7 fg' ^12 UNITED STATES REPORTS VOLUME 1 1 7 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1885 J. C. BANCROFT DAVIS REPORTEE NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1886 COP FRIGHT, 1886, By BANKS & BROTHEBS. 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. See Appendix for: PAGE I. Chief Justice Taney’s Memorandum for opinion in Gordon v. United States, 2 Wall. 561......................... 697 II. Proceedings of the Court on the death of the Vice-President.707 III. Amendment to Rules.................................. 708 ERRATA. Page 99, last line in column headed Date of Check. For “ Jan’y ” read “ Feb’y ” Page 114, line 12. For “October 6 ” read “ October 7.” “ “ line 13. For “ 1881 ” read “ 1880.” Page 410, line 4. For “ that the ” read “ that, under the.” Page 327, line 7. After “dissented” insert “ ¡See 118 IT. S. 210].” TABLE OF CASES. Page Akers v. Akers.......................................197 Akers, Akers v.......................................197 Alabama v. Montague............................* . 602 Alabama v. Montague................................ 611 Anderson, Sloane v...................................275 Applegate v. Lexington & Carter County Mining Company ......... 255 Armstrong, New York Mutual Life Insurance Company v...........................................591 Arthur, Ferguson v...................................482 Barney v. Winona & St. Peter Railroad Company . . 228 Boardman v. Toffey ..................................271 Borg v. Illinois Midland Railway Company . . . 434 Bruce v. Manchester & Keene Railroad . . . 514 Burgess, Graffam v. . .......................180 Bullard, Long v. . ’. 617 Burgess, Turpin v....................................504 Burnes v. Scott......................................582 Campbell v. District of Columbia . . . . . 615 Cantrell v. Wallick . . . . . . 689 Carriere, Tua v.................................... 201 Cherokee Trust Funds (The)...........................288 Chicago & Northwestern Railway Company v. Ohle . 123 Chicago, Milwaukee & St. Paul Railway Company v. Sioux City & St. Paul Railroad Company . . 406 Chicago, Milwaukee & St. Paul Railway Company, Sioux City & St. Paul Railroad Company v. . . 406 viii TABLE OF CASES. Page Coffey v. United States . . . . . 233 Connecticut Mutual Life Insurance Company v. Scammon 634 Core v. Vinal............................... . . 347 Daviess County v. Dickinson.............................657 Dickinson, Daviess County v.............................657 Dieckerhoff, Harwood v. . . . . . . 200 Dimock v. Revere Copper Company .... 559 Dingley v. Oler .......................................490 Dingley, Oler v.........................................490 Dinsmore, President & Shareholder in Adams Express Company, Missouri, Kansas & Texas Railway Company v............................................... 1 Dinsmore, President & Shareholder in Adams Express Company, Missouri, Kansas & Texas Railway Company u ................................601 District of Columbia, Campbell . . . . 615 District of Columbia v. McElligott . . . .621 Driver, Jefferson v.....................................272 Dunphy v. Sullivan......................................346 Eastern Band of Cherokee Indians v. United States and Cherokee Nation, commonly called Cherokee Nation West . .'.....................................288 Erie and Western Transportation Company, Phoenix Insurance Company v.................................312 Ex parte Fonda . . . ... . . . 516 Exporte Phoenix Insurance Company . . . 367 Ex parte Royall............................... . . 241 Ex pa/rte Royall........................................254 Express Cases.............................................1 Express Cases...........................................601 Farmers’ Loan and Trust Company v. Wright. . . 72 Ferguson v. Arthur ....... 482 Fidelity Insurance Company v. Huntington . . . 280 Fletcher v. Illinois Midland Railway Company . . 434 Fletcher, New York Life Insurance Company v. . .519 Fonda, Ex parte.........................................516 Fulkerson v. Holmes.....................................389 TABLE OF CASES. ix Page Given -y. Wright................................... 648 Glasgow v. Lipse.....................................327 Gordon v. United States..............................697 Graffam v. Burgess...................................180 Greenleaf, Yale Lock Manufacturing Company v. . . 554 Hagood v. Southern....................................52 Hagood v. Williams....................................52 Halsey, New Providence v.............................336 Harwood v. Dieckerhoff ...... 200 Hobbs v. McLean..................................... 567 Holmes, Fulkerson v. . . ... . . 389 Homeopathic Mutual Life Insurance Company, Knapp v. 411 Hopkins, Zeigler v............................ . 683 Hoyt v. Russell......................................401 Hubbard, Marshall v..................................415 Huntington, Fidelity Insurance Company v. . . . 280 Illinois Midland Railway Company, Borg v. . . . 434 Illinois Midland Railway Company, Fletcher v. . . 434 Illinois Midland Railway Company, Union Trust Company v..................................434 Jackson v. Lawrence.....................679 Jefferson v. Driver..................................272 Johnson y. Keith........................199 Keith, Johnson v. ....... 199 Kentucky & Great Eastern Railway Company, Wright v. 72 Kerr v. South Park Commissioners.....................379 Kerr v. South Park Commissioners .... 388 Kleinschmidt v. McAndrews ...........................282 Knapp v. Homeopathic Mutual Life Insurance Company 411 Lawrence, Jackson v................................. 679 Leather Manufacturers’ Bank y. Morgan ... 96 Lexington & Carter County Mining Company, Applegate v...........................................255 Lipse, Glasgow v.....................................327 X TABLE OF CASES. Page Littlefield v. Trustees of the Internal Improvement Fund of Florida............................ . .419 Long v. Bullard . .........................617 McAndrews, Kleinschmidt v.............................282 McElligott, District of Columbia v. ... 621 Mackin v. United States...............................348 McLean, Hobbs v..................................... 567 Mahomet v. Quackenbush . . . . . 508 Manchester & Keene Railroad, Bruce v. . . . 514 Marshall v. Hubbard ..................................415 Memphis & Little Rock Railroad Company v. Southern Express Company ...... 1 Memphis & Little Rock Railroad Company v. Southern Express Company . ....................601 Missouri, Kansas & Texas Railway Company v. Dinsmore, President & Shareholder in Adams Express Company 1 Missouri, Kansas & Texas Railway Company v. Dinsmore, President & Shareholder in Adams Express Company 601 Montague, Alabama v...................................602 Montague, Alabama v...................................611 Morgan, Leather Manufacturers’ Bank v. . 96 Negley, Phillips v....................................665 New Providence v. Halsey..............................336 New York Life Insurance Company v. Fletcher . . 519 New York Mutual Life Insurance Company v. Armstrong 591 Oaks, Phelps v........................................236 Ohle, Chicago & Northwestern Railway Company v. 123 Oler v. Dingley . . . . . . . . 490 Oler, Dingley v.......................................490 Patch v. White........................................210 Phelps v. Oaks . . . . . . . 236 Phillips v. Negley....................................665 Phoenix Insurance Company, Ex parte .... 367 Phoenix Insurance Company v. Erie and Western Transportation Company . . . . . . 312 Phoenix Life Insurance Company v. Walrath . . 365 TABLE OF CASES. xi Page Pickard v. Pullman Southern Car Company . . 34 Pullman Southern Car Company, Pickard v. . . 34 Pullman Southern Car Company, Tennessee v. . 51 Quackenbush, Mahomet v................... . 508 * Band v. Walker .................................340 Peed v. Trustees of the Internal Improvement Fund of Florida . . . . . . . . . 419 Revere Copper Company, Dimock v.................559 Royall, Ex parte ........ 241 Royall, Ex parte ........ 254 Russell, Hoyt v.................................401 St. Louis, Iron Mountain & Southern Railway Company v. Southern Express Company .... 1 St. Louis, Iron Mountain & Southern Railway Company v. Southern Express Company .... 601 Sargent, Yale Lock Manufacturing Company v. . 373 Sargent, Yale Lock Manufacturing Company v. . . 536 Scammon, Connecticut Mutual Life Insurance Company v. 634 Scott, Burnes v..................... . . 582 Sioux City &’ St. Paul Railroad Company v. Chicago, Mil- waukee & St. Paul Railway Company . • . . 406 Sioux City & St. Paul Railroad Company, Chicago, Mil- waukee & St. Paul Railway Company v. • . . 406 Sloane v. Anderson..................1 .275 South Carolina, Stone v. ..... 430 South Park Commissioners, Kerr v. . . . . 379. South Park Commissioners, Kerr v. ... . 388 Southern, Hagood v...............................52 Southern Express Company, Memphis & Little Rock Rail- road Company v. ...... 1 Southern Express Company, Memphis & Little Rock Rail- road Company v. ...... 601 Southern Express Company, St. Louis, Iron Mountain & Southern Railway Company v. . . . . 1 Southern Express Company, St. Louis, Iron Mountain & Southern Railway Company v. . . . 601 Spalding, Van Ris wick v........................370 xii TABLE OF CASES. Page Stewart v. Virginia....................................612 Stone v. South Carolina................................430 Sturges v. United States...............................363 Sullivan, Dunphy v. . .....................346 Tennessee v. Pullman Southern Car Company . . 51 Tennessee, State of, Van Brodklin v....................151 Tennessee v. Whitworth.................................129 Tennessee v. Whitworth ................................139 The Cherokee Trust Funds ..... 288 Toffey, Boardman v.....................................271 Trustees of the Internal Improvement Fund of Florida, Littlefield v. . . . . . . . . 419 Trustees of the Internal Improvement Fund of Florida, Reed v...............................................419 Tua v. Carriere........................................201 Turpin v. Burgess......................................504 Union Pacific Railway Company v. United States . 355 Union Pacific Railway Company, United States v. . 355 Union Trust Company v. Illinois Midland Railway Company ................................................434 Union Trust Company, Waring v..........................434 United States and Cherokee Nation, commonly called Cherokee Nation West, Eastern Band of Cherokee Indians -y....................................... 288 United States, Coffey -y. 233 United States, Gordon v................................697 United States, Mackin v...............................348 United States, Sturges v...............................363 United States v. Union Pacific Railway Company . 355 United States, Union Pacific Railway Company -y. . 355 Van Brocklin -y. State of Tennessee . . . . 151 Van Riswick v. Spalding t..............................370 Vinal, Core v.......................... . . . 347 Virginia, Stewart v....................................612 Walker, Rand v. ....... 340 Wallick, Cantrell v. . . . . . . . 689 TABLE OF CASES. xiii Page Walrath, Phoenix Life Insurance Company v. . . 365 Waring v. Union Trust Company.........................434 White, Patch v........................................210 Whitworth, Tennessee v................................129 Whitworth, Tennessee v................................139 Williams, Hagood v.............................. .52 Winona & St. Peter Railroad Company, Barney v. . 228 Wright, Farmers’ Loan & Trust Company v. . .72 Wright, Given v.......................................648 Wright v. Kentucky & Great Eastern Railway Company 72 Yale Lock Manufacturing Company v. Greenleaf . 554 Yale Lock Manufacturing Company v. Sargent . . 373 , Yale Lock Manufacturing Company v. Sargent . . 536 Zeigler v. Hopkins....................................683 TABLE OF CASES CITED IN OPINIONS. Page Abbott v. Abbott, 53 Maine, 356 223 Ableman v. Booth, 21 How. 506 249 Ackley School District v. Hall, 113 U. S. 135 338, 514 Adams v. Crittenden, 106 U. S. 576 369 Allard v. Lamirande, 29 Wis. 502 591 Allen v. Baltimore & Ohio Railroad Co., 114 U. S. 311 69, 71 Allison v. Chicago & Northwestern Railroad Co., 42 Iowa, 274 590 Almy v. State of California, 24 How. 169 48 American Ins. Co. v. Neiberger, 74 Missouri, 167 535 Ames v. Kansas, 111 U. S. 449 433 Anderson County Commissioners v. Beal, 113 U. S. 227 419, 490 Anderson v. Santa Anna, 116 U. S. 356 509 Andrew v. Auditor, 28 Grattan, 115 171 Andrews v. Scoton, 2 Bland, 629 - 192 Antoni v. Greenhow, 107 U. S. 771 614 Applegate v. Lexington & Carter Co. Mining Co., 117 Ú. S. 255 397 Archibald v. Mutual Ins. Co. of Chicago, 38 Wis. 542 598 Armstrong v. Mutual Life Ins. Co., 20 Blatchford, 493 597 Armstrong’s Foundry, 6 Wall. 766 234, 235 Arthur v. Rheims, 96 U. S. 143 489 Arthur v. Stephani, 96 U. S. 125 489 Atchison, Topeka &c. Railroad Co. v. Denver & New Orleans Railroad Co., 110 U. S. 667 29 Atlantic Works v. Brady, 107 U. S. ¿92 559 Attorney-General v. London & Northwestern Railway Co., 6 Q. Page B. Div. 216 (S. C. 5 Ex. Div. 247) 46 Attorney-General v. Kohler, 9 H. L. Cas. 653 397 Avery v. Bowden, 5 El. & BL 714 ; 6 El. & Bl, 953 503 Babbitt v. Clark, 103 U. S. 606 366 Babcock v. Wyman, 19 How. 289 681 Bagnell v. Broderick, 13 Pet. 436 588 Bailey v. United States, 109 U. S. 432 577 Baker v. Union Ins. Co., 43 N. Y. 283 414 Baltimore & Ohio Railroad Co., Ex parte, 106 U. S. 5 369 Bank of Commerce v. New York, 2 Black, 620 156 Bank of Hamilton v. Dudley, 2 Pet. 492 588 Bank of Kentucky v. Adams Ex- press Co., 93 U. S. 174 322 Bank of Kentucky v. Wistar, 3 Pet. 431. 674 Bank of United States v. Bank of Georgia, 10 Wheat. 333 109 Bank of United States v. Moss, 6 How. 31 674 Bank Tax Case, 2 Wall. 200 156 Banks v. Mayor, 7 Wall. 16 156 Barker v. Barker, 14 Wise. 131 591 Barney v. Keokuk, 94 U. S. 324 168 Barr v. Gratz, 4 Wheat. 213 261,263 Bartlett v. Morris, 9 Port. (Ala.) 266 580 Barton v. Barbour, 104 U. S. 126 458 Bass v. Mitchell, 22 Texas, 285 223 Baylis ®. Travellers’ Ins. Co., 113 U. S. 316 419, 490 Belleville &c. Railroad Co. v. Gregory, 15 111. 20 512 Bennett ®. Butterworth, 11 How. 668 587 xvi TABLE OF CASES CITED. Page Bennett ®. Hunter, 9 Wall. 326 179 Bernards Township v. Stebbins, 109 U S. 341, 337, 338, 339 Bible Society v. Grove, 101 U. S. 610 274 Blackburn v. Crawfords, 3 Wall. 175 397 Blair ®. Wait, 69 N. Y. 113 109 Blake v. McKim, 103 U. S. 336 433 Bloxam v. Elsee, 6 B & C. 169 580 Blue Jacket v. Johnson County Commissioners, 3 Kansas, 299 (Ä a 5 Wall. 737), 166 Board of Liquidation v. McComb, 92 U. S. 531 69 Boone ®. Chiles, 10 Pet. 177 589 Bostwick ®. Brinkerhoff, 106 U. S. 4 199 Bottomley v. United States, 1 Story, 135 599 Bowditch ®. Boston, 101 U. S. 16 490 Box ®. Barrett, L. R. 3 Eq. 244 225 Bradford ®. Rice, 102 Mass. 472 566 Bradley v. The People, 4 Wall. 459 136 Branch v. Charleston, 92 U. S. 677 147 Brant v. Robertson, 16 Missouri, 129 681 Brant ®. Virginia Coal & Iron Co., 93 U. S. 326 580 Brick ®. Brick, 98 U. S. 514 681 Bridendolph ®. Zeller’s Executors, 3 Maryland, 325 676 Bridges, Ex parte, 2 Woods, 428 253 Brobst ®. Brock, 10 Wall. 519 210, 401 Bronson v. Schulten, 104 U. S. 410 672, 674 Brown ®. County of Buena Vista, 95 U. S. 157 675 Brown ®. Houston, 114 U. S. 622 49 Brown ®. Saltonstall, 3 Met. (Mass.), 423 227 Buchanan ®. Alexander, 4 How. 20 159 Buck v. Colbath, 3 Wall. 334 208 Buckley v. Osburn, 8 Ohio, 180 174 Burnham v. Bowen, 111 U. S. 776 462 Burtis v. Thompson, 42 N. Y. 246 503 Burwell ®. Burgess, 32 Grattan, 472 506 Butler v. Haskell, 4 Desaussure, 651 194 Butler v. Watkins, 13 Wall. 456 599 Byers ®. Surget, 19 How. 303 192, 193 Cable ®. Ellis, 110 U. S. 389 274 Cairncross ®. Lorimer, 3 Macq. 827 113 Cameron v. McRoberts, 3 Wheat. 591 674 Campbell v. Gardner, 3 Stockt. (11 N. J. Eq.), 423 192 Page Carr ®. London & Northwestern Railway Co., L. R. 10 C. P. 307 108 Carroll ®. Safford, 3 How. 441 169 Carson’s Sale, 6 Watts, 140 192 Carstairs ®. Mechanics’ & Traders’ Ins. Co. 18 Fed. Rep. 473 327 Caruthers®. Eldredge, 12Grat. 670 263, 397 Carver v. Astor, 4 Pet. 1 399 Cary®. Hotailing, 1 Hill, 311 , 599 Casco Bank ®. Keene, 53 Maine, 103 115 Castle ®. Bullard, 23 How. 172 598 Cedar Rapids Co. ®. Herring, 110 U. S. 27 . 407 Centra] Railroad & Banking Co. ®. Georgia, 92 U. S. 665 145 Central Railroad Co. ®. Pettus, 113 U. S. 116 582 Cesar ®. Chew, 7 G. & J. 127 227 Chamber of Commerce ®. Sollitt, 43 Ill. 519 503 Chambers ®. Minchin, 4 Ves. 675 226 Cherokee Nation ®. State of Georgia, Richard Peters, 1831 300 Chesapeake & Ohio Railroad Co. v. Miller, 114 U. S. 176 146 Chesapeake & Ohio Railroad Co. ®. White, 111 U. S. 134 432 Cheyney’s Case, 5 Rep. 68 226 Chicago, Rock Island &c. Railroad ®. Davenport, 51 Iowa, 451 171 Claflin ®. Houseman, 93 U. S. 130 565 Clark ®. Conkling, (Kentucky, Dis- trict Court, Mason Co. 1798) 266, 269 Clark ®. Wilson, 103 Mass. 219 321. Clementson ®. Gandy, 1 Keen, 309 227 Cloutier ®. Lemee, 33 La. Ann. 305 206 Coe ®. Errol,116 U.S.517 179, 506, 507 Coffey ®. United States, 116 U. S. 427 233 Coffin ®. Ogden, 18 Wall. 120 696 Collector ®. Day, 11 Wall. 113 177 Collier ®. Whipple, 13 Wend. 224 192 Collins ®. Duffy, 7 La. Ann. 39 204 Comegvs ®. Vasse, 1 Pet. 193 321 Commissioners ®. Dobbins, 7 Watts, 513 170 Commonwealth ®. Shoe & Leather Ins. Co., 112 Mass. 131 324 Commonwealth ®. Young, 1 Hall’s Journ. of Jurisp. 47 (Ä C. Brightly, 302) 169 Connecticut Mut. Life Ins. Co. v. Scammon, 4 Fed. Rep. 263 643 Continental Bank ®. Bank of the Commonwealth, 50 N. Y. 575 108,115 Cook ®. South Park Commissioners, 61 Ill. 115 387 TABLE OF CASES CITED. xvii Page Cooke ®. United States, 91 U. S. 389 110, 12? Cooper ®. Omohundro, 19 Wall. 65 272 Copeland v. New England Ins. Co., 2 Met. 432 323, 325 Cornish ®. Abington, 4 H. & N. 549 109 Cotton v. New Providence, 18 Vroom (47 N. J. L.), 401 338 County of Mobile v. Kimball, 102 U. S. 691 49 County of Scotland ®. Thomas, 94 U. S. 682 147 Covell v. Heyman, 111 U. S. 176 252 Crabtree v. Messersmith, 19 Iowa, 179 503 Craig v. Wroth, 47 Maryland, 281 676 Crandall ®. Nevada, 6 Wall. 35 48 Crane v. Astor & Morris, 6 Pet. 598 399 Creath v. Sims, 5 How. 192 675 Crim v. Handley, 94 U. S. 652 675 Cromwell ®. Sac County, 94 U. S. 351 565 Crowley v. Cohen, 3 B. & Ad. 478 324 Cunningham ®. Macon & Brunswick .Railroad Co. 109 U. S. 446 69, 70 Cushing v. Laird, 107 U. S. 69 580 Dana v. Bank of the Republic, 132 Mass. 156 119, 122 Daniels v. Newton, 114 Mass. 530 503 Danube & Black Sea Railway Co. ®. Xenos, 11 C. B. N. S. 152 502 Davidson ®. Burnand, L. R. 4, C. P. 117 323 Davis v. Friedlander, 104 U. S. 570 565 Davis ®. Gray, 16 Wall. 203 69 Davis v. Wood, 1 Wheat. 6 397 Deevy ®. Cray, 5 Wall. 795 399 Deffeback ®. Hawke, 115 U. S. 392 169 DeForest «. Fulton Insurance Co., 1 Hall, 84 324 De Groot v. United States, 5 Wall. 419 706 De Ronge ®. Elliott, 8 C. E. Green (23 N. J. Eq.), 486 598 De Treville v. Smalls, 98 U. S. 517 179 Devaynes v. Noble, 1 Meriv. 530 106 Dimpfel ®. Ohio & Mississippi Railway Co., 9 Bissell, 129 468 Directors of the Poor v. School Directors, 42 Penn. St. 21 174 Dixon County ®. Field, 111 U. S. 83 665 Doane ®. Wilcutt, 16 Gray, 368 223 Dobbins v. Erie County Commis- sioners, 16 Pet. 435 159, 170, 178 Doe v. Beebe, 13 How. 25 168 Doe ®. Galloway, 5 B. & Ad. 43 223 Doe v. Oxenden, 3 Taunt. 147 226 Page Doe ®. Passingham, 2 Car. & P. 440 264 Doe ®. Westlake, 4 B. & Aid. 57 226 Drinan v. Nichols, 115 Mass. 353 192,193 Dudley v. Easton, 104 U, S. 99 . 621 Dugan ®. Anderson, 36 Maryland, 567 503 Duke v. Harper, 66 Missouri, 51 589 Duncan v. Dodd, 2 Paige, 99 192 Eastern Band of Cherokees ®. United States, &c., 20 C. Cl. 449 310 Eberhardt ®. Gilchrist, 3 Stockt. (11 N. J. Eq.) 167 192 Edmonds v. Crenshaw, 14 Pet. 166 335 Edrington ®. Jefferson, 111 U. S. 770 273, 367 Elborough v. Ayres, L. R. 10, Eq. 367 590 Elgin ®. Marshall, 106 U. S. 578 515 Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 Ohio St. 628 112 Embry ®. Palmer, 107 U. S. 3 ■ 675 Erstein ®. Rothschild, 22 Fed. Rep. 61 240 Erwin ®. United States, 97 U. S. 392 576 Evans ®. Prothero [See. 2 Macn. & Gord. 319, 1 De. G. M. & G. 572] 591 Express Co. ®. Caldwell, 21 Wall. 264 322 Eyster ®. Gaff, 91 U. S. 521 564 Fagan v. Chicago, 84 Ill. 227 162 Fall River Bank v. Buflinton, 97 Mass. 498 115 Farmers’ Loan & Trust Co. ®. Turner, 106 U. S. 265 369 Farrington ®. Tennessee, 95 U. S. 679 136 Finlay ®. King’s Lessee’s, 3 Pet. 346 219 Firemen’s Benevolent Ass. v. Loundsbury, 21 Ill. 511 512 First National Bank ®. Whitman, 94 U. S. 343 107 Fisher v. Vose, 3 Rob. (La.) 457 204 Fisk, Ex parte, 113 U. S. 713 235 Fitzpatrick ®. Fitzpatrick, 36 Iowa, 674 227 Flower ®. O’Conner, 7 La. 194 206 Fort Leavenworth Railroad ®. Lowe, 114 U. S. 525 155, 167 Fosdick ®. Schall, 99 U. S. 235 462 Foster v. Mora, 98 U. S. 425 588 Fourth National Bank v. Stout, 113 U. S. 684 369 Fox ®. Kitton, 19 Ill. 519 503 Frank v. Chemical Bank, 84 N. T. 209 116, 117 Freeman v. Cooke, 2 Exch. 654 108 Freeman v. Howe, 24 How. 450 208 xviii TABLE OF CASES CITED. Page I Fretz v. Bull, 12 How. 466 321 Frost v. Knight, L. R. 7, Ex. Ill 502 Fuller v. People, 22 Ill. 182 512, 513 Gage v. Herring, 107 U. S. 640 b78 553 Galpin v. Page, 18 Wall. 350 271 Garrison v. Memphis Ins. Co., 19 How. 312 321 Garwood v. Dennis, 4 Binn. 314 399 Gaylord v. Van Loan, 15 Wend. 808 108 General Insurance Co. v. Sherwood, 14 How. 351 323 Gibson v. Bruce, 108 U. S. 561 198 j Gibson v; Chouteau, 13 Wall. 92 167, 168 Glenn v. Clapp, 11 G. & J. 1 192 Globe Ins. Co. v. Sherlock, 25 Ohio St. 50 322 Globe Ins. Co. v. Wolf, 95 U. S. 329 ‘ 530 Gloucester Bank v. Salem Bank, 17 Mass. 33 111 Gloucester Ferry Co. v. Pennsyl- vania, 114 U. S. 196 49 Golden v. Blaskopf, 126 Mass. 523 565 Goodman v. Niblack, 102 U. S. 556 576, 577 Goodright v. Pears, 11 East. 58 223 Goodtitle v. Kibbe, 9 How. 471 168 Goodtitle v. Southern, 1 M. & S. 299 223 Gordon v. United States, 2 Wall. 561 697 Graff v. Merchants’ & Miners’ Transportation Co., 18 Maryland, 364 676 Green County v. Conness, 109 U. S. 104 148 Greenfield Savings Bank v. Stow- ell, 123 Mass. 196 114 Greer v. Mezes, 24 How. 268 588 Gregory v. Hartley, 113 U. S. 742 367 Griggs v. Houston, 104 U. S. 553 490 Grignon’s Lessee v. Astor, 2 How. 338 267, 269 Guild, Jr. v. City of Chicago, 82 Ill. 472 512 Guy v. Baltimore, 100 U. S. 434 49 Hadji (The), 22 Blatchford, 235 323 Hailes ®. Van Wormer, 20 Wall. 353 694 Hall v. Law, 102 U. S. 461 269 Hall®. Railroad Co’s., 13 Wall. 367 821 Haney v. Healy, 14 La. Ann. 424 208 Hannah v. His Creditors, 12 Mart. 32 2041 Hardin ®. Boyd, 113 U. S. 756 195 i Hardy v. Cnesapeake Bank, 51 Maryland, 562 119, 122 Harlan v, Howard, 79 Ky. 373 263 ' Page Harris v. Elliott, 10 Pet. 25 155 Harris v. Knox, 10 La. 229 208 Hart v. Bleeght, 3 T. B. Mon. 273 192 Hart v. Pennsylvania Railroad, 112 U.S. 831 322 Harvey v. Tyler, 2 Wall. 328 269 Hawkins ®. Bowie, 9 G. & J. 428 676 Hawley®. Fairbanks, 108 U. S.543 369 Hayburn’s Case, 2 Dall. 409 703 Head Money Cases, 112 U. S. 580 48 Hendrickson ®. Hinckley, 17 How. 443 675 Herbert ®. Butler. 