prior to the passage of the general statute of 1874. By the act of April 20, 1870, it was authorized, after its passage, to lay pipes or conduits in any of the streets or alleys of the city of New Orleans. Upon its organization, it was entitled to acquire and hold property for all the objects of its creation, to construct works, purchase machinery, provide materials, and make such preparations as were required to put it in readiness to enjoy the exclusive privilege, of supplying the city and its inhabitants with gas on and after April 1, 1875. After its incorporation it could have made contracts, obtained capital, and raised money upon bonds secured by mortgage of its works and property then or thereafter acquired. At the passage of the consolidation act it was entitled to exert the powers given by its charter except that it could not, before April 1, 1875, encroach upon the exclusive privileges granted to the other company. With the consent of the latter company, it could, even prior to that date, have manufactured and sold gas to the city and to its inhabitants ; for, as declared in the Civil Code of Louisiana (Art. 11), “ in all cases in which it is not expressly or impliedly prohibited, they [individuals] can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good.” Without such consent, the Crescent City Gas-Light Company could after its organization have engaged in the manufacture and distribution of gas in those parts or districts of New Orleans not included in the charter of the old company. Pontchartraxn Railroad Co. v. Lafayette & Pontchartrain Railroad Co., 10 La. Ann. 741. For these reasons, we are of opinion that, on the passage of the act of 1874, and, within a reasonable interpretation of its language, the Crescent City Gas-Light Company was an “ existing ” business or manufacturing corporation, entitled to “ amalgamate, unite, and consolidate ” with any like corporation having objects and business in general of the same nature. In so holding, it is not perceived that violence is done to any considerations of public policy which could be supposed to have prompted the act of 1874, or the legislation relating to the two companies. NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 657 Opinion of the Court. These views give effect to the decision of the Supreme Court of the State in Fee v. The New Orleans Gas-Light Company, 35 La. Ann. 413, which was determined after the decree in the Circuit Court had been passed. One of the questions related to Fee’s rights in the consolidated company by virtue of his ownership of stock in the Crescent City Gas-Light Company. The report of that case shows that the articles of consolidation were before the court, and that their legal effect was considered with reference to the provisions of the act of 1874. Mr. Justice Fenner, speaking for the court, said: “ On the 29th of March, 1875, the New Orleans Gas-Light Company and the Crescent City Gas-Light Company, two corporations chartered under the laws of this State, amalgamated, united, and consolidated themselves into one consolidated company, in pursuance of the provisions of an act of the General Assembly, No. 157 of 1875, entitled ‘An Act to authorize the consolidation of business or manufacturing corporations or companies.’ . . . All requirements of the act were fully complied with. . . . The articles of consolidation, and the legislative act by the authority of which they were executed, evidently present a case of complete and perfect amalgamation, the effect of which was, under American authorities, to terminate the existence of the original corporations, to create a new corporation, to transmute the members of the former into members of the latter, and to operate a transfer of the property, rights, and liability of each old company to the new one. . . . These authorities, and the reason of the matter, satisfy us that plaintiff can and must look to the defendant company for the satisfaction of whatever rights he had against the Crescent City Gas-Light Company, m the mode and on the terms provided in the articles of consolidation.” Again: “ The law conferred upon three-fifths of his fellow stockholders the power to effect a consolidation without his consent, and even against his will, and he is bound by that consolidation, and by the legal effects thereof, which we have heretofore stated.” If the view taken by the Circuit Court be correct, then the consolidation between these companies could not, as adjudged by the Supreme Court of Loui-vol. cxv—42 658 OCTOBER TERM, 1885. Opinion of the Court. siana, have affected Fee’s rights, and compelled him to look to the consolidated company for the satisfaction of his claims as a stockholder in the Crescent City Gas-Light Company. This brings us to the consideration of questions more difficult. It is contended that the right granted to the Crescent City Gas-Light Company, of manufacturing and distributing illuminating gas, and now enjoyed by the consolidated company, was abrogated, to the extent that it was made exclusive, by that article of the Constitution of Louisiana of 1879, which, while preserving rights, claims, and contracts then existing, provided that “ the monopoly features in the charter of any corporation now existing in this State, save such as may be contained in the charter of railroad companies, are hereby abolished; ” and, that such article is not in violation of the provision of the Constitution of the United States which forbids a State to pass a law impairing the obligation of contracts. These propositions have received the careful consideration which their importance demands. It is true, as suggested in argument, that the manufacture and distribution of illuminating gas, by means of pipes or conduits placed, under legislative authority, in the streets of a town or city, is a business of a public character. Under proper management, the business contributes very materially to the public convenience, while, in the absence of efficient supervision, it may disturb the comfort and endanger the health and property of the community. It also holds important relations to the public through the facilities furnished, by the lighting of streets with gas, for the detection and prevention of crime. An English historian, contrasting the London of his day with the London of the time when its streets, supplied only with oil lamps, were scenes of nightly robberies, says that “ the adventurers in gas-lights did more for the prevention of crime than the government had done since the days of Alfred.” Knight, vol. 7, ch. 21; Macaulay, ch. 3. Municipal corporations constitute a part* of the civil government of the State, and their streets are highways, which it is the province of government by appropriate means to render safe. To that end the lighting of NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 659 Opinion of the Court. streets is a matter of which the public may assume control. For these reasons, and the necessity of uniform regulations for the manufacture and distribution of gas for use by the community, we are of opinion that the supplying of it to the city of New Orleans, and to its inhabitants, by the means designated in the legislation of Louisiana, was an object for which the State could rightfully make provision. Authority for the position that the supplying of gas to a city and its people may become a public purpose is found in New Orleans v. Clark, 95 IT. S. 644. That case involved the liability of a municipal corporation upon coupon bonds issued to a company which had undertaken, for a valuable consideration, to light its streets with gas. Mr. Justice Field, delivering the opinion of the court, said: “A private corporation, as well as individuals, may be employed by a city in the construction of works needed for the health, comfort, and convenience of its citizens; and though such works may be used by the corporation for its own gain, yet, as they advance the public good, the corporation may be properly aided in their construction by the city; and for that purpose its obligations may be issued, unless some constitutional or legislative provision stands in the way.” p. 652. Legislation of that character is not liable to the objection that it is a mere monopoly, preventing citizens from engaging in an ordinary pursuit or business, open as of common right to all, upon terms of equality; for, the right to dig up the streets and other public ways of New Orleans, and place therein pipes and mains for the distribution of gas for public and private use, is a franchise, the privilege of exercising which could only be granted by the State, or by the municipal government of that city acting under legislative authority. Dillon’s Municipal Corp., 3d Ed., § 691; State n. Cincinnati Gas Co., 18 Ohio St. 262; see also Boston v. Richardson, 13 Allen, 146. To the same effect is the decision of the Supreme Court of Louisiana in Crescent City Gas-Light Co. v. New Orleans Gas-Light Co., 27 La. Ann. 138, 147, in which it was said : “ The right to operate gas-works, and to illuminate a city, is not an ancient or usual occupation of citizens generally. No one has 660 OCTOBER TERM, 1885. Opinion of the Court. the right to dig up the streets, and lay down gas pipes, erect lamp posts, and carry on the business of lighting the streets and the houses of the city of New Orleans, without special authority from the sovereign. It is a franchise belonging to the State, and,’in the exercise of the police power, the State could carry on the business itself or select one or several agents to do so.” It will therefore be assumed, in the further consideration of this case, that the charter of the Crescent City Gas-Light Company—to whose rights and franchises the present plaintiff has succeeded—so far as it created a corporation with authority to manufacture gas and to distribute the same by means of pipes, mains, and conduits, laid in the streets and other public ways of New Orleans, constituted, to use the language of this court in the case of the Delaware Railroad Tax, 18 Wall. 206, “a contract between the State and its corporators, and within the provision of the Constitution prohibiting legislation impairing the obligation of contracts,” and therefore “ equally protected from legislative interference, whether the public be interested in the exercise of its franchise, or the charter be granted for the sole benefit of its corporators.” See also Greenwood v. Freight Co., 105 U. S. 13, 20; New Jersey n. Yard, 95 IT. S. 104, 113. But it is earnestly insisted that, as the supplying of New Orleans and its inhabitants with gas has relation to the public comfort, and, in some sense, to the public health and the public safety, and, for that reason, is an object to which the police power extends, it was not competent for one legislature to limit or restrict the power of a subsequent legislature in respect to those subjects. It is, consequently, claimed that the State may at pleasure recall the grant of exclusive privileges to the plaintiff; and that no agreement by her, upon whatever consideration, in reference to a matter connected in any degree with the public comfort, the public health or the public safety, will constitute a contract the obligation of which is protected against impairment by the National Constitution. And this position is supposed by counsel to be justified by recent adjudications of this court in which the nature and scope of the police power have been considered. NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 661 Opinion of the Court. In the Slaughter-House Cases, 16 Wall. 36, 62, it was said that the police power is, from its nature, incapable of any exact definition or limitation; and, in Stone v. Mississippi, 101 U. S. 814, 818, that it is “ easier to determine whether a particular case comes within the general scope of the power than to give an abstract definition of the power itself, which will be in all respects accurate.” That there is a power, sometimes called the police power, which has never been surrendered by the States, in virtue of which they may, within certain limits, control everything within their respective territories, and upon the proper exercise of which, under some circumstances, may depend the public health, the public morals, or the public safety, is conceded in all the cases. Gibbons v. Ogden, 9 Wheat. 1, 203. In its broadest sense, as sometimes defined, it includes all legislation and almost every function of civil government. Barbier v. Connolly, 113 U. S. 27, 31. As thus defined, we may, not improperly, refer to that power the authority of the State to create educational, and charitable institutions, and provide for the establishment, maintenance, and control of public highways, turnpike roads, canals, wharves, ferries, and telegraph lines, and the draining of swamps. Definitions of the police power must, however, be taken, subject to the condition that the State cannot, in its exercise, for any purpose whatever, encroach upon the powers of the general government, or rights granted or secured by the supreme law of the land. Illustrations of interference with the rightful authority of the general government by State legislation which was defended upon the ground that it was enacted under the police power, are found in cases where enactments concerning the introduction of foreign paupers, convicts, and diseased persons, were held to be unconstitutional, as conflicting, by their necessary operation and effect, with the paramount authority of Congress to regulate commerce with foreign nations, and among the several States. In Henderson &c. v. Mayor of New York, 92 U. S. 259, the court, speaking by Mr. Justice Miller, while declining to decide whether in the absence of action by Congress, the States can, or how far they may, by appropriate legislation protect themselves against actual paupers, vagrants, criminals, 662 OCTOBER TERM, 1885. Opinion of the Court. and diseased persons, arriving from foreign countries, said, that no definition of the police power, and “ no urgency for its use can authorize a State to exercise it in regard to a subjectmatter which has been confided exclusively to the discretion of Congress by the Constitution.” p. 271. Chy Lung v. Freeman, 92 U. S. 275. And in Railroad Co. v. Husen, 95 U. S. 465, Mr. Justice Strong, delivering the opinion of the court, said that “the police power of a State cannot obstruct foreign commerce or inter-State commerce beyond the necessity for its exercise ; and, under color of it, objects not within its scope cannot be secured at the expense of the protection afforded by the Federal Constitution.” pp. 473-4. That the police power, according to its largest definition, is restricted in its exercise by the National Constitution, is further shown by those cases in which grants of exclusive privileges respecting public highways and bridges over navigable streams have been sustained as contracts, the obligations of which are fully protected against impairment by State enactments. In Bridge Proprietors v. The Hoboken Co., 1 Wall. 116, it was decided that a statute of New Jersey empowering certain commissioners to contract for the building of a bridge over the Hackensack River, and providing not only that the “ said contract should be valid on the parties contracting as well as on the State of New Jersey,” but that it should not be lawful “for any person or persons whatsoever to erect any other bridge over or across the said river for ninety-nine years,” was a contract whose obligation could not be impaired by a law of the State. Mr. Justice Miller, delivering the opinion of the court, after observing that the parties who built the bridges had the positive enactment of the legislature in the very statute which authorized the contract with them, that no other bridge should be built, and that the prohibition against the erection of other bridges was the necessary and only means of securing to them the benefit of their grant, said: “ Without this they would not have invested their money in building the bridges, which were then much needed, and which could not have been built without some such security for a permanent and sufficient return for the capital so expended. On the faith of this enactment NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 663 Opinion of the Court. they invested the money necessary to erect the bridges. These acts and promises, on the one side and the oth^r, are wanting in no element necessary to constitute a contract.” p. 146. In The Binghamton Bridge, 3 Wall. 51, the question was, whether a charter granted to a company, authorizing it to build and maintain a bridge across a river in New York for the accommodation of the public, in consideration for which it was given a right to take certain tolls, and providing that it should be unlawful for any one to erect a bridge, or establish a ferry, within a distance of two miles on that river, either above or below that bridge, constituted a contract within the meaning of the Constitution. Under authority of a subsequent statute, another company erected a bridge across the same river, within a few rods above the old one, to the injury of the business of the latter. The argument .was strenuously pressed that, while the legislature could dispose of all matters properly the subject of bargain, it had no authority to dispose of the right of passing a great river for four miles. The court held that the first company’s charter was a contract between it and the State, within the protection of the Constitution of the United States, and that the charter to the last company was, therefore, null and void. Mr. Justice Davis, delivering the opinion of the court, said, that, if anything was settled by an unbroken chain of decisions in the Federal courts, it was, that an act of incorporation was a contract between the State and the stockholders, “a departure from which now would involve dangers to society that cannot be foreseen, would shock the sense of justice of the country, unhinge its business interests, and weaken, if not destroy, that respect which has always been felt for the judicial department of the government.” p. 73. It was also observed, in language applicable to the present case, in some respects: “ The purposes to be attained are generally beyond the ability of individual enterprise, and can only be accomplished through the aid of associated wealth. This will not be risked unless privileges are given and securities furnished in an act of incorporation. The wants of the public are often so imperative that a duty is imposed on the Government to provide for them; and, as ex- 664 OCTOBER TERM, 1885. Opinion of the Court. perience has proved that a State should not directly attempt to do this, it is necessary to confer on others the faculty of doing what the sovereign power is unwilling to undertake. The legislature, therefore, says to public-spirited citizens: ‘ If you will embark, with your time, money, and skill, in an enterprise which will accommodate the public necessities, we will grant to you, for a limited period, or in perpetuity, privileges that will justify the expenditure of your money, and the employment of your time and skill.’ Such p grant is a contract, with mutual considerations, and justice and good policy alike require that the protection of the law should be assured to it.” See also River Bridge Co. n. Dix, 6 How. 507, 531. The same principle was declared by the Supreme Court of Louisiana in Pontchartrain Railroad Co. v. Orleans Navigation Co., 15 La. Ann. 404, 413, where Chief Justice Martin said: “In the same manner as Congress may reward the discoverer of a new invention or mode of constructing roads, by an exclusive privilege, the legislature may reward those who employ their capital and industry in doubtful enterprises, for the construction of a railway between two points, which may be of great utility to the public, though the success of the enterprise may be precarious.” See also Pontchartrain Railroad Co. v. New Orleans Railway Co., 11 La. Ann. 253; Pontchartrain Railroad Co. v. Lafayette <& Pontchartrain Railroad Co., ubi supra. And in Crescent City Gas-Light Co. v. New Orleans Gas-Light Co., the court said: “As the legislature had the right in 1835 to grant the sole and exclusive privilege to the defendant company to make and vend gas in New Orleans for forty years, the legislature of 1870 had the same power to confer on the plaintiff the same privilege for fifty years from the termination of the grant to defendant. We therefore, conclude that the grant of the monopoly complained of does not violate the Constitution and is valid,” Numerous other cases could be cited as establishing the doctrine that the State may by contract restrict the exercise of some of its most important powers. We particularly refer to those in which it is held that an exemption from taxation, for NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 665 Opinion of the Court. a valuable consideration, at the time advanced, or for services to be thereafter performed, constitutes a contract within the meaning of the Constitution. Asylum n. New Orleans, 105 U. S. 362, 368; Home of the Friendless, 8 Wall. 430; New Jersey v. Wilson, 7 Cranch, 164, 166; State Bank of Ohio v. Knoop, 16 How. 363, 376; Gordon v. Appeal Tax Court, 3 How. 133; Wilmington Railroad n. Reid, 13 Wall. 264, 266; Humphrey v. Pegues, 16 Wall. 244, 248—9; Fa/rring-ton v. Tennessee, 95 U. S. 679, 689. If the State can, by contract, restrict the exercise of her power to construct and maintain highways, bridges, and ferries, by granting to a particular corporation the exclusive right to construct and operate a railroad within certain lines and. between given points, or to maintain a bridge or operate a ferry over one of her navigable streams within designated limits; if she may restrict the exercise of the power of taxation, by granting exemption from taxation to particular individuals and corporations; it is difficult to perceive upon what ground we can deny her authority—when not forbidden by her own organic law —in consideration of money to be expended and important services to be rendered for the promotion of the public comfort, the public health, or the public safety, to grant a franchise, to be exercised exclusively by those who thus do for the public what the State might undertake to perform either herself or by subordinate municipal agencies. The former adjudications of this court, upon which counsel mainly rely, do not declare any different doctrine, or justify the conclusion for which the defendant contends. In Beer Co. v. Massachusetts, 97 U. S. 25, 32, one of the questions considered was, whether the charter of a private corporation, authorizing it to engage in the manufacture of malt liquors, and, as incidental thereto, to dispose of the product, constituted a contract protected against subsequent legislation prohibiting the manufacture of liquors within the State. The Beer Company claimed the right, under its charter, to manufacture and sell beer without limit as to time, and without reference to any exigencies in the health or morals of the community requiring such manufacture to cease. It was decided 666 OCTOBER TERM, 1885. Opinion of the Court. that, while the company acquired by its charter the capacity, as a corporation, to engage in the manufacture of malt liquors, its business was at all times subject to the same governmental control as like business conducted by individuals; and that the legislature could not divest itself of the power, by such appropriate means, applicable alike to corporations and individuals, as its discretion might devise, to protect the lives, health, and property of the people, or to preserve good order and the public morals. The prohibitory enactment of which the Beer Company complained was held to be a mere police regulation which