97 U. S 319 490 Hewlett ®. Cock, 7 Wend. 371 264 Hibbard v. Eastman, 47'N. H. 507 588 Hill ®. Harding, 107 U. S. 103 564 Höchster ®. De la Tour, 2 El. & Bl. 678 502 Hodder v. Kentucky & Great Eastern Railway Co., 7 Fed. Rep. 793 90 Hollister ®. Abbott, 11 Foster (31 N. H.), 442 566 Holloway ®. Griffith. 32 Iowa, 419 503 Home Ins, Co. «. Baltimore Warehouse Co., 98 U. S. 527 324 Homer v. The Collector, 1 Wall. 486 489 Hoover ®. Montclair & Greenwood Lake Railway Co., 2 Stewart (29 N. J. Eq.), 4 463 Hopkins ®. Fletcher, 47 Missouri, 331 588 Horn ®. Lockport, 17 Wall. 570 384 Hough ®. Railway Co., 100 U. S. 224 629, 631 House ®. Walker, 4 Maryland Ch. 62 192 Houston ®. Moore, 3 Wheat. 433 199 Howell ®. Baker, 4 Johns. Ch. 118 192 Hughes ®. Edwards, 9 Wheat. 489 681 Hughes v. Shore’s Heirs (Ken-tuckv, Circuit Court, Greenup Co. Í816) 261, 264 Humphrey ®. Pegues, 16 Wall. 244 145 Hunt v. Pallas, 4 How. 589 704 Hurtado v. California, 110 U. S. 516 351 Hyde V. Ruble. 104 U. S. 409 433 Improvement Co. v. Munson, 14 Wall. 442 490 Indianapolis &c. Railroad Co. v. Horst, 93 U. S. 291 235, 239 Insurance Co. v. Mahone, 21 Wall. 152 531 Insurance Co. v. Norton, 96 U. S. 240 530 Insurance Co. ®. Pechner, 95 U. S. 183 432 Insurance Co. ®. Wilkinson, 13 Wall. 222 531, 532 TABLE OF CASES CITED. xix Page Irvine v. Marshall, 20 How. 558 168 Jackson v. Browner, 18 Johns. 37 397 Jackson v. Cooley, 8 Johns. 127 397, 399 Jackson v. King, 5 Cowen, 237 397 Jackson v. Laroway, 3 Johns. Cas. 283 264 Jackson o. Luquere, 5 Cowen, 221 264 Jackson ®. Sill, 11 Johns. 201 219, 225 Jackson Co. ®. Boylston Ins. Co., 139 Mass. 508 326 Jerome v. McCarter, 21 Wall. 17 200 Jewell v. Jewell, 1 How. 219 397 Johnson v. Lawson, 2 Bing. 86 397 Johnstone ®. Milling, 16 Q. B. D. 460 ' 503 Jones ®. McMasters, 20 How. 8 587 Jones v. Robinson, 78 N. C. 396 223 Jones ®. Smart, 1 T. R. 44 579 Jonesboro’ City v. Cairo & St. Louis Railroad Co. 110 U. S. 192 512 Joyce ®. Kennard, L. R. 7, Q. B. 78 324 Kansas Pacific Co. ®. Atchison Topeka, &c. Co., 112 TT. S. 414 407 Karstendick, Ex parte, 93 U. S. 396 352 Kearney ®. Sascer, 37 Maryland, 264 677 Keely «. Sanders, 99 ü. S. 441 179 Kemp v. Cook, 18 Maryland, 130 677 Kempe’s Lessee ®. Kennedy, 5 Cranch, 173 269 Kerr ® Huidekoper, 103 U. S. 485 432 Kerrison ®. Stewart, 93 U. S. 155 344 Keystone Bridge Co. ®. Phoenix Iron Co., 95 Ü. S. 274 559 King ®. Burrell, 12 A. & E. 460 580 Kloepping ®. Stellmacher, 6 C. E. Green (21 N. J. Eq.), 328 192,193 Knights ®. Wiffen, L. R., 5 Q. B. 660 115 Kohl ®. United States, 91 U. S. 367 155 Krippendorf v. Hyde, 110 U. S. 276 208, 241 Kurtz v. Hibner, 55 Ill. 514 219, 227 Kurtz ®. Moffitt, 115 U. S. 487 352 Lamar ®. Micou, 112 U. S. 452 334 Lamond v. Eiffe, 3 Q. B. 910 580 Lange, Ex parte, 18 Wall. 163 253 Law ®. Hempstead, 10 Conn. 23 223 Lefevre ®. Laraway, 22 Barb. 167 192 Lehnbeuter ®. Holthaus, 105 U. S. T 94 695 Lewis v. Phoenix Mutual Life Ins. Co., 39 Conn. 100 533 Lidderdale ®. Robinson, 2 Brock. 160 336 Lincoln v. Claflin, 7 Wall. 132 599 Page Lionberger ®. Rouse, 9 Wall. 468 136 Livingston v. Byrne, 11 Johns. 555 192 Loehner®. Home Mutual Ins. Co., 17 Missouri, 247 530 London & Northwestern Railway®. Glyn, 1 El. & El. 652 324 Loom Co. ®. Higgins, 105 U. S. 580 694 Lorillard ®. Clyde, 86 N. Y. 384 576 Lothrop v. Highland Foundry, 128 Mass. 120 209 Louisiana ®. Jumel, 107 U. S. 711 68, 69, 70, 71 Louisville v. Commonwealth, 1 Duvall, 295 169 Louisville & Nashville Railroad Co. v. Ide, 114 U. S. 52 278, 281 Louisville & Nashville Railroad Co. v. Palmes, 109 U. S. 244 145 McComb ®. Brodie, 1 Woods, 153 553 McCulloch v. Maryland, 4 Wheat. 316 156, 157, 170,177 McGoon ®. Scales, 9 Wall. 23 168 McHenry v. La Société Française, 95 U. S. 58 621 Machine Co. ®. Gage, 100 U. S. 676 49 Machine Co. v. Murphy, 97 U. S. 120 695 Mackenzie «. Whitworth, L. R., 10 Ex. 142 (1 Ex. D. 36) 323 McKenzie ®. British Linen Co., 6 App. Cas. 82 109 McKowen v. McGuire, 15 La. Ann. 637 206 McNalty v. Batty, 10 How. 72 704 McRae v. Farron, 4 Hen. & Munf. 444 332 Mandal ®. Mandal, 28 La. Ann. 556 576 Mann v. Mann, 1 Johns. Ch. 231 227 Manufacturers’ Bank ®. Barnes, 65 Ill. 69 117, 118 Manufacturers’ & Traders’ Bank «. Hazard, 30 N. Y. 226 109 Marine Ins. Co. of Alexandria ®. Hodgson, 7 Cranch, 332 675, 678 Marlatt ®. WTarwick, 3 C. E. Green (18 N. J. Eq.), 108 192 Marsh ®. Fulton County, 10 Wall. 676 665 Martinton ®. Fairbanks, 112 U. S. 670 272 Marye ®. Parsons, 114 U. S. 325 64 Mason v. Sargent, 104 U. S. 689 365 Mercantile Ins. Co. v. Calebs, 20 N. Y. 173 327 Merchants’ Bank ®. Bergen County, 115 U. S. 384 665 Meyer v. Johnston, 53 Ala. 237 463 Middleport®. Ætna Life Ins. Co., 82 Ill. 562 512, 513 Miles ®. Mell wraith, 8 App. Cas. 120 109 XX TABLE OF CASES CITED. Page Miller v. Travers, 8 Bing. 244 223, 224 Milligan, Air parte, 4 Wall. 2 250 Miltenberger v. Logansport Rail- road Co., 106 U. S. 280 456, 458 Mobile & Montgomery Railway v. Jurey, 111 U. S. 584 321, 322 Monkton v. Attorney General, 2 Russ. & Myln. 147 397 Montague v. Dawes, 14 Allen, 369 192 Montclair v. Dana, 107 U. S. 162 419 Montclair v. Ramsdell, 107 U. S. 147 514 Montgomery v. Murphy, 19 Maryland, 576 677 Monticello (The), 17 How. 152 . 321 Moran v. New Orleans, 112 U. S. 69 49 Morgan v. Louisiana, 93 IT. S. 217 145 Morgan v. Railroad Company, 96 U. S. 716 108 Morris’ Cotton, 8 Wall. 507 234, 235 Morris 0. Nixon, 1 How. 118 681 Morrow v. Peyton, 8 Leigh, 54 336 Moss v. Bainbrigge, 18 Beav. 478 576 Movius 0. Arthur, 95 U. S. 144 489 Mulligan v. Smith, 59 Cal. 206 687 Murdock v. Memphis, 20 Wall. 590 656 Mutual Benefit Life Ins. Co. v. Elizabeth, 13 Vroom (47 N. J. L.), 235 338 339 Myers v. Swann, 107 IT. S. 546 274 Nathan v. Louisiana, 8 How. 73 176 National Bank v. Commonwealth, 9 Wall. 353 177 National Bank v. Tappan, 6 Kansas, 456 117 Neale v. Neales, 9 Wall. 1 195 Neifing v. Town of Pontiac, 56 Hl. 172 512 Neilson v. Lagow, 12 How. 98 154 Nelson v. Simpson, 9 La. Ann. 311 208 Newburgh v. Newburgh, 5 Madd. 364 226 Newcomb 0. W’ood, 97 U. S. 584 235 New Jersey 0. Wilson, 7 Cranch, 164 655 New Jersey Steam Navigation Co. 0. Merchants’ Bank, 6 How. 344 18 New York Life Ins. Co. 0. Flack, 3 Maryland, 341 597 New Orleans 0. United States, 10 How. 662 168 Nimick & Co. 0. Ingram, 17 La. Ann. 85 207 Norris 0. Jackson, 9 Wall. 125 272 Norris 0. Ogden, 11 Martin, 455 205 North British Ins. Co. 0. London, Liverpool & Globe Ins. Co., 5 Ch. D. 569 324, 325 Northern Pacific Railroad 0. Traill County, 115 U. S. 500 169 Page Notrebe 0. Kenney, 6 Rob. (La.), 113 205 Nudd 0. Burrows, 91 U. S. 426 235 1 O’Leary 0. County of Cook, 28 Ill. I 534 511 O’Neill 0. Capelie, 62 Missouri, I 202 681 Orr 0. Lisso, 33 La. Ann. 476 209 I Osborn 0. Bank of the United I States, 9 Wheat. 738 69, 70,156, 177 Osborne 0. Mobile, 16 Wall. 479 49, 50 i Otoe County 0. Baldwin, 111 U. S. 1 514 Ould 0. Washington Hospital, 95 U. S. 303 678 Pace 0. Burgess, 92 U. S. 372 505 I Page 0. Cole, 123 Mass. 93 565 I Palmyra (The), 12 Wheat. 1 674 Parker 0. Winsor, 5 Kansas, 362 166 Patteson 0. Bondurant, 30 Gratt. 94 334 j Peck 0. Mallams. 10 N. Y. 509 223 I Pennoyer 0. Neff, 95 U. S. 714 271 I People 0. Austin, 47 Cal. 353 166 People 0. Brislin, 80 Ill. 423 512 People 0. Commissioners, 4 Wall. 244 136 ' People 0. Doe, 36 Cal. 220 174 I People 0. McCreery, 34 Cal. 432 166 I People 0. Morrison, 22 Cal. 73 165 People 0. Shearer, 30 Cal. 645 165,169 People s. United States, 93 Ill. 30 162 People 0. Wright, 70 Ill. 388 512 People’s Bank 0. Calhoun, 102 U. S. 256 ' 208 Perkins 0. Hart, 11 Wheat. 237 107 Permoli 0. First Municipality of New Orleans, 3 How. 589 159 ' Peugh 0. Davis, 96 U. S. 332 681 Philadelphia, Wilmington, &c., Railroad Co. 0. Maryland, 10 How. 376 145 I Phillips Construction Co. 0. Seymour, 91 U. S. 646 210, 401 I Phillips 0. Detroit, 111 U. S. 604 559 Phillips 0. Negley, 2 Mackey, 236 671 i Philp v. Nock, 17 Wall. 460 553 Phoenix Bank 0. Risley, 111 U. S. 125 106 Phoenix Ins. Co. 0. Erie &c. Trans- portation Co., 10 Bissell, 18 327 Pickard 0. Pullman Southern Car Co., 117 U. S. 34 52 I Pickerell 0. Fisk, 11 La. Ann. 277 206 Picketts’ Heirs 0. Legerwood, 7 Pet. 144 673 Pierce 0. Kneeland, 7 Wise. 224 192 Piper 0. Singer, 4 S. & R. 354 174 Pirie 0. Tvedt, 115 U. .S. 41 278, 281, 348 TABLE OF CASES CITED. xxi Page Pleasants v. Fant, 22Wall. 116 419,490 Poindexter v. Greenhow, 114 U. S. 270 70 Pollard v. Hagan, 3 How. 212165,168 Pope v. Allis, 115 U. S. 363 129 Porter v. Lazear, 109 U. S. 84 621 Potomac (The), 105 U. S. 630 321 Providence Bank ®. Billings, 4 Pet. 514 156, 655 Pullman’s Palace Car Co. v. Missouri Pacific Railway Co., 115 U. S. 587 29 Pullman Palace Car Co. v. Speck, 113 U. S. 84 367 Pullman Southern Car Co. v. Gaines, 3 Tenn. Ch. 587 51 Putnam v. Ingraham, 114 ü. S. 57 278, 281 Railroad Co. v. Commissioners, 103 U. S. 1 145, 148 Railroad Go’s. ®. Gaines, 97 ü. S. 697 135, 138, 145, 148 Railroad Co. v. Georgia, 98 U. S. 359 145 Railroad Co. ®. Hamblen, 102 U. S. 273 145 Railroad Co. v. Koontz, 104 U. S. 5 432 Railroad Co. v. Lockwood, 17 Wall. 357 322 Railroad Co. v. Maine, 96 U. S. 499 147 Railroad Co. ®. Maryland, 21 Wall. 456 48 Railroad Co. v. Mellon, 104 U. S. 112 559 Railroad Co. v. Mississippi, 102 U. S. 135 432 Railroad Co. v. Peniston, 18 Wall. 5 177 Railroad Co. v. Pratt. 22 Wall. 123 322 Railroad Co’s. ®. Schutte, 103 U. S. 118 420,423,426 Railroad Co. v. Stout, 17 Wall. 657 122 Railway Co. ®. McShane, 22 Wall. 444 169 Railway Co. v. Prescott, 16 Wall. 603 169 Railway Co. v. Stevens, 95 U. S. 655 322 Rancliffe ®. Parkyns, 6 Dow. 149 264 Randall ®, Baltimore & Ohio Rail- road, 109 U. S. 478 419, 490 Ray v. Wight, 119 Mass. 426 565 Redlich v. Doll, 54 N. Y. 234 114 Reed ®. Carter, 1 Blackford, 410 192 Removal Cases, 100 U. S. 457 432,433 Rex ®. All Saints, 7 B. & C. 785 397 Richardson v. Maine Ins. Co., 46 Maine, 394 535 Rintoul v. New York Central Rail- road, 21 Blatchford, 439 326 Roach ®. Philadelphia County, 2 Am. Law Journal (N. S.), 444 169, 170 Page Roach ®. Philadelphia County (Supreme Court, 1849, not reported) 176 Robb v. Connolly, 111 U. S. 624 248, 250 Robison ®. Beall, 26 Geo. 17 590 Rochester v. Rush, 80 N. Y. 302 174 Roman Catholic Orphan Asylum v. Emmons, 3 Bradford, 144 218 Roper ®. Johnson, L. R., 8 C. P. 178 502 Royall, Ex parte, 117 U. S. 241 255, .518 Russell v. Allen, 107 U. S. 163 678 Russell v. Southard, 12 How. 139 681 Ryan v. World Mutual Life Ins. Co., 41 Conn. 168 531, 533 St. Paul & Duluth Railroad Co. v. United States, 112 U. S. 733 577 Sarah (The), 8 Wheat. 391 234 Sargent v. Yale Lock Manufactur- ing Co., 17 Blatchford, 244 548 Savage v. Corn Exchange Insur- ance Co., 36 N. Y. 655 324 Schell v. Dodge, 107 U. S. 6'29 674 Schofield v. Chicago, Milwaukee, &c., Railway Co., 114 U. S. 615 490 Schwed v. Smith, 106 U. S. 188 369 Seaman v. Riggins, 1 Green’s Ch. (2 N. J. Eq), 214 192 Seaver v. Bigelows, 5 Wall. 208 369 Seibald, Ex parte, 100 U. S. 371 248 Seymour v. Osborne, 11 Wall. 516 694 Shipman ®. Hickman, 9 Rob. (La). 149 205 Shipwith v. Lea, 16 La. Ann. 247, 206 Shore v. Wilson, 9 Cl. &F. 355 576 Sibbald v. United States, 12 Pet. 488 674 Sidney (The), 23 Fed. Rep. 88 327 Silsby v. Foote, 20 How. 378 554 Simmins®. Parker, 4 Martin, N. S. 200 205 Simpson v. Thomson, 3 App. Cas. 279 321 322 Sioux City & St. Paul Co. v. Wi- nona Co., 112 U. S. 720 407, 408,409 Slawson v. Grand Street Railroad Co., 107 U. S. 649 559 Sloane ®. Anderson, 117 U. S. 275 281, 348 Smith ®. Goodyear Dental Vulcan- ite Co., 93 U. S. 486 695 Smith ®. Maitland, 1 Ves. Jr. 362 226 Smith ®. Bines, 2 Sumn. 338 580 Smoot’s Case, 15 Wall. 36 503 Society for Savings ®. Coite, 6 Wall. 594 176 Southwestern Railroad v. Georgia, 92 U. S. 676 145 Spindler ®. Shreve, 111 U. S. 542 610 Spofiord ®. Kirk, 97 U. S. 484 576 xxii TABLE OF CASES CITED. Page Sprigg v. Bank of Mount Pleasant, 14 Pet. 201 681 Stanton®. Alabama & Chattanooga Railroad Co., 2 Woods, 506 461 Star Salt Caster Co. ®. Crossman, 4 Cliff. 568 694 Starin ®. New York, 115 U. S. 248 281 State v. Hartford, 50 Conn. 89 174 State ex rel Boyd v. Green, 34 La. Ann. 1027 206 State Freight Tax Case, 15 Wall. 232 48, 50 State of Florida ®. Anderson, 91 Ü. S. 667 420, 423 State Tonnage Tax Cases, 12 Wall. 204 176 Steamship Co. v. Tugman, 106 U. S. 118 432 Stebbins v. Duncan, 108 U. S. 32 262 Steward ®. Green, 11 Paige, 535 566 Stewart ®. Dunham, 115 U. S. 61 239, 369 Stokes ®. Daws, 4 Mason, 268 399 Strader v. Graham, 10 How. 82 159 Sun Ins. Co. v. Ocean Ins. Co., 107 U. S; 485 323 Sun M. Ins. Co. v. The Mayor, 8 N. Y. 240 514 Supervisors ®. Rock Island & Alton Railroad Co., 25 Ill. 181 511, 513 Surget v. Byers, Hempst. 715 192 Sutton v. Casseleggi, 77 Missouri, 397 238 Tarble’s Case, 13 Wall. 397 250 Tate ®. Hyslop, 15 Q. B. D. 368 326 Taylor ®. Carryl, 20 How. 583 208, 252 Teal v. Walker, 111 U. S. 242 681 Telegraph Co. ®. Texas, 105 U. S. 460 49 Thalhimerv. Brinkerhoff, 3 Cowen, 623 589 Thatcher ®. Rockwell, 105 U. S. 467 565 Thomas v. Railroad Co., 101 U. S. 71 468 Thompson v. Railroad Co’s., 6 Wall. 184 587 Thomson v. Pacific Railroad, 9 Wall. 579 177 Tiernan v. Wilson, 6 Johns. Ch. 411 192 Tomlinson v. Branch, 15 Wall. 460 145, 147 Tommey v. Ellis, 41 Geo. 260 588 Transportation Co. v. Wheeling, 99 U. S. 273 177 Tremolo Patent, 23 Wall. 518 195 Tripp «. Cook, 26 Wend. 143 192 Trustees v. Greenough, 105 ü. S. 527 582 Trustees of Public Schools ®. Trenton, 3 Stew. (N. J.), 618 174 Page Tucker v. Ferguson, 22 Wall. 527 168 Tucker v. Seaman’s Aid Society, 7 Met. (Mass.), 188 226 Tyler v. Their Creditors, 9 Rob. (La.), 372 208 Union Insurance Co. ®. United States, 6 Wall. 759 234, 235 Union Pacific Railroad Co. ®. Hall, 91 U. S. 343 361 Union Pacific Railroad Co. v. United States, 104 U. S. 662 356 Union Trust Co. v. Souther, 107 U. S. 591 463 United States ®. Ames, 1 Woodb. & Min. 76 176 United States ®. Chicago, 7 How. 185 161 United States v. Ferreira, 13 How. 40 703 United States v. Fox, 94 U. S. 315 155 United States ®. Gillis, 95 U. S. 407 576 United States v. Gratiot, 14 Pet. 526168 United States®. Great Falls Manu- facturing Co., 112 U. S. 645 155 United States v. Jones, 109 Ü. S. 513 155 United States ®. Lawton, 110 U. S. 146 179 United States v. Lee, 106 U. S. 196 70 United States ®. Maurice, 2 Brock. 96 154 United States ®. Portland (U. S. S. C. 1849, not reported) 175 United States ®. Railroad Bridge Co., 6 McLean, 517 161 United States v. Railroad Co., 17 Wall. 322 178 United States v. Taylor, 104 U. S. 216 179 United States ®. Waddell,112 U. S. 76 351 352 United States ®. Weise, 2 Wall. Jr. 72 176 Van Allen v. The Assessors, 3 Wall. 573 136 Van Duzen v. Howe 21 N. Y. 531 114 Vicksburg, Shreveport, &c., Rail- road Co. v. Dennis, 116 U. S. 665 148, 655 Village of Lockport ®. Gaylord, 61 Ill. 276 512, 513 Voorhees v. Bank of the United States, 10 Pet. 449 269, 270 Voorhis ®. Olmstead, 66 N. Y. 113 115 Vowles v. Young, 13 Ves. 140 397 Walker v. Maitland, 5 B. & Aid. 171 325 Walker ®. Robbins, 14 How. 584 675 Wallace ®. Loomis, 97 U. S. 146 454, 456, 458 TABLE OF CASES CITED. xxiii Page Walling v. Michigan, 116 U. S. 446 49 Walston v. White, 5 Maryland, 297 227 Wamburzee ®. Kennedy, 4 Desaussure, 474 195 Ward v. Maryland, 12 Wall. 418 176 Ward v. Proctor, 7 Met. (Mass.) 318 209 Wardell v. Railroad Co., 103 U. S. 651 94 Warnock v. Davis, 104 U. S. 775 598 Washburn ®. Gould, 3 Story, 122 696 Waterlow v. Bacon, L. R. 2 Eq. 514 588 Water Meter Co. V. Desper, 101 U. S. 332 ' 378 Waters v. Merchants’ Louisville Ins. Co., 11 Pet. 213 323 Waters v. Monarch Assurance Co., 5 El. & Bl. 870 324, 325 Watkins, Ex parte, 3 Pet. 193 250 Watkins ®. Holman, 16 Pet. 25 588 Weisser ®. Denison, 10 N. Y. 68 116, 117, 118, 119 Welsh ®. German-American Bank, 73 N. Y. 424 116, 117 Welton ®. Missouri, 91 U. S. 275 49 West v. Brashear, 14 Pet. 51 705 West Hartford v. Water Commis- sioners, 44 Conn. 360 171 Western Union Telegraph Co. ®. Richmond, 26 Grattan, 1 170 Weston v. City Council of Charleston, 2 Pet. 449 156, 158 Wetzler ®. Schauman, 9 C. E. Green (24 N. J. Eq.), 60 192 Wheeler v. New Brunswick, &c., Railroad Co., 115 U. S. 29 501 White v. Damon, 7 Ves. 30 191 Page White v. Floyd, Speer’s Eq. 351 192 White ®. Strother, 11 Ala. 720 397 White®. Wilson, 14Ves. 151 191 Whitney ®. Kirtland, 27 N. J. Eq. (12 C. E. Green), 333 590 Wiggins ®. Burkham, 10 Wall. 129 107, 122 Wiggins Ferry Co. ®. East .St. Louis, 107 U. S, 365 49, 50 Williams v. Attenborough, Tur- ner & Russell, 75 191 Williams ®. Hagood, 98 U. S. 72 62 Williamson ®. Dale, 3 Johns. Ch. 290 192 Wilson, Ex parte, 114 U. S. 417 350 Wilson v. Boyce, 92 U. S. 320 610 Wilson v. Drumrite, 21 Missouri, 325 683 Wilson ®. Gaines, 9 Baxter, 546 146 Wilson ®. Gaines, 103 U. S. 417. 145 Winn v. Patterson, 9 Pet. 663 264 Winona & St. Peter Railroad Co. ®. Barney, 113 U. S. 618 228, 230 Wisconsin Central Railroad v. Taylor County, 52 Wisconsin, 37 171 Witherspoon v. Duncan, 4 Wall. 210 169 Woodruff ®. Parham, 8 Wall. 123 48 Worcester County v. Worcester, 116 Mass. 193 174 Worley ®. Dryden, 57 Missouri,226 681 Yarbrough, Ex parte, 110 U. S. 651 248 Yates v. Cole, 1 Jones Eq. (N. C.), 110 227 York Co. v. Central Railroad, 3 Wall. 107 322 Young ®. Grote, 4 Bing. 253 114 Young v. Teague, 1 Bailey Eq. 13 192 Yulee ®. Vose, 99 U. S. 539 432 .TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. Page 1801, Feb. 27, 2 Stat. 103, District of Columbia..............672, 675 1804, March 26, 2 Stat. 283, Territory of Orleans................... 162 1813, August 2, • 3 Stat. 75, Sale of Public Land in Pittsburgh.. 170 1820, May 1, § 7, 3 Stat. 568, Purchase of Land for United States. 154 1852, August 4, 10 Stat. 28, Right of Way through Public Lands 162 1855, March 3, 10 Stat. 683, Right of Way through Public Lands 162 1857, March 3, 11 Stat. 195, Land Granted to Minnesota to aid Railroads............................228, 230 1858, May 11, 11 Stat. 285, Admission of Minnesota as a State. 229 1861, Jan. 29, 12 Stat. 127, Admission of Kansas as a State.166 1861, March 2, 12 Stat. 189, Customs Duties.................... 489 1862, June 7, § 7, 12 Stat. 423, Collection of Taxes in Insurrectionary Districts............................................................. 179 1862, July 1, 12 Stat. 484, Internal Revenue...’...................488 1862, July 1, 12 Stat. 489, Pacific Railroad .... 356, 359, 361 1862, July 14, 12 Stat. 548, Customs Duties.................. 488, 489 1863, March 3, 12 Stat. 765, Court of Claims................. 698 1864, May 12, 13 Stat. 72, Land Granted to Iowa for Construc- tion of Railroads.............. 407 1864, June 30, 13 Stat. 202, Customs Duties.....................489 1864, July ■ 2, 13 Stat. 356, Union Pacific Railroad.356, 361 1865, March 3, 13 Stat. 526, Land Granted to Minnesota to aid Railroads.............. .229, 230, 231 1866, July 25, 14 Stat. 244, Bridges, Post Roads............ 361 1866, July 26, 14 Stat. 253, Right of Way to Canal Owners over Public Lands.............................. 162 1867, Feb. 5, 14 Stat. 385, Habeas Corpus.................. 247 1867, March 2, 14 Stat. 517, Bankruptcy, Limitations........ 577 1868, July 20, 15 Stat. 157, Internal Revenue............... 505 1870, June 17, 16 Stat. 153, Police Court of District of Columbia, Jurisdiction of offences against U nited States.............................354 1871, Feb. 24, 16 Stat. 430, Union Pacific Railway Bridge at Council Bluffs...... 360, 361, 362 xxvi TABLE OF STATUTES CITED. Page 1872, May 10, 17 Stat. 91, Mineral Lands.. 403, 405 1872, June 1, 17 Stat. 197, Practice in Civil Causes other than Equity and Admiralty.................. 234 1872, June 6, 17 Stat. 230, Customs Duties................. 489 1872, June 8, § 4, 17 Stat. 331, Taxes, Redemption and Sale of Lands..................... 179 1875, Feb. 8, § 26, 18 Stat. 313, Extension of Time for redeeming di- rect tax Lands.................... 179 1875, March 3, 18 Stat. 470, Removals.. 123, 237, 273, 274, 275, 280, 340, 345, 366, 433 1882, Aug. 8, 21 Stat. 372, Tobacco, Repeal of Export Tax. 505 1883, March 3, 22 Stat. 493, Customs Duties.......489 1883, March 3, 22 Stat. 582, Eastern Band of Cherokee Indians authorized to bring suit in Court of Claims ................. 293 1884, July 5, 22 Stat. 122, Prosecution for offences under Internal Revenue Laws................................................... 354 1885, March 3, 23 Stat. 437, Appeal to Supreme Court, Habeas Corpus...................... 245 Rev. Stat. § 639. Removals......................................... 274 § 751. Habeas Corpus—What courts may issue writ........ 245,247 § 752. Habeas Corpus................................................ 245 § 753. Habeas Corpus.................................. 246, 247 § 754. Habeas Corpus.................................................. 246 § 761. Habeas Corpus.................................................. 246 § 763. Habeas Corpus.................................................. 246 § 764. Habeas Corpus Appeal to Supreme Court.......... 245, 246 § 766. Habeas Corpus.............’.................................... 247 § 858. Witnesses in Federal Courts.................................. 579 § 914. Practice, &c., in Civil Causes other than Equity and Admiralty Causes....................................... 234, 235, 238 §1022. Offences against the Elective Franchise, how prosecuted.. 353 §§ 1 044-46. Limitations: Crimes, &c..................................... 353 § 2324. Mineral Lands.................................................. 403 § 2326. Mineral Lands............................................. *. 402 § 2477. Right of Way for Highways over Public Lands.................... 162 § 2504. Customs Duties: Proprietary Medicines.......................... 483 § 3385. Internal Revenue : Stamps...................................... 505 § 3419. Internal Revenue................................................488 § 3477. Transfer of Claims against United States; when void. .574, 575 § 3701. Public Debt : Exemption from Taxation.......................... 136 § 3736. Purchase of Land for United States............................. 154 § 3737. Transfer of Contracts with United States not allowed.. .574, 576 § 4917. Patents. Disclaimer..............................'I § 4919. Patents. Infringements, Damages................. § 4921. Patents. Injunctions, &c.......................... ► 553 § 4922. Patents. Suit for infringement when specification too broad..................................................................... „ TABLE OF STATUTES CITED. xxvii Page Rev. Stat. § 5045. Bankruptcy. Homestead..........................620 § 5075. Bankruptcy.............................................. 620 § 5119. Bankruptcy.....................................,........ 620 § 5219. National Banks : State Taxation......................... 136 § 5506-5532. Crimes against Elective Franchise, &c.............. 353 § 5539. United States Convicts in State penitentiaries.......... 352 § 5541. Selection of penitentiary............................... 352 § 5542. Sentence to imprisonment for more than a year............352 (B.)- Treaties. 1785, Nov. 28, 7 Stat. 18, Cherokee Indians...........-..295,296 1791, July 2, 7 Stat. 39, Cherokee Indians..................295 1794, June 26, 7 Stat. 43, Cherokee Indians..................296 1817, July 8, 7 Stat. 156, Cherokee Indians... .296, 297, 298, 299, 304 1819, Feb. 27, 7 Stat. 195, Cherokee Indians.............298, 299, 304 1828, May 6, 7 Stat. 311, Cherokee Indians ...................298, 300 1833, Feb. 14, 7 Stat. 413, Cherokee Nation West.............. 299 1835, Dec. 29, 7 Stat. 478, Cherokee Indians, Treaty of New Echota... .293, 298, 299, 300, 301, 302, . 303, 307, 308, 310, 311 1846, August 6, 9 Stat. 871, Cherokee Indians...........306, 307, 310, 311 1866, July 19, 14 Stat. 799, Cherokee Indians...........302, 308 (C.) Revised Statutes of the District of Columbia. § 1049. Jurisdiction of Police Court of District over offences against United States..........................................................354 (D.) Statutes of the States and Territories. California. 1872, April 1, Illinois, 1867, Feb. 28, Kansas, Comp. Laws, 1862. ch. 198, § 2. Comp. Laws, 1879, ch. 23, § 55. Gen. Stat., 1868, ch. 107, §3. 1875, Feb. 22. 1876, March 4. Kentucky, 1795, Dec. 19. 1796, Dec. 19. f San Francisco ; Montgomery ] Avenue...............684, 685 ( Danville, Urbana, &c., Rail- 1 road............... 509, 510 | Property liable to taxation .... 166 Railroads................... 23 Property liable to taxation .... 166 ¡Jurisdiction over Fort Leavenworth Military Reservation ceded to United States.... 167 Property liable to taxation __166 Establishment of District Courts 267 ( Procedure in Courts of Equity 1 264, 267, 268 xxviii TABLE OF STATUTES CITED. Page Kentucky (cont.), 1850, Dec. 18. Maysville & Big Sandy Railroad 73 _ ( Sale of Maysville & Big Sandy 1866, Feb. 17. ] Railroad ....:.........73, 79 ( Kentucky . & Great Eastern 1870, March 21. ] Raiiroad...............74, 78 1872 March 27. \ Kentucky & Great Eastern . ’ 1 Railroad...................78, 79 Civil Code of Practice. ( Pleading ; what allegations § 126. < taken as true .......... 234 !When judgment rendered for party although verdict against him.................... 234 Louisiana, 1817. Insolvent Debtors.............209 Rev. Stat. 1856, 251. Insolvent Debtors.............209 Rev. Stat. 1870, 353. Insolvent Debtors.............209 Rev. Laws, 1884, 279. Insolvent Debtors.............209 Code of Practice, Art. (Provisional seizures and seques-724. ] tration............... 204 Maine, 1846, ch. 159, § 5. i . ’ ° ( from taxation........... 175 Rev. Stat. 1883, ch. 51 ) -r, in ’ « . 4^4 » > Railroads, Express Companies . 21 Maryland, 1787 ch. 9 5 Continuance of Civil Causes 1 675,676, 677 Code. Art. 75, §38. Continuance of Civil Causes... 677 ,, (Minneapolis and Cedar Valley Minnesota, 1857, May 22. 5 -d m J ( Railroad................ 230 n ( Minneapolis and Cedar Valley 1863, March 6. 1 a non ’ | Railroad................ 230 Missouri, Rev. Stat. 1879, §2244. Ejectment.....................238 § 3071. Landlord and Tenant, Ejectment 238 Montana, 1864, Dec. 26. Mineral Lands.................402 1872, ch. 16. Sales of goods and chattels.... 287 1873, May 8. Mineral Lands..........403, 404, 405 Rev. Stat. 1879. Code of Civil Procedure, § 279. Exceptions............................................. 285 § 408. Appeals................... 287 Rev. Stat. 1879. General Laws, § 408. Laws, when to take effect........................................ 403 New Hampshire, Gen. Laws, 1878, ch. (Passengers, freight, and railroad 163. ( police........................ 21 ¡Blue Ridge Railroad Bonds; relief of State of liability for its guaranty.................... 65 Tennessee, 1845, Dec. 11. (Nashville & Chattanooga Rail- ( road.......135, 137, 138, 139, 145 1848 Jan 21 .( Nashville & Chattanooga Rail- l road........................ 138 TABLE OF STATUTES CITED. xxix Page Tennessee (cont.), 1852, Jan. 23. i Tennessee & Alabama Railroad ( 146, 147 1853, Nov. 30. Central Southern Railroad.. 146, 147 1866, April 19. Nashville & Decatur Railroad.. 148 1877, March 6. Tax on sleeping cars........44, 52 1881, April 7. Tax on sleeping cars........... 52 Virginia, 1832, March 10. (Taxes on lands west of Alin- ( ghany Mountains......... 400 1835 Feb 27 (Taxes on lands west of Alle- ( ghany Mountains...... 399, 400 1863, March 5. Resident Fiduciaries........332, 333 1882 Jan 14 J Collection and Disbursement of ( Revenue.......................614 1884, March 12. Taxation, Coupons..............614 For State statutes expressly exempting property of the United States from taxation, see page 171, Note. For statutes of the States and Territories relating to crimes, not capital, see page 353, Note. (E.) Foreign Statutes. 16 Car. I. ch. 10. Abolition of the Star Chamber.*........................ 706 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1885. EXPRÿ^ ^ÎSES. ST. LOUIS, IRON SOUTHERN RAIL- WAY COMIWY.^SOUTOERN EXPRESS COMPANY. ST APPEAL FROM THIMIRCUlSUOURT OF THE UNITED STATES FOR THE EASTER^ DISTRICT OF MISSOURI. MEMPHIS & LITTLE ROCK RAILROAD COMPANY v. SOUTHERN EXPRESS COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. DINSMORE, PRESIDENT & SHAREHOLDER IN ADAMS EXPRESS COMPANY. appeal from the circuit court of the united states for THE DISTRICT OF KANSAS. Argued together November 3, 4, 5, 6,1885.—Decided March 1, 1886. Railroad companies are not required by usage, or by the common law, to transport the traffic of independent express companies over their lines in the manner in which such traffic is usually carried and handled. VOL. CXVII—1 2 OCTOBER TERM, 1885. Opinion of the Court. Railroad companies are not obliged either by the common law or by usage to do more as express carriers than to provide the public at large with reasonable express accommodation ; and they need not in the absence of a statute furnish to all independent express companies equal facilities for doing an express business upon their passenger trains. These cases were commenced by defendants in error as plaintiffs below to compel plaintiffs in error to give them respectively the express facilities on the several lines of railway which they had previously enjoyed by contract, and of which they had been dispossessed by notice given in accordance with the terms of the contracts. Judgments below in favor of the express companies, from which the railroad companies appealed. The causes were argued together. The case is stated in the opinion of the court. Mr. J. F. Dillon, Mr. JR. J. Morgan, Mr. B. C. Brown and Mr. J. O. Broadhead for appellants. Mr. Sidney Bartlett and Mr. Wager Swayne were with them on the brief. Mr. Clarence A. Seward, Mr. George F. Edmunds and Mr. John A. Campbell for appellees. Mr. F. E. Whitfield was with them on the brief. Mr. Chief-Justice Waite delivered the opinion of the court. These suits present substantially the same questions and may properly be considered together. They were each brought by an express company against a railway company to restrain the railway company from interfering with or disturbing in any manner the facilities theretofore afforded the express company for doing its business on the railway of the railway company. 1. The St. Louis, Iron Mountain and Southern Bailway Company. This suit was begun May 21, 1880, and the business of the express company is thus described in the bill: “ Your orator, the Southern Express Company, is a corporation duly created, organized, and now existing under the laws of the State of Georgia, for the purpose, and with the powers EXPRESS CASES. 3 Opinion of the Court. necessary thereto, of receiving and forwarding upon railroads, steam vessels, and other vehicles of rapid transportation, in a safe and secure manner, and with the greatest practicable expedition, in the special care and custody of its own employés, and at destination personally delivering packages of money or currency, gold and silver bullion, bonds, bank notes, deeds, and other valuable papers, jewels, silks, laces, and other articles of great value, requiring for their security extraordinary care and precaution, and also parcels of goods, wares, and merchandise, requiring great dispatch or careful handling, and also fruit, vegetables, fresh meats, fish, oysters, fish spawn, and other articles liable to decay or other injury from delay ; and also live animals requiring particular care and attention during transportation ; and also for receiving and forwarding for collection bills, notes, drafts, and accounts; and receiving and returning payment thereof; and also for receiving and forwarding all articles of trade and commerce, with the bills and charges of the shipper thereto attached, to be collected of the consignee on delivery of such articles, and returned to shipper ; and in so doing to afford the public, under a single contract, and on assured responsibility, safe, reliable, and speedy transportation from and to all points accessible only over two or more railroads, and generally to perform for the public all offices that, by usage, are incident to the class of carriers now well known, recognized and designated by the public, as ‘ express carriers.’ ” The St. Louis, Iron Mountain and Southern Railway Company is a railway corporation existing in the States of Missouri and Arkansas, formed by the consolidation of the St. Louis and Iron Mountain Railroad Company, the Cairo and Fulton Railroad Company, and the Cairo, Arkansas and Texas Railroad Company. Its railway extends from St. Louis, and from a point on the Mississippi, opposite Cairo, through Missouri and Arkansas, by way of Little Rock, to Texarkana, on the boundary between Arkansas and Texas, with certain branches. On the 30th of April, 1872, and before the consolidation, the St. Louis and Iron Mountain Company entered into a contract, m writing, with the Adams Express Company, by which the railroad company agreed to furnish the express company “ one- 4 OCTOBER TERM, 1885. Opinion of the Court. half the baggage-car on each of its passenger trains on main line and branches for carrying express freight,” and also “ the use of a part of the baggage-car on accommodation trains between St. Louis and Potosi to an extent not in excess of the amount allowed in passenger trains.” The cars were not to be loaded with over seven thousand pounds at any one time, and the railway company agreed that each of the cars should run each way daily on the passenger trains. The company also agreed that it would “ prohibit its conductors, agents, and baggage-masters from transporting on its passenger trains, or from accepting compensation for, any matter except extra baggage; ” and further, that it would not “ permit any person or company to do an express business on its passenger trains on any better terms, or for any less payment, than that given the Adams Express Company.” In consideration of this service the express company agreed to pay $125 a day, and a proportional increase for every ten miles operated by it on an extension of the railroad, “ for the transportation of its messengers with safes and package chests, and an average amount of freight not exceeding ten thousand pounds per day,” and an agreed rate for all freights in excess of that amount. The express company also agreed “ to carry all money and other valuables for the said railroad company to and from points on the line of its road free of charge, and for such matter as may be sent to, or received from, points off the line to charge the railroad company not exceeding two-thirds the rate charged the public.” It was also stipulated that “ the railroad company should be exempt and indemnified by said express company against all loss or damage to goods or money transported by said express company; ” and that settlements should “ be made on or before the tenth day of each month for the business of the preceding month.” The contract also contained this clause: “ This agreement to remain in full force one year from the 1st day of May, 1872, and thereafter until thirty days’ notice shall be given by either party to the other of its desire to discontinue the same.” On the first of February, 1874, also before the consolidation, the Southern Express Company entered into a contract in writing with the Cairo and Fulton Railroad Company, and the EXPRESS CASES. 5 Opinion of the Court. Cairo, Arkansas and Texas Railroad Company, by which, the railroad companies agreed to furnish the express company “ one-third of the room in the baggage-car on each passenger train over the Cairo and Fulton road and the Cairo, Arkansas and Texas road, for the carriage of express matter not to exceed six thousand pounds per day for each car.” This contract also contained provisions similar to that between the Adams and St. Louis and Iron Mountain companies as to the regulation of the duties of conductors, agents, and baggage-masters, and the privileges of other persons for doing an express business on passenger trains. The Southern Company agreed to pay for the transportation of its messengers, with safes and package chests, and an average amount of express matter, not to exceed six thousand pounds per car, $50 a day to the Cairo and Fulton Company, and $10 a day to the Cairo, Arkansas and Texas Company, and an agreed rate for all excess over six thousand pounds. There were also other provisions as to the carriage of money packages and valuables by the express company for the railroad companies, and as to the details of the business, at the end of which was the following: “ This contract to remain in force until terminated on either party giving the other sixty days’ notice of its intention to thus withdraw therefrom.” The consolidation took place May 16, 1874, and the two express companies continued their business upon the road under their respective contracts until April 1, 1878, when the Adams Company, with the assent and permission of the consolidated railway company, relinquished its business on the line to the Southern Company, and that company thereafter conducted the whole express business on the entire line under the two contracts. On the 26th of March, 1880, the railroad company having come to the conclusion to change the mode of doing the express business over its line, gave the express company the stipulated notice for a termination of the existing contracts. All efforts by the express company to secure facilities for a continuation of its business over the road having failed, this suit was brought, and the prayer of the bill is: “ 1. That during the pendency of this suit the defendant, its 6 OCTOBER TERM, 188S. Opinion of the Court. officers, agents, servants and employés may be restrained and enjoined by a proper preliminary or provisional order or injunction, and until the further order of the court, from interfering in any manner with or disturbing in any manner the enjoyment by the Southern Express Company of the facilities now accorded to it by the said defendant, upon its lines of railway, for the transaction of the business of the said Southern Express Company, and of the express business of the public confided to its care ; and from interfering with any of the express matter or messengers of the Southern Express Company ; and from excluding or ejecting any of its express matter or messengers from the depots, cars, and lines of the said defendant, as the same have been heretofore and are now enjoyed and occupied by the said Southern Express Company ; and from refusing to receive and transport, in like manner as the said defendant is now doing, over its lines of railway, the express matter and messengers of the said Southern Express Company ; and from interfering with or disturbing the business of the said Southern Express Company, or its present relations, in reference thereto, with the said defendant in any way or manner whatsoever, and so long as the said Southern Express Company shall be willing and ready, and offer to pay, according to all legal rates therefor. “ 2. That if any dispute or disagreement shall arise between the parties hereto during the pendency of this suit, and before a final decree herein upon the question of what is a lawful or reasonable compensation to be paid by your orator to the defendant for the transportation of express matter, your orator may be permitted to bring the same by way of interlocutory application to this court for its decision, and that, pending the inquiry thereon, the preliminary injunction heretofore prayed may be continued to the same purport, tenor, and effect as if the prayer for the same were here repeated. “ 3. That the said defendant may be decreed by this court to transport at all times the express matter, safes, and messengers of the said Southern Express Company by the same trains and with the same accommodations thereon, and in its depots and stations as it may transport its own express matter or as it may accord to itself ; and that the said defendant may be decreed EXPRESS CASES. 7 Opinion of the Court. so to transport the said express matter, safes, and messengers of the said Southern Express Company, at and for the statutory tolls and compensation in that behalf by law provided ; and that the said defendant may be decreed to make a reasonable rebate or reduction, to be fixed and determined by this honorable court, from its charges to the said Southern Express Company by reason of its performance of said accessorial service, as above specified, so long as the said Southern Express Company shall offer to conform to all the reasonable rules and regulations of the said defendant, and to pay all lawful charges for the transaction of its said business. “ 4. That a permanent injunction may issue herein to the same purport and effect as is hereinbefore prayed in regard to said provisional or preliminary injunction. “5. That your orator may have such other relief or such further or different relief herein, with its costs, as to the court may seem meet.” The railway company answered the bill, and, among other things, as follows : “38. Defendant further avers that it does not claim and never has claimed a right to exclude the transportation of the express matter of the complainant from the lines of defendant’s railway, and has always been willing and is now willing to carry and transport any freight or express matter of complainant that it may offer to defendant. Defendant claims the right to carry and transport what is called express matter in the spaces in its express cars selected by itself, and under the supervision, care, and control of its own employés, and has refused and does refuse to complainant the right to have allotted to itself any particular space in defendant’s express cars for its exclusive use, or to permit its messengers to ride in the express cars and to take charge of complainant’s express freight.” 2. The Memphis and Little Roch Railroad Company. This suit was begun by the same express company on the 11th of June, 1880. The Memphis and Little Rock Railroad Company is a railroad corporation formed by the reoganization of a former corporation of the same name, owning and operat- 8 OCTOBER TERM, 1885. Opinion of the Court. ing a railroad in Arkansas, between Little Rock and a point on the Mississippi River opposite Memphis. On the 26th of May, 1871, before the reorganization, and while the railroad of the present company was owned and operated by the original corporation, that corporation entered into a written contract with the Southern Express Company, by which the railroad company was to furnish the express company with one end of a baggagecar for express service when convenient, and, if not, a box car. For this the express company was to pay for each hundred pounds of freight carried at certain agreed rates, and to assume all risks of the transportation of express matter, except such damage as arose from the gross neglect or carelessness of the railroad company. This agreement also contained other stipulations for the regulation of the conduct of the parties under it, and at the end was this : “ This agreement takes effect June 1, 1871, and may be terminated by either party on thirty days’ notice.” After the reorganization no new contract was made, but the express company continued business on the road under the old contract, without objection by the reorganized company, until June 2, 1880, when it was notified that, as the railroad company had “ determined to transport all express matter and transact all express business on its own account, and through and by its own officers and agents on and after the fourteenth of June,” all contracts or arrangements existing between the companies would terminate on that day. The notice concluded as follows : “We shall be glad to receive, transport, and deliver any express matter you or your company may think proper to entrust to us at reasonable rates and in conformity to law.” This suit was brought in consequence of that notice, and the prayer of the bill is substantially like that against the St. Louis, Iron Mountain and Southern Company. This company also answered the bill, and, among other things, is the following : “ It says that the fact is that when it purchased the road it now operates, May 1, 1877, it found complainant on the road with all its investments made and its agencies and business routes established, and that respondent tacitly permitted complainant to continue its business over its road. But it is now EXPRESS CASES. 9 Opinion of the Court. able, ready and willing to do the express carrying business oyer its road for itself, and for the benefit of its own stockholders, and desiring to take the business into its own hands it gave complainant the notice mentioned and copied in the bill. It repeats here what it said in that notice, that it is ready and willing to carry for complainant in the same manner and upon the same terms that it carries for all other shippers. It submits that this is the extent of its duty toward complainant, and no injunction of this court is necessary to compel it to discharge that duty. It submits that complainant has no privilege or right which is not common to all shippers, and it repeats that what it does for others it will freely and in its proper order do for complainant. None of the privileges claimed by complainant are accorded by respondent to any other shipper, and no other even asks such privileges. Respondent denies that it must give complainant the same privileges or facilities that it enjoys itself, for that would be to surrender to complainant a part of its corporate rights and privileges, and also to surrender to complainant the control of a part of its cars and business. All that it is required to do for complainant is to receive and carry for it in the same manner and at the same rates it does for others. In the conduct of its business, express and all other, it receives freights from the shippers, giving therefor a receipt or bill of lading, takes the freight into its own possession, loads it itself into its cars, carries it in its own custody, and at the place of destination delivers it to the consignee. All this it is willing, has offered, and again offers, to do for complainant.” 