the State could establish even had there been no reservation of authority to amend or repeal its charter. The case of Fertilizing Co. v. Hyde Park, Wl U. S. 659, 663, is much relied on by counsel. But a careful examination will show that it does not militate against the views here expressed. A fertilizing company, having been authorized by its charter to establish and maintain south of a specified line in Cook County, Illinois, chemical and other works for manufacturing and converting animal matter into an agricultural fertilizer and other chemical products, claimed that its charter constituted a contract the obligation of which was impaired by an ordinance of the village of Hyde Park, where its works were established, prohibiting under penalties the carrying of offal through its streets from Chicago to the company’s place of business. The ordinance was based upon a statute passed after the date of the company’s charter, investing the village authorities with power to define or abate nuisances injurious to the public health, and to regulate, prohibit, or license certain named trades or callings, and “ all establishments and places where nauseous, offensive, or unwholesome business was carried on.” It appeared in proof that the company’s factory was “an unendurable nuisance to the inhabitants for many miles around its location; that the stench was intolerable, producing nausea, discomfort, if not sickness to the people; that it depreciated the value of the property, and was a source of immense annoyance; ” and that the transportation of putrid animal matter by the company through the streets of Hyde Park “ was offensive in a high degree both to sight and smell.” The decision was, that NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 667 Opinion of the Court. the State, under her power to protect the public health, could abate the nuisance created by the company’s business notwithstanding its works had been established within the general locality designated in its charter, and, consequently, the legislature could, at its discretion, amend the charter of Hyde Park and remove the restriction upon its authority to abate nuisances, or invest it with power to regulate or prohibit business necessarily injurious to the public health. The same principles underlie the decision in Stone v. Mississippi, 101 U. S. 814, in which it was held that any one accepting a grant of a lottery does so “ with the implied understanding that the people, in their sovereign capacity and through their properly constituted agencies, may resume it at any time when the public good shall require, whether it be paid for or not,” the only right acquired by the grantee being “ a suspension of certain governmental rights in his favor, subject to withdrawal at will.” The business, for the protection of which the contract clause of the Constitution was invoked, was declared by the court to be a species of gambling, wrong in its influence, and tending to “ disturb the checks and balances of a well-ordered community.” Touching legislation granting the privilege of engaging in business of that character, the Chief Justice, delivering the opinion of the court, said: “No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself.” p. 819. We are referred to Butcher £ Union Co. v. Crescent City Co., Ill U. S. 746, as authority for the proposition that the State is incapable of making a contract protected by the National Constitution, in reference to any matter within the reach of her police power in its broadest sense. But no such principle is there established. In that case the question was whether 668 OCTOBER TERM, 1885. Opinion of the Court. a grant in 1869 to a private corporation of the exclusive privilege of maintaining a live-stock landing and slaughter-house, within a certain part of the territory of Louisiana, embracing the city of New Orleans—all slaughtering by others in that city to be done at the establishment erected by that corporation—prevented the State, or the municipal government of the city, acting under her authority, from thereafter opening to general competition the right to maintain slaughter-houses and live-stock landings. The majority of the court, in the Slaughter-House Cases, having determined that the grant was merely a police regulation, designed to remove from the thickly populated part of New Orleans “noxious slaughter-houses and large and offensive collections of animals necessarily incident to the slaughtering business of a large city,” and that the authority to do that rested upon the same ground as the power to interdict in the midst of dense populations unwholesome trades, operations offensive to the senses, building with combustible materials, and the burial of the dead, it wras ruled in the last case that the obligations of a contract could not arise out of such a police regulation. So far from the court saying that the State could not make a valid contract in reference to any matter whatever within the reach of the police power, according to its largest definition, its language was: “ While we are not prepared to say that the legislature can make valid contracts on no subject embraced in the largest definition of the police power, we think that, in regard to two subjects so embraced, it cannot, by contract, limit the exercise of those powers to the prejudice of the general welfare. They are the public health and the public morals. The preservation of these is so necessary to the best interests of social organization, that a wise policy forbids the legislative body to divest itself of the power to enact laws for the preservation of health and the repression of crime,” pp. 750-1. In that case, four members of this court, while assenting to the doctrine that the State cannot limit the exercise of her powers to the prejudice of the public health and the public morals, concurred in the judgment upon the general ground, among others, that the act of 1869, giving exclusive privileges to the company, the validity of NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 669 Opinion of the Court. whose charter, in that respect, was the matter determined in the Slaughter-House Cases, was not, in any just or legal sense, an exercise of the police power for the preservation of the public health, but, under the pretence simply of exerting that power, was an invasion of the right of citizens, other than those interested in that particular company, to engage in an ordinary business, open, to every one upon terms of perfect equality, although, at all times, it was subject to such regulations in respect of the locality and the mode in which it should be conducted, as the State might establish. The principle upon which the decisions in Beer Co. v. Massachusetts, Fertilizing Co. v. Hyde Park, Stone v. Mississippi, and Butchers’ TJnion Co. v. Crescent City Line-Stock Landing Co., rest, is, that one legislature cannot so limit the discretion of its successors, fhat they may not enact such laws as are necessary to protect the public health, or the public morals. That principle, it may be observed, was announced with reference to particular kinds of private business which, in whatever manner ccmducted, were detrimental to the public health or the public morals. It is fairly the result of those cases, that statutory authority given by the State to corporations or individuals to engage in a particular private business attended by such results, while it protects them for the time against public prosecution, does not constitute a contract preventing the withdrawal of such authority, or the granting of it to others. The present case involves no such considerations. We have seen, the manufacture of gas, and its distribution for public and private use by means of pipes laid, under legislative authority, in the streets and ways of a city, is not an ordinary business in which every one may engage, but is a franchise belonging to the government, to be granted, for the accomplishment of public objects, to whomsoever, and upon what terms, it pleases. It is a business of a public nature, and meets a public necessity for which the State may make provision. It is one which, so far from affecting the public injuriously, has become one of the most important agencies of civilization, for the promotion of the public convenience and the public safety. 670 OCTOBER TERM, 1885. Opinion of the Court. It is to be presumed that the legislature of Louisiana, when granting the exclusive privileges in question, deemed it unwise to burden the public with the cost of erecting and maintaining gas-works sufficient to meet the necessities of the municipal government and the people of New Orleans, and that the public would be best protected, as well as best served, through a single corporation invested with the power, and charged with the duty, of supplying gas of the requisite quality and in such quantity as the public needs demanded. In order to accomplish what, in its judgment, the public welfare required, the legislature deemed it necessary that some inducement be offered to private capitalists to undertake, at their own cost, this work.. That inducement was furnished in the grant of an exclusive privilege of manufacturing and distributing gas by means of pipes laid in the streets of New Orleans for a fixed period, during which the company would be protected against competition from corporations or companies engaged in like business. Without that grant it was inevitable either that the cost of supplying the city and its people would have been made, in some form, a charge upon the public, or the public would have been deprived of the security in person, property, and business which comes from well-lighted streets. It is not our province to declare that the legislature unwisely exercised the discretion with which it was invested. Nor are we prepared to hold that the State was incapable—her authority in the premises not being, at the time, limited by her own organic law—of providing for supplying gas to one of her municipalities and its inhabitants, by means of a valid contract with a private corporation of her own creation. We may repeat here what was said by Chief-Justice Taney in Oho Life Insurance & Trust Co. n. Debolt, 16 How. 415, in reference to the authority of a State to limit the exercise of its power of taxation: “ But whether such contracts should be made or not is exclusively for the consideration of the State. It is the exercise of an undoubted power of sovereignty which has not been surrendered by the adoption of the Constitution of the United States, and over which this court has no control. For it can never be maintained in any tribunal in this country NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 671 Opinion of the Court. that the people of a State, in the exercise of the powers of sovereignty, can be restrained within narrower limits than that fixed by the Constitution of the United States, upon the ground that they make contracts ruinous or injurious to themselves. The principle that they are the best judges of what is for their own interest is the foundation of our political institutions. It is equally clear, upon the same principle, that the people of a State may, by the form of government they adopt, confer on their public servants and representatives all the power and rights of sovereignty which they themselves possess; or may restrict them within such limits as may be deemed best and safest for the public interest.” pp. 428-9. After observing that the power of the State to make contracts may be indiscreetly and, for the public, injuriously exercised, he proceeds: “Yet if the contract was within the scope of the authority conferred by the Constitution of the State, it is like any other contract made by competent authority, binding upon the parties. Nor can the people or their representatives, by any act of theirs afterwards, impair its obligation. When the contract is made the Constitution of the United States acts upon it and declares that it shall not be impaired, and makes it the duty of this court to carry it into execution. That duty must be performed.” p. 429. With reference to the contract in this case, it may be said that it is not, in any legal sense, to the prejudice of the public health or the public safety. It is none the less a contract because the manufacture and distribution of gas, when not subjected to proper supervision, may possibly work injury to the public; for, the grant of exclusive privileges to the plaintiff does not restrict the power of the State, or of the municipal government of New Orleans acting under authority for that purpose, to establish and enforce regulations which are not inconsistent with the essential rights granted by plaintiff’s charter, which may be necessary for the protection of the public against injury whether arising from the want of due care in the conduct of its business, or from an improper use of the streets in laying gas pipes, or from the failure of the grantee to furnish gas of the required quality and amount. 672 OCTOBER TERM, 1885. Opinion of the Court. The constitutional prohibition upon. State laws impairing the obligation of contracts does not restrict the power of the State to protect the public health, the public morals, or the public safety, as the one or the other may be involved in the execution of such contracts. Rights and privileges arising from contracts with a State are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same sense, and to the same extent, as are all contracts and all property, whether owned by natural persons or corporations. Whatever therefore in the manufacture or distribution of gas in the city of New Orleans proves to be injurious to the public health, the public comfort, or the public safety, may notwithstanding the exclusive grant to plaintiff, be prohibited by legislation, or by municipal ordinance passed under legislative authority. It cannot be said with propriety, that to sustain that grant is to obstruct the State in the exercise of her power to provide for the public protection, health, and safety. The article in the State Constitution of 1879 in relation to monopolies is not in any legal sense an exercise of the police power for the preservation of the public health, or the promotion of the public safety; for, the exclusiveness of a grant has no relation whatever to the public health, or to the public safety. These considerations depend upon the nature of the business or duty to which the grant relates, and not at all upon the inquiry whether a franchise is. exercised by one rather than by many. The monopoly clause only evinces a purpose to reverse the policy, previously pursued, of granting to private corporations franchises accompanied by exclusive privileges, as a means of accomplishing public objects. That change of policy, although manifested by constitutional enactment, cannot affect contracts which, when entered into, were within the power of the State to make, and which, consequently, were protected against impairment, in respect of their obligation, by the Constitution of the United States. A State can no more impair the obligation of a contract by her organic law than by legislative enactment; for, her constitution is a law within the meaning of the contract clause of the National Constitution. Railroad Co. v. NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 673 Opinion of the Court. McClure, 10 Wall. 511; Ohio Life Ins. de T. Co. v. Debolt, 16 How. 416, 429; Sedgwicks Stat. & Const. Law, 637. And the obligation of her contracts is as fully protected by that instrument against impairment by legislation as are contracts between individuals exclusively. New Jersey v. Wilson, 7 Cranch, 164; Providence Bank v. Billings, 4 Pet. 514 ; Green v. Biddle, 8 Wheat. 1; Woodruff v. Trapnail, 10 How. 190; Wolff v. New Orleans, 103 U. S. 358. If, in the judgment of the State, the public interests will be best subserved by an abandonment of the policy of granting exclusive privileges to corporations, other than railroad companies, in consideration of services to be performed by them for the public, the way is open for the accomplishment of that result, with respect to corporations whose contracts with the State are unaffected by that change in her organic law. The rights and franchises which have become vested upon the faith of such contracts can be taken by the public, upon just compensation to the company, under the State’s power of eminent domain. West River Bridge Co. v. Dix, ubi supra; Richmond dec. Railroad Co. v. Louisa Railroad Co., 13 How. 71, 83; Boston Water-Power Co. n. Boston <& Worcester Railroad; 23 Pick. 360, 393; Boston Lowell Railroad Co. v. Salem de Lowell Railroad Co., 2 Gray, 1, 35. In that way the plighted faith of the public will be kept with those who have made large investments upon the assurance by the State that the contract with them will be performed. The demurrer to the bill of complaint should have been overruled. Upon its averments the complainant wTas entitled to a decree perpetually restraining the defendants, and each of them, their servants, agents and employees, from the manufacture and distribution of gas in New Orleans, by means of pipes, mains, and conduits laid in or along the streets and other public ways and places of that city. The decree dismissing the bill is reversed, and the cause re-ma/nded for further proceedings in conformity with this opi/nion. vol. cxv—43 674 OCTOBER TERM, 1885. Opinion of the Court. NEW ORLEANS WATER-WORKS COMPANY v. RIVERS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA. Submitted November 20, 1885.—Decided December 7, 1885. A legislative grant of an exclusive right to supply water to a municipality and its inhabitants, through pipes and mains laid in the public streets, and upon condition of the performance of the service by the grantee, is a grant of a franchise vested in the State, in cqnsideration of the performance of a public service, and, after performance by the grantee, is a contract protected by the Constitution of the United States against State legislation ■ to impair it. An exclusive franchise granted to supply water to the inhabitants of a municipality by means of pipes and mains laid through the public streets is violated by a grant to an individual in the municipality of the right to supply his premises with water by means of a pipe or pipes so laid. The facts which make the case are stated in the opinion of the court. Mr. J. R. Beckwith for appellant. Mr. G. L. Hall for appellee. Mr. A. Goldthwaite by leave of court filed a brief on behalf of the Louisiana Sugar Refining Company. Mr. Justice Harlan delivered the opinion of the court. This suit was commenced by bill in equity filed by the New Orleans Water Works Company, a corporation of Louisiana, against Robert C. Rivers, a citizen of the same State. A demurrer having been interposed and sustained, the bill was dismissed. The present appeal raises the question whether the plaintiff is entitled, under the allegations of its bill, to the relief asked. The general object of the suit is to obtain a decree perpetually enjoining the defendant from laying pipes, mains, or con- NEW ORLEANS WATER-WORKS CO. v. RIVERS. 675 Opinion of the Court. duits in the streets or public ways of New Orleans, for the purpose of supplying the St. Charles Hotel in that city, distant six or seven blocks from the Mississippi River, with water from that stream. The plaintiff rests its claim to relief upon the ground that it had, by valid contract with the State and city, the exclusive right, for the full term of fifty years from March 31,1877, of supplying the city of New Orleans and its inhabitants—other than those contiguous to the Mississippi River— with water from that stream, by means of pipes and conduits placed in the streets of that city; and that the obligation of that contract was protected by the Constitution of the United States against impairment by any enactment of the State. The defendant bases his right to proceed with the construction of pipes, mains, and conduits upon an ordinance of the common council of New Orleans, adopted November 15, 1882, enacted, as he contends, in pursuance of authority conferred by the constitution and laws of Louisiana. The case made by the bill, the allegations of which are admitted by the demurrer, is substantially as follows: By an act of the legislature of Louisiana, approved April 1, 1833, the Commercial Bank of Louisiana was incorporated. It is stated by counsel to have been at that time the policy of the State to attach, as a condition of all banking1 charters, the construction of some work of public utility. At any rate, it appears that this bank was invested with authority to purchase and hold property necessary to carry into complete effect the object of its charter, which was declared to be “ the furnishing of the city with good and wholesome water; ” that it was given “ the exclusive privilege,” from and after the date of its charter, of “ supplying ’the city and inhabitants of New Orleans and its faubourgs with water from the Mississippi River, by means of pipes and conduits, and for erecting, constructing, or working of any necessary engine; ” that, to that end, it could lay and place any number of conduits, pipes, and aqueducts, “ on or over any of the lands or streets of New Orleans and its faubourgs; ” that the city might, within a prescribed tome, subscribe for five thousand shares of the capital stock of the company, not subject to deduction, to be paid for by city 676 OCTOBER TERM, 1885. Opinion of the Court. bonds, redeemable in forty years, and bearing an annual interest not exceeding five per centum, payable half-yearly; and might, at any time after the expiration of thirty-five years from the passage of the act, purchase the water-works constructed by the bank. The city made the subscription authorized by the act, issuing its bonds in payment therefor; and the bank constructed an extended system of water works, which it managed and operated for the full term of thirty-five years, at the end of which period, in 1868, the city, exercising the privilege reserved by the State, took possession of and purchased the water works at the appraised value of $2,000,000, paying for the bank’s interest, in city bonds, redeemable in forty years, the sum of $1,393,400. The balance of the appraised value represented the city’s interest by original subscription, and by purchase subsequently from stockholders. Upon such payment being made, the bank, as it was bound to do, transferred to the city an absolute, complete title to the water-works property, and to all the rights, privileges, and immunities which it possessed. The city managed and controlled the property for several years, during which period it became seriously embarrassed in its finances. That it might be relieved from such embarrassment, the legislature of Louisiana, in 1877, passed an act entitled “ An act to enable the city of New Orleans to promote the public health, and to afford greater security against fire, by the establishment of a corporation to be called the New Orleans Water Works Company, to authorize the said company to issue bonds for the purpose of extending and improving the said works, and to furnish the inhabitants of the city of New Orleans an adequate supply of pure and wholesome water, and to permit holders of the water-works bonds to convert them into stock, and provide for the liquidation of the bonded and floating debt of the city of New Orleans.” By that act, the New Orleans Water Works Company was created a corporation, with a capital stock of $2,000,000, to which the mayor of New Orleans was directed, as soon after the election of directors as the city council should determine, to transfer the water works and all the property appurtenant NEW ORLEANS WATER-WORKS CO. v. RIVERS. 677 Opinion of the Court. thereto. The company was required, immediately after its organization, to issue to the city stock to the amount of $606,600, as full paid and not subject to assessment, and one additional share for every $100 of water-works bonds which the city had theretofore taken up and extinguished by payment, exchange, or otherwise—the residue of the stock to be received and surrendered to the city for the benefit of the holders of water-works bonds who might elect to exchange them for stock of the company, and the bonds so exchanged to be cancelled. The act provided, among other things, that the Water Works Company shall own and possess the privileges acquired by the city from the bank; that it shall have, for fifty years from the passage of this act, “ the exclusive privilege of supplying the city of New Orleans and its inhabitants with water from the Mississippi, or any other stream or river, by mains or conduits, and for erecting and constructing any necessary works or engines or machines for that purpose; ” may purchase or lease such lands or lots of ground, and construct such dykes, mounds, or reservoirs, as may be required for securing and carrying “ a full supply of pure water to said city and its inhabitants; ” for which purpose, it could lay and place conduits, pipes or aqueducts in the streets, public places and lands of the city, taking care not to obstruct commerce or free circulation; that the city might use water from the pipes and plugs of the company then laid, or thereafter to be laid, free of any charge, for the extinguishment of fires, cleansing of the streets, and for the use of all public buildings, public markets, and charitable institutions; that the company should place, free of any charge, for public purposes, two hydrants of the most approved construction in front of each square, where a main pipe was laid; that wherever main pipes are laid it shall be the duty of the company to supply water, for all the purposes mentioned, at all times during the continuance of its charter, in consideration whereof its franchises and property, used in accordance with its charter, were exempted from taxation, state, municipal and parochial; that immediately after its organization the company shall proceed to the erection of new works and pipes, sufficient in 678 OCTOBER TERM, 1885. Opinion of the Court. capacity to furnish a full and adequate supply of water, to be drawn from the Mississippi River or elsewhere, as might be judged most expedient, such new works and pipes to be commenced within twelve months from the passage of the act, and be completed within four years, so as to give an adequate supply of water to the people of New Orleans, exclusive of the Fifth District; that, if the work was not done as prescribed, the company should forfeit all exclusive privileges granted to it, and the city might contract with any one else for a supply of water, and appropriate the property of the company; that, after the completion of the new works and pipes, the company should, from time to time, as the wants of the population required, and when the estimated revenue on the cost of such extension should equal ten per centum, extend its works throughout the entire limits of the city and suburbs, as then or thereafter established; and that any failure of the company to comply with these provisions should work a forfeiture of its charter. While the act gave the company the right to fix the rate of charges for water, that right was subject to the condition that the net profits should not exceed ten per cent, per annum. At the expiration of fifty years from the organization of the company, the city was given the privilege of buying the works, pipes, &c., at a valuation to be fixed by experts; and, if the city did not purchase, the company’s charter should be ipso facto extended for fifty years longer, “ but without any exclusive privilege or right to supply water,” according to the provisions of the charter. In addition to authority to increase its capital stock, the company was empowered to borrow money for the purpose of improving and enlarging its works and increasing the supply of pure water; to which end it might issue bonds to an amount not exceeding $2,000,000, on such terms, and bearing such rate of interest, as the directors might determine, secured, principal and interest, by a mortgage of all the property, acquired and to be acquired, and franchises of the company, including its franchise to be a corporation, such mortgage to be a valid and subsisting mortgage until the payment of the debt secured by it, without reinscription, and the bonds not to be disposed of, NEW ORLEANS WATER-WORKS CO. v. RIVERS. 679 Opinion of the Court. except on terms approved by the city council. It was further provided that the company should not declare or pay any dividends until the contemplated works were completed and in use, nor, at any time, except in cash, and then only out of the net receipts, after payment of expenses of operation and interest on its bonded debt. • The act concluded with the declaration, that nothing therein “shall be so construed as to prevent the city council from granting to any person or persons, contiguous to the river, the privilege of laying pipes to the river, exclusively for his or their own use.” This act was amended in 1878, but in no particular important to be here noticed, except that the exemption of the company from State taxation was abrogated. The city of New Orleans accepted the provisions and conditions of the act of 1877, and subscribed the full amount of stock authorized by law. Holders of bonds also subscribed stock to the amount of $500,000, and, as required, surrendered their bonds to the city, which were cancelled, leaving to the latter, in place of their bonds, the stock so subscribed by them. Subsequently, April 9, 1878, the city transferred to the Water Works Company, its successors and assigns, all of the beforementioned property, subject to its right to repurchase the same as provided in the foregoing acts. Thereafter, the property was controlled and managed by the company. In order to meet the obligations imposed by its charter, it expended large sums of money, raised by the issue of mortgage bonds, to the amount of $500,000, of which $300,000 were sold, and which money, or a large portion thereof, was expended in enlarging and improving the water works, so as to meet the demand for water for the use of the city and its inhabitants. While the company, according to the allegations of the bill, was executing in good faith the requirements of its charter, a new State constitution was adopted, commonly known as the constitution of 1879. It contained, among other clauses, the following : “ Art. 258. All rights, actions, prosecutions, claims, and contracts, as well of individual as of bodies corporate, and all laws in force at the time of the adoption of this constitution, 680 OCTOBER TERM, 1885. Opinion of the Court. and not inconsistent therewith, shall continue as if the said constitution had not been adopted. But the monopoly features in the charter of any corporation now existing in the State, save such as may be contained in the charters of railroad companies, are hereby repealed.” Under the sanction of that constitutional provision, the city council of New Orleans passed, on November 15, 1882, an ordinance which provided ‘‘that Robert E. Rivers, or the lessee of the St. Charles Hotel, of the city of New Orleans, be allowed the fight of way and privilege to lay a water-pipe from the Mississippi River, at any point opposite the head of Common or Gravier streets, through either of these streets to said hotel, its front and side streets, with all needed attachments and appurtenances, and to distribute said water through said hotel as said Rivers, or lessee, may desire from said pipes, the pipes to be put at a depth of three feet under the surface of said streets, to be of iron, and of not more than inches in diameter ; that the said pipes and all attachments thereto, in said streets, be arranged and placed under the supervision and approval of the city surveyor; the pavement and streets to be relaid to the satisfaction of the administrator of improvements and city surveyor.” The New Orleans Water Works Company was in existence before the adoption of the present constitution of Louisiana, one of the articles of which, as we have seen, repeals the monopoly features in the charters of all her then existing corporations other than railroad companies. This case is, therefore, controlled by the decision just rendered in New Orleans Gas Co. v. Louisiana Light Co., ante, 650. The two are not to be distinguished upon principle ; for, if it was competent for the State, before the adoption of her present Constitution, as we have held it was, to provide for supplying the city of New Orleans and its people with illuminating gas by means of pipes, mains, and conduits placed at the cost of a private corporation, in its public ways, it was equally competent for her to make a valid contract with a private corporation for supplying, by the same means, pure and wholesome water for like use in the same city. The right to dig up and use the streets and alleys of New Orleans for the purpose of placing pipes and mams NEW ORLEANS WATER-WORKS CO. v. RIVERS. 681 Opinion of the Court. to supply the city and its inhabitants with water is a franchise belonging to the State, which she could grant to such persons or corporations, and upon such terms, as she deemed best for the public interests. And as the object to be attained was a public one, for which the State could make provision by legislative enactment, the grant of the franchise could be accompanied with such exclusive privileges to the grantee, in respect of the subject of the grant, as in the judgment *of the legislative department would best promote the public health and the public comfort, or the protection of public and private property. Such was the nature of the plaintiff’s grant, which, not being at the time prohibited by the constitution of the State, was a contract, the obligation of which cannot be impaired by subsequent legislation, or by a change in her organic law. It is as much a contract, within the meaning of the Constitution of the United States, as a grant to a private corporation for a valuable consideration, or in consideration of public services to be rendered by it, of the exclusive right to construct and maintain a railroad within certain lines and between given points, or a bridge over a navigable stream within a prescribed distance above and below a designated point. It is idle to insist that this contract was prejudicial either to the public health or to the public safety, as might, perhaps, be said to be the case if the State, after making it, was prevented from exercising any control whatever over the matter of supplying the city and its inhabitants with water. But, notwithstanding the exclusive privileges granted to the plaintiff, the power remains with the State, or with the municipal government of New Orleans, acting under legislative authority, to make such regulations as will secure to the public the uninterrupted use of the streets, as well as prevent the distribution of water unfit for use, and provide for such a continuous supply, in quantity, as protection to property, public and private, may require. In the case just decided we said: “ The constitutional prohibition upon State laws impairing the obligation of contracts does not restrict the power of the State to protect the public health, the public morals, or the public safety, as the one or the other may be involved in the execution of such con- 682 OCTOBER TERM, 1885. Opinion of the Court. tracts. Rights and privileges arising from contracts with a State are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same sense as are all contracts and all property, whether owned by natural persons or corporations.” The contract with the Water Works Company does not interfere with, but expressly reserves, the riparian rights of any one “contiguous to ♦the river.” To that class the appellee does not belong; for his hotel is distant many blocks from the Mississippi River, and others own and occupy the intervening property. Nor does the contract assume to interfere with the right of any person or corporation, even when not contiguous to that stream, to supply their places of business or residences with water therefrom, obtained otherwise than by pipes, mains, or conduits laid in the public ways of the city. The restriction, imposed by the contract upon the use by others than plaintiff of the public streets and ways, for such purposes, is not one of which the appellee can complain. He was not thereby restrained of any freedom or liberty he had before; for, he had no right, without the consent of the government, to dig up the streets and alleys of the city for the purpose of conveying water to his hotel. Nor can he question the authority of the State to grant to a private corporation the exclusive use of public streets and alleys for such purposes, as a means of accomplishing the public object of supplying one of her municipalities and its inhabitants with pure and wholesome water. The permission given to the appellee by the city council to lay pipes in the streets for the purpose of conveying water to his hotel, is plainly in derogation of the State’s grant to the appellant; for, if that body can accord such a use of the public ways to him, it may grant a like use to all other citizens and to corporations of every kind, thereby materially diminishing, if not destroying, the value of the plaintiff’s contract, upon the faith of which it has expended large sums of money, and rendered services to the public which might otherwise have been performed by the State or the city at the public expense. Without discussing the authorities referred to in the other LOUISVILLE GAS CO. v. CITIZENS’ GAS CO. 683 Syllabus. case, or repeating the general considerations there stated, and which are equally applicable here, we are of opinion that the court below erred in sustaining the demurrer to the bill. Under its averments the plaintiff was entitled to a decree perpetually restraining the defendant from laying pipes, conduits, or mains in the public ways of New Orleans for the purpose of conveying water from the Mississippi River to his hotel. In common with all corporations, and all other citizens of New Orleans, he must abide by the contract which the State made with the plaintiff; for, such is the mandate of the Constitution of the United States. The decree is reversed, and the cause remanded for further proceedings in conformity with this opinion. LOUISVILLE GAS COMPANY v. CITIZENS’ GAS COMPANY. IN ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY. Submitted November 2,1885.—Decided December 7,1885. The legislative grant of an exclusive right to supply gas to a municipality and its inhabitants, by means of pipes and mains laid through the public streets, and upon condition of the performance of the service by the grantee, is a grant of a franchise vested in the State, in consideration of the performance of a public service, and, after performance by the grantee, is a contract protected by the Constitution of the United States against State legislation to impair it. In granting the exclusive franchise to supply gas to a municipality, and its inhabitants, a State legislature does not part with the police power and duty of protecting the public health, the public morals, and the public safety, as one or the other may be involved in the exercise of that franchise by the grantee. A legislative grant of an exclusive right to supply gas to a municipality and its inhabitants by means of pipes and mains laid through the public streets, and upon condition of the performance of the service by the grantee, is no infringement of that clause in the Bill of Rights of Kentucky, which declares “ That all freemen, when they form a social compact, are equal and that no man, or set of men, are entitled to exclusive, separate public emoluments or privileges from the community, but in consideration of public services.” 684 OCTOBER TERM, 1885. Statement of Facts. On February 14,1856, the legislature of Kentucky enacted “ That all charters and grants of and to corporations or amendments thereof, shall be subject to amendment or repeal at the will of the legislature, unless a contrary intent be therein expressed.” By an act passed January 23, 1869, amending the charter of a gas company which was subject to that provision in the act of 1856, it was enacted “ That said gas company shall have the exclusive privilege of erecting and establishing gas works in the City of Louisville during the continuance of this charter, and of vending coal gas lights, and supplying the city and citizens with gas by means of public works,” &c. Held, That the latter act contained a clear expression of the legislative intent, that the company should continue to enjoy the franchises then possessed by it for the term named in that act without being subject to have its charter in that respect amended or repealed at the will of the legislature. This was a writ of error to the highest court of Kentucky. The general question to be determined was whether certain legislation of that Commonwealth was in conflict with the clause of the National Constitution which forbids a State to pass any law impairing the obligation of contracts. The appellant, the Louisville Gas Company, contended that its charter, granting certain exclusive rights and privileges, constituted, within the meaning of that Constitution, a contract, the obligation of which had been impaired by the charter subsequently granted to the appellee, the Citizens’ Gas-Light Company. The Court of Appeals of Kentucky sustained as constitutional the legislation under the authority of which the latter company was exercising the rights, privileges, and franchises conferred by its charter. By an act of the General Assembly of Kentucky, approved February 15, 1838, Sess. Acts. 1837-8, p. 206, the Louisville Gas and Water Company was created a corporation to continue for the term of thirty years from January 1, 1839. It was made its duty, within three years after its organization, to establish in Louisville a gas manufactory of sufficient extent and capacity to supply that city and its people with such public and private lights as might, from time to time, be required; and, within five years after the establishment of its gas works, to erect and establish water works sufficient to supply the city with water for the extinguishment of fires, for the cleansing and sprinkling of streets and alleys, and for all manufacturing LOUISVILLE GAS CO. v. CITIZENS’ GAS CO. 685 Statement of Facts. and domestic purposes; to which end it might lay down and extend pipes through any of the streets and alleys of the city, the company being responsible to the city for any damages resulting therefrom. The act imposed a limit upon the price to be charged for gas lights used by the city; and gave the latter the right to subscribe for four thousand shares in the company, payment for one-half of which could be made in city coupon bonds for $200,000, redeemable at any time within three years after the expiration of the company’s charter. It was made a fundamental condition that, upon the termination of the company’s charter, the city at its election could take the gas and water works at a fair estimate of what they would cost and be worth at that time, to be ascertained by the judgment of competent engineers, selected by the parties, or, in case they disagreed, by the Louisville Chancery Court. Under this charter the company proceeded at once to erect gas works, including suitable buildings and machinery. It supplied itself with all necessary apparatus, laid down mains and pipes, and erected lamp posts, for the purpose of lighting the streets. It supplied gas for the public buildings, and for street lights, as well as for domestic purposes. And it continued so to do during the term of its original charter. By an act passed in 1842, the authority to erect water works was withdrawn by the legislature. By an act, entitled “ An Act to extend the charter of the Louisville Gas Company,” approved January 30, 1867, a new charter was granted, to take effect January 1,1869, and to continue in force for twenty years from that date, unless the city of Louisville should exercise its privilege of purchasing the works established under the authority of the original charter. That act created a corporation by the name of the Louisville Gas Company, with a capital stock of $1,500,000. It provided, among other things, that such stock should consist, “ first, of the stock of the present Louisville Gas Company, on the 31st of December, 1868, at par value; secondly, of the contingent fund and undivided profits that the company may own at the expiration of the present charter, said fund to be capitalized pro rata for the benefit of the present stockholders, except 686 OCTOBER TERM, 1885. Statement of Facts. fractional shares which shall be paid in cash; and, thirdly, new stock may be issued and sold by the new company, when required, to the extent of the capital stock, the sales to be made at public auction, after ten days’ notice in the city papers; should said stock be sold above its par. value, such excess shall not be capitalized or divided among the stockholders, but be employed in the first extensions made by the company after the sale of said stock;” that the business of the company should be to make and furnish gas to the city of Louisville and its residents; that within two years after its charter took effect, it should extend gas distribution to Portland, lay down mains, and erect street lights in certain named streets in that part of the city; should extend mains wherever the private and public lights would pay eight per cent, on the cost of extension, until its entire capital was absorbed in the gas works and extensions—continuing the use of the pipes and conductors already laid down, and, with the consent of the city council, extending the pipes and conductors through other streets and alleys of the city. It was, also, provided that the company should put up gas lamps at certain distances apart on the streets where there were mains, supply the same with gas, and light and extinguish the same, and charge the city only the actual cost thereof—such charges not to exceed the average charges for similar work or service in the cities of Philadelphia, Baltimore, Cincinnati, Chicago, and St. Louis, and the charges against other consumers not to be greater than the average price in said cities; that the stockholders, exclusive of the city of Louisville, should elect five directors, while the general council of the city should elect four; that the city might, upon the termination of the charter, purchase the gas works at a fair estimate of what they would be then worth; and that the charter should be valid and in force when accepted by those who held the majority of stock in the old company, all of whose property should belong to the new company. When the act of 1867 was passed, the city owned 4985 shares of the stock of the old company. All the gas with which its streets were then lighted, or which was furnished to its people, was supplied by that company. LOUISVILLE GAS CO. v. CITIZENS’ GAS CO. 687 Statement of Facts. On the 22d of January, 1869, an act was passed amending that of January 30, 1867. Its preamble recited that the city of Louisville and the stockholders of the old company had accepted the extended charter, and desired that the amendments embodied in that act should become part of that charter. The amended charter repealed so much of the act of 1867 as allowed a profit of eight per cent, on the cost of extensions, and, among other things, provided