3. The Missouri, Kansas and Texas Railway Company. This suit was brought on the 28th of December, 1880, by or on behalf of the Adams Express Company, a joint stock association of the State of New York, organized in 1854. The Missouri, Kansas and Texas Railway Company is a Kansas railroad corporation, owning and controlling lines of railroad from Junction City, Kansas, and Sedalia, Missouri, to Parsons, Kansas, thence southerly to a crossing of the Arkansas River; and from Holden, Missouri, on the Missouri Pacific Railroad, westerly to 10 OCTOBER TERM, 1885. Opinion of the Court. Paoli, on the Missouri River, Fort Scott and Gulf Railroad, in all a length of say four hundred and seventy-three miles. The bill in this case contains, among others, the following averments: “ X. After the formation of the Adams Express Company various other express companies were formed for the conduct of the same general business, to be operated in like manner over the public thoroughfares of the country. As the principal railway lines known as ‘ Trunk Lines ’ and running in a general direction from east to west, ran in courses generally parallel, the principal express companies existing at the early date aforesaid, namely, the ‘Adams,’ the ‘American,’ and the ‘ United States,’ agreed among themselves that they would reach the commercial centres of the country by different railway and steamboat routes, and that they would divide the north and south express business in a manner best calculated for the welfare thereof, and for the best service of the public. “ This understanding was generally effectuated, but in various instances two express companies have, at the same time, and with permission of the railway company, occupied, for a greater or less distance, the same line of railway, and such occupation has not been found incompatible with the harmonious working of such two express companies, and has resulted in a larger income to the railway company than it would have received had its line been occupied but by one express company only, and has also afforded the public the opportunity, both upon short and long routes, for the most efficient service and for the competition to which it is lawfully entitled. “ XI. Under the mutual understanding aforesaid the Adams Express Company, as soon as the demands of the public warranted the expenditure, extended its business westward to the cities of Wheeling, Columbus, Cincinnati, Indianapolis, Louisville, and St. Louis, by means of the facilities afforded by the Pittsburg, Cincinnati, and St. Louis Railroad and other companies, and thereby made the routes of the said Adams Express Company continuous from Boston, New York, Philadelphia, and Pittsburg to the cities last aforesaid, and such continuous routes are now operated by it. EXPRESS CASES. 11 Opinion of the Court. « XII. The said Adams Express Company, under the arrangements and understandings aforesaid, extended its business in a southerly direction, and, as the word 1 express ’ imports, always by the shortest line of communication to all the principal cities in the South—namely, Richmond, Charleston, Savannah, Mobile, Montgomery, New Orleans, Memphis, and other places— and in so doing was always afforded by those occupying the public office of a common carrier all necessary facilities therefor, and which facilities were by said carriers increased to the said Adams Express Company in proportion with the increase of the demands of the public therefor. “ XIII. The Adams Express Company has always, in the conduct of its business, paid, and now pays to the common carriers whom it employs a just and reasonable compensation, satisfactory to them, for the facilities afforded, and has itself always charged the public only a just and reasonable compensation for the express services performed for it. “ XIV. In the conduct of its business, as aforesaid, the Adams Express Company has always represented, and now represents, that portion of the public which desires to avail itself, in the transmission of its property and valuables, of the pecuniary responsibility of the express company, and of the safeguards and checks which it has originated, provided, and enforced for the safe custody of the property committed to its care. “ XV. The Adams Express Company conducted its business, as aforesaid, until the commencement of hostilities, in 1861,when, by reason of the derangements of commercial intercourse then ensuing, and for other controlling reasons of a public character then generally known, it was obliged to discontinue its organization and business in the Southern States, and it thereupon withdrew from the same, and sold so much of its good-will and its equipment as then there existed to the Southern Express Company, a corporation created, as this plaintiff is informed and believes, under and pursuant to the laws of the State of Georgia ; and since then the express business in the principal Southern States has been, and is now, conducted by the said Southern Express Company, under said charter, by which it is expressly authorized to conduct the same, and which said charter gives a leg- 12 OCTOBER TERM, 1885. Opinion of the Court. islative description of the kind and character of business to be done by said company as an express company, and to a copy of which the plaintiff craves leave to refer. “ XVI. After the cessation of the hostilities aforesaid an arrangement was made, and which is now in force, between the said Adams Express Company and the said Southern Express Company, for the general regulation of the transportation of property coming from the territory of the one into the territory of the other, and by which property received by the Adams Express Company, destined for points within the territory of the Southern, and property received within the territory of the Southern, destined to points within the territory of the Adams Express Company, or reached by its connections, is interchanged at certain specified points, and upon a basis of charge proportioned to the distance traversed in the territory of either. In case of such interchange of express matter within such territory the express company originally receiving the same remains liable to the public for the value thereof, until delivered to the consignee. “ XVII. Since the said understanding and arrangement, the Adams Express Company has made such interchanges with the said Southern Express Company, and now makes the same, at Richmond, Lynchburg, and Danville, Virginia; Chattanooga, Tennessee; Cairo, Illinois, and Paducah, Kentucky, and has not, itself, since then either delivered or received express matter directly south of such points, but the territory so directly south thereof has been operated by the said Southern Express Company alone.” On the 23d of November, 1871, the Adams Express Company and the Missouri, Kansas and Texas Company entered into the following contract: “ This agreement, made this twenty-third day of November, a.d. 1871, between Missouri, Kansas and Texas Railway Company, by R. S. Stevens, its general manager, party of the first part, and the Adams Express Company, by--, party of the second part, witnesseth: ****** “ 1. The Missouri, Kansas and Texas Railway Company will EXPRESS CASES. 13 Opinion of the Court. furnish for the use of the Adams Express Company one car each way on its line from Sedalia, Missouri, via Parsons, Kan-. sas, to Junction City, Kansas, to be hauled on a passenger train each day that a passenger train is to run over the line. The car to be used exclusively by the Adams Express Company, but not to carry at any one time an excess of seven tons of freight; the charges by the express company to its patrons to be not less than one and one-half first-class rates of the Missouri, Kansas and Texas Railway Company at the time, as per its freight tariff. The railway company will also furnish from Parsons south to the Arkansas River the necessary accommodations in its baggage-car, and also similar accommodations in a baggagecar on the Holden line on one train each way. The express car, as well as all express matter carried over the road in any baggage or other car, to be in charge of one agent or messenger of the express company on each train, who is to be carried free. “ 2. All express matter from points on or north of the Missouri Pacific Railroad, and all that comes from any point beyond or east of St. Louis, via that city, for points on the line of the Missouri, Kansas and Texas Railway or beyond, is to be brought on the said line at Sedalia, and no business for this road is to be done, or freight of any kind to be received or delivered, at Vinita, except such as originated at or is destined to points on the Atlantic and Pacific Railroad south and west from Franklin, Missouri. “3. As part compensation to the railway company for the privileges furnished by it, as herein provided, the express company will pay to the railway company monthly one hundred dollars per day for each and every day that trains are run over the railway or any part thereof. “ 4. As part consideration, it is also agreed that the express company shall carry the money and valuable packages belonging to the railway company over the line of the Missouri, Kansas and Texas Railway free of charge, and for all matter going to or coming from points beyond the line of the Missouri, Kansas and Texas Railway, the express company will charge not exceeding two-thirds of its regular rate for such business. The 14 OCTOBER TERM, 1885. Opinion of the Court. superintendents and agents for said express company, whenever it is necessary to supervise the business, to have the privilege of travelling over the line of said road free ; passes for such free passage to be furnished on application of the superintendent of the express company for this division. “ 5. The railway company agree, further, that they will not carry freight or packages for pay in their baggage-cars on passenger trains, nor allow their conductors or baggage-masters or other employés to do so, during the existence of this agreement, nor will they allow any other company, firm, or person the privilege of carrying freight on their passenger trains at any less rate of payment per day, or any greater weight in a car, or upon any better terms in any way than is granted to said express company under this agreement. “ 6. It is understood that as the line of the Missouri, Kansas and Texas Railway is extended south from the Arkansas River, similar accommodations will be furnished for an express business, as herein above provided, at a reasonably increased cost, to be paid by the express company, as shall hereafter be agreed upon. “ 7. This agreement to take effect on the first day of December, a.d. 1871, and continue in force for one year thereafter, and until thirty days’ notice shall have been given to the other by the party desiring to terminate same.” Under this contract the Adams Company carried on its business over the railroad line, without objection from the railroad company, until December 1, 1880, when the railroad company notified the express company that it would be expected to retire from the operation of its business on that road January 1, 1881, as on and after that date the business would be done by or for the railroad company. This suit was brought after the service of that notice, and the prayer of the bill is substantially like that in the other cases. The railroad company at first answered the bill, and testimony was taken, but before a final hearing the answer was withdrawn and a demurrer substituted. In each of the cases a preliminary injunction was granted, and from that time until now the express companies have occu- EXPRESS CASES. 15 Opinion of the Court. pied, the roads the same as before the suits, but in connection with the railroad companies, as carriers of express matter, or with some other express company to which the privilege of doing an express business over the line had been granted by the railroad company. • A large amount of testimony was taken, and on the final hearing a decree was entered in each of the cases, one of which is as follows: “ I. That the express business, as fully described and shown in the record, is a branch of the carrying trade that has by the necessities of commerce and the usages of those engaged in transportation become known and recognized so as to require the court to take notice of the same as distinct from the ordinary transportation of the large mass of freight usually carried on steamboats and railroads. “ II. That it has become the law and usage, and is one of the necessities of the express business, that the property confided to an express company for transportation should be kept while in transit in the immediate charge of the messenger or agent of such express company. “ III. That to refuse permission to such messengers or agents to accompany such property on the steamboats or railroads on which it is to be carried, and to deny to them the right to the custody of the property while so carried, would be destructive of the express business and of the rights which the public have to the use of such steamboats and railroads for the transportation of such property so under the control of such messengers or agents. “IV. That the defendant, its officers, agents, and servants, have no right to open or inspect any of the packages or express matter which may be offered to it for transportation by the plaintiff’s company, or to demand a knowledge of the contents thereof, nor to refuse transportation thereof unless such inspection be granted or such knowledge be afforded. “ V. That it is the duty of the defendant to carry the express matter of the plaintiff’s company and the messengers or agents in charge thereof at a just and reasonable rate of compensation, and that such rate of compensation is to be found and 16 OCTOBER TERM, 1885. Opinion of the Court. established as a unit, and is to include as well the transportation of such messengers or agents as of the express matter in their custody and under their control. “ VI. That on and subsequent to the 1st day of May, 1877, the said defendant afforded to the said plaintiff all the facilities needed by it for the conduct of its express business over the defendant’s lines, and such as are specifically in the bill herein set forth; that thereafter the defendant notified the plaintiff that such facilities would be withdrawn; and that it was the intention and purpose of the defendant to exclude the plaintiff’s company from its lines on and after the 21st day of June, 1880; that such intention and purpose were restrained by the preliminary injunction order of the court, which said injunction order was afterwards modified, as appears in the record. “ VII. That it is the duty of the defendant to afford to the plaintiff all express facilities, and to the same extent and upon the same trains that said defendant may accord to itself or to any other company or corporation engaged in the conduct of an express business on the defendant’s lines, and to afford the same facilities to the plaintiff on all its passenger trains. “ VIII. That the plaintiff keep and render monthly a true account of the services performed for it by defendant, and pay therefor at the rate hereinafter specified, on or before the-- of each month, after the date hereof, for the business of the month preceding; and that the defendant has no right to require prepayment for said express facilities, or payment therefor at the end of every train, or in any other manner than as is herein provided; and that plaintiff execute and deliver to the defendant a bond in the sum of twenty-five thousand dollars, conditioned well and faithfully to make such payments as are herein provided, and with surety to be approved by a judge of the court. “IX. That it is and was the duty of said defendant to afford, and to have afforded, such facilities to the plaintiff as herein specified, for a just and reasonable compensation. “X. Whereas it is alleged by complainant that since the commencement of this suit and the service of the preliminary order of injunction herein, the defendant has, in violation of EXPRESS CASES. 17 Opinion of the Court. said injunction and of the rights of complainant, made unjust discriminations against complainant, and has charged complainant unjust and unreasonable rates for carrying express matter; therefore, it is ordered that complainant have leave hereafter to apply for an investigation of these and similar allegations, and for such order with respect thereto as the facts, when ascertained, may justify, and for the appointment of a master to take proof and report thereon. “XI. That the defendant, its officers, agents, servants, and employés, and all persons acting under their authority, be, and they hereby are, permanently and perpetually enjoined and restrained from interfering with or disturbing in any manner the enjoyment by the plaintiff of the facilities provided for in this decree, to be accorded to it by the said defendant upondts lines of railway, or such as have been heretofore accorded to it for the transaction of the business of the plaintiff, and of the express business of the public confided to its care ; and from interfering with any of the express matter or messengers of the plaintiff ; and from excluding or ejecting any of its express matter or messengers from the depots, trains, cars, or lines of the said defendant, as the same are by this decree directed to be permitted to be enjoyed and occupied by the said plaintiff ; and from refusing to receive and transport in like manner as the said defendant is now transporting, or as it may hereafter transport, for itself or for any other express company, over its lines of railway, the express matter and messengers of the said plaintiff ; and from interfering with or disturbing the business of the said plaintiff in any way or manner whatsoever, the said plaintiff paying for the services performed for it by the defendant monthly, as herein prescribed, at a rate not exceeding fifty per centum more than its prescribed rates for the transportation of ordinary freight, and not exceeding the rate at which it may itself transport express matter on its own account, or for any other express or other corporation or for private individuals, reserving to either party the right at any time hereafter to apply to this court according to the rules in equity proceedings for a modification of this decree as to the measure of compensation herein prescribed. VOL. CXVII—3 18 OCTOBER TERM, 1885. Opinion of the Court. “ XII. It is further ordered, adjudged, and decreed that defendant pay the costs to be taxed herein, and that an execution or a fee bill issue therefor. And the said defendant enters herein its prayer for appeal, which prayer is granted.” The decrees in the other cases differ from this only in matters of detail. The cases are now here for review on these appeals. The evidence shows that the express business was first organized in the United States about the year 1839. The case of New Jersey Steam Navigation Company v. Merchants'1 Banh, 6 How. 344, grew out of a loss by the burning of the steamboat Lexington on Long Island Sound in January, 1840, of $18,000 in gold and silver coin, while in charge of Wm. F. Harnden, an express carrier, for transportation from New York to Boston. In the report of this case is found a copy of one of the earliest advertisements of the express business as published in two of the Boston newspapers in July, 1839. It is as follows: “ Boston and New York Express Package Car.—Notice to Merchants, Brokers, Booksellers, and all Business Men. “Wm. F. Harnden, having made arrangements with the New York and Boston Transportation and Stonington and Providence Railroad Companies, will run a car through from Boston to New York and vice versa, via Stonington, with the mail train daily, for the purpose of transporting specie, small packages of goods, and bundles of all kinds. Packages sent by this line will be delivered on the following morning, at any part of the city, free of charge. A responsible agent will accompany the car, who will attend to purchasing goods, collecting drafts, notes and bills, and will transact any other business that may be intrusted to him. “ Packages for Philadelphia, Baltimore, Washington, New Haven, Hartford, Albany and Troy^will be forwarded immediately on arrival in New York. “ N. B.—Wm. F. Harnden is alone responsible for any loss or injury of any articles or property committed to his care; nor is any risk assumed by, or can any be attached to, the Boston and New York Transportation Company, in whose EXPRESS CASES. 19 Opinion of the Court. steamers his crates are to be transported, in respect to it or its contents at any time.” The report also contains a copy of the contract between Harnden and the New Jersey Steam Navigation Company, the owner of the Lexington, dated the 1st of August, 1839, for the facilities to be afforded Harnden for his business on the steamers of that company. This contract was similar to one made a short time before with the Boston and New York Transportation Company, a company which became merged in the New Jersey Steam Navigation Company August 1, 1839, and it provided that Harnden, in consideration of, $250 per month, was to have the privilege of transporting in the steamers of the company between New York and Providence, via Newport and Stonington, not to exceed once each day from New York and from Providence, “ one wooden crate of the dimensions of five feet by five feet in width and height, and six feet in length, (contents unknown).” It was also stipulated and agreed that “ the said crate, with its contents, is to be at all times exclusively at the risk of the said William F. Harnden; and the said New Jersey Steam Navigation Company will not, in any event, be responsible either to him or his employers for the loss of any goods, wares, merchandise, notes, bills, evidences of debt, or property of any and every description, to be conveyed or transported by him in said crate, or otherwise, in any manner, in the boats of the said company.” It was also further provided that Harnden should attach to all his advertisements for business, and to his bills of lading, notices in the form of that at the foot of his advertisement, a copy of which is given above, and that he should not violate any of the provisions of the post office laws, or interfere with the Navigation Company in its transportation of letters or papers, or carry powder, matches, or other combustible materials of any kind calculated to endanger the safety of the boats or the property or persons on board. At the end was this clause : “ And that this contract may be at any time terminated by the New Jersey Steam Navigation Company, or by the said Harnden, upon one month’s notice given in writing.” 