that the company should extend its main pipes whenever the public and private lights, immediately arising from said extension, would pay seven per cent, profit on the cost thereof; that the company should put lamp posts, fixtures, &c., along the street mains, as they might be extended, at a distance apart of about two hundred feet; should keep the lamps in order, furnish gas, and light and extinguish the same, each light to have an illuminating power of about twelve sperm candles ; should furnish public lights to the city at actual cost, which should in no event exceed annually $35 per lamp; that the charges to private consumers should be so graded that the company’s profits should not exceed twelve per cent, per annum on the par value of the stock, ten per cent, of which might be drawn by stockholders in semi-annual dividends, and the remaining two per cent, to be laid out for extensions, not to be capitalized except at the end of five years. The fifth and sixth sections of the last act were as follows : “ 5. That said gas company shall have the exclusive privilege of erecting and establishing gas-works in the city of Louisville during the continuation of this charter, and of vending coal gaslights, and supplying the city and citizens with gas by means of public works: Provided, however, this shall not interfere with the right of any one to erect, or cause to be erected, gas-works on their own premises, for supplying themselves with light. “ 6. That no alteration or amendment to the charter of the gas company shall be made without the concurrence of the city council and the directors of the gas company.” By an act approved March 21, 1872, the Citizens’ Gas-Light Company of Louisville was incorporated, for the term of fifty years, with authority to make, sell, and distribute gas for the 688 OCTOBER TERM, 1885. Argument for Defendant in Error. purpose of lighting public and private buildings, streets, lanes, alleys, parks, and other public places, in that city and its vicinity. It was authorized, the general council consenting, to use the streets and other public ways of the city for the purpose of laying gas-pipes, subject to such regulations as the city council might make for the protection of the lives, property, and health of citizens. That body did so consent by ordinance passed December 13, 1877. The Louisville Gas Company having claimed that the foregoing section of the act of January 22, 1869, granting the exclusive privileges therein defined, constituted a contract, the obligation of which was impaired by the charter of the plaintiff, and that the latter’s charter was therefore void, the present suit was brought by the Citizens’ Gas Light Company in the Louisville Chancery Court for the purpose of obtaining a perpetual injunction against the assertion of any such exclusive privileges, and against any interference with the plaintiff’s rights as defined in its charter. Among the rights asserted by the latter under its charter was “ to make, sell, and supply coal gas for lighting the public buildings and other places, public and private,” in Louisville and the adjoining localities, by means of pipes laid in the public ways arid streets. The court of original jurisdiction dismissed the suit. Upon appeal to the Court of Appeals, the decree was reversed, with directions to issue a perpetual injunction restraining the Louisville Gas Company from claiming and exercising the exclusive right of manufacturing and supplying gas to the city of Louisville and its inhabitants. This writ of error was sued out to review that judgment. Mr. John G. Carlisle, Mr. Thomas F. Hargis, Mr. John K. Goodloe, and Mr. Alexander P. Humphrey for plaintiff in error. Mr. John Mason Brown, Mr. George M. Davie and Mr. William Lindsay for defendant in error. I. The grant to the old company was an exclusive privilege to make and sell gas. No exclusive privilege of laying pipes LOUISVILLE GAS CO. v. CITIZENS’ GAS CO. 689 Argument for Defendant in Error. in the streets was granted. This was unconstitutional, unless it can be sustained as an exercise of the police power. It is not denied that there are franchises which are the prerogative of the State, such as transportation by railroads, ferries, &c. These exclusive privileges a State may delegate to individuals. Olcott v. Supervisors, 16 Wall. 678, 693 ; Commonwealth n. Bacon, 13 Bush, 210; State v. Boston, Concord and Montreal Railroad Co., 25 Vt. 433; Railroad v. Campbell, 44 Cal. 89; Lexington <& Ohio Railroad Co. v. Applegate, 8 Dana, 289; but such exclusive privileges do not extend to the transaction of ordinary business, of which class is the making and selling of gas. Municipal corporations are not obliged to light streets, and are not liable for failing to light them. Randall v. Eastern Railroad Co., 106 Mass. 276 ; Macomber v. Taunton, 100 Mass. 255 ; Sparhawk v. Salem, 1 Allen, 30 ; Norwich Gas-Light Co. v. Norwich City Gas-Light Co., 25 Conn. 19 ; Western Savings Fund v. Philadelphia, 31 Penn. St. 175; New Jersey Gas Co. v. Dwight, 2 Stewart (29 N. J. Eq.) 242; And it is well settled in England that no legislative grant is necessary for making and selling gas. Attorney General v. Cambridge Gas Co., L. R. 4 Ch. 71, 86; Hoddeson Gas Co. v. Hazelwood, 6 C. B. N. S. 239, 249; Attorney General v. Gas Light & Coke Co., 7 Ch. Div. 217. See also Commonwealth v. Lowell Gas-Light Co., 12 Allen, 75. It follows that a legislative grant of this kind has no meaning except to prohibit others from entering into a lawful business. This is, practically, a denial of equal privileges, and a depriving of property and liberty, within the meaning of the Constitution. For no legislature can allow one person and prohibit another from engaging in a lawful pursuit, unless it be one which falls within its police power and supervision. In the matter of Jacobs, 33 Hun (40 N. Y. Supreme Ct.), 374, 378; S. C., on appeal, 98 N. Y. 98; State v. Addington, Tl Missouri, 110 ; Commonwealth v. Bacon, and Norwich Gas-Light Co. v. Norwich City Gas-Light Co., above cited; Live Stock' Co. v. Crescent City Co., 1 Abb. U. S. 388, 398; Arrowsmith v. Burlingem, 4 McLean 489, 497; Bertholf v. O'Reilly, 74 N. Y. 509, 515. The only case to the contrary is State v. Milwaukee Gas Co., 29 Wise. 454. vol. cxv—44 690 OCTOBER TERM, 1885. Argument for Defendant in Error. II. If the grant was made under the police power, it was subject to repeal in whole or in part as subsequent legislatures might think the public good required. (1). The grant was an exclusive privilege of making and selling gas. There being no words of exclusiveness as to the right to use the streets, no exclusive right for that purpose was granted. People v. Bowen, 30 Barb. 24, 38. See also Charles River Bridge v. Warren Bridge, 11 Pet. 420 ; Lehigh Water Cd’s appeal, 102 Penn. St. 515, 527; Holyoke Co. n. Lyman, 15 Wall. 500, 512; Fertilizer Co. v. Hyde Park, 659, 666; Wright v. Nagle, 101 U, S. 791, 796 ; State n. Cincinnati Gas-Light & Coke Co., 18 Ohio St. 292; Norwich Gas Co. case, cited above. What the police power of the State is may be gathered from the language of this court in License Cases, 5 How. 504, at page 583; Slaughter-House Cases, 16 Wall. 36, at page 62; Butcherd Union Co. v. Crescent City Co., Ill U. S. 746, at page 750 and page 752; Barbier n. Connolly, 113 U. S. 27, at page 31; Soon Hing v. Crowley, 113 U. S. 703. A grant of a privilege to manufacture coal-gas fairly comes within its exercise for the purpose of protecting health and morals. This gas is a deadly poison and a dangerous explosive. Its use requires the disturbance of the streets, with accompanying malarious exhalations. It furnishes a superior light, which is a powerful moral agent, and an aid in the prevention of crime and detection of criminals. See Harlem Gas Co. n. New York, 33 N. Y. 309, 327; Wheeler v. Philadelphia, 77 Penn. St. 338, 354; New Orleans n. Clark, 95 U. S. 644, 652; State v. Columbus Gas Co., 34 Ohio St. 572, 581; State v. Cincinnati Gas-Light Co., cited above; Williams n. Mutual Gas Co., 52 Mich. 499, 502; Broadbent n. Imperial Gas Co., 7 De G. McN. & G. 436, 467; Cleveland v. Citizend Gas-Light Co., 5 C. E. Green (20 N. J. Eq.), 201. If we look to analogies, we find that exclusive grants in other lines of business, that may be injurious, if improperly conducted, are based upon the police power. Powder magazines: New Orleans v. Hoyle, 23 La. Ann. 740; growing rice : Green v. Savannah, 6 Geo. 1 ; selling liquors: In re Ruth, 32 Iowa, 250 ; Columbus v. Cutcomb, 61 Iowa, 672 ; coal-oil: Patterson v. Kentucky, 97 U. S. 501; oleomargarine : Hawthorne v. People, 109 Ill. 302; LOUISVILLE GAS CO. v. CITIZENS’ GAS CO. 691 Opinion of the Court. the use of steam power on streets : Railroad Co. n. Richmond, 96 U. S. 521; water: Water Works Co. v. Sugar Works Co., 35 La. Ann. 1114; New Orleans Water Works Co. v. St. Tammany Water Works Co., 14 Fed. Rep. 194; Spring Valley Water Works n. Schottler, 110 U. S. 347; slaughter-houses: Slaughter-House Cases, above cited; school books: Bancroft v. Thayer, 5 Sawyer, 502. (2). The grant, being an exercise of the police power, could be repealed at the will of the legislature. Stone n. Mississippi, 101 U. S. 814; Beer Co. v. Massachusetts, 97 U. S. 25 ; Fertilizing Co. v. Hyde Park, Butcher# Union Co. n. Crescent City Co., New Orleans n. Hoyle, New Orleans Water Co. N. St. Tammany Water Co., and Columbus v. Cutcomb, all cited above; Gale v. Kalamazoo, 23 Mich. 344; Colder v. Kurby, 5 Gray, 597 ; Commonwealth v. Intoxicating Liguors, 115 Mass. 153; Johnson y. Crow, 87 Penn. St. 184, 187. III. In any event the exclusive privilege, even if valid, could be repealed under the general power reserved to the legislature to amend, alter, or repeal all legislative grants of franchises. Cumberland di Ohio Railroad v. Barren Co., 10 Bush, 604, 608-9 ; Greenwood v. Freight Co., 105 U. S. 13, 20; Thornhill v. Hall, 2 Cl. & Fin. 22, 36; Swift n. Newport, 7 Bush, 37. Counsel also argued other points not referred to in the opinion. of the court in this case or the case of the New Orleans Gas Co. referred to by the court. Mr. Justice Harlan delivered the opinion of the court. After stating the facts in the language reported above, he continued : Two of the judges of the State court held that the clause of the Bill of Rights of Kentucky, which declares that u all freemen, when they form a social compact, are equal, and that no man or set of men are entitled to exclusive, separate public emoluments or privileges from the community, but in consideration of public services,” Const. Kentucky, 1799, Art. 10, § 1; 1850, Art. 13, § 1, forbade the General Assembly of that Commonwealth to grant to a private corporation the exclusive privilege of manufacturing and distributing gas, for public and 692 OCTOBER TERM, 1885. Opinion of the Court. private use, in the city of Louisville, by means of pipes and mains laid under the streets and other public ways of that municipality. The other judges were of opinion that that clause did not prohibit a grant by the State to a private corporation, whereby certain privileges were conferred upon the latter in consideration of its discharging a public duty, or of rendering a public service ; that the municipality of Louisville, being a part of the State government, there was a public necessity for gas-lights upon its streets and in its public buildings, almost as urgent as the establishment of the streets themselves; that the services thus to be performed by the corporation were, in the judgment of the legislative department, an adequate consideration for the grant to it of exclusive privileges; and, consequently, that the grant was a contract, the rights of the parties under it to be determined by the rules applicable to contracts between individuals. While the judgment below, in view of the equal division in opinion of the judges of the State court, does not rest upon any final determination of this question by that tribunal, it cannot be ignored by us; for, at the threshold of all cases of this kind, this court must ascertain whether there is any such agreement on the part of the State as constitutes a contract, within the meaning of the Constitution of the United States. If the services which the gas company undertook to perform, in consideration of the exclusive privileges granted to it, were public services, within the meaning of the Bill of Rights of Kentucky, then the grant of such privileges was not forbidden by the State Constitution. In New Orleans Gas-Light Co. v. Louisiana Light Co., just decided, ante 650, it was held that the supplying of gas to a city and its inhabitants, by means of pipes and mains laid under its public ways, was a franchise belonging to the State, and that the services performed, as the consideration for the grant of such a franchise, are of a public nature. Such a business is not like that of an ordinary corporation engaged in the manufacture of articles that may be quite as indispensable to some persons as are gas-lights. The former articles may be supplied by individual effort, and with their supply the government has no such concern that it can grant LOUISVILLE GAS CO. v. CITIZENS’ GAS CO. 693 Opinion of the Court. an. exclusive right to engage in their manufacture and sale. But as the distribution of gas in thickly populated districts is, for the reasons stated in the other case, a matter of which the public may assume control, services rendered in supplying it for public and private use constitute, in our opinion, such public services as, under the Constitution of Kentucky, authorized the legislature to grant to the defendant the exclusive privileges in question. This conclusion is justified, we think, by the decisions of the Court of Appeals of that State. In O'Hara v. Lexington & Ohio Railroad Co., 1 Dana, 232, 233, the point was made, that an inquisition for the assessment of damages for the taking of land by a railroad corporation was void upon certain grounds, one of which was that the company’s charter granted exclusive privileges, without any consideration of public services. Chief Justice Robertson, speaking for the court, said, that, in the true sense of the Constitution, no exclusive privileges were granted to the corporation, observing that “if the charter be on that ground unconstitutional, it would be difficult to maintain the validity of any statute for incorporating any bridge company, or any bank, or even for granting any ferry franchise.” But the principles announced in Gordon v. Winchester, 12 Bush, 110, 114, seem more directly applicable to the present case. Judge Cofer, speaking for the whole court, after observing that there were unquestionably cases in which the State may, without violating the Constitution, grant privileges to specified individuals, which from the nature of the case could not be enjoyed by all, and in respect of which the State could designate the grantee, said: “ But in all such cases the person, whether natural or artificial, to whom the privilege is granted, is bound, upon accepting it, to render to the public that service, the performance of which was the inducement to the grant; and it is because of such obligation to render service to the public that the legislature has power to make the grant.” In illustration of this principle he proceeds to say: “Permission to keep a tavern or a ferry, to erect a toll-bridge over a stream where it is crossed by a public highway, to build a mill- 694 OCTOBER TERM, 1885. Opinion of the Court. dam across a navigable stream, and the like, are special privileges, and, being matters in which the public have an interest, may be granted by the legislature to individuals or corporations ; but the grantee, upon accepting the grant, at once becomes bound to render that service, to secure which the grant wa^ made; and such obligation, on the part of the grantee, is just as necessary to the validity of a legislative grant of an exclusive privilege, as a consideration, either good or valuable, is to the validity of an ordinary contract. Whenever, by accepting such privilege, the grantee becomes bound, by an express or implied undertaking, to render service to the public, such undertaking will uphold the grant, no matter how inadequate it may be; for, the legislature being vested with power to make grants of that character, when the public convenience demands it, the legislative judgment is conclusive, both as to the necessity for making the grant and the amount of service to be rendered in consideration therefor, and the courts have no power to interfere, however inadequate the consideration or unreasonable the grant may appear to them to be.’ But when they can see that the grantee of an exclusive privilege has come under no obligation whatever to serve the public in any matter in any way connected with the enjoyment of the grant, it is their duty to pronounce the grant void, as contravening that provision of the Bill of Rights which prohibits the granting of exclusive privileges, except in consideration of public services.” These observations were made in a case where it was held that a statute giving a building association the right to receive a greater rate of interest than was allowed by the general law was unconstitutional, in that it conferred exclusive privileges not in consideration of any public services to be performed. In Commonwealth n. Bacon, 13 Bush, 210, 212, the question was as to the constitutionality of an act giving a strictly private corporation, which owed no duty to the public, a monopoly of an ordinary business in which every citizen was entitled to engage upon terms of equality. Its validity was attempted to be sustained on the same principle upon which the grant of ferry privileges was upheld. But the act was held to be unconstitutional, the court, among other things, saying: “Fer- LOUISVILLE GAS CO. v. CITIZENS’ GAS CO. 695 Opinion of the Court. ries are parts of highways, and the government may perform its duty in establishing and maintaining them through the agency of private individuals or corporations, and such agencies are representatives of government, and perform for it a part of its functions. And in consideration of the service thus performed for the public, the government may prohibit altogether persons from keeping ferries and competing with those it has licensed. The establishment of public highways being a function of government, no person has a right to establish such a highway without the consent of government; and hence, in prohibiting unlicensed persons from keeping a ferry, the government does not invade the right of even those who own the soil on both sides of the stream.” In the later case of Commonwealth v. Whipps, 80 Ky. 269, 272, where the validity of a statute of»Kentucky authorizing a particular person to dispose of his property by lottery was assailed as a violation of the before mentioned clause in the Bill of Rights, Pryor, J. (Chief Justice Lewis concurring), said: “ This constitutional inhibition was intended to prevent the exercise of some public function, or an exclusive privilege affecting the interests and rights of the public generally, when not in consideration of public service, and, if made to apply to the exercise of mere private rights or special privileges, it nullifies almost innumerable legislative enactments that are to be found in our private statutes, sanctioned, in many instances, by every department of the State government.” The precise question here presented seems not to have been directly adjudicated by the highest court of the State. But, as the exclusive privileges granted to the Louisville Gas Company affected the rights and interests of the public generally, and related to matters of which the public might assume control, we are not prepared to say that the grant was not in consideration of public services, within the meaning of the Constitution of Kentucky. We perceive nothing in the language of that instrument, or in the decisions of the highest court of that Commonwealth, that would justify us in holding that her legislature in granting the exclusive privileges in question exceeded its authority. 696 OCTOBER TERM, 1885. Opinion of the Court. 2 . On behalf of the Citizens’ Gas-Light Company it is contended that the charter of the Louisville Gas Company, granted January 30,1867, and amended by the act of January 22, 1869, was at all times subject to alteration or repeal at the pleasure of the legislature. Assuming that the act of 1867 was not a prolongation of the corporate existence of the original Louisville Gas Company, but created a new corporation by the same name, it is clear that such charter was granted subject to the provisions of a general statute of Kentucky, enacted on the 14th of February, 1856, entitled “An act reserving power to amend or repeal charters, and other laws.” That statute is as follows: “ § 1. That all charters and grants of or to corporations or amendments thereof, and all other statutes, shall be subject to amendment or repeal at the will of the legislature, unless a contrary intent be therein plainly expressed: Provided, That whilst privileges and franchises so granted may be changed or repealed, no amendment or repeal shall impair other rights previously vested. “ § 2. That when any corporation shall expire or be dissolved, or its corporate rights and privileges shall cease by reason of a repeal of its charter or otherwise, and no different provision is made by law, all its works and property, and all debts payable to it, shall be subject to the payment of debts owing by it, and then to distribution among the members according to their respective interests; and such corporation may sue and be sued as before, for the purpose of settlement and distribution as aforesaid. “ § 3. That the provisions of this act shall only apply to charters and acts of incorporation to be granted hereafter; and that this act shall take effect from its passage.” The language of this statute is too plain to need interpretation. It formed a part of the charter of the -new Louisville Gas Company when incorporated in 1867, and the right of the legislature, by a subsequent act, passed in 1872, to incorporate another gas company to manufacture and distribute gas in Louisville, by means of pipes laid, at its own cost, in the public ways of that city, so far from impairing the obligation of de- LOUISVILLE GAS CO. v. CITIZENS’ GAS CO. 697 Opinion of the Court. fendant’s contract with, the State, was authorized by its reserved power of amendment or repeal, unless it be that the act of January 22, 1869, “plainly expressed” the intent that the charter of the new Louisville Gas Company should not be subject to amendment or repeal at the mere will of the legislature. The judges of the State court all concurred in the opinion that no such intent was plainly expressed. As this question is at the very foundation of the inquiry whether the defendant had a valid contract with the State, the obligation of which has been impaired by subsequent legislation, we cannot avoid its determination. Whether an alleged contract arises from State legislation, or by agreement with the agents of a State, by its authority, or by stipulations between individuals exclusively, we are obliged, upon our own judgment and independently* of the adjudication of the State court, to decide whether there exists a contract within the protection of the Constitution of the United States. Jefferson Branch Bank v. Skelly, 1 Black, 436; Wright v. Nagle, 101 U. S. 791, 794; Louisville de Nashville Railroad v. Palmes, 109 U. S. 254,257. After carefully considering the grounds upon which the State court rests its conclusion, we have felt constrained to reach a different result. We are of opinion that the act of 1869 plainly expresses the intention that the company should enjoy the rights, privileges, and franchises conferred by the act of 1867, as modified and extended by that of 1869, without its charter being subject to amendment or repeal at the will of the legislature. In ascertaining the legislative intent, we attach no consequence to the negotiations between the Louisville Gas Company and the city council of Louisville as to the provisions to be embodied in an amended charter giving the company exclusive privileges after January 1,1869 ; for, the words of the act of 1869 being, in our opinion, clear and unambiguous, effect must be given to them according to their ordinary signification. The clause in that act declaring that “no alteration or amendment to the charter of the gas company shall be made without the concurrence of the city council and the directors of the gas company,” plainly expresses as we think, the intention that the company’s charter should not be 698 OCTOBER TERM, 1885. Opinion of the Court. amended or repealed u at the will of the legislature.” When the legislature declared that there shall be no alteration or amendment without the concurrence of the city council and the directors of the company, it must have intended to waive, with respect to that company, her absolute power reserved by the act of 1856, of amending or repealing charters of incorporations thereafter granted. The language used is wholly inconsistent with any other purpose than to withdraw its charter from the operation of that act, so far as to make the right of amendment or repeal subject, not to the mere will of the legislature, but, in the first instance, to the concurrence of the city council and the directors of the gas company. If there can be no amendment or repeal without the concurrence of the city council and the directors of the company, then it cannot be said that such amendment or repeal depends entirely upon the will of the legislature, as declared in the act of 1856. It was as if the legislature had said: “ As the municipal government of Louisville and the company are agreed, the latter may enjoy the rights, privileges, and franchises granted by its charter for the whole term of twenty years, unless before the expiration of that period the city council and its directors concur in asking alterations or amendments, which will be made if, in the judgment of the general assembly, the public interests will be thereby promoted.” 3. But it is argued that, as the defendant’s charter of 1867 conferred upon it no exclusive privileges, the granting of such privileges in the act of 1869 was without consideration, and is to be deemed a mere gratuity. To this it is sufficient to answer that, apart from the public services to be performed, the* obligations of the company were enlarged by the act of 1869, and its rights under that of 1867 materially lessened and burdened in the following particulars: The amended charter limited the profits of the company to twelve per cent, per annum on the par value of its stock, two per cent, of which were required to be used for extensions and not to be capitalized, except at the end of each five years, while, under the original charter, the only limitation upon the prices to be charged private consumers was that they should not exceed the average LOUISVILLE GAS CO. v. CITIZENS’ GAS CO. 699 Opinion of the Court. charges in Philadelphia, Baltimore, Cincinnati, Chicago, and St. Louis; the amended charter limited the amount to be annually charged the city per lamp to $35, no matter what its actual cost was, while, under the original charter, the company was entitled to charge the city for the actual cost of supplying, lighting and extinguishing, lamps, not, however, exceeding the average charges in the before-mentioned cities; and by the amended charter, the company was required to extend its mains when its income from lights would amount to seven per cent, on such extensions, while under the original charter such extensions were not required unless its income therefrom would pay eight per cent. These concessions upon the part of the company seem to be of a substantial character, and constituted a sufficient consideration to uphold the grant of exclusive privileges. If the consideration appears now to be inadequate, upon a money basis, that was a matter for legislative determination, behind which the courts should not attempt to go. 4. These preliminary matters being disposed of, and without referring to some matters discussed by counsel but not fairly arising on the pleadings, or in any evidence in the cause, it is clear that, upon the main issue, this case is determined by the principles announced in New Orleans Gas-Light Co. v. The Louisiana Light Co., just decided. For the reasons there stated, and ■which need not be repeated here, we are of opinion that the grant to the Louisville Gas Company, by the act of January 22, 1869, amendatory of the act of January 30, 1867, of the exclusive privilege of erecting and establishing gasworks in the city of Louisville during the continuance of its charter, and of vending coal gas-lights, and supplying that municipality and its people with gas by means of public works, that is, by means of pipes, mains, and conduits placed in and under its streets and public ways, constitutes a contract between the State and that company, the obligation of which was impaired by the charter of the Citizens’ Gas-Light Company. The charter of the latter company is, therefore, inoperative, in respect of these matters, until, at least, the exclusive privileges granted the Louisville Gas Company cease, TOO OCTOBER TERM, 1885. Opinion of the Court. according to the provisions of its charter. As the object of the plaintiff’s suit was to obtain a decree enjoining the defendant from claiming and exercising the exclusive privileges so granted to it, the judgment of the Louisville Chancery Court dismissing the bill should have been affirmed by the Court of Appeals. The judgment of the latter court, reversing that of the court of original jurisdiction, is itself reversed, and the cause remanded for further proceedings not inconsistent with this opinion. APPENDIX. RULES. SUPREME COURT OF THE UNITED STATES. October Term, 1885. Ordered by the Court, That the Thirty-third Rule of this Court be amended so as to read as follows : 33. MODELS, DIAGRAMS, AND EXHIBITS OK MATERIAL. 1. Models, diagrams, and exhibits of material forming part of the evidence taken in the court below, in any case pending in this Court, on writ of error or appeal, shall be placed in the custody of the marshal of this Court at least one month before the case is heard or submitted. 2. All models, diagrams, and exhibits of material, placed in the custody of the marshal for the inspection of the Court on the hearing of a case, must be taken away by the parties within one month after the case is decided. When this is not done, it shall be the duty of the marshal to notify the counsel in the case, by mail or otherwise, of the requirements of this rule ; and if the articles are not removed within a reasonable time after the notice is given, he shall destroy them, or make such other disposition of them as to him may seem best. Promulgated November 23, 1885. INDEX. ABANDONED OR CAPTURED PROPERTY. See Limitation, Statutes of, 6. ACCORD AND SATISFACTION. A State employed two attorneys to collect a claim, and agreed to pay them a certain percentage on any amount recovered by suit. They brought a suit and obtained judgment for the State upon the claim. The State employed another person as agent, to assist in its collection, and made an agreement with him to pay him a percentage which should cover all attorney’s fees, already accrued, or to be afterwards incurred ; and afterwards modified this agreement in respect to the amount which he should receive if contingent fees should have to be paid to any other persons under contracts with them. This agreement and its modification were unknown to the two attorneys first employed by the State. The agent, knowing of the agreement of these attorneys with the State, promised them to hold any fund that he might collect until their fees should be paid by the State. He collected a large amount, and paid most of it over to the State, retaining in his hands, after deducting his own compensation, a sum less than.was due to them under their contract with the State. They made a final settlement with the State for this sum in discharge of all their demands against the State : Held, That they could not afterwards maintain any action against the agent, on his promise to them. —Merrick v. Giddings, 300. ACTION. 1. A, a foreign steamship corporation went into liquidation August 15, 1867, and sold and transferred all its ships and other property August 16, 1867, to B, another foreign corporation, formed for the purpose of buying that property and continuing the business, with the right reserved to all stockholders in A to become stockholders in B. The officers in the old company became stockholders in the new company, and the business went on under their direction as officers of the new 704 INDEX. company. October 24, 1867, a collision took place in New York harbor between one of the steamships so transferred and some canal boats, resulting in the death of plaintiff’s intestate. Plaintiff sued A, in a State court of New York, to recover damages under a statute of that State, for the loss of her husband, and obtained a verdict and recovered judgment. Held, That this judgment against the old company could not be enforced in equity against its former property in the hands of the new company, thus transferred before the time when the alleged cause of action arose. Gray v. National Steamship Co., 116. 2. After a decree disposing of the issues and in accordance with the prayer of a bill it is not competent for one of the parties, ■without service of new process or appearance, to institute further proceedings on new issues and for new objects, although connected with the subject matter of the original litigation, by merely giving the new proceedings the title of the original cause. Smith v. Woolfolk, 143. See Accord and Satisfaction; Removal of Causes; Replevin. ADMINISTRATOR’S SALE OF REALTY. See Local Law, 1. ADMIRALTY. The Circuit Court, in an appeal from a decree of a District Court in admiralty may in its discretion permit amendments to the libel, enlarging the claims, and including claims rejected below as not specified in the pleadings. The Charles Morgan, 69. See Collision; Evidence, 2. ALABAMA. See Equity Pleading, 1, 2 ; Limitation, Statutes of, 4, 5. AMENDMENT. > See Writ of Error. APPEAL. See Injunction, 1, 2 ; Jurisdiction, A, 5; B, 3. INDEX. 705 ARKANSAS. See Limitation, Statutes of, 2. ARMY. See Arrest. ARREST. A police officer of a State, or a private citizen, has no authority as such, without any warrant or military order, to arrest and detain a deserter from the army of the United States. Kurtz v. Moffitt, 487. ASSESSMENT. See Constitutional Law, 3, 4. BANKRUPTCY. 1. A suit in which the purchaser from a trustee in bankruptcy of property of the bankrupt estate asserts title against a defendant claiming an adverse interest therein, though brought more than two years after the cause of action accrues to the trustee, is not barred by the limitation of two years prescribed by Rev. Stat., § 5057, if the defendant acquired title by a fraud practised by him on the trustee, and the fraud was concealed by the defendant from the trustee and the purchaser, until within two years before the suit was brought. Traer v. Clews, 528. 2. There is nothing in the policy or terms of the bankrupt act which forbids the bankrupt from purchasing from the trustee property of the bankrupt estate. Ib. 3. A trustee in bankruptcy may sell the unencumbered- property of the estate on credit, when he thinks it most for the interest of the creditors. Ib. See Jurisdiction, B, 3. BILL OF EXCHANGE AND PROMISSORY NOTES. A bill of exchange, dated March 4, payable in London, 60 days after sight, drawn in Illinois, on a person in Liverpool, and accepted by him “due 21st May,” without any date of acceptance, was protested for non-payment on the 21st of May. In a suit against the drawer, on the bill, it was not shown what was the date of acceptance: Held, That the bill was prematurely protested, it not appearing that days of grace were allowed. Bell v. First National Bank, 373. See Evidence, 5; Promissory Note. vol. cxv—45 706 INDEX. CALIFORNIA. See Evidence, 1. CASES AFFIRMED OR APPROVED. 1. Louisville & Nashville Railroad Co. v. Ide, 114 U. S. 52, where a like decision was made as to actions ex-contractu, affirmed and applied. Pirie v. Tvedt, 41. 2. The Lucille, 19 Wall. 73, affirmed and applied. The Charles Morgan, 69. 3. Stewart v. Kahn, 11 Wall. 493, affirmed and applied. Mayfield v. Richards, 137. 4. Louisville & Nashville Railroad Co. v, Ide, 114 U. S. 52 ; Putnam v. Ingraham, 114 U. S. 57 ; and Pirie v. Tvedt, 115 U. S. 41, affirmed. Starin v. New York, 248. 5. Detroit City Railway Co. n. Cuthard, 114 U. S. 133, cited and followed. Jacks v. Helena, 288. 6. National Bank v. Insurance Co., 100 U. S. 43, followed. Waterville v. Van Slyke, 290. 7. Jones v. Van Benthuysen, 103 U. S. 87, affirmed. S. O. 464. 8. Farmers'1 Loan & Trust Co. v. Waterman, 106 U. S. 265, approved and applied. Hassall v. Wilcox, 598. CASES DISTINGUISHED. The North Carolina, 15 Pet. 40, distinguished. The Charles Morgan, 69. CASES EXPLAINED. The principles on which Railway Co. v. Prescott, 16 Wall. 603, and Railway Co. v. McShane, 22 Wall. 444, were decided, are re-stated, so far as they are applied to this case. Northern Pacific Railroad v. Traill County, 600. CASES QUESTIONED OR OVERRULED. The authority of State v. Rives, 5 Ired. 297, is questioned by the Supreme Court of North Carolina in Gooch v. McGee, 83 N. C. 59. Buncombe County v. Tommey, 122. CATTLE GUARDS AND FENCES. See Constitutional Law, A, 5. CESTUI QUE TRUST. See Limitation, Statutes of, 3. INDEX. w CHARTER PARTY. 1. In a charter-party, which describes the ship by name and as “ of the burthen of 1100 tons, or thereabouts, registered measurement,” and by which the owner agrees to receive on board, and the charterer engages to provide, “ a full and complete cargo, say about 11,500 quarters of wheat in bulk,” the statement of her registered tonnage is not a warranty or condition precedent; and if her actual carrying capacity is about 11,500 quarters of wheat, the charterer is bound to accept her, although her registered measurement (unknown to both parties at the time of entering into the contract) is 1203 tons. Watts v. Camors, 353. 2. The clause in a charter-party, by which the parties mutually bind themselves, the ship and freight, and the merchandise to be laden on board, “in the penal sum of estimated amount of freight,” to the performance of all and every of their agreements, is not a stipulation for liquidated damages, but a penalty to secure the payment of the amount of damage that either party may actually suffer from any breach of the contract; and is to be so treated in a court of admiralty of the United States, whatever may be the rule in the courts of the particular State in which the contract is made and the court of admiralty sits. lb. 3. Under a charter-party which allowed fifteen lay days for loading after the ship was ready to receive cargo, the owner tendered her to the charterers, they immediately refused to accept her, and thirty-six days afterwards he obtained another cargo, but negotiations were pending between the parties for half of that time, and the owner sustained substantial damage in a certain amount by the failure of the charterers to comply with their contract. The Circuit Court found these facts, and entered a decree against the charterers for that amount : Held, no error in law for which the charterers could have the decree reversed in this court. Ib. CIRCUIT COURTS OF THE UNITED STATES. See KmsiRkun ; Jurisdiction, B. CLAIMS AGAINST THE UNITED STATES. A person who, by a contract made with him by the quartermaster’s department of the army in behalf of the United States, agrees to furnish all the steamboat transportation required by the United States for officers and soldiers between certain places, and to certain Indian posts and agencies, during a certain time, and to “receive from the officers or agents of the quartermaster’s department all such military, Indian and government stores, supplies, wagons and stock, as may be offered or turned over to him for transportation in good, order and 708 INDEX. condition by said officers or agents of the quartermaster’s department, and transport the same with dispatch, and deliver them in like good order and condition to the officer or agent of the quartermaster’s department designated to receive them, ” at a certain rate, is not entitled to claim compensation for Indian supplies (never in the charge of the quartermaster’s department for transportation) transported between places named in the contract by another person under a contract between him and the Commissioner of Indian Affairs; although during the same time some Indian supplies are delivered by the Commissioner of Indian Affairs to the quartermaster’s department, and by that department turned over to the claimant for transportation at the rate specified in his contract. Hazlett v. United States, 291. See Limitation, Statutes of, 6. COLLISION. In case of collision on the Mississippi, if the facts show that the injured vessel made the first signal, and that it was responded to by the offending vessel, and that no question was made below as to its being made within the time required by the Rules of the Board of Supervising Inspectors, it will be presumed to have been made at the proper distance, in compliance with the rules. The Charles Morgan, 69. See Evidence, 2. CONDITION BROKEN. See Public Land, 9. CONDITION PRECEDENT. See Contract, 3. CONFEDERATE NOTES. See Constitutional Law, A, 6; Contract, 7; Jurisdiction, A, 4. CONFLICT OF LAW. See Charter Party, 2; Jurisdiction, B, 3. CONSOLIDATION OF CORPORATIONS. See Contract, 8; Corporation, 1, 2. INDEX. 709 CONSTITUTIONAL LAW. A. Of the United States. 1. When it appears in a suit that some title, right, privilege, or immunity on which recovery depends will be defeated by one construction of the Constitution or laws of the United States or sustained by the opposite construction, the case is one arising under the Constitution or laws of the United States, within the meaning of that term as used in the act of March 3, 1875, 18 Stat. 470. Starin v. New York, 248. 2. The questions whether the city of New York has the exclusive right to establish ferries between Manhattan Island and the north shore of Staten Island on the Kill von Kull; and, whether in a given case this right has been interfered with by the setting up of a ferry without license, are not questions arising under the Constitution or laws of the United States. Ib. 3. A State statute for raising public revenue by the assessment and collection of taxes, which gives notice of the proposed assessment to an owner of property to be affected, by requiring him at a time named to present a statement of his property, with his estimate of its value, to a designated official charged with the duty of receiving the statement ; which fixes time and place for public sessions of other officials, at which this statement and estimate are to be considered, where the official valuation is to be made, and when and where the party interested has the right to be present and to be heard; and which affords him opportunity, in a suit at law for the collection of the tax, to judicially contest the validity of the proceeding, does not necessarily deprive him of his property without “due process of law,” within the meaning of the Fourteenth Amendment to the Constitution of the United States. Kentucky Railroad Tax Cases, 321. 4. A State law for the valuation of property and the assessment of taxes thereon, which provides for the classification of property subject to its provisions into different classes; which makes for one class one set of provisions as to modes and methods of ascertaining the value, and as to right of appeal, and different provisions for another class as to those subjects; but which provides for the impartial application of the same means and methods to all constituents of each class, so that the law shall operate equally and uniformly on all persons in similar circumstances, denies to no person affected by it “ equal protection of the laws,” within the meaning of the Fourteenth Amendment to the Constitution of the United States. Ib. 5. A statute of a State requiring every railroad corporation in the State to erect and maintain fences and cattle guards on the sides of its road, and, if it does not, making it liable in double the amount of damages occasioned thereby and done by its agents, cars, or engines, to cattle or other animals on its road, does not deprive a railroad corporation, against which such double damages are recovered, of its 710 INDEX. property without due process of law, or deny it the equal protection of the laws in violation of the Fourteenth Article of Amendment of the Constitution of the United States. Missouri Pacific Railway Co. v. Humes, 512. 6. A statute of Virginia, of February, 1867, after declaring that, in an action or suit or other proceeding for the enforcement of any contract, express or implied, made between the 1st day of January, 1862, and the 10th of April, 1865, it shall be lawful for either party to show, by parol or other relevant testimony, what was the understanding and agreement of the parties, either express or implied, in respect to the kind of currency in which the same was to be performed, or with reference to which, as a standard of value, it was made, provides “that when the cause of action grows out of a sale or renting or hiring of property, whether real or personal, if the court, or, when it is a jury case, the jury, think that, under all the circumstances, the fair value of the property sold, or the fair rent or hire of it would be the most just measure of recovery in the action, either of these principles may be adopted as the measure of the recovery instead of the express terms of the contract: ” Held, That the statute in this provision sanctions the impairment of contracts, which is not, under the Federal Constitution, within the competency of the legislature of the State. Accordingly, in a suit to enforce a lien for unpaid purchase money of real estate sold during the war, for which a note was given payable in dollars, but shown to have been made with reference to Confederate notes, a decision that the plaintiff was entitled to recover the value of the land at the time of the sale, instead of the value of Confederate notes at that time, was erroneous. Effinger v. Kenney, 566. 7. The repeal of a statute of limitation of actions on personal debts does not, as applied to a debtor the right of action against whom is already barred, deprive him of his property in violation of the Fourteenth Amendment of the Constitution of the United States. Campbell v. Holt, 620. 8. A legislative grant of an exclusive right to supply gas to a municipality and its inhabitants through pipes and mains laid in the public streets, and upon condition of the performance of the service by the grantee, is a grant of a franchise vested in the State, for the performance of a public service, and, after performance by the grantee, is a contract protected by the Constitution of the United States against State legislation to impair it. New Orleans Gas Co. n. Louisiana Light Co., 650; Louisville Gas Co. v. Citizens' Gas Co., 683. 9. The same rule applies to an exclusive franchise to supply water in a like manner. New Orleans Water Works v. Rivers, 674. 