20 OCTOBER TERM, 1885. Opinion of the Court. Such was the beginning of the express business which now has grown to an enormous size, and is carried on all over the United States and in Canada, and has been extended to Europe and the West Indies. It has become a public necessity, and ranks in importance with the mails and with the telegraph. It employs for the purposes of transportation all the important railroads in the United States, and a new road is rarely opened to the public without being equipped in some form with express facilities. It is used in almost every conceivable way, and for almost every conceivable purpose, by the people and by the government. All have become accustomed to it, and it cannot be taken away without breaking up many of the long settled habits of business, and interfering materially with the conveniences of social life. In this connection it is to be kept in mind that neither of the railroad companies involved in these suits is attempting to deprive the general public of the advantages of an express business over its road. The controversy, in each case is not with the public, but with a single express company. ‘ And the real question is not whether the railroad companies are authorized bylaw to do an express business themselves; nor whether they must carry express matter for the public on their passenger trains, in the immediate charge of some person specially appointed for that purpose; nor whether they shall carry express freights for express companies as they carry like freights for the general public ; but whether it is their duty to furnish the Adams Company or the Southern Company facilities for doing an express business upon their roads the same in all respects as those they provide for themselves or afford to any other express company. When the business began railroads were in their infancy. They were few in number, and for comparatively short distances. There has never been a time, however, since the express business was started that it has not been encouraged by the railroad companies, and it is no doubt true, as alleged in each of the bills filed in these cases, that “ no railroad company in the United States . . . has ever refused to transport express matter for the public, upon the application of some ex- EXPRESS CASES. 21 Opinion of the Court. press company, of some form of legal constitution. Every railway company . . . has recognized the right of the public to demand transportation by the railway facilities which the public has permitted to be created, of that class of matter which is known as express matter.” Express companies have undoubtedly invested their capital and built up their business in the hope and expectation of securing and keeping for themselves such railway facilities as they needed, and railroad companies have likewise relied upon the express business as one of their important sources of income. But it is neither averred in the bills, nor shown by the testimony, that any railroad company in the United States has ever held itself out as a common carrier of express companies, that is to say, as a common carrier of common carriers. On the contrary it has been shown, and in fact it was conceded upon the argument, that, down to the time of bringing these suits, no railroad company had taken an express company on its road for business except under some special contract, verbal or written, and generally written, in which the rights and the duties of the respective parties were carefully fixed and defined. These contracts, as is seen by those in these records, vary necessarily in their details, according to the varying circumstances of each particular case, and according to the judgment and discretion of the parties immediately concerned. It also appears that, with very few exceptions, only one express company has been allowed by a railroad company to do business on its road at the same time. In some of the States, statutes have been passed which, either in express terms or by judical interpretation, require railroad companies to furnish equal facilities to all express companies, Gen. Laws N. H., 1878, ch. 103, § 2; Rev. Stat. Maine, 1883, 494, ch. 51, §134; but these are of comparative recent origin, and thus far seem not to have been generally adopted. In Missouri, by the Constitution, railways are “ declared public highways, and railroad companies common carriers.” The general assembly is also required “ to pass laws to correct abuses and prevent unjust discrimination and extortion in rates of freight and passenger tariffs on the different railroads in 22 OCTOBER TERM, 1885. Opinion of the Court. this State,” and “to pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on said railroads, and enforce all such laws by adequate penalties.” Art. XII., sec. 14. And by section 23 it is provided that “no discrimination in charges or facilities in transportation shall be made between transportation companies and individuals, or in favor of either, by abatement, drawback, or otherwise, and no railroad company, or any lessee, manager, or employe thereof shall make any preference in furnishing cars or motive power.” We have not been referred to any statute of the State which does more than reproduce these constitutional provisions in substantially the same general language. Art. XVII., sec. 1, of the Constitution of Arkansas provides that “ all railroads, canals and turnpikes shall be public highways, and all railroad and canal companies shall be common carriers.” Sections 3, 5 and 6 of the same article are as follows : “ Sec. 3. All individuals, associations and corporations shall have equal rights to have persons and property transported over railroads, canals and turnpikes, and no undue or unreasonable discrimination shall be made in charges for, or in facilities for transportation of freight or passengers within the State, or coming from or going to any other State.” “ Sec. 5. No president, director, officer, agent, or employé of any railroad or canal company shall be interested, directly or indirectly, in thè furnishing of material or supplies to such company, or in the business of a common carrier of freight or passengers over the works owned, leased, controlled, or worked by such company, nor in any arrangement which shall afford more advantageous terms or greater facilities than are offered or accorded to the public. “ Sec. 6. No discrimination in charge or facilities for transportation shall be made between transportation companies and individuals, nor in favor of either, by abatement, drawback, or otherwise ; and no railroad or canal company, or any lessee, manager, or employé thereof, shall make any preference in furnishing cars or motive power.” EXPRESS CASES. 23 Opinion of the Court. The legislation of this State has not, so far as we have been advised, extended the operation of these constitutional provisions in a way to affect the questions now to be decided. In Kansas the following statute is in force : “ Sec. 55. Every railway corporation in this State which now is, or may hereafter be, engaged in the transportation of persons or property, shall give public notice of the regular time of starting and running its cars, and shall furnish sufficient accommodations for the transportation of all such passengers, baggage, mails, and express freight as shall, within a reasonable time previous thereto, be offered for transportation at the place of starting, at the junction of other roads, and at the several stopping-places ; and they are hereby required to stop all trains carrying passengers at the junction or intersection of other railways a sufficient length of time to allow the transfer of passengers, personal baggage, mails, and express freight from the trains or railways so connecting or intersecting, or they may mutually arrange for the transportation of such persons and property over both roads without change of cars; and they shall be compelled to receive all passengers and freight from such connecting and intersecting roads whenever the same shall be delivered to them.” Comp. Laws Kansas, 1879, 225, ch. 23. The reason is obvious why special contracts in reference to this business are necessary. The transportation required is of a kind which must, if possible, be had for the most part on passenger trains. It requires not only speed, but reasonable certainty as to the quantity that will be carried at any one time. As the things carried are to be kept in the personal custody of the messenger or other employé of the express company, it is important that a certain amount of car space should be specially set apart for the business, and that this should, as far as practicable, be put in the exclusive possession of the express man in charge. As the business to be done is “ express,” it implies access to the train for loading at the latest, and for unloading at the earliest, convenient moment. All this is entirely inconsistent with the idea of an express business on passenger trains free to all express carriers.- Railroad companies are by law 24 OCTOBER TERM, 1885. Opinion of the Court. carriers of both persons and property. Passenger trains have from the beginning been provided for the transportation primarily of passengers and their baggage. This must be done with reasonable promptness and with reasonable comfort to the passenger. The express business on passenger trains is in a degree subordinate to the passenger business, and it is consequently the duty of a railroad company in arranging for the express to see that there is as little interference as possible with the wants of passengers. This implies a special understanding and agreement as to the amount of car space that will be afforded, and the conditions on which it is to be occupied, the particular trains that can be used, the places at which they shall stop, the price to be paid, and all the varying details of a business which is to be adjusted between two public servants, so that each can perform in the best manner its own particular duties. All this must necessarily be a matter of bargain, and it by no means follows that, because a railroad company can serve one express company in one way, it can as well serve another company in the same way, and still perform its other obligations to the public in a satisfactory manner. The car space that can be given to the express business on a passenger train is, to a certain extent, limited, and, as has been seen, that which is allotted to a particular carrier must be, in a measure, under his exclusive control. No express company can do a successful business unless it is at all times reasonably sure of the means it requires for transportation. On important lines one company will at times fill all the space the railroad company can well allow for the business. If this space had to be divided among several companies, there might be occasions when the public would be put to inconvenience by delays which could otherwise be avoided. So long as the public are served to their reasonable satisfaction, it is a matter of no importance who serves them. The railroad company performs its whole duty to the public at large and to each individual when it affords the public all reasonable express accommodations. If this is done the railroad company owes no duty to the public as to the particular agencies it shall select for that purpose. The public require the carriage, but the company may choose its own ap- EXPRESS CASES. 25 Opinion of the Court. propriate means of carriage, always provided they are such as to insure reasonable promptness and security. The inconvenience that would come from allowing more than one express company on a railroad at the same time was apparently so well understood both by the express companies and the railroad companies that the three principal express companies, the Adams, the American, and the United States, almost immediately on their organization, now more than thirty years ago, by agreement divided the territory in the United States traversed by railroads among themselves, and since that time each has confined its own operations to the particular roads which, under this division, have been set apart for its special use. No one of these companies has ever interfered with the other, and each has worked its allotted territory, always extending its lines in the agreed directions as circumstances would permit. At the beginning of the late civil war the Adams Company gave up its territory in the Southern States to the Southern Company, and since then the Adams and the Southern have occupied, under arrangements between themselves, that part of the ground originally assigned to the Adams alone. In this way these three or four important and influential companies were able substantially to control, from 1854 until about the time of the bringing of these suits, all the railway express business in the United States, except upon the Pacific roads and in certain comparatively limited localities. In fact, as is stated in the argument for the express companies, the Adams was occupying when these suits were brought, one hundred and fifty-five railroads, with a mileage of 21,216 miles, the American two hundred roads, with a mileage of 28,000 miles, and the Southern ninety-five roads, with a mileage of 10,000 miles. Through their business arrangements with each other, and with other connecting lines, they have been able for a long time to receive and contract for the delivery of any package committed to their charge at almost any place of importance in the United States and in Canada, and even at some places in Europe and the West Indies. They have invested millions of dollars in their business, and have secured public confidence to such a degree that they are trusted unhesitat- 26 OCTOBER TERM, 1885. Opinion of the Court. ingly by all who need their services. The good will of their business is of very great value if they can keep their present facilities for transportation. The longer their lines and the more favorable their connections, the greater will be their own profits, and the better their means of serving the public. In making their investments and in extending their business, they have undoubtedly relied on securing and keeping favorable railroad transportation, and in this they were encouraged by the apparent willingness of railroad companies to accommodate them ; but the fact still remains that they have never been allowed to do business on any road except under a special contract, and that as a rule only one express company has been admitted on a road at the same time. The territory traversed by the railroads involved in the present suits is part of that allotted in thè division between the express companies to the Adams and Southern companies, and in due time after the roads were built these companies contracted with the railroad companies for the privileges of an express business. The contracts were all in writing, in which the rights of the respective parties were clearly defined, and there is now no dispute about what they were. Each contract contained a provision for its termination by either party on notice. That notice has been given in all the cases by the railroad companies, and the express companies now sue for relief. Clearly this cannot be afforded by keeping the contracts in force, for both parties have agreed that they may be terminated at any time by either party on notice ; nor by making new contracts, because that is not within the scope of judicial power. The exact question, then, is whether these express companies can now demand as a right what they have heretofore had only as by permission. That depends, as is conceded, on whether all railroad companies are now by law charged with the duty of carrying all express companies in the way that express carriers when taken are usually carried, just as they are with the duty of carrying all passengers and freights when offered in the way that passengers and freight are carried. The contracts which these companies once had are now out of EXPRESS CASES. 27 Opinion of the Court. the way, and the companies at this time possess no other rights than such as belong to any other company or person wishing to do an express business upon these roads. If they are entitled to the relief they ask it is because it is the duty of the railroad companies to furnish express facilities to all alike who demand them. The constitutions and the laws of the States in which the roads are situated place the companies that own and operate them on the footing of common carriers, but there is nothing which in positive terms requires a railroad company to carry all express companies in the way that under some circumstances they may be able without inconvenience to carry one company. In Kansas, the Missouri, Kansas and Texas Company must furnish sufficient accommodations for the transportation of all such express freight as may be offered, and in each of the States of Missouri, Arkansas and Kansas railroad companies are probably prohibited from making unreasonable discriminations in their business as carriers, but this is all. Such being the case, the right of the express companies to a decree depends upon their showing the existence of a usage, having the force of law in the express business, which requires railroad companies to carry all express companies on their passenger trains as express carriers are usually carried. It «is not enough to establish a usage to carry some express company, or to furnish the public in some way with the advantages of an express business over the road. The question is not whether these railroad companies must furnish the general public with reasonable express facilities, but whether they must carry these particular express carriers for the purpose of enabling them to do an express business over the lines. In all these voluminous records there is not a syllable of evidence to show a usage for the carriage of express companies on the passenger trains of railroads unless specially contracted for. While it has uniformly been the habit of railroad companies to arrange, at the earliest practicable moment, to take one express company on some or all of their passenger trains, or to provide some other way of. doing an express business on their lines, it has never been the practice to grant such a privilege to more 28 OCTOBER TERM, 1885. Opinion of the Court. than one company at the same time, unless a statute or some special circumstances made it necessary or desirable. The express companies that bring these suits are certainly in no situation to claim a usage in their favor on these particular roads, because their entry was originally under special contracts, and no other companies have ever been admitted except by agreement. By the terms of their contracts they agreed that all their contract rights on the roads should be terminated at the will of the railroad company. They were willing to begin and to expand their business upon this understanding, and with this uncertainty as to the duration of their privileges. The stoppage of their facilities was one of the risks they assumed when they accepted their contracts, and made their investments under them. If the general public were complaining because the railroad companies refused to carry express matter themselves on their passenger trains, or to allow it to be carried by others, different questions would be presented. As it is, we have only to decide whether these particular express companies must be carried notwithstanding the termination of their special contract rights. The difficulty in the cases is apparent from the form of the decrees. As express companies had always been carried by railroad companies under special contracts, which established the duty of the railroad company upon the one side, and fixed the liability of the express company on the other, the court, in decreeing the carriage, was substantially compelled to make for the parties such a contract for the business as in its opinion they ought to have made for themselves. Having found that the railroad company should furnish the express company with facilities for business, it had to define what those facilities must be, and it did so by declaring that they should be furnished to the same extent and upon the same trains that the company accorded to itself or to any other company engaged in conducting an express business on its line. It then prescribed the time and manner of making the payment for the facilities and how the payment should be secured, as well as how it should be measured. Thus, by the decrees, these railroad companies are compelled to carry these express companies EXPRESS CASES. 29 Dissenting Opinion : Miller, J. at these rates, and on these terms, so long as they ask to be carried, no matter what other express companies pay for the same facilities or what such facilities may, for the time being, be reasonably worth, unless the court sees fit, under the power reserved for that purpose, on the application of either of the parties, to change the measure of compensation. In this way as it seems to us, “ the court has made an arrangement for the business intercourse of these companies, such as, in its opinion, they ought to have made for themselves,” and that, we said in Atchison, Topeka and Santa Fe Railroad Co. v. Denver de New Orleans Railroad Co., 110 U. S. 667, followed at this term in Pullman? s Palace Car Co. n. Missouri Pacific Railway Co., 115 IL S. 587, could not be done. The regulation of matters of this kind is legislative in its character, not judicial. To what extent it must come, if it comes at all, from Congress, and to what extent it may come from the States, are questions we do not now undertake to decide ; but that it must come, when it does come, from some source of legislative power, we do not doubt. The legislature may impose a duty, and when imposed it will, if necessary, be enforced by the courts, but, unless a duty has been created either by usage or by contract, or by statute, the courts cannot be called on to give it effect. The decree in each of the cases is reversed, and the suit is remanded, with directions to dissolve the injunction,, and, after adjusting the accounts between the parties for business done while the injunctions were in force, and decreeing the payment of any amounts that may be found to be due, to dismiss the bills. Mr. Justice Miller dissenting. When these cases were argued before Circuit Judge McCrary and myself at St. Louis, after due consideration and consultation with him and Judge Treat, of the District Court, I announced certain propositions as the foundations on which the decrees should be rendered. These were afterwards entered in the various circuits to which the cases properly belonged, and, I believe, in strict accordance with the principles thus announced. 30 OCTOBER TERM, 1885. Dissenting Opinion : Miller, J. I am still of opinion that those principles are sound, and I repeat them here as the reasons of my dissent from the judgment of the court now pronounced in these cases. They met the approval of Judge McCrary when they were submitted to his consideration. They were filed in the court in the following language: “ 1. I am of opinion that what is known as the express business is a branch of the carrying trade that has, by the necessities of commerce and the usages of those engaged in transportation, become known and recognized. “ That, while it is not possible to give a definition in terms which will embrace all classes of articles usually so carried, and to define it with a precision of words of exclusion, the general character of the business is sufficiently known and recognized to require the court to take notice of it as distinct from the transportation of the large mass of freight, usually carried on steamboats and railroads. “ That the object of this express business is to carry small and valuable packages rapidly, in such a manner as not to subject them to the danger of loss and damage, which, to a greater or less degree, attends the transportation of heavy or bulky articles of commerce, as grain, flour, iron, ordinary merchandise, and the like. “ 2. It has become law and usage, and is one of the necessities of this business, that these packages should be in the immediate charge of an agent or messenger of the person or company engaged in it, and to refuse permission to this agent to accompany these packages on steamboats or railroads on which they are carried, and to deny them the right to the control of them while so carried, is destructive of the business and of the rights which the public have to the use of the railroads in this class of transportation. “ 3. I am of the opinion that when express matter is so confided to the charge of an agent or messenger, the railroad company is no longer liable to all the obligations of a common carrier, but that when loss or injury occurs, the liability depends upon the exercise of due care, skill and diligence on the part of the railroad company. EXPRESS CASES. 31 Dissenting Opinion : Miller, J. • « 4. That, under these circumstances, there does not exist on the part of the railroad company the right to open and inspect all packages so carried, especially when they have been duly closed or sealed up by their owners or by the express carrier. “ 5. I am of the opinion that it is the duty of every railroad company to provide such conveyance by special cars, or otherwise, attached to their freight and passenger trains, as are required for the safe and proper transportation of this express matter on their roads, and that the use of these facilities should be extended on equal terms to all who are actually and usually engaged in the express business. “ If the number of persons claiming the right to engage in this business at the same time, on the same road, should become oppressive, other considerations might prevail; but until such a state of affairs is shown to be actually in existence in good faith, it is unnecessary to consider it. “ 6. This express matter and the person in charge of it should be carried by the railroad company at fair and reasonable rates of compensation; and where the parties concerned cannot agree upon what that is, it is a question for the courts to decide. “ 7. I am of the opinion that a court of equity, in a case properly made out, has the authority to compel the railroad companies to carry this express matter, and to perform the duties in that respect which I have already indicated, and to make such orders and decrees, and to enforce them by the ordinary methods in use necessary to that end. “ 8. While I doubt the right of the court to fix in advance the precise rates which the express companies shall pay and the railroad company shall accept, I have no doubt of its right to compel the performance of the service by the railroad company, and after it is rendered, to ascertain the reasonable compensation and compel its payment. “ 9. To permit the railway company to fix upon a rate of compensation which is absolute, and insist upon the payment in advance or at the end of every train, would be to enable them to defeat the just rights of the express companies, to destroy their business, and would be a practical denial of justice. “ 10. To avoid this difficulty, I think that the court can as- 32 OCTOBER TERM, 1885. Dissenting Opinion : Miller, J. • sume that the rates, or other mode of compensation heretofore existing between any such companies, are prima facie, reasonable and just, and can require the parties to conform to it as the business progresses, with the right to either party to keep and present an account of the business to the court at stated intervals, and claim an addition to, or rebate from, the amount paid. And to secure the railroad companies in any sum which may be thus found due them, a bond from the express company may be required in advance. “ 11. When no such arrangement has heretofore been in existence it is competent for the court to devise some mode of compensation to be paid as the business progresses, with like power of final revision on evidence, reference to master, &c. “ 12. I am of opinion that neither the statutes nor constitutions of Arkansas or Missouri were intended to affect the right asserted in these cases; nor do they present any obstacle to such decrees as may enforce the right of the express companies.” Three years’ reflection and the renewed and able argument in this court have not changed my belief in the soundness of these principles. That there may be slight errors in the details of the decrees of the Circuit Courts made to secure just compensation for the services of the railroad companies is possibly true, but 1 have not discovered them, and the attention of the court has not been given to them in deciding this case; for holding, as it does, that the complainants were entitled to no relief whatever, it became unnecessary to consider the details of the decrees. I only desire to add one or two observations in regard to matters found in the opinion of this court. 1. The relief sought in these cases is not sought on the ground of usage in the sense that a long course of dealing with the public has established a custom in the nature of law. Usage is only relied on as showing that the business itself has forced its way into general recognition as one of such necessity to the public, and so distinct and marked in its character, that it is entitled to a consideration different from other modes of transportation. EXPRESS CASES. 33 Dissenting Opinion: Miller, J. 2. It is said that the regulation of the duties of carrying by the railroads, and of the compensation they shall receive, is legislative in its character, and not judicial. As to the duties of the railroad company, if they are not, as common carriers, under legal obligation to carry express matter for any one engaged in that business in the manner appropriate and usual in such business, then there is no case for the relief sought in these bills. But if they are so bound to carry, then in the absence of any legislative rule fixing their compensation I maintain that that compensation is a judicial question. It is, then, the ordinary and ever-recurring question on a quantum meruit. The railroad company renders the service which, by the law of its organization, it is bound to render. The express company refuses to pay for this the price which the railroad company demands, because it believes it to be exorbitant. That it is a judicial question to determine what shall be paid for the service rendered, in the absence of an express contract, seems to me beyond doubt. That the legislature may, in proper case, fix the rule or rate of compensation, I do not deny. But until this is done the court must decide it, when it becomes matter of controversy. The opinion of the court, while showing its growth and importance, places the entire express business of the country wholly at the mercy of the railroad companies, and suggests no means by which they can be compelled to do it. According to the principles there announced, no railroad company is bound to receive or carry an express messenger or his packages. If they choose to reject him or his packages, they can throw all the business of the country back to the crude condition in which it was a half century ago, before Harnden established his local express between the large Atlantic cities; for, let it be remembered that plaintiffs have never refused to pay the railroad companies reasonable compensation for their services, but those companies refuse to carry for them at any price or under any circumstances. I am very sure such a proposition as this will not long be acquiesced in by the great commercial interests of the country and by the public, whom both railroad companies and the VOL. CXVII—3 34 OCTOBER TERM, 1885. Syllabus. express men are intended to serve. If other courts should follow ours in this doctrine, the evils to ensue will call tor other relief. It is in view of amelioration of these great evils that, in dissenting here, I announce the principles which I earnestly believe ought to control the actions and the rights of these two great public services. Mr. Justice Field dissenting. I agree with Mr. Justice Miller in the positions he has stated, although in the cases just decided I think the decrees of the courts below require modification in several particulars; they go too far. But I am clear that railroad companies are bound, as common carriers, to accommodate the public in the transportation of goods according to its necessities, and through the instrumentalities or in the mode best adapted to promote its convenience. Among these instrumentalities express companies, by the mode in which their business is conducted, are the most important and useful. Mr. Justice Matthews took no part in the decision of these cases. PICKARD, Comptroller, v. PULLMAN SOUTHERN CAR COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF TENNESSEE. Argued January 25, 26,1886.—Decided March 1, 1886. Section 6 of the act of the legislature of Tennessee, passed March 16, 1877, Laws of 1877, ch. 16, p. 26, which imposes a privilege tax of $50 per annum on every sleeping car or coach used or run over a railroad in Tennessee and not owned by the railroad on which it is run or used, is void so far as it applies to the inter-State transportation of passengers carried over railroads in Tennessee, into or out of or across that State, in sleeping cars PICKARD v. PULLMAN SOUTHERN CAR CO. 35 Statement of Facts. owned by a corporation of Kentucky and leased by it for transportation purposes to Tennessee railroad corporations, the latter receiving the transit fare, and the former the compensation for the sleeping accommodations. Section 28 of Article II of the Constitution of Tennessee, of 1870, contains these provisions: “ All property shall be taxed according to its value, that value to be ascertained in such manner as the Legislature shall direct, so that taxes shall be equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than any other species of property of the same value. But the Legislature shall have power to tax merchants, pedlers, and privileges, in such manner as they may from time to time direct.” On the 16th of March, 1877, the Legislature of Tennessee passed an Act, entitled “ An Act declaring the mode and manner of valuing the property of telegraph companies for taxation, and of taxing sleeping cars,” Laws of 1877, ch. 16, p. 26, the 6th section of which provided as follows: “ That the running and using of sleeping cars or coaches on railroads in Tennessee, not owned by the railroads upon which they are run or used, is declared to be a privilege, and the companies owning and running or using said cars or coaches are required to report, on or before the 1st day of May of each year, to the comptroller, the number of cars so used by them in this State; and they shall be required to pay to the comptroller, by the first of July following $50 for each and every of said cars or coaches used or as run over said roads; and if the said privilege tax herein assessed be not paid as aforesaid, the comptroller shall enforce the payment of the same by distress warrant.” Under this act the comptroller of the State claimed that there was due from the Pullman Southern Car Company, a corporation of Kentucky, to the State, for each of the years 1878,1879 and 1880, a privilege tax of $50 on each one of thirtyeight sleeping cars, run and used on railroads in Tennessee, and not owned by the railroad companies on whose roads they were used, but owned by the Pullman Company. The aggregate amount of the taxes claimed was $5700, and the comptroller instituted proceedings to collect them from that company, which, under the provisions of a statute of the State, paid the 36 OCTOBER TERM, 1885. Statement of Facts. money under protest, and it was paid into the State treasury, with notice to the comptroller that it was paid under protest, and the company, within the time prescribed by the statute, and in August, 1881, brought an action at law against the comptroller to recover the $5700, in the Circuit Court of the United States for the Middle District of Tennessee. The declaration alleged, among other things, that the sleeping cars, for the running or use of which the taxes were claimed and collected, were not run or used by the plaintiff during any one of the years 1878, 1879 or 1880, but were run and used by certain railroad companies in Tennessee, though they were owned during that time by the plaintiff, which permitted those railroad companies to run and use them under certain contract stipulations ; that the sleeping cars so run and used were, during the whole of the years 1878, 1879 and 1880, employed by them in inter-State commerce, being run into and through Tennessee, from and into other States, transporting passengers from other States into or across Tennessee, or from Tennessee into other States ; and that, therefore, such taxes and the collection thereof were illegal and contrary to the Constitution of the United States. There was a demurrer to the declaration, raising, among other things, the question above stated, but, on a hearing, the demurrer was overruled, the ■opinion of the court being delivered by Mr. Justice Matthews. 22 Fed. Rep. 276. The conclusion arrived at in the opinion, which accompanies the record, was that the levying of a privilege- tax on the running and using, on railroads in Tennessee, of sleeping cars not owned by those railroads, was, as applied to such ■ cars when employed in inter-State transportation, a regulation of commerce among the States, and contrary to the Constitution of the United States, and, therefore, void. Leave being given to the defendant to plead over, nil débet was pleaded, and the issue was tried by the court without a jury, by a written stipulation between the parties, which embodied an agreed statement of facts, on which the cause was heard. The agreed statement set forth that the plaintiff was a Kentucky corporation, having its chief office and place of business at Louisville ; and that, since 1872, it had been engaged, at PICKARD v. PULLMAN SOUTHERN CAR CO. 37 Statement of Facts. Louisville, in manufacturing railway cars, known as drawingroom cars and sleeping cars, and in hiring those cars to various railroad companies in Tennessee and other States, under the following form of contract: “This indenture, made this 19th day of June, a.d. 1872, between the Louisville and Nashville Railroad Company, the party of the first part, and the Pullman Southern Car Company, of the second part: Whereas, the said party of the second part is now engaged in the business of manufacturing railway cars, known as drawing-room and sleeping cars, under certain patents belonging to them, and of hiring the same to railroad companies, and receiving therefor income and revenue by the sale to passengers of seats and berths, and accommodations therein; and whereas the said party of the first part is desirous of availing itself of the use on and over its lines of road, of the cars constructed under the sleeping and drawingroom car patents now the property of said second party, and also of connections by means of said cars with other lines of railroad, whereon said cars are now operated by said second party, now this contract witnesseth: That the said party of the second part, in consideration of the covenants and agreements of the party of the first part, hereinafter mentioned to be by them kept and performed, hereby agrees with the said party of the first part, that they will furnish drawing-room cars and sleeping cars to be used by said party for the transportation of passengers, sufficient to meet the requirements of travel on and over their line of railroad, and on and over all lines of railroad which they now control, or may hereafter control, by ownership, lease, or otherwise, the said cars so furnished to be satisfactory to the general superintendent of the first party. “ 2d. The said party of the second part agrees that they will keep the carpets, upholstery, and bedding of each of the said cars in good order and repair, and renew and improve the same, when necessary, at their own expense, excepting repairs and removals made necessary by accident or casualty; it being understood that the said first party shall repair all damages to said cars, of every kind, occasioned by accident or casualty, during the continuance of this agreement. 38 OCTOBER TERM, 1885. Statement of Facts. “ 3d. The said party of the second part hereby agrees, at their own expense and cost, to furnish one or more employes, as may be needful, upon each of said cars, whose duties shall be to collect fares for the accommodations furnished in said cars,* and generally to wait upon passengers therein, and provide for their comfort. “ 4th. The said party of the first part hereby agrees that the general officers of said second party, and the employes named in article third of this agreement, shall be entitled to free passage over the lines of the first party, when they are on duty for the second party. “ 5th. The party of the second part hereby agrees that the general officers of the first party shall be entitled to free passes in any of the cars furnished by said second party under this agreement. “ 6th. It is hereby mutually agreed, that the said employés of the second party named in article third of this agreement shall be governed by and subject to the rules and regulations of the said first party, which are, or may be, adopted from time to time, for the government of their own employés, and, in the event of any liability arising against said first party for personal injury, death, or otherwise of any employé of said second party, it is hereby distinctly understood and agreed, that the said first party shall be liable only to the same extent they would be if the person injured was an employé in fact of said first party, and for all liability in excess thereof shall be indemnified and paid by said second party. “7th. The party of the first part, in consideration of the use of the aforesaid cars, hereby agrees to haul the same on the passenger trains on their line of road, and on all roads which they now control or may hereafter control by ownership, lease, or otherwise, and also on all passenger trains on which they may, by virtue of contracts or running arrangements with other roads, have the right to use such cars in such manner as will best accommodate passengers desiring the use of said cars ; and the said party of the first part shall, at their own expense, furnish fuel for the cars and materials for the lights, shall wash and cleanse said cars, and shall also keep said cars in good PICKARD v. PULLMAN SOUTHERN CAR CO. 39 Statement of Facts. order and repair, including renewals of worn-out parts, and all things appertaining to said cars, necessary to keep them in first-class condition, except such as are provided for in article second of this agreement. “ 8th. The party of the first part agrees to furnish said party of the second part, at convenient points, room and conveniences for airing and storing bedding. “ 9th. The said party of the first part further agrees, that the said party of the second part shall be entitled to collect from each and every person occupying said cars, such sums for said occupancy as may be usual on competing lines furnishing equal accommodations, and that such rules and regulations shall be agreed upon as will most favor the renting of seats and couches in said cars. “10th..The party of the first part hereby agrees to permit the party of the second part to place their tickets for seats and couches for sale in such of the railroad ticket offices as may be desired by said second party, and such services shall be performed by and as part of the general duties of the ticket agents, and without charge to the party of the second part; proceeds of such sales to be at the risk of said second party. “ 11th. The party of the first part hereby agrees that said second party shall have the exclusive right, for a term of fifteen years from the date hereof, to furnish for the use of the first party drawing-room or parlor cars and sleeping cars, including reclining-chair cars, on all the passenger trains of said first party, and over their entire lines of railroad, and on all railroads which they may control, or may hereafter control, by ownership, lease, or otherwise, and also on all passenger trains on which they may, by virtue of contracts or running arrangements with other roads, have the right to use such cars, and that they will not contract with any other parties to run said class of cars on or over said lines of road during said period of fifteen years. “ The said second party, for the consideration aforesaid, hereby guarantees said first party against all damages of whatsoever kind which may be by said first party incurred in consequence of any infringement of patent rights in the construction and 40 OCTOBER TERM, 1885. Statement of Facts. use of any of said cars which may be used by said second party upon the lines of said first party under this arrangement, it being the meaning and intent of this article, that the second party shall secure said first party against all manner of expenditures which may be incurred by said first party in consequence of any litigation connected with alleged infringements of patent rights for the interior arrangements of said cars, and that they will pay off and discharge all judgments obtained at any time against said first party on account of such infringements. “12th. It is mutually agreed between the parties hereto, that, in case either of said parties shall, at any time hereafter, fail to keep and perform any of the covenants herein contained to be by them respectively kept and performed, then, and in that case, after written notice shall have been given to the defaulting party thereto of the default complained of, if the said defaulting party shall refuse or neglect to make good, keep, and perform such unfulfilled covenants and conditions of this agreement within a reasonable time after such notice, the other party shall be at liberty to declare this contract ended and no longer in force.” The agreed statement further set forth, that the plaintiff had never had any branch office or establishment of any kind in Tennessee, unless the fact that the plaintiff had placed its tickets for sale with railway agents in that State constituted the offices of such agents branch offices or establishments of the plaintiff ; that it had never had any ticket agents of its own in Tennessee, except in so far as the ticket agents of the railway companies with whom the tickets of the plaintiff had been placed for sale might be regarded as the agents of the plaintiff ; that the plaintiff had never had any other agents, officers or employes in Tennessee, except the conductors and porters which it furnished with its cars under its contracts with the railroad companies ; that the cars furnished by the plaintiff under those contracts constituted all the property owned by it in Tennessee, and the business done by it under those contracts, such as it was, was the only business done by it in Tennessee ; that the cars furnished by it under those con- PICKARD v. PULLMAN SOUTHERN CAR CO. 41 Statement of Facts. tracts (with the exception of two sleeping