10. The exclusive franchise to supply water to the inhabitants of a municipality by means of pipes and mains laid through the public streets is violated by a grant to an individual in the municipality to supply his premises with water by means of a pipe or pipes so laid. Ib. INDEX. 711 11. In granting the exclusive franchise to supply gas to a municipafity and its inhabitants, a State legislature does not part with the police power and duty of protecting the public morals, and the public safety, as one or the other may be affected by the exercise of the franchise of the grantor. New Orleans Gas Co. v. Louisiana Light Co., 650; Louisville Gas Co. v. Citizens' Gas Co. 683. 12. The prohibition in the Constitution of the United States against the passage of laws impairing the obligation of contracts applies to the Constitution of each State. New Orleans Gas Co. v. Louisiana Light Co., 650. See Limitation, Statutes of, 1. B. State Constitutions. A legislative grant of an exclusive right to supply gas to a municipality and its inhabitants, by means of pipes and mains laid through the public streets, and upon condition of the performance of the service by the grantee, is no infringement of that clause in the bill of rights of Kentucky, which declares “That all freemen, when they form a social compact are equal, and that no man or set of men are entitled to exclusive separate public emoluments or privileges from the community but in consideration of public services. Louisville Gas Co. v. Citizens' Gas Co., 683. See Constitutional Law, A, 12. CONTRACT. 1. A, by letter dated January 31, acknowledged to B, vice-president of C, a corporation, that he had bought of him as representative of C, one thousand tons of old rails for delivery before August 1, and also two to six hundred tons for delivery between August 1 and October 1. B, by letter of same date, signed in the corporate name, B, vice-president, accepted the order, and agreed to deliver the rails. On the 17th February B wrote A, enclosing a corporate ratification of the sale which stated the ton as “per ton of 2,000 pounds.” A replied February 28 that he understood at the time of the sale, and still understood the sale to be “absolute, final, unconditional,” needing no ratification, and that the number of pounds in each ton under the contract “was not 2,000, but 2,240.” C made no answer before June 14, when it notified A that it had 1000 tons of old rails ready for delivery, and that without waiving its rights under the contract, to avoid dispute it made the tender, “ at gross weight of 2,240 lbs. to the ton.” A replied that he did “not recognize the existence of any such contract of sale,” and declined to designate a place for delivery. The court below found that B had authority to make the contract, and that each party at the time of its making understood 712 INDEX. the word “ton” to mean a ton of 2240 pounds. On these facts, Held (1), That there was a legal contract between the parties; (2) That C was not estopped from setting it up against A ; (3) That the contract was not repudiated and terminated by C in such manner as to discharge A from further obligation ; (4) That A was bound to accept from C, between August 1 and October 1, any amount of rails between the limits of two hundred tons and six hundred tons. Wheeler v. New Brunswick & Canada Railroad Co., 29. 2. A syndicate, of which A and B were members, was formed to purchase a mine, and it was agreed before the purchase, as a condition of A’s subscription, that he should “control the management of the mine.” After the purchase a board of directors was organized, of which A and B were members. At a meeting of the board, of which A had notice, resolutions were passed at the instigation of B prohibiting the treasurer from paying checks not signed by the president and vice-president, and countersigned by the secretary; directing that all orders for supplies and materials from San Francisco should be made through the head officer there ; authorizing the vice-president in the absence of the president, to sign certificates of stock and other papers requiring the president’s signature ; and authorizing the superintendent of the mine, in the absence from the mine of the president, to draw on the company at San Francisco for indebtedness accruing at the mine : Held, That these resolutions were not inconsistent with the control of the mine by A. Grant v. Parker, 51. 3. In a mercantile contract, a statement descriptive of the subject matter? or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, or condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the whole contract. Norrington v. Wright, 188 ; Filley v. Pope, 213. 4. Under a contract made in Philadelphia for the sale of “ 5000 tons iron rails, for shipment from a European port or ports, at the rate of about 1000 tons per month, beginning February, 1880, but whole contract to be shipped before August 1, 1880, at $45 per ton of 2240 lbs. custom-house weight, ex ship Philadelphia ; settlement cash on presentation of bills accompanied by custom-house certificate of weight ; sellers not to be compelled to replace any parcel lost after shipment the sellers are bound to ship 1000 tons in each month from February to June inclusive, except that slight and unimportant deficiencies may be made up in July; and if only400 tons are shipped in February, and 885 tons in March, and the buyer accepts and pays for the February shipment on its arrival in March, at the stipulated price and above its market value, and in ignorance that no more has been shipped in February, and is first informed of that fact after the arrival of the March shipments and before accepting or paying for either of them, he may rescind the contract by reason of the failure INDEX. T13 to ship about 1000 tons in each of the months of February and March. Norrington v. Wright, 188. 5. Under a contract for the sale of “ 500 tons No. 1 Shott’s (Scotch) pig iron, at $26 per ton cash in bond at New Orleans ; shipment from Glasgow as soon as possible ; delivery and sale subject to ocean risks ; ” shipment from Glasgow is a material part of the contract, and the buyer may refuse to accept such iron shipped as soon as possible from Leith, and arriving at New Orleans earlier than it would have arrived by the first ship that could have been obtained from Glasgow. Filley v. Pope, 213. 6. Where goods of a specified quality, not in existence or ascertained, are sold, and the seller undertakes to ship them to a distant buyer, and, when they are made or ascertained, delivers them to a carrier for the buyer, the latter, on their arrival, has the right, if they are not of the quality required by the contract, to reject them and rescind the sale, and, if he has paid for them, to recover back the price in a suit against the seller. Pope v. Allis, 363. 7. Contracts made in the insurgent States, during the late civil war, between residents of those States, with reference to Confederate notes as a standard of value, and not designed to aid the insurrectionary government, may be enforced in the National courts ; and the value of the contracts is to be determined by the value of the Confederate notes in lawful money of the United States at the time when and place where such contracts were made. Effinger v. Kenney, 566. 8. An agreement made by one of two companies before the consolidation with another company to be carried out over its entire line of railway, and on all roads which it then controlled or might thereafter control by ownership, lease, or otherwise, does not affect roads not so owned, leased or acquired at the time of the consolidation, but acquired by the new company subsequently to it. Pullman Car Co. v. Missouri Pacific Co., 587. 9. An agreement by a railway company to haul cars over all roads which it controls or may control by ownership, lease or otherwise, does not oblige it to haul cars over the connecting road of another company in whose stock it acquires, subsequently to the agreement, a controlling interest, if the other company maintains its corporate organization, and its directors retain the control of its road. Ib. See Accord and Satisfaction ; Charter Party, 1, 2, 3 ; Constitutional Law, 6 ; Evidence, 6 ; Guaranty ; Promissory Note. CORPORATION. 1. The consolidation of two or more railroad companies in Missouri, under authority derived from Rev. Stat. Missouri 1879, § 789, works a dissolution of the old corporations and the creation of a new corporation 714 INDEX. to take their place, subject to the then existing obligations of the old companies. Pullman Car Co. v. Missouri Pacific Co., 587. 2. A gas company incorporated in 1835 with the exclusive privilege of making and selling gas in New Orleans up to April 1,1875, and another gas company incorporated in 1870, with a like privilege on and after that day may, just before that day, consolidate under the statute of Louisiana of December 12, 1874, which provides that “ any two business or manufacturing companies now existing whose objects and business are in general of the same nature, may amalgamate, unite, and consolidate. New Orleans Gas Co. v. Louisiana Light Co., 650. See Action, 1; Sale ; Contract, 8, 9; Texas & Pacific Railway Company ; Removal of Causes, 1, 2, 7; Union Pacific Railway Company. COURT AND JURY. The bill of exceptions in this case contained all the evidence and the charge to the jury. There was no exception to the charge. The court refused to direct a verdict for the plaintiff, it being asked for on the ground of a variance between the proof and the answer ; and there was a verdict for the defendant: Held, That there was no such variance, and that the question of the existence of the defence setup was fairly put to the jury, on conflicting evidence. Lancaster v. Collins, 222. COURT OF CLAIMS. See Limitation, Statutes of, 6. COURTS OF THE UNITED STATES. See Admiralty ; Limitation, Statutes of, 6; Charter Party, 2; Removal of Causes. Jurisdiction; CUSTOM AND USAGE. See Evidence, 5. CUSTOMS DUTIES. 1. Under § 8 of the act of June 30, 1864, ch. 171, 13 Stat. 210, imposing a duty of 60 per cent, on “ silk laces,” and a duty of 50 per cent, on “ all manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for,” an article of silk and cotton, bought and sold as ‘ ‘ spotted or dotted net, ” but which was a lace, in which silk was the component material of chief value, was a “ silk lace,” and subject to a duty of 60 per cent. Drew v. Grinnell, 477. INDEX. 715 2. In this case, on the facts found, under Schedule N of section 2502 of Title XXXIII, of the Revised Statutes, as enacted by section 6 of the act of March 3, 1883, ch. 121, 22 Stat. 489, imposing a duty of 20 per cent, ad valorem on “ garden seeds, except seed of the sugar beet” and under “ The Free List ” in section 2503 of the same Title, as enacted by said act of 1883, embracing “ seeds of all kinds, except medicinal seeds not specially enumerated or provided for in this act,” certain beet and cabbage seeds were held to be “garden seeds’’and subject to 20 per cent, duty, and certain mangel-wurzel and turnip seeds were held not to be “ garden seeds,” and to be exempt from duty. Ferry v. Livingston, 542. 3. Bone-black, imported for use in decolorizing sugar, in the process of manufacturing it, made by subjecting bones, after they were steamed and cleaned, to destructive distillation by heat, in close vessels until everything but the inorganic matter was expelled, and then crushing the residuum, and assorting the pieces into proper sizes, was liable to a duty of 25 per cent, ad valorem, as “black of bone,” under Schedule M, section 2504, of the Revised Statutes, p. 473, 2d Ed., and was not exempt from duty, as bones “burned” or “calcined,” under “The Free List,” in section 2505, p. 483, 2d Ed., nor subject to a duty of 35 per cent., as “ manufactures of bones,” under Schedule M of section 2504, p. 474, 2d Ed. Harrison v. Merritt, 577. 4. Where an action is brought, under section 3011 of the Revised Statutes, as amended by section 1 of the act of February 27, 1877, ch. 69, 19 Stat. 247, to recover back an excess of duties paid under protest, the plaintiff must, under section 2931 of the Revised Statutes, as a condition precedent to his recovery, show not only due protest and appeal to the Secretary of the Treasury, but also that the action was brought within the time required by the statute. Arnson v. Murphy, 579. 5. It is not necessary, under section 2931, that the decision of the Secretary on the appeal should, in order to be operative, be communicated to the party appealing. Ib. See Foreign Coins. DAMAGES. The legislature of a State may fix the amount of damages beyond compensation to be awarded to a party injured by the gross negligence of a railroad company to provide suitable fences and guards of its road, or prescribe the limit within which the jury, in assessing such damages, may exercise their discretion. The additional damages are by way of punishment to the company for its negligence; and it is not a valid objection that the sufferer instead of the State receives them. Missouri Pacific Railway Co. v. Humes, 512. See Charter Party, 2, 3. Constitutional Law, A, 6. 716 INDEX. DECREE. See Judgment. DEED OF TRUST. See District of Columbia; Promissory Note; Estoppel; Surety. DEPOSITION DE BENE ESSE. On the facts appearing in the averments in the motion and in the affidavits, the court declines to order a commission to take testimony debeneesse, there being nothing to indicate that the testimony could not be taken under the provisions of Rev. Stat. § 866. Richter v. Union Trust Co., 55. DESERTER. See Arrest. DISTRICT OF COLUMBIA. 1. Under a deed of trust, covering land in the District of Columbia, made by a debtor to two grantees, their heirs and assigns, to secure the payment of a promissory note, by which deed the grantees were empowered, on default, to sell the land at public auction, “on such terms and conditions, and at such time and place, and after such previous public advertisement,” as they, “ their assigns or heirs,” should deem advantageous and proper, and to convey the same in fee-simple to the purchaser, a sale was had by public auction, under’ a notice of sale, signed by both of the trustees, aud duly published in a newspaper, but at the sale only one of the trustees was present. The proceedings at the sale were fair, both of the trustees united in a deed to the purchaser, and no ground appeared for setting the sale aside: Held, That the absence from the sale of one of the trustees was not a sufficient reason, of itself, for setting aside the sale, as against the former owner of the land. Smith, v. Black, 308. 2. The creditor, in this case, was the purchaserat the sale, and it was held that there was nothing shown which disqualified him from becoming such purchaser. Ib. 3. Alleged inadequacy of price considered, and'the sale upheld, as against that allegation, lb. 4. The purchaser, at the time he took the deed from the trustees, settled with one of the trustees, on the basis of a purchase for cash, although the terms of sale provided for a credit, and, as holder of the note secured, credited on it the amount of the net proceeds of sale, leaving a sum still due on the note: Held, That no right of the former owner of the land was violated by this course. Ib. INDEX. 717 DOUBLE DAMAGES. See Damages. EJECTMENT. See Evidence, 1; Local Law, 4. EQUITY. 1. Unless transactions set forth in a bill in equity constitute a fraud or breach of trust for which the court can give relief, charges that the acts set forth are fraudulent are not sufficient grounds of equity jurisdiction. Van Weel v. Winston, 228. 2. A bill in equity by a holder of railway mortgage bonds against the president of the company which alleges that the defendant received money from the sale of the mortgage bonds, but does not aver that the creditor has obtained judgment against the company upon his bonds, and that execution issued on the judgment has been returned nulla bona, shows nothing entitling the plaintiff to relief in equity as a creditor of the company, lb. 3. The inadequacy of the remedy at law, which sometimes justifies the interference of a court of equity, does not consist merely in its failure to produce the money, a misfortune often attendant upou all remedies, but that in its nature or character it is not fitted or adapted to the end in view; for, in this sense, the remedy at law is adequate, as much so, at least, as any remedy which chancery can give. Thompson v. Allen County, 550. 4. When a remedy is sought in equity by reason of alleged mistake or fraud, the mistake or fraud must be clearly established before the remedy can be given. Baltzerv. Raleigh & Augusta Railroad Co., 634. See Action, 1; Public Land, 7; Equity Pleading, 1, 2; Railkoad ; Judgment; Tax and Taxation, 1, 2, 8; Local Law, 10; ‘ Trust. EQUITY PLEADING. 1. The State of Alabama loaned its credit to a railroad company by indorsing its bonds. The act authorizing this to be done provided that if fraudulent indorsements of bonds should be obtained, or if the bonds should be sold for less than ninety cents on the dollar, then the railroad should be sold and those stockholders who could not prove either ignorance of the fraud or opposition to it, should be individually liable for the payment of the bonds fraudulently indorsed, and for all other losses that might fall upon the State by reason of any other frauds committed by the company. The State brought suit at 718 INDEX. law in this court against certain persons alleged in the declaration to be “the majority and controlling incorporators, officers, directors, and stockholders as well as the actual managers and controllers ” of the company. The declaration alleged that the defendants had (1) made fraudulent representations by reason of which the indorsement of an over-issue of bonds had been obtained; (2) made fraudulent misrepresentations by reason of which indorsements were obtained before the several sections of the road were fully finished, completed, and equipped; and (3) that they had made unlawful and improper use of some of the bonds, or their proceeds, after they got into the hands of the company. On demurrer: Held, That the liability of the officers and stockholders to the State was statutory only, and that the facts stated in the declaration were not such as to bring the defendants within the liability clause in the statute: (1) because the suit was not brought to recover the payment of bonds the indorsement of which had been fraudulently obtained; and (2) because the declaration did not show that the losses sued for were the immediate consequences of the frauds alleged. Alabama v. Burr, 413. 2. The legislature of Alabama, by a further act, authorized a further loan of its credit to the same company, with provision that the bonds should not be sold under ninety cents on the dollar, and “that the directors or other officers and incorporators and stockholders ” of the company, who should violate the provisions of this act, or of the former act above referred to should “be held personally liable to the State for any loss incurred thereby.” The declaration alleged that seven hundred and seventy-one of the bonds authorized by the later act were sold at less than ninety cents on the dollar, but it did not state in what respect the State was injured by such sales, nor did it state that the other injuries complained of in the bill and above referred to resulted from acts done after the passage of the last-named act. On demurrer: Held, That the allegations were insufficient to charge the defendants under the last-named act. Ib. See Patent for Invention, 9. ERROR. No judgment should be reversed in a court of error when it is clear that the error could not have prejudiced, and did not prejudice, the rights of the party against whom the ruling was made. Lancaster n. Collins, 222. ESTOPPEL. Where a deed of trust, executed to secure the note of the grantor, provided that in default of payment the trustee should sell the property on these terms: “The amount of indebtedness secured by said deed of trust unpaid, with expenses of sale, in cash, and the balance at INDEX. 719 twelve and eighteen months,” and the proceeds of the sale made by the trustee were less than the amount due on the note, the holder was not estopped to deny that his note was satisfied by the payment to him of such proceeds. Shepherd v. May, 505. See Contract, 1 (2); Local Law, 5, 8, 9. EVIDENCE. 1. In an action of ejectment for lands in California, where the plaintiff traces title to the lands from a patent of the United States issued to a settler under the preemption laws, oral evidence is inadmissible on the part of the defendant to show that the lands were not open to settlement under those laws, but were swamp and overflowed lands, which passed to the State under the act of September 28, 1850. Ehrhardt v. Hogaboom, 67. 2. The finding of the board of local inspectors, and the documents connected therewith are not admissible in a collision suit in admiralty for the purpose of showing that the offending vessel was in her proper position in the river, and had proper watches and lights set at the time of the collision. The Charles Morgan, 69. 3. When depositions of witnesses in another suit are offered for the purpose of impeaching and contradicting their evidence, and are admitted, and exception taken thereto, and the bill of exceptions shows that “in the cross-examination of each of said witnesses the attention of the witness was called to the evidence given by him in [the other case] and the said witnesses were specifically examined as to the correctness of said evidence,” and that “at the offering, no objection was made that the evidence offered was not the evidence of said witnesses respectively, or that the same had been imperfectly taken and reported,” but the cross-examination is not incorporated into the bill of exceptions; it will be presumed that ample foundation was laid for the introduction of the evidence, lb. 4. Although the general rule is that when contradictory declarations of a witness made at another time in writing are to be used for purposes of impeachment, questions as to the contents of the instrument without its production are ordinarily inadmissible: yet the law only requires that the memory of the witness shall be so refreshed as to enable him to explain if he desires to do so, and it is for the court to determine whether this has been done, before the impeaching evidence is admitted. Ib. 5. On an issue whether demand of payment of a draft had been waived by the payees in order that they might communicate with the drawer, evidence of the custom and usage of the bank holding it, if offered in support of evidence (not objected to) of the cashier of the bank of his conviction and belief (founded on such custom and usage) that 720 INDEX. the draft had been so presented, comes within the rule which allows usage and the course of business to be shown for the purpose of raising a prima fade presumption of fact, in aid of collateral testimony: and, taken together, they are sufficient to be presented to the jury. Knickerbocker Life Ins. Co. v. Pendleton, 839. 6. Where the complaint alleged a contract for delivery of iron at one place, and the answer a contract for delivery at a different place, evidence offered by the plaintiff which tended to support the averment of the answer was properly admitted under § 2666 of the Rev. Stat, of Wisconsin, the defendants having failed at the trial to prove that they were misled by the variance between the complaint and the proof. Pope v. Allis, 363. 7. Averments made under oath, in a pleading in an action at law, are competent evidence in another suit against the party making them; and the fact that the averments are made on information and belief goes only to their weight and not to their admissibility as evidence. 11). 8. In a suit in equity to restrain alleged infringements of a patent, where no notice has been given under Rev. Stat. § 4920, and no prior use or knowledge of the invention is specifically set up in the answer as a defence, evidence of the state of the art at the date when the application for it was filed, may be received for the purpose of defining the limits of the grant in the original patent, and the scope of the invention described in its specification. Eachus v. Broomall, 429. See Deposition de bene esse; Railroad. EXECUTION. See Equity, 2. Local Law, 6, 7. EXECUTIVE. It is the duty of the Land Department, of which the Secretary of the Interior is the head, to determine whether land patented to a settler is of the class subject to settlement under the preemption laws, and his judgment as to this fact is not open to contestation, in an action at law, by a mere intruder without title. Ehrhardt v, Hogdboom, 67. See Patent for Public Land; Public Land, 1. FERRIES. See Constitutional Law, A, 2. INDEX. 721 FINES. See Legislative Discretion. FOREIGN COINS. The value of foreign coins, as ascertained by the estimate of the Director of the Mint, and proclaimed by the Secretary of the Treasury is conclusive upon Custom House officers and importers. Hadden v. Her-ritt, 25. FRANCHISE. See Constitutional Law, A, 8, 9, 10, 11; Statutes, A., 1. FRAUD. See Equity, 4; Equity Pleading, 1, 2. FRAUDULENT CONVEYANCE. In the absence of fraud a transfer by a debtor in Mississippi of all his property to one of his creditors in satisfaction of the debt is valid; nor is it invalidated if, before it was made, the same property had been transferred by the debtor to a trustee to secure the same debt in like good faith, by an instrument which was void under the statutes of Mississippi, by reason of its form and contents, and if the said trustee joins in the transfer to the debtor. Stewart v. Durham, 61. See Action, 1. GAS. See Constitutional Law, A, 8, 10; B, 1. GUARANTY. An agreement in writing between a manufacturing corporation and its agent for a certain district, by which it agreed to sell him its goods at certain prices, and he agreed to sell the goods and pay it those prices, was signed by the agent. A guaranty of his future performance of his agreement was signed by another person on the same day, and delivered by the guarantor to the agent. The agreement and guaranty were delivered by the agent to an attorney of the corporation, who two days afterwards wrote under the guaranty his certificate of the sufficiency of the guarantor, and forwarded the agreement and guaranty to the corporation, which thereupon signed the agreement, but gave no notice to the guarantor of its signature of the agree-vol. cxv—46 722 INDEX. ment or acceptance of the guaranty. Held, That the contract of guaranty was not complete, and the guarantor was not liable for the price of goods sold by the corporation to the agent and not paid for by him. Davis Sewing Machine Co. v. Richards, 524. ILLINOIS. See Local Law, 8, 9, 10. INJUNCTION. 1. It is settled in this court that injunctions ordered by final decree in equity in the courts below are not vacated by appeal. Leonard v. Ozark Land Co., 465. 2. The judge in the court below who heard the case is empowered by Equity Rule 93, when allowing an appeal from a final decree granting or dissolving an injunction, to suspend or modify the injunction pending appeal, and upon such terms as may be considered proper. II). JUDGMENT. In a suit in equity brought by creditors of a deceased person against his administrator, for the settlement of his estate, a decree was made ordering a sale of his estate and the distribution of the proceeds. This was done, and the receiver reported his doings to the court. The report was confirmed, and the receiver was ordered to retain a small balance remaining as his compensation : Held, That this was a final decree settling the rights of the parties and disposing of the whole cause of action, and that one of the complainants could not re-open it for the purpose of obtaining relief in that suit against a co-complain-ant. Smith n. Woolfolk, 143. See Executive. Local Law, 8. JURISDICTION. A. Jurisdiction of the Supreme Court. 1. This court cannot review the weight of the evidence, and can look into it only to see whether there was error in not directing a verdict for the plaintiff, on the question of variance, or because there was no evidence to sustain the verdict. Lancaster n. Collins, 222. 2. Where suit is brought against heirs to enforce their liability for the payment of a note on which their ancestor was bound, and they plead neither counter-claim nor set-off, and ask no affirmative relief, and separate judgments are rendered against each for his proportionate share, this court has jurisdiction in error only over those judgments which exceed $5000. Henderson v. Wadsworth, 264. INDEX. 723 3. When it distinctly appears on the face of an opinion of a State court, which by a law of the State forms part of the record, that the decision of the case below was properly put upon a ground that did not involve a Federal question, although such question was raised there, this court has no jurisdiction in error over the judgment. Jacks v. Helena, 288. 4. Whether a contract within the insurgent States was executed with reference to Confederate notes is a question of fact which cannot be considered in error to a State court. Kenney v. Effinger, 577. 5. When separate judgments, for separate creditors, on separate claims, are rendered in one decree in equity, and a general appeal is taken, the appeal will, on motion, be dismissed for want of jurisdiction as to all who do not recover more than $5000, and will be retained as to those who recover in excess of $5000. Hassall v. Wilcox, 598. 6. Plaintiff’s declaration contained two counts, for the same cause of action, each seeking the recovery of $1200 from defendant. Defendant pleaded to the declaration, and plaintiffs demurred to the pleas. A few days later plaintiffs amended their declaration by leave of court so as to demand $10,000, and on the same day the demurrer was overruled. Parties then filed a stipulation that in making up the record to this court the clerk of the Circuit Court should only transmit the amended declaration and pleas thereto; and judgment was then entered for defendant on the demurrer ; Held, That it was apparent on the face of the record that the actual value of the matter in dispute was not sufficient to give this court jurisdiction. Bowman v. Chicago & K. W. Bailway Co., 611. 7. The right of a railroad corporation as a common carrier to carry goods for hire is not a right, privilege, or immunity secured by the Constitution of the United States, within the meaning of Rev. Stat. § 699, conferring upon this court jurisdiction, without regard to the sum or value in dispute, for the review of any final judgment at law or final decree in equity of any Circuit Court, or of any District Court acting as a Circuit Court, brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States. Ib. B. Jurisdiction of Circuit Courts of the United States. 1. When a creditor’s bill in equity is properly removed from a State court to a Circuit Court of the United States on the ground that the controversy is wholly between citizens of the United States, the jurisdiction of the latter court is not ousted by admitting in the Circuit Court as co-plaintiffs other creditors who are citizens of the same State as the defendants. Stewart v. Durham, 61. 2. On appeal by defendants from a decree of a Circuit Court on a creditor’s bill, in which the judgments are several, for the payment of 724 INDEX. amounts adjudged to creditors severally, this court has jurisdiction only over such as appeal from a decree for payment to a creditor of a sum exceeding the sum or value of $5000. As to all others the appeal must be dismissed. Ib. 3. Where a sale of the lands of a bankrupt estate has been made and confirmed by order of the bankruptcy court, and the lands have been conveyed by the assignee, the Circuit Court of the United States is without jurisdiction at the suit of the purchaser to enjoin a sale of the same lands about to be made upon the order of a State court. Sargent y. Helton, 348. See Admiralty ; Removal of Causes. KANSAS. See Union Pacific Railway Company. LACHES. See Patent for Invention, 9. LAND DEPARTMENT. See Executive. LEGISLATIVE DISCRETION. The mode in which fines and penalties shall be enforced, whether at the suit of a private party, or at a suit of the public, and what disposition shall be made of the amounts collected, are matters of legislative discretion. Hissouri Pacific Railway Go. v. Humes, 512. LETTERS PATENT. See Patent for Invention; Patent for Public Land. LIBEL. See Admiralty. LIMITATION, STATUTES OF. 1. The act of June 11, 1864,13 Stat. 123, “That whenever, during the existence of the present rebellion, any action, civil or criminal, shall accrue against any person, who, by reason of resistance to the execution of the laws of the United States, or the interruption of the ordinary course of judicial proceedings, cannot be served with process, . . • the time during which such person shall so be beyond the reach of legal process shall not be deemed or taken as any part of the time INDEX. 725 limited by law for the commencement of such action,” applies to cases in the courts of the States as well as to cases in the courts of the United States; and, as thus construed, is constitutional. May-field v. Richards, 137. 2. To bar a suit for the foreclosure of a mortgage in Arkansas, there must not only be an adverse possession for such length of time as would bar an action in ejectment, but an open and notorious denial of the mortgagee’s title: otherwise the possession of the mortgagor is the possession of the mortgagee. Smith v. Woolfolk, 143. 3. Although it is true that when the relation of trustee and cestui que trust exists, and is admitted by the trustee, lapse of time is no bar to relief in equity against the trustee in favor of the cestui que trust, yet when the trustee repudiates the trust in unequivocal words, and claims to hold the trust property as his own, and such repudiation and claim are brought to the notice of the beneficiary in such manner that he is called upon to assert his equitable rights, the statute of limitation begins to run from the time when they thus come to his knowledge. PhUlippi v. Phillippe, 151. 4. In Alabama, even in the absence of a statute of limitation, if twenty years are allowed to elapse from the time when proceedings could have been instituted for the settlement of a trust, without the commencement of such proceedings, and there has been no recognition, within that period, of the trust as continuing and undischarged, a presumption of settlement would arise, operating as a continuing bar. Ib. 5. When the lapse of twenty years raises in Alabama the presumption of payment and satisfaction of an equitable claim, the provision of § 2, Ordinance 5, of the Constitutional Convention, adopted September 27, 1865, that “in computing the time necessary to create the bar of the statutes of limitation and non-claim, the time elapsing between the 11th of January, 1861, and the passage of this ordinance shall not be estimated ” does not affect the presumption unless within that period there has been some recognition of the liability which it is sought to enforce. Ib. 6. Under § 3 of the act of July 27, 1868, ch. 276, 15 Stat. 243, now embodied in § 1059 of the Revised Statutes, in an action of trover brought against a former Secretary of the Treasury of the United States, in a court other than the Court of Claims, to recover a sum of money as the value of certain cotton alleged to have been the private, property of the plaintiff, the defendant pleaded that the cotton had, in an insurrectionary State, been taken, received, and collected, as captured or abandoned property, into the hands of a special agent appointed by the defendant while such Secretary, to receive and collect captured or abandoned property in that State under § 1 of the act of March 12, 1863, ch. 120, 12 Stat. 820; that the provisions of that act were carried out in regard to the cotton, as being captured or abandoned cotton; that all the acts done by the defendant respect- 726 INDEX. ing the cotton were done by him through such agent, in the adminis-• tration of, and in virtue and under color of, the act of 1863; and that, by force of § 3 of the act of 1863 and of § 3 of the act of 1868, the action was barred, and was exclusively within the jurisdiction of the Court of Claims. It appeared that the cotton had been taken, so far as the defendant was concerned, as being captured or abandoned property, under a claim made by him in good faith to that effect, in the administration of, and under color of, the act of 1863. Held, That, without reference to the question whether the cotton was in fact abandoned or captured property within the act of 1863, the fact that it was taken as being such, under such claim, made in good faith, was a bar to the action, under the act of 1868 and § 1059 of the the Revised Statutes. Lamar v. McCulloch, 163. See Bankruptcy, 1; Constitutional Law, A, 7; Local Law, 1, 3. LIQUIDATED DAMAGES. See Charter Party, 2. LOCAL LAW. 1. The Mississippi Code of 1871, § 2173, by which any action to recover property because of the invalidity of an administrator’s sale by order of a probate court must be brought within one year, “if such sale shall have been made in good faith and the purchase money paid,” does not apply to an action brought by the heir to recover land bid off by a creditor at such a sale for the payment of his debt, and conveyed to him by the administrator, and not otherwise paid for than by giving the administrator a receipt for the amount of the bid. Clay n. Field, 260. 2. Under the Mississippi Code of 1880, §§ 2506, 2512, a tenant in common who has been ousted by his co-tenant may maintain ejectment against him and recover rents and profits in the same action. Ib. 3. Under the Civil Code of Louisiana, a -widow, even where she has accepted the succession of her husband without benefit of inventory, is not liable in solido -with the surviving partners for the payment of \ a note made by the firm of which her husband was a member ; and payments made on the note by the suiwiving partners cannot be given in evidence to show interruption of prescription running in her favor. Henderson v. Wadsworth, 264. 4. A single verdict and judgment in ejectment in Pennsylvania, not being conclusive under the laws of that State, is not conclusive in the courts of the United States, although entitled to peculiar respect, when the questions decided arise upon the local law of the State. Gibson v. Lyon, 439. INDEX. m 5. The sanction of the court to a conveyance under proceedings and judgment for foreclosure of a mortgage in the Orphans’ Court of Philadelphia, being a judicial act, such a deed, describing the estate as conveyed subject to an outstanding mortgage, estops the grantee from denying the validity of the mortgage. Ib. 6. If a mortgage in Pennsylvania covers two or more tracts of land, and a sheriff under judgment for foreclosure, and execution, sells one tract for more than enough to pay the mortgage debt, and then proceeds to sell the other tracts, and all the sales are duly completed, and the deeds to the purchasers duly executed and delivered, without objection on the part of the owners, it is too late to object to the regularity of the proceedings, lb. 7. In Pennsylvania, the fact that a judgment for foreclosure of a mortgage was erroneous and could have been reversed upon a writ of error, does not destroy a sheriff’s sale, made under the judgment, while the same stands in full force and unreversed, lb. 8. In Illinois a judgment by default in a proceeding in a county court under the statutes of that State for the collection of taxes on real estate, by sale of the prdperty, is not conclusive upon the taxpayer, and may be impeached collaterally. Gage v. Pumpelly, 454. 9. Under the laws of that State, as construed by its courts, if any portion of a tax assessed upon real estate and levied and collected by sale of the property is illegal, the sale and the tax deed are void, and may be set aside by bill in equity. Ib. 10. In a proceeding in equity in a court of the United States to set aside a tax sale in Illinois as illegal, the complainant should offer to reimburse to the purchaser all taxes paid by him, both those for which the property might have been legally sold, and those paid after the sale. Ib. 11. The Pennsylvania act of May 15, 1871, No. 249, sec. 6, which provides as follows : “In all actions of replevin, now pending or hereafter brought, to recover timber, lumber, coal, or other property severed from realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute : Provided, said plaintiff shows title in himself at the time of the severance, ” has no operation as between tenants in common. Bohlen v. Arthurs, 482. See District of Columbia. ; Mechanics’ Lien. LOUISIANA. See Local Law, 8. MANDAMUS. See Municipal Corporation ; Tax and Taxation, 2. 728 INDEX. MECHANICS’ LIEN. 1. The statutes of North Carolina of March 28, 1870, and March 1, 1873, the first, giving a lien to mechanics and laborers in certain cases, and the other, regulating sales under mortgages given by corporations, do not give to those performing labor and furnishing materials in the construction of railroads, a lien upon the property and franchises of the corporation owning and operating such roads. Buncombe County v. Tommey, 122. 2. Ordinary lien laws giving to mechanics and laborers a lien on buildings, including the lot upon which they stand, or a lien upon a lot or farm or other property for work done thereon, or for materials furnished in the construction or repair of buildings, should not be interpreted as giving a lien upon the roadway, bridges, or other property of a railroad company, that may be essential in the operation and maintenance of its road for the public purposes for which it was established. Ib. 3. The proviso of the third section of the act of 1873, Battle’s Revisal, ch. 26, § 48, has reference to the debts and contracts of private corporations formed under the act of February 12, 1872, Pub. Laws N. C., 1871-2, ch. 199, and not those of railroad corporations, organized for public use, under the act of February 8, 1872. lb. MINERAL LAND. 1. In proceedings under Rev. Stat. §§ 2325, 2326, to determine adverse claims to locations of mineral lands, it is incumbent upon the plaintiff to show a location which entitles him to possession against the United States as well as against the other claimant; and, therefore, when plaintiff at the trial admitted that that part of his claim wherein his discovery shaft was situated had been patented to a third person, the court rightly instructed the jury that he was not entitled to 'recover any part of the premises, and to find for defendant. Guillim v. Donnellan, 45. 2. No title from the United States to land known at the time of sale to be valuable for its minerals of gold, silver, cinnabar, or copper can be obtained under the preemption or homestead laws, or the town-site laws, or in any other way than as prescribed by the laws specially authorizing the sale of such lands except in the States of Michigan, Wisconsin, Minnesota, Missouri, and Kansas. Deffeback v. Hawke, 392. 3. A certificate of purchase of mineral land, upon an entry of the same by a claimant at the local land office, if no adverse claim is filed with the register and receiver, and the entry is not cancelled or disaffirmed by the officers of the Land Department at Washington, passes the right of the goverment to him, and, as against the acquisition of title by any other party, is equivalent to a patent. The land thereby ceases INDEX. 729 to be the subject of sale by the government, which thereafter holds the legal title in trust for the holder of the certificate, lb. See Patent for Public Land ; Public Land, 4, 5, 6, 7, 8, 10. MINES AND MINING. See Contract, 2. MISSISSIPPI. See Fraudulent Conveyance; Local Law, 1, 2. MONEY. See Foreign Coins. MORTGAGE. The assignee of a mortgage in Pennsylvania obtained judgment for foreclosure against the mortgagor, and, by injunction issued in a proceeding in equity at the suit of the assignee of the equity of redemption, was restrained from sale under the judgment. It was ordered in the equity suit that the injunction stand until the holder of the mortgage transfer the bond and mortgage and assign the suit on receiving full payment of debt, interest and costs. Subsequently the injunction was dissolved and the mortgagee was authorized to proceed upon the mortgage unless the defendant in the foreclosure suit should pay the same before a day named in the order, which time was extended by a subsequent order to another day named. No payment or tender of payment was made by any one until after the expiration of the last named day. Held, That after the last named day the mortgagee was not bound to transfer the debt and suit, but was at liberty to proceed at law on the mortgage and judgment. Gibson v. I/yon, 439. See Limitation, Statutes of, 2; Trust. MUNICIPAL CORPORATION. Judgment was recovered in the Circuit Court against a county in Iowa, on which execution was issued, which was returned unsatisfied. By statute of Iowa the county was authorized to levy and collect a tax of six mills on the dollar of the assessed value of taxable property, for ordinary county revenue. The judgment creditor commenced proceedings in the same court for a mandamus commanding the county officers to set apart funds to pay the debt, or to levy and collect sufficient tax for the purpose. By the pleadings it was admitted that the whole amount of the tax for a current year was necessary for the ordi 730 INDEX. nary current expenses of the county. On an application by a judgment creditor of the county to compel the levy of an amount sufficient to pay the judgment which was recovered in the Circuit Court of the United States: Held, That on the facts pleaded and admitted no case was made justifying a writ of mandamus. Clay County v. McAleer, 616. MUNICIPAL BONDS. The bona fide holder, for value, of a bond of a municipal corporation, apparently one of a series, issued under authority of an act of the legislature of the State, but actually issued in excess of the number of bonds authorized by that act, and for purposes not contemplated in it, but as security to him for the personal debt of a fiscal officer of the county, is not protected in his holding, and cannot cast upon the county the consequence of his own mistake. Merchants' Exchange Bank n. Bergen County, 384. See Tax and Taxation, 1, 2, 3. NEBRASKA. See Union Pacific Railway Company. NEW YORK. See Constitutional Law, A, 2. NORTH CAROLINA. See Mechanics’ Lien. NORTHERN PACIFIC RAILROAD See Public Land, 11, 12, 13. PARTNERSHIP. See Local Law, 3. PATENT FOR INVENTION. 1. Letters patent No. 66,130, granted to James B. Clark, June 25, 1867, for an “improvement in the manufacture of blanks for carriage thill shackles,” are not infringed by the manufacture of blanks for shackles in accordance with letters patent No. 106,225, granted to Willis B. Smith, August 9, 1870. Clark v. Beecher Manufacturing Co., 79. 2. The features of the Clark patent are, that, by dies the arms of the blank are bent into an oblique direction, and the body into a curved form, so that the parts where the arms join the body are rounded on the outside as well as the inside; and that when, subsequently, the INDEX. 