cars running between Nashville and Memphis), were used in transporting passengers from other States into or across Tennessee, and from points in Tennessee to points in other States; that the same cars also transported passengers from points in Tennessee to other points in that State whenever they properly applied for such transportation, but the number of such passengers bore an inconsiderable proportion to the other passengers transported in those cars; that those cars ran into; out of or across Tennessee, making such stops as the trains to which they were attached made; that, in the case of passengers travelling across Tennessee, or from points out of it to points in it, their sleeeping-car tickets were purchased and paid for before they entered Tennessee, but in the case of passengers from points in Tennessee to points in other States, or in Tennessee, the tickets were purchased and paid for in Tennessee; that the railroad companies of Tennessee with whom such contracts were made were duly chartered by that State, or organized or operated under its laws, with power to transport passengers for hire; that they were taxed by that State on the value of their roads, rolling stock and other tangible property, and also on the value of their franchises; that from March 16, 1877, to the present time, the Memphis and Charleston Railroad Company, and the East Tennessee, Virginia and Georgia Railroad Com-pany, both of them Tennessee corporations, had owned sleeping cars which they had run and used during that time as sleeping cars upon their respectiye roads, and they had not been required by the State to pay any tax for running or using said sleeping cars upon their roads, except in so far as such a tax might have been included in the tax assessed on the value of their franchises; and that the thirty-eight cars before mentioned included the two cars run between Nashville and Memphis. The agreed statement set forth the other facts hereinbefore contained, necessary to a recovery; and, on the 29 th of December, 1884, a judgment was entered, which stated that the cause was heard on an agreed statement of facts, and that it was thereby made a part of the record at large in the cause, and 42 OCTOBER TERM, 1885. Argument for Plaintiffs in Error. that the court found the issue joined in favor of the plaintiff. It then set forth the material facts contained in the agreed statement, and awarded a judgment for $5400, for the taxes on the thirty-six cars, and for $1089.90 interest, and for costs, assigning as a reason that the State had no power to impose a privilege tax on the plaintiff for running or using the thirty-six cars in the State, the tax being a regulation of commerce be-tween the States, and, therefore, a violation of the Constitution of the United States. To reverse this judgment the defendant sued out a writ of error. J/r. J. B. Ileishell for plaintiff in error (JZ>. S. A. Champion was with him on the brief), argued : I. That all State questions had been eliminated by the decision in the case of Pullman Southern Car Co. v. Gaines, 3 Tenn. Ch. 587, and the only contentions now before this court were contained in the Federal questions involved. Stone v. Wisconsin, 94 U. S. 181,183; Fairfield v. County of Gallatin, 100 U. S. 47,52; Burgess v. Seligman, 107 U. S. 29, 34; Rail/road Co. v. Gaines, 97 U. S. 697, 709. II. That the fact that certain parts of attachments of the sleeping cars were patented could in no way interfere with the right of the legislature to levy a privilege tax upon the “ running and using ” of sleeping cars over the railroads in the State owned by foreign corporations and run for the accommodation of passengers into, out of or through the State. III. That the contract between the Pullman Southern Car Company and the various railroad companies exhibited in the record, showed that the arrangement intended to be made with the railroad companies was to secure the privilege of running and using sleeping cars or coaches over the lines of the various railroads, and was not a contract of hiring or leasing cars by the railroad companies, and that the business was done by the defendants and not by the railroad companies. IV. That the running and using of cars for sleeping purposes only, not owned by the railroads upon which they were run or used, was not such inter-State commerce, the regulation of which is placed by the Constitution of the United States under the PICKARD v. PULLMAN SOUTHERN CAR CO. 43 Opinion of the Court. control of Congress, nor did the regulation of this occupation such as was imposed by the privilege tax in question, interfere with transportation or commerce among the States. Sinnot v. Davenport, 22 How. 227 ; Gibbons v. Ogden, 9 Wheat. 1,210-214; Foster n. Davenport, 22 How. 244 ; Crandall v. Nevada, 6 Wall. 35; Osborne v. Mobile, 16 Wall. 479; State Tax on Railway Gross Receipts, 15 Wall. 284; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Moran n. New Orleans, 112 U. S. 69 ; Pullman Southern Car Co. v. Gaines, 3 Tenn. Ch. 587; Dun v. Cullen, 13 Lea, 202; Lightburn v. Taxing District, 4 Lea, 219. V. That a tax laid upon the instruments of commerce was not a tax upon commerce itself. VI. That it is a well-settled rule, long adhered to by this court, that a construction given by State courts of last resort to legislative enactments and provisions of State constitutions ought, as a rule, to be followed in the Federal courts; and while this court is not necessarily governed by previous decisions of said courts upon the same or similar points, except where they have been so firmly established as to constitute a rule of property, yet unless the decision in question is held to be unreasonable, violative of some fundamental law or well-established principle, this court will be governed by the construction given by the Supreme Court of the State. Railroad Co. n. Gaines, 97 U. S. 697, 709 ; Stone v, Wisconsin, 94 U. S, 181. Mr. Thomas L. Dodd on behalf of Davidson County for plaintiff in error. Mr. 0. A. Loehrane and Mr. E. S. Lsham for defendant in error. , Mr. Justice Blatchford delivered the opinion of the court. After stating the Case as above reported, he continued: The point upon which the final judgment was rendered in the case was the one considered and adjudged in the decision given on the demurrer to the declaration. The tax was not a property tax, because, under the Constitution of Tennessee, all property must be taxed according to its value, and this tax was 44 OCTOBER TERM, 1885. Opinion of the Court. not measured by value, but was an arbitrary charge. What was done by the plaintiff was taxed as a privilege, it being assumed by the State authorities, that the Legislature had the power, under the Constitution of Tennessee, to enact the 6th section of the Act of 1877, and that the plaintiff had done what that section declared to be a privilege. By the decisions of the Supreme Court of Tennessee, cited in the opinion of the . Circuit Court on the demurrer, it is held, that the Legislature may declare the right to carry on any business or occupation to be a privilege, to be purchased from the State on such conditions as the statute law may prescribe, and that it is illegal to carry on such business without complying with those conditions. In this case, the payment of the tax imposed was a condition prescribed, without complying with which what was done by the plaintiff was made illegal. The tax was imposed as a condition precedent to the right of the plaintiff to run and use the thirty-six sleeping cars owned by it, as it ran and used them on railroads in Tennessee. The privilege tax is held by the Supreme Court of Tennessee to be a license tax, for the privilege of doing the thing for which the tax is imposed, it being unlawful to do the thing without paying the tax. What was done by the plaintiff in this case, in connection with the use of the thirty-six cars, if wholly a branch of inter-State commerce, was made by the State of Tennessee unlawful unless the tax should be paid, and, to the extent of the tax, a burden was placed on such commerce; and, upon principle, the tax, if lawful, might equally well have been large enough to practically stop altogether the particular species of commerce. What was that commerce ? The plaintiff, by its contract, furnished sleeping cars to the railroad company, to be used by the latter “ for the transportation of passengers,” sufficient in numbers to meet the requirements of travel on the road. The plaintiff kept in order and renewed the carpets, upholstery and bedding of the cars, except repairs and renewals made necessary by accident or casualty, but all damages to the cars by accident or casualty were repaired by the railroad company. The plaintiff furnished employes on each car to collect fares for the accommodations furnished by the car, and to wait upon PICKARD v. PULLMAN SOUTHERN CAR CO. 45 Opinion of the Court. passengers and provide for their comfort. Those employés were governed by the rules adopted by the railroad company to govern its own employés, and the railroad company was liable for personal injury to, or the death of, any such employé of the plaintiff to the same extent only as if such employé was in fact an employé of the railroad company, and the latter was indemnified by the plaintiff for all liability in excess thereof. The railroad company carried free on its line such employés of the plaintiff and its general officers when on duty for it, and the plaintiff carried free in the cars it so furnished the general officers of the railroad company. In consideration of the use of such cars, the railroad company hauled them on the passenger trains on its line, in such manner as best accommodated passengers desiring to use the cars, and furnished, at its own expense, fuel for them and materials for the lights, and washed and cleansed them, and kept them in good order and repair, including renewals of worn-out.parts, and all things appertaining to them, necessary to keep them in first-class condition, with the exceptions before specified in regard to carpets, upholstery and bedding’, and furnished room and conveniencies for airing and storing bedding. The plaintiff collected from every person occupying the car compensation for its accommodations in seats and couches. The railroad company permitted the plaintiff to place its tickets for seats and couches on sale in the ticket offices of the railroad company, the sale to be a part of the general duties of the ticket agents of the latter, and to be without charge to the plaintiff, but the proceeds of sales to be at its risk. The contract was made an exclusive one for fifteen years, and the plaintiff agreed to protect the railroad company against all liability for the infringement of any patent in the construction and use of the cars, and there was a provision for the termination of the contract by either party on a breach of it by the other. On these facts, the cars in question were cars for the transportation of the passengers who occupied them, in their transit into, or through, or out of Tennessee. They were used by the railroad company for such transportation, and it received the transit fare or compensation. For purposes of transit, it dealt 46 OCTOBER TERM, 1885. Opinion of the Court. with the cars as it would with cars owned by itself. It hauled them, furnished fuel and materials for lights, washed and cleansed them, kept them in repair, renewed worn-out parts, repaired all damages to them by accident or casualty, and even repaired and renewed carpets, upholstery, and bedding damaged or destroyed by accident or casualty; all at its own expense, and without charge to the plaintiff; leaving to the plaintiff only to make good the ordinary wear and tear of the sitting and sleeping conveniencies, and allowing it to have the compensation for such conveniences, and furnishing it free of charge with all facilities for selling seats and couches. The tax was a unit, for the privilege of the transit of the passenger and all its accessories. Ko distinction was made in the tax between the right of transit, as a branch of commerce between the States, and the sleeping and other conveniences which appertained to a transit in the car. The tax was really one on the right of transit, though laid wholly on the owner of the car. So, too, the service rendered to the passenger was a unit. The car was equally a vehicle of transit, as if it had been a car owned by the railroad company, and the special conveniencies or comforts furnished to the passenger had been furnished by the railroad company itself. As such vehicle of transit, the car, so far as it was engaged in inter-State commerce, was not taxable by the State of Tennessee; because the plaintiff had no domicil in Tennessee, and was not subject to its jurisdiction for purposes of taxation; and the cars had no situs within the State for purposes of taxation; and the plaintiff carried on no business within the State, in the sense in which the carrying on of business in a State is taxable by way of license or privilege. The case of Attorney-General v. London & North Western Hallway Co., in the Court of Appeal, 6 Q. B. Div. 216, before Lord Chief Justice Coleridge, and Lord Justices Baggallay and Brett, affirming the judgment of the Exchequer Division, 5 Ex. Div. 247, is instructive in the above point of view, as to the subject in hand. There, the railway company attached to its night trains sleeping carriages for the accommodation of such of its first class passengers as might choose to avail them- PICKARD v. PULLMAN SOUTHERN CAR CO. 47 Opinion of the Court. selves of it. For the use of these carriages they were charged an extra sum in addition to the ordinary first-class fare. Besides couches with pillows, sheets and blankets, each carriage contained a lavatory, and other conveniences. Passengers using such carriages were not disturbed during the night by demands for their tickets, and, if they arrived at their destination in the night, the passengers were allowed to remain in their beds until the morning. Under a statute imposing a percentage duty “upon all sums received or charged for the hire, fare or conveyance of passengers” on any railway, the Government claimed and was allowed the duty on the extra sum charged for the use of the sleeping carriage. The Court of Appeal, by Lord Coleridge, said: “We regard the additional accommodation afforded by the sleeping carriages as differing in no essential particular from the superior accommodation afforded by a second-class carriage over a third, or by a first-class carriage over both. If the company issued tickets to all passengers alike, at the price charged to passengers travelling in third-class carriages, and then issued tickets, at corresponding prices, to those desiring to travel in a higher class of carriage, it could hardly be contended that duty would not be payable upon the prices paid for such second ticket. The passenger who is content to travel in a third-class or second-class carriage in the dav, might well desire to travel in a carriage of a higher class by night; and, in like manner, a passenger ordinarily travelling by day in a first-class carriage might desire the additional accommodation at night of a sleeping carriage. No separate charge is made in the present case; the charge, though written on a separate ticket, is, in our opinion, part of one charge for the conveyance of the passenger in a particular way, and is, therefore, a part of the charge for the conveyance of a passenger, received and charged for such conveyance.” That case is in harmony with the views before taken in regard to the present case. The fare paid by the inter-State passenger to the railroad company, and that paid to the plaintiff, added together, were merely a charge for his conveyance in a particular way, and there was really but one charge for the transit, though the total amount paid was divided among two recipi- 48 OCTOBER TERM, 1885. Opinion of the Court. ents. The service was a single one, of inter-State transit, with certain accommodations for comfort, and what was paid to the plaintiff was part of a charge for the conveyance of the passenger. The views above expressed are in harmony with numerous decisions which have been made by this court on the subject to which they relate. In Almy n. The State of California, 24 How. 169, a stamp tax had been imposed by the State on bills of lading for the transportation of gold or silver from any point within the State to any point without it, and was held by this court to be invalid; and in Woodruff v. Parham, 8 Wall. 123, 138, it was said by this court, Mr. Justice Miller delivering its opinion, that that stamp tax “ was a regulation of commerce, a tax imposed upon the transportation of goods from one State to another, over the high seas, in conflict with the freedom of transit of goods and persons between one State and another, which is within the rule laid down in Crandall v. Nevada, 6 Wall. 35, and with the authority of Congress to regulate commerce among the States.” In the State Freight Tax Case, 15 Wall. 232, 281, it was said that a State cannot tax persons for passing through or out of it; that inter-State transportation of passengers is beyond the reach of a State legislature; and that a tax upon it amounts to a tax upon the passengers transported. In Railroad Co. v. Maryland, 21 Wall. 456, 472, Mr. Justice Bradley, in speaking for the court, said, that a State cannot impose a tax or duty on the movements or operations of commerce between the States, because it would be a regulation of such commerce “ in a matter which is essential to the rights of all, and, therefore, requiring the exclusive legislation of Congress,” being “a tax because of the transportation,” and “ therefore, virtually, a tax on the transportation.” The decisions in the various cases in this court on the subject of a tax by a State on the bringing in of passengers from foreign countries, and which are collected and commented on by Mr. Justice Miller, in delivering the opinion of this court in the Head Money Cases, 112 U. S. 580, 591, show it to be a settled matter that to tax the transit of passengers from foreign countries or between the States, is to regulate commerce. PICKARD v. PULLMAN SOUTHERN CAR CO. 49 Opinion of the Court. The principles which governed the decisions in Welton v. Missouri, 91 U. S. 275, Guy v. Baltimore, 100 U. S. 434, and Moran v. New Orleans, 112 U. S. 69, holding unlawful the State taxes in those cases on inter-State commerce in merchandise, are equally applicable to the tax in this case on the transit of passengers. The rule which governs the subject is accurately and tersely stated by Mr. Justice Field, in delivering the opinion of the court, in Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 211: “ While it is conceded that the property in a State, belonging to a foreign corporation engaged in foreign or inter-State commerce, may be taxed equally with like property of a domestic corporation engaged in that business, we are clear that a tax or other burden imposed on the property of either corporation because it is used to carry on that commerce, or upon the transportation of persons or property, or for the navigation of the public waters over which the transportation is made, is invalid and void, as an interference with, and an obstruction of, the power of Congress in the regulation of such commerce.” The case of Telegraph Co. v. Texas, 105 U. S. 460, in regard to a State tax on telegraphic messages sent out of a State, is a kindred case. The whole subject, in reference to a State tax imposed for selling goods brought into a State from other States, was recently fully considered by this court in Walling v. Michigan, 116 U. S. 446. And in that case Mr. Justice Bradley, speaking for the court, says: “We have also repeatedly held, that, so long as Congress does not pass any law to regulate commerce among the several States, it thereby indicates its will that such commerce shall be free and untrammeled.” See Welton v. Missouri, 91 U. S. 275, 282; Machine Co. v. Gage, 100 U. S. 676, 678; County of Mobile v. Kimball, 102 U. S. 691, 697; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 204; Brown v. Houston, 114 U. S. 622, 631, where the ca-ses on that point are collected. It is urged that the decison of the Circuit court in this case was inconsistent with the rulings in Osborne v. Mobile, 16 Wall. 479, and in Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365. It becomes necessary, therefore, to examine those cases. In Osborne v. Mobile, Osborne was an agent, at Mobile, Ala-VOL. CXVII—4 50 OCTOBER TERM, 1885. Opinion of the Court. bama, of a Georgia corporation, an express company, and, as such, transacted at Mobile a general express business within and extending beyond the limits of Alabama. An ordinance of the city of Mobile required an annual license fee of $500 to be paid by every express company doing business in Mobile, and having a business extending beyond the limits of Alabama, while every express company doing business within the limits of the State was required to pay a license fee of only $100, and every such company doing business within the city was required to pay a license fee of only $50. A fine was prescribed for a violation of the ordinance. Osborne violated it and was fined. The legality of the tax was upheld. Chief Justice Chase, in delivering the opinion of the court, cited the State Freight Tax Case, 15 Wall. 232, decided at the same term, as holding “that the State could not constitutionally impose and cojlect a tax upon the tonnage of freight taken up within its limits and carried beyond them, or taken up beyond its limits and brought within them; that is to say, in other words, upon inter-State transportation ”; “ because it was, in effect, a restriction upon inter-State commerce, which by the Constitution was designed to be entirely free.” The tax on the Georgia Express Company was upheld as a tax “ upon a business carried on within the city of Mobile.” Osborne was a local agent, personally subject to the taxing jurisdiction of the State, as representing his principal, and the tax was on the general business he carried on, and the subject of the tax was not, as here, the act of inter-State transportation. In Osborne v. Mobile, the court drew the distinction between the case before it and the State Freight Tax Case. The present case falls within the latter. In Wiggins Ferry Co. v. East St. Louis, the decision was that the State had power to impose a license fee, upon a ferrykeeper living in the State, for boats which he owned and used in conveying from the State passengers and goods across a navigable river to another State; and that the levying of a tax on such boats, or the exaction of a license fee in respect of them, by the State in which they had their situs, was not a regulation of commerce within the meaning of the Constitu-tion. In the case at bar the plaintiff was not a Tennessee cor- TENNESSEE v. PULLMAN SOUTHERN CAR CO. 51 Opinion of the Court. poration, and had no domicil in Tennessee, and the sleeping cars in question, as before said, had not any situs in Tennessee for the purposes of taxation. The question involved in this case was before the Court of Chancery of Tennessee in Pullman Southern Car Co. v. Gaines, 3 Tenn. Ch. 587, on the same facts, as to the privilege tax for 1877. That court held (and it is stated that the Supreme Court of Tennessee, on appeal, affirmed its ruling), that this privilege tax, as to such of the cars as passed and repassed through the State, and did not abide in it, was not amenable to the objection that it interfered with inter-State commerce. The view taken was that the property of the foreign corporation, used in Tennessee, could be taxed as property or by an excise on its use; and that the tax in this case was not directly on the object of commerce, or directly aimed at commerce. We have given to the views set forth by the Tennessee Chancery Court the consideration due to the judgments of that tribunal, but are unable to concur in its conclusion. Judgment affirmed. TENNESSEE r. PULLMAN SOUTHERN CAR COMPANY. appeal from the circuit court of the united states for THE MIDDLE DISTRICT OF TENNESSEE. Argued January 25,26, 1886.