731 curved body is straightened, there will be in it sufficient metal to form sharp outside corners, by being pushed out into them. Ib. 8. The arms of the Smith blank are not bent in an oblique direction, its body is not curved, the parts where the arms join the body are not rounded, either on the inside or on the outside, and,, in afterwards straightening the back, surplus metal is not pushed toward or into the corners, to form them, but the existing corners,* already formed, are forced further apart, by driving surplus metal into the back, between the corners. Ib. 4. In view of the state of the art, and the terms of the Clark patent, it must be confined, at least, to a shape which, for practical use, in subsequent manipulation, has a disposition of metal which causes a sharp corner to be formed in substantially the same way as by the use of his blank. Ib. 5. In view of the state of the art existing at the date of the patent granted to John F. Woollensak for an improvement in transom lifters by original patent No. 136,801, dated March 11, 1873, and by re-issued patent No. 9307, dated July 20, 1880, and the claims of that patent, it must be limited to a combination, with a transom, its lifting arm and operating-rod, of a guide for the upper end of the operating-rod prolonged beyond the junction with the lifting arm, so as to prevent the operating-rod from being bent or displaced by the weight of the transom ; and it is not infringed by the device secured to Frank A. Reiher by patent No. 226,353, dated April 6, 1880. Woollensak v. Reiher, 87. 6. The question whether delay in applying for a re-issue of a patent has been reasonable or unreasonable is a question of law for the determination of the court. Woollensak v. Reiher, 96. 7. The action of the Patent Office, in granting a re-issue, and deciding that from special circumstances shown, it appeared that the applicant had not been guilty of laches in applying for it is not sufficient to explain a delay in the application which otherwise appears unreasonable, and to constitute laches. Ib. 8. When a re-issue expands the claims of the original patent and it appears that there was a delay of two years, or more, in applying for it, the delay invalidates the re-issue, unless accounted for and shown to be reasonable. Ib. 9. A bill in equity which sets forth the issue of a patent, and a re-issue with expanded claims after a lapse of two or more years, with no sufficient explanation of the cause of the delay, presents a question of laches which may be availed of as a defence, upon general demurrer for want of equity. Ib. 10. The invention patented to James Eachus, August 26, 1873, by letters patent No. 142,154, as construed by the court is for a machine, and is not the invention described in re-issued letters patent No. 6315 to him, dated March 2, 1875, for a process. The application for the latter having been made with the intent of thus enlarging the claim, 732 INDEX. it falls within the condemnation declared in Powder Co. n. Powder Works, 98 U. S. 126. Eachus v. Broomall, 429. See Evidence, 8 ; Executive. PATENT FOR PUBLIC LAND. The officers of the Land Department have no authority to insert in a patent any other terms than those of conveyance, with recitals showing a compliance with the law, and the conditions which it prescribed. The patent of a placer mining claim carries with it the title to the surface included within the lines of the mining location, as well as to the land beneath the surface. Beffeback v. Hawke, 892. . See Evidence, 1. PENALTIES. See Charter Party, 2 ; Legislative Discretion. PENNSYLVANIA. See Local Law, 4, 5, 6, 7, 11 ; Replevin, 1. POLICE OFFICER. See Arrest. POLICE POWER. See Constitutional Law, A, 11. PRACTICE. 1. The question as to which party shall make the closing argument to the jury is one of practice, and is not the subject of a bill of exceptions or of a. writ of error. Lancaster v. Collins, 222. 2. The plaintiff below obtained a decree in equity for damages and an injunction against three defendants who appealed. After docketing the appeal one appellant died. The survivors suggested his death, and an order was issued under Rule 15, § 1, for notice to his representatives. This was duly published. The representatives not appearing, the surviving appellants moved that the action abate as to the deceased, and proceed at the suit of the survivors : Held, That the suit proceed at the suit of the survivors. Moses v. Wooster, 285. 8. In order to get a decision on a motion to dismiss made before printing, the motion papers must present the case in a way which will enable INDEX. 733 the court to act understandingly without reference to the transcript on file. Waterville v. Van Slylce, 290. See Action, 2 ; Error ; Admiralty ; Jurisdiction A, 6 ; Court and Jury ; Writ of Error. Deposition de bene esse ; PREEMPTION. See Evidence, 1 ; Executive ; Mineral Land, 2. PRESUMPTION. See Collision ; Evidence, 3, 5. PRINCIPAL AND AGENT. See Accord and Satisfaction ; . Railroad, 1 (1). PROMISSORY NOTE. A conveyance of real estate subject to a deed of trust executed by tho vendor to secure the payment of a note, does not, without words importing that the vendee assumes the payment of the note, subject the latter to any liability to pay it. Shepherd v. May, 505. PUBLIC LAND. 1. In adjusting Congressional grants of land to a State, the only questions for consideration by the officers of the United States are, whether the State possessed the right to claim the land under the grant, and whether the land was subject to selection by its agents. Those officers have no jurisdiction to review transactions between the State and its purchasers, nor between the State and its locating agents, and determine whether such purchasers or locating agents complied with the provisions of its laws relating to the sale of the lands. Frasher v. O’ Connor, 102. 2. Surveys under the eighth section of the act of July 23, 1860, “to quiet land-titles in California,” became operative by approval of the United States Surveyor-General for the State, and his filing plats in the local land office of the township. Upon such approval of a survey and filing of the township plats, lands thereby excluded from a confirmed private land claim became subject to State selections and other modes of disposal of public lands. Previous approval of the 734 INDEX. survey by the Commissioner of the General Land Office was not necessary. Ib. 3. Lists of Lands certified to the State by the Commissioner of the General Land Office, and the Secretary of the Interior, convey as complete a title as patents; and lands embraced therein are not thereafter open to settlement and preemption. Ib. 4. There can be no color of title in an occupant of land, who does not hold under an instrument or proceeding or law purporting to transfer the title or to give the right of possession. Nor can good faith be affirmed of a party in holding adversely, where he knows that he has no title, and that under the law, which he is presumed to know, he can acquire none. So held where, in an action of ejectment for known mineral land by the holder of a patent of the United States, the occupant set up a claim to improvements made thereon under a statute of Dakota, which provided that “in an action for the recovery of real property, upon which permanent improvements have been made by a defendant, or those under whom he claims, holding under color of title, adversely to the claim of the plaintiff, in good faith, the value’of such improvements must be allowed as a counter-claim by such defendant,” he not having taken any proceedings to acquire the title under the laws of Congress authorizing the sale of such lands, or to acquire the right of possession under the local customs or rules of miners of the district. Deffeback v. Hawke, 392. 5. It 5vould seem that there may be an entry of a town site, even though within its limits mineral land’s are found, the entry and the patent being inoperative as to all lands known at the time to be valuable for their minerals, or discovered to be such before their occupation and improvement for residences or business under the town site title. Ib. 6. Mere occupancy of the public lands and making improvements thereon give no vested right therein as against the United States or any purchaser from them. Sparks v. Pierce, 408. 7. To entitle a party to relief in equity against a patent of the government he must show a better right to the land than the patentee, such in law as should have been respected by the officers of the Land Department, and being respected would have given him the patent. It is not sufficient to show that the patentee ought not to have received the patent. Ib. 8. A person who makes improvements upon public land, knowing that he has no title, and that the land is open to exploration and sale for its minerals, and makes no effort to secure the title to it as such, under the laws of Congress, or a right of possession under the local customs and rules of miners, has no claim to compensation for his improvements as an adverse holder in good faith, when such sale is made to another and the title is passed to him by a patent of the United States. Ib. 9. In order that an act of Congress should work a reversion to the United INDEX. 735 States for condition broken of lands granted by them to a State to aid in internal improvements, the legislation must directly, positively, and with freedom from all doubt or ambiguity, manifest the intention of Congress to reassert title and resume possession. St. Louis & Iron Mountain Railway v. M^Gee, 469. 10. No such intention is manifested in the act* of July 28, 1866, 14 Stat. 338, so far as it affects the lands granted to the States of Arkansas and Missouri by the act of February 9, 1853, 10 Stat. 155, except as to mineral lands. Ib. 11. The provisions in the act of July 17, 1870, 17 Stat. 291 (on page 305), that the lands granted to the Northern Pacific Railroad Company by the act of July 2, 1864, 13 Stat. 365, shall not be conveyed to the company or any party entitled thereto, until “there shall first be paid into the treasury of the United States the cost of surveying, selecting, and conveying the same by the company or party in interest,” exempts these lands from State or Territorial taxation until such payment is made into the treasury. Northern Pacific Railroad Co. v. Traill County, 600. 12. The Northern Pacific Railroad Company has acquired no equitable interest in the lands so granted to it, by reason of completing its road and thus earning the granted lands, which is subject to State or Territorial taxation before such payment is made into the treasury of the United States. Ib. 13. When an act granting public lands to aid in the construction of a railroad provides that patents shall issue from time to time, as sections of the road are completed, but reserves to Congress the right at any time “to add to, alter, amend, or repeal this act,” “having due regard for the rights of the company,” Congress may, without violating the Constitution of the United States, by subsequent act passed before any of the road is constructed, or any of the land earned, require the cost of surveying, selecting, and conveying the land to be paid into the treasury of the United States before the conveyance of the granted lands to any party entitled thereto. Ib. See Evidence, 1 ; Mineral Land ; Patent for Public Land. RAILROAD. 1. A, as president of a railway company, and acting in its behalf, signed and caused to be issued a circular inviting subscriptions to mortgage bonds of the company issued for the purpose of constructing “a branch from the main line to Atchison, Kansas, a distance of about fifty miles.” The mortgage made to secure these bonds described the road as “ the branch railroad of said party of the first part as the same now is or may be hereafter surveyed and being constructed, and 736 INDEX. leading from the Missouri River ... at a point opposite . . . Atchison ... by the most practicable route, not exceeding fifty miles in length, to a junction with the main line.” The bonds were further secured by a second mortgage on the main line. The branch road, as located and constructed, was only twenty-nine miles in length. The first mortgage on the main line was subsequently foreclosed, whereupon B, a holder of a branch mortgage bond, commenced proceedings to foreclose that mortgage, which resulted in a foreclosure and sale of the branch to C, also one of the bondholders. B then filled his bill in equity against A personally, on behalf of himself and other holders of the branch mortgage bonds, among whom was C. The bill set forth the above facts ; and the relief sought for was redress against an alleged fraud in the representation that the proposed branch would be ‘(about fifty miles in length. ” On demurrer, Held: 1. That the representations in the circular were representations of the company, and were in no respect the personal representations of A. 2. That the complainants had no right to rely on the statement concerning the length of the line as materially affecting their security. 3. That it was the duty of persons purchasing the bonds to look to the mortgage for the description of the property mortgaged to secure them. 4. That the description in the mortgage contemplated that if the best interests of the company should require a line shorter than fifty miles, the company should have the right to adopt it. 5. That the bill showed no right in the complainants to use the names of the company or stockholders to obtain redress for a tort committed on them, and no equities in these respects against A. 6. That the bill showed no privity between A and the bondholders as to his use of money which they had loaned to the company. Van Weel v. Winston, 228. See Constitutional Law, A, 3, 4,5 ; Equity Pleading, 1 ; Contract, 8, 9 ; Jurisdiction, A, 7 ; Corporation, 1 ; Public Land, 9, 10, 11, 12, 13 ; Damages ; Trust. Equity, 2 ; REBELLION. See Constitutional Law, A, 6 ; Jurisdiction, A, 4 ; Contract, 7 ; ' Limitation, Statutes of, 1, 6. RE-ISSUE. See Patent for Invention, 6, 7, 8, 9, 10. INDEX. 737 REMOVAL OF CAUSES. 1. Corporations of the United States, created by and organized under acts of Congress, are entitled, under the act of March 3, 1875, 18 Stat. 470, to remove into the Circuit Courts of the United States suits brought against them in State courts on the ground that such sftiits are suits “ arising under the laws of the United States.’’ Pacific Pail-road Removal Cases, 1. 2. The Union Pacific Railway Company and the Texas and Pacific Railway Company are entitled, under the act of March 3, 1875, to have all suits brought against them in State courts removed to Circuit Courts of the United States, on the ground that they are suits arising under the laws of the United States. Ib. 3. An objection that a petition for removal was not verified by oath, or that there was delay in filing it, may be waived by delay in taking the objection, lb. 4. In Missouri, a proceeding before a mayor of a city and a jury to take land for widening a street, and to ascertain the value of the land taken, and to assess the cost thereof on the property benefited, is not, while pending there, a suit at law within the meaning of the act of March 3,1875, authorizing the removal of causes, but it becomes such a suit at law when transferred to the Circuit Court of the State on appeal. Ib. 5. In proceedings under the act of the Legislature of Missouri, passed in 1875, for widening the streets of Kansas City, the Union Pacific Railway Company had a controversy distinct and separate from like controversies of other owners of land affected by the proceedings; and the fact that the removal of the controversy of the Railway Company to the Circuit Court of the United States may have an indirect effect upon the proceedings in the State courts as to the other owners, furnishes no good reason for depriving the company of its right to remove its suit. Ib. 6. The filing of separate answers, tendering separate issues for trial by several defendants sued jointly in a State court, on a joint cause of action in tort, does not divide the suit into separate controversies so as to make it removable into the Circuit Courts, under the second clause of § 2, act of March 3, 1875. Pirie v. Tvedt, 41. 7. A suit in equity brought by C, a ^citizen of one State, against a corporation of the same State, and T, a citizen of another State, and W, to obtain a decree that C owns shares of the stock of the corporation, standing in the name of W, but sold by him to T, and that the corporation cancel on its books the shares standing in the name of W, and issue to C certificates therefor, cannot be removed by T into the Circuit Court of the United States, under § 2 of the act of March 3, 1875, 18 Stat. 470, because the corporation is an indispensable party to the suit, and is a citizen of the same State with C. Crump v. Thurber, 56. ...... vol. cxv—47 738 INDEX. 8. A separate defence by one defendant, in a joint suit against him and others upon a joint or a joint and several cause of action, does not create a separate controversy, so as to entitle that defendant, if the necessary citizenship exists as to him, to a removal of the cause under ^the second clause of § 2, act of March 3, 1875. Starin v. New York, 248. 9. A writ of habeas corpus is not removable from a State court into a Circuit Court of the United States under the Ret of March 3, 1875, ch. 137, § 2. Kurtz v. Moffitt, 487. See Constitutional Law, A, 1, 2 ; Jurisdiction, B, 1, 2. REPLEVIN. 1. A tenant in common cannot maintain replevin against a co-tenant, because they have each and equally a right of possession; and that rule is recognized in Pennsylvania. Bohlen v. Arthurs, 482. 2. Where under an agreement for the purchase of an undivided interest in land, to be conveyed to the purchaser on his paying for it, he acquires no right to cut timber on the land without the consent of the owners of the remaining interest, who are tenants in common with him of the land, if he cuts such timber, and removes it, and it is taken possession of by such owners of the remaining interest, he has no such right of possession in it as will sustain an action of replevin by him against them. Ib. See Local Law, 11. REPRESENTATIONS. See Railroads, 1 (2). RULES. See Injunction, 2; Practice, 2. SALE. When an incorporated company has been dissolved, and its affairs are in the course of liquidation, a sale and transfer by a stockholder of all his claims and demands on account of his stock is not void because the vendee may be compelled to bring suit to enforce his right to such claims and demands. Traer v. Clews, 528. See District ok Columbia, 1/ SALE ON EXECUTION. See Local Law, 6, 7. INDEX. 739 SECRETARY OF THE INTERIOR. See Executive. SHIPS & SHIPPING. See Charter Party, 2. STATUTE OF LIMITATIONS. _ See Limitation, Statutes of. STATUTES. A. Construction of Statutes. In 1856 the legislature of Kentucky enacted that “all charters and grants of and to corporations, or amendments thereof shall be subject to amendment or repeal at the will of the legislature, unless a contrary intent be therein expressed.” By an act passed in 1869, amending the charter of a gas company which was subject to that provision in the act of* 1856, it was enacted : “ That said gas company shall have the exclusive privilege of erecting and establishing gas works in the city of Louisville during the continuance of this charter, and of vending coal gas lights, and supplying the city and citizens with gas by means of public works.” Held, That the latter act contains a clear expression of the legislative intent that the company shall continue to enjoy the franchises then possessed by it for the term named in that act, without being subject to have its charter in that respect amended or repealed at the will of the legislature. Louisfoille Gas Co. v. Citizens' Gas Co., 683. See Damages ; Public Land, 9. B. Statutes of the United States. See Bankruptcy, 1; Public Land, 2, 10, 11; Constitutional Law, A, 1; Removal of Causes, 1, 2, 6, 7, Customs Duties; 8, 9; Deposition de bene esse; Texas and Pacific Railway Evidence, 1, 8; Company; Jurisdiction, A, 7; Union Pacific Railway Com- Limitation, Statutes of, 1, 6; pany ; Mineral Land, 1; Writ of Error. C. Statutes of States and Territories. Alabama: /fee Equity Pleading, 1, 2; Limitation, Statutes of, 4, 5. Arkansas: See Limitation, Statutes of, 2. 740 INDEX. Dakota: See Public Land, 4. Illinois: See Local Law, 8, 9, 10. Iowa: ^Municipal Corporation. Kentucky; See Constitutional Law, A, 8, 4, 8, 9, 10, 11; B; Statutes, A. Louisiana: See Corporation, 2; Local Law, 3. Mississippi: See Local Law, 1, 2. Missouri: ^Corporation,!. Removal of Causes, 4, 5. North Carolina: See, Mechanics’ Lien. Pennsylvania: See Local Law, 11. Virginia: See Constitutional Law, A, 6. Wisconsin: See Evidence, 6. SURETY. An express promise made to the vendor by the vendee of real estate conveyed to him subject to a deed of trust executed to secure a debt, that* he will pay the debt, does not, without the assent of the creditor, make the vendee the principal debtor, and the vendor the surety. Shepherd v. May, 505. SWAMP LANDS. See Evidence, 1. TAX AND TAXATION. 1. The proposition that the levy and collection of taxes, though they are to be raised for the satisfaction of judgments against counties or towns, is not within the jurisdiction of a court of equity, reviewed and reaffirmed. Thompson v. Allen County, 550. 2. The fact that the remedy at law by mandamus for levying and collecting taxes has proved ineffectual, and that no officers can be found to perform the duty of levying and collecting them, is no sufficient ground of equity jurisdiction. Ib. 3. The principle is the same where the proper officers of the county or town have levied the tax and no one can be found to accept the office of collector of taxes. This gives no jurisdiction to a court of equity to fill that office or to appoint a receiver to perform its functions. Ib. See Constitutional Law, A, 3, 4 ; Local Law, 8, 9, 10; Municipal Corporation. INDEX. 741 TAX SALE. See Local Law, 8, 9, 10. TENANTS IN COMMON. See Local Law, 11 ; Replevin, 1, 2. TEXAS AND PACIFIC RAILWAY COMPANY. The Texas and Pacific Railway Company is a corporation deriving its corporate powers from acts of Congress. Pacific Railroad Removal Cases, 1. TRUST. The president of a railway company holds no fiduciary relation to mortgage bondholders of the company which requires him as their trustee or agent to see to the proper application of the funds received by the company from the sale of the mortgage bonds, or to account to the bondholders for any surplus from the proceeds of their bonds after constructing the works for which they were issued ; his relations and duties in these respects are to the company and its stockholders, not to creditors of the company. Van Weel v. Winston, 228. TRUSTEE. See District of Columbia, 1, 2, 4 ; . Limitation, Statutes of, 3. UNION PACIFIC RAILWAY COMPANY. The Union Pacific Railway Company is, as to its road, property and franchises in Kansas, a corporation de facto created and organized under acts of Congress ; and as to the same in Nebraska, it is strictly and purely a corporation deriving all its corporate and other powers from acts of Congress. Pacific Railroad Removal Cases, 1. VARIANCE. See Court and Jury ; Evidence, 6. WARRANTY. See Contract, 3. WRIT OF ERROR. After final judgment in this case at the last term reversing the judgment below (see 112 U. S. 696), the court discovered that the writ of error 742 INDEX. was sued out and citation directed and served against P. H. Pendleton, only one of the plaintiffs below ; that the preliminary appeal bond was made to him alone ; but that the supersedeas bond was executed to all the plaintiffs below, and that all subsequent proceedings were entitled in the name of P. H. Pendleton & als. After notice to plaintiff in error to show cause, the court allowed the writ of error to be amended, set aside the judgment, ordered a new citation to be issued to all the plaintiffs below, and directed a re-argument. Knickerbocker Life Ins. Co. v. Pendleton, 839.