—Decided March 1, 1886. The case of Picka/rd v. Pullman Southern Car Co., ante, p. 34, confirmed and applied to a privilege tax of $75 a year, on each sleeping car, imposed by the act of Tennessee, of April 7, 1881, Laws of 1881, ch. 149, p. 202. This case was argued with Pickard v. Pullman Southern o Car Co., ante, 34, by the same counsel. Mr. Justice Blatchford delivered the opinion of the court. This is a suit in equity, brought in the Chancery Court of 52 OCTOBER TERM, 1885. Syllabus. Davidson County, Tennessee, on December 15, 1883, by the State of Tennessee, against the Pullman Southern Car Company, a Kentucky corporation. The questions involved are the same as those disposed of in Pickard v. The Pullman Southern Car Co., ante, 34. The bill sets forth the act of Tennessee of March 16,1877, and alleges that from 1877 the company had run sixty sleeping cars instead of thirty-eight each year, and ought to have paid as a privilege tax for each car for each of the years 1877, 1878, 1879, and 1880, $50, making $12,000, whereas it had paid only $7276.41; and that by an act passed April 7, 1881, Laws of 1881, ch. 149, 202, the privilege tax was increased to $75 a year, for each car, making due for the years 1881 and 1882, $9000. The bill prays for a discovery, and an account, and for judgment. The defendant removed the suit into the Circuit Court of the United States for the Middle District of Tennessee, and then answered the bill. The answer raises the same questions which were adjudged in the other suit, and on the same facts. The case was heard on bill and answer. The decree gave a recovery for $300 and interest for the taxes for 1881 and 1882 on the two cars which ran wholly within Tennessee, but dismissed the bill in all other respects. The plaintiff appealed to this court from all of the decree except that part which awarded a recovery. For the reasons assigned in the opinion in the other suit, the decree in this case is Affirmed. HAGOOD & Others v. SOUTHERN & Another. HAGOOD & Others v. WILLIAMS. APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA. Argued January 12, 13, 1886.—Decided March 1,1886. State scrip which declares on its face that it is receivable “in payment of all taxes and dues to the State ” gives the holder no right to maintain a suit HAGOOD v. SOUTHERN. 53 Statement of Facts. to compel its receipt for taxes, unless he owes the taxes for which it is receivable. Marye v. Parsons, 114 U. S. 325, and Williams v. Hagood, 98 U. S. 72, affirmed. When a suit is brought in a court of the United States against officers of a State to enforce performance of a contract made by the State, and the controversy is as to the validity and obligation of the contract, and the only remedy sought is the performance of the contract by the State, and the nominal defendants have no personal interest in the subject matter of the suit, but defend only as representing the State, the State is the real party against whom the relief is sought, and the suit is substantially within the prohibition of the Xlth Amendment to the Constitution of the United States. Louisiana v. Jumel, 107 U. S. 711, affirmed and applied. The jurisdictional distinction pointed out between cases in which the relief sought is the performance of a plain official duty requiring no exercise of discretion, or where State officers under color of a State authority which is unconstitutional have invaded and violated personal and property rights, and cases like the present in which the relief sought is affirmative official action by State officers in performing an obligation which attaches to the State in its political capacity. These two cases were heard together in the Circuit Court upon the same testimony, and the same decree passed in each. The facts, common to both, were as follows : By an act of the General Assembly of South Carolina, passed September 15, 1868, entitled “ An act to authorize additional aid to the Blue Ridge Railroad Company in South Carolina,” the State, by a guaranty indorsed thereon, pledged its faith and funds to the payment of the principal and interest of bonds to be issued by the railroad company, to the amount of 84,000,000. The bonds authorized by the act, with the guaranty indorsed, were in fact issued. On March 2, 1872, an act of the General Assembly of South Carolina was passed, entitled “ An act to relieve the State of South Carolina of all liability for its guaranty of the bonds of the Blue Ridge Railroad Company by providing for the securing and destruction of the same.” The preamble to this act recited the issue of the bonds, the fact of the guaranty indorsed, the liability of the State on account thereof, and the desire of the State to withdraw them and thus relieve itself. It then proceeded to require that all 54 OCTOBER TERM, 1885. Statement of Facts. such bonds then held by the financial agent of the State, as security for advances of money made to the railroad company by the State, should be delivered up and cancelled, releasing the railroad company from all liability on account of such advances. It then provided, that, upon the surrender by the company to the State of the balance of the issue of $4,000,000 of said bonds, issued and guaranteed as aforesaid, the State treasurer should issue in lieu thereof, to the amount of $1,800,000, certificates of indebtedness, styled revenue bond scrip, expressing that the sum mentioned therein was due by the State of South Carolina to bearer, and that the same would be received in payment of taxes and all other dues to the State, except special tax levied to pay interest on the public debt. The act also provided’as follows: “ Sec. 4. That the faith and funds of the State are hereby pledged for the ultimate redemption of said revenue bond scrip, and the county treasurers are hereby required to receive the same in payment of all taxes levied by the State, except in payment of special tax levied to pay interest on the public debt, and the State treasurer and all other public officers are hereby required to receive the same in payment of all dues to the State; and still further to provide for the redemption of said revenue bond scrip, an annual tax of three mills on the dollar, in addition to all other taxes, on the assessed value of all taxable property in the State, is hereby levied, to be collected in the same manner and at the same time as may be provided by law for the levy and collection of the regular annual taxes of the State; and the State treasurer is hereby required to retire, at the end of each year from their date, one-fourth of the amount of the treasury scrip hereby authorized to be issued, until all of it shall be retired, and to apply to such purpose exclusively the taxes hereby required to be levied. “ Sec. 5. That if any such revenue bond scrip is received in the treasury for the payment of taxes, the treasurer be, and he is hereby, authorized to pay out such revenue bond scrip in satisfaction of any claim against the treasury, except for interest that may be due on the public debt.” HAGOOD v. SOUTHERN. 55 Statement of Facts. The exchange contemplated by this act was effected ; private individuals holding the guaranteed bonds as collateral security for loans of money to the railroad company surrendered them, and accepted, in lieu thereof, revenue bond scrip at the lower rate. In this way, Amos D. Williams, the appellee in one of these causes, became and remained the holder of $165,000 of revenue bond scrip, for -which he surrendered $417,000 of guaranteed bonds; and Edward B. Wesley became the holder of $1,005,000 of revenue bond scrip, for which he advanced in cash $344,925, with which were redeemed $2,902,000 of guaranteed bonds, also surrendered to the State. . Wesley became, by leave of court, a party complainant with Williams in his bill, before final decree. Subject to the lien of Wesley for the payment of his cash advance as above stated, the assignees in bankruptcy of the Blue Ridge Railroad Company, who were appellees in the other cause, claimed to own the revenue bond scrip held by Wesley as collateral security for his advance. Other bonds of said railroad company guaranteed by the State, by like exchanges, were surrendered by other holders, who received and held corresponding amounts of said revenue bond scrip, and who came in, under the bill of Williams, which was filed on behalf of himself and all others in like interest choosing to do so, and proved their claims before a master, so that the whole issue of $4,000,000 of said bonds, except about $4,000 thereof, were shown to have been surrendered to the State and cancelled, on the faith of said revenue bond scrip. After the consummation of these transactions, the Legislature of the State of South Carolina, by an act passed March 13, 1872, abolished the office of State auditor, and vested his powers in the comptroller-general; and, by an act approved October 22,1873, repealed the fourth section of the act of March 2, 1872, providing for an annual tax of three mills on the dollar for the redemption of the revenue bond scrip, and also forbad the comptroller to levy any tax for any purpose whatever, unless expressly thereafter authorized to do so by statute. On December 22, 1873, it also passed an act forbidding any State or county officer to accept payment of taxes in revenue bond scrip. 56 OCTOBER TERM, 1885. Statement of Facts. In a similar case between the same parties, in which the complainant’s bill was dismissed without prejudice, and reported as Williams v. Hagood, 98 U. S. 72, it was said by this court: “ This legislation was manifestly inconsistent with the undertaking of the State expressed in the act of March 2, 1872, and in the revenue bond scrip issued thereunder, and its constitutionality and obligatory force would be a legitimate subject for consideration if the complainant had placed himself in a position to invoke our judgment. But he has not. His bill does not aver that he has been injured, or will be injured’, by this legislation, or by any act or neglect of the comptroller-general or the county treasurer. It does not aver that the comptrollergeneral has neglected or refused to perform every duty imposed upon him by the statute under which the revenue bond scrip was issued, nor even that he threatens such neglect or refusal. It does not aver that the county treasurer has refused, or even threatened to refuse, receiving the complainant’s scrip, or any scrip, in payment of taxes or dues to the State, other than taxes levied to pay the interest on the State debt. It does not aver any demand from the State treasury or any tender to the county treasurer. Its object is plainly to obtain from this court a declaration that the legislative acts of October 22d and December 22d, 1873, are unconstitutional, because impairing the obligation of the contract made by the act of 1872, and the certificates thereby authorized and thereunder issued, and this without any averment that the complainant will be injured by them. The question presented to the court is, therefore, merely an abstract one; such a one as no court can be called upon to decide, and the bill shows no equity in the complainant. Hence it was properly dismissed in the court below, and it must be dismissed here, but without prejudice to the complainant’s right to bring and prosecute another suit, when he shall be in a condition to exhibit any equity in himself.” To supply the omissions of his former bill, it was alleged by the complainant in the present one, that, in April, 1879, he tendered the said certificates of indebtedness, amounting to about $166,000, to the treasurer of the State of South Carolina and demanded payment thereof, which was refused; and that HAGOOD v. SOUTHERN. Statement oi Facts. 57 thereupon, having advised the defendant Hagood, the comptroller-general of the State, of this refusal of payment by the State treasurer, he requested the comptroller-general, “from time to time, to prepare and transmit to the several county auditors all such forms and instructions as he might deem necessary for collection, in the same manner and at the same time as bad been provided by law for the levy and collection of the regular annual taxes of the State for the current fiscal year, the taxes provided to be levied by the 4th section of the aforesaid act of the General Assembly for the redemption of said scrip, which class of duties, your orator avers, were duties imposed upon the comptroller-general by the said act of March 2d, 1872;” but that the said comptroller-general neglected and refused to comply with said request. It was also alleged in the bill that the revenue bond scrip, prior to the passage of the acts of the Legislature complained of had a market value equal to seventy per cent, of its face value, according to which the complainant could dispose of the same to parties desiring to use the same in payment of taxes levied by the State of South Carolina, and that the complainant lately disposed of a quantity of said scrip, on a conditional sale, that it could be so used in payment of taxes; but that the county treasurers of the different counties of the State, among others of the counties of Charleston, Oconee, Anderson and Richland, refused, and continued to refuse, to receive the said revenue bond scrip in payment of taxes ; and that thereby the said revenue bond scrip had ceased to have any market value. It was not averred, however, in the bill that either of the complainants, Williams or Wesley, had ever tendered revenue bond scrip in payment of taxes due from either of them; but in the bill filed by Southern and Low, as assignees in bankruptcy of the Blue Ridge Railroad Company, an averment of that character was made. In that bill it was alleged that the Blue Ridge Railroad Company was indebted to the State of South Carolina for taxes on its property for the year 1872 in the sum of $10,845.33, none of said taxes being special taxes levied to pay the interest on the public debt, of which $7541.22 was payable to the treasurer of 58 OCTOBER TERM, 1885. Statement of Facts. Oconee County, and $3,304.11 to the treasurer of Anderson County, to each of whom tenders had been duly made of said revenue bond scrip by said railroad company in payment of said taxes, but the same were refused. The prayer of the bill in the case of Williams was, “that the act of the Legislature of the State of South Carolina of the 2d March, 1872, may be decreed a contract binding the State of South Carolina and affecting the said State with an obligation to do and perform, or cause to be done and performed, the several matters and things therein stipulated and set forth to be done and performed by the said State, through its officers and agents, particularly so much of the said act as provides for the levy of a tax to retire the said certificates of indebtedness, and to receive the same in payment of taxes and other dues to the State, except the tax levied to pay interest on the public debt; that the several parties holding, or claiming to hold, the said treasury certificates of indebtedness, Iona fide and for value, may be called in and admitted to prove the same before a proper person to be appointed for that purpose; that the whole amount of such treasury certificates of indebt-* edness may be ascertained; that the repeal of the provisions of the said act of the 2d March, 1872, by the Legislature may be declared unconstitutional, null and void, because such repeal impairs the obligation of the contract between the State of South Carolina and your orator, and all other parties who are bona fide holders of such treasury certificates of indebtedness ; that for the purpose of defending itself in such manner as it may be advised to be proper, the State may be allowed, upon the application of its attorney-general in its behalf, to be made a party to these proceedings; that, upon the ascertainment of the amount of the treasury certificates of indebtedness, proper process may be decreed against the State treasurer to perform the duties enjoined upon him by the 4th section of the act of March 2d, 1872, that is to say, to redeem the aforesaid treasury certificates of indebtedness, otherwise called revenue bond scrip, tendered by your orator to the said State treasurer, and that he may be required to receive the same in payment of all dues to the State, except interest on the public debt, and that HAGOOD v. SOUTHERN. 59 Statement of Facts. proper process may be issued against the comptroller-general, requiring him to perform the duties enjoined upon him under and pursuant to the different sections of said act of March 2d, 1872, and for that purpose that he from time to time be decreed to prepare and transmit to the several county auditors all such forms and instructions as may be proper and lawful for levying and collecting, or either, in the same manner and at the same time, as has been provided by law for the levy and collection of the regular annual taxes of the State for the current fiscal year, the taxes levied by the 4th section of the aforesaid act of the General Assembly for the redemption of said scrip; that the county treasurers of the said State be required to receive such treasury certificates of indebtedness as may be established as a claim under the contract created by the said act, in tender of taxes and dues to the State, except interest on the public debt; that in cases where such tender is made, the county treasurer refusing to receive the same shall be prevented by injunction from selling property or otherwise enforcing the payment of the said tax; that a mandatory injunction may be issued out of this honorable court, requiring the comptroller-general to cease from refusing to levy the tax for retiring the said treasury certificates of indebtedness, and the county treasurers to cease from refusing to receive the same for taxes and dues to the State, except to pay the interest on the public debt, and for such other and further relief as to your honors shall seem meet,” &c. The relief prayed for in the bill of the assignees of the Blue Ridge Railroad Company included also a prayer “ that the defendants, the county treasurers, may be decreed to receive the said revenue bond scrip in payment of the said taxes due by your orators to the State of South Carolina; that on their refusal to do so they may be enjoined from enforcing the said taxes by selling the property of your orators, or in any other manner; and that on such refusal the lien of said taxes on the property of your orators may be declared to be discharged.” The revenue bond scrip was of different denominations, varying from $1 to $5000, and was in the form following: 60 OCTOBER TERM, 1885. Statement of Facts. “ 100.00. No. 91. 8100.00. “Revenue Bond Scrip. “The State of [Palmetto Tree] South Carolina. “ Columbia, S. C., March —, 1872. “ Receivable as one hundred dollars in payment of all taxes and dues to the State, except special tax levied to pay interest on public debt. “ NILES G. PARKER, State Treasurer. “ One hundred dollars. One hundred dollars. [On each side of scrip:] One hundred dollars, act March, 1872.” In the case of The State ex ret. &c. v. Hoge, Comptroller-General^ 4 S. C. 185, the Supreme Court of that State decided, April 18,1873, that the certificates of revenue bond scrip issued under the act of March 2, 1872, were void, as being bills of credit within the prohibition of the Constitution of the United States, the design and intention to create by means of them a circulating medium and currency being inferred from the whole scope of the act, and the form and circumstances of the emission. Decrees were entered in the two causes, which, after reciting the findings of fact and conclusions of law reached by the Circuit Court, proceeded as follows: “ It is therefore ordered— 41 I. That it be referred to James E. Hagood, Esq., clerk of this court, as special master, to take proof of the claims of all parties other than the said Amos D. W illiams and Edward B. Wesley (whose claims are hereby adjudged as established), holding, or claiming to hold, any of said revenue bond scrip, loonafide^ and for value, who may, on contributing pro rata to the expense of such reference and this action, prove their claims. And that said special master do ascertain and report the total outstanding amount of such treasury certificates of indebtedness. “ II. That for the purpose of defending itself the» State of South Carolina may, at its option, and in such manner as it may be advised to be proper, be allowed, upon the application HAGOOD v. SOUTHERN. 61 Statement of Facts. of the attorney-general of said State on its behalf, to be made a party to these proceedings. “ III. That upon the ascertainment of the amount of said treasury certificates of indebtedness outstanding, proper process do issue out of and under the seal of this court against the State treasurer of the State of South Carolina for the time being, and his successors in office, compelling and requiring him and them to perform the duties enjoined upon the incumbent of that office by the fourth section of the act of 2d March, 1872, to wit, to redeem the said treasury certificates of indebtedness, and compelling and requiring him and them to receive the same in payment of all taxes and other dues to the State, except the special tax levied to pay interest on the public debt; that proper process do issue out of. and under the seal of this court against the comptroller-general of the State of South Carolina for the time being, and his successors in office, compelling and requiring him and them to perform the duties enjoined upon that officer by the different sections of the act of 2d March, 1872, and compelling and requiring him from time to time to prepare and transmit to the several county auditors all such forms and instructions as may be proper and lawful for levying and collecting, in the same manner as the annual taxes, the taxes required by the fourth section of the act of 2d March, 1872; and that proper process do issue out of and under the seal of this court compelling and requiring the different county treasurers of the State of South Carolina for the time being, and their successors in office, to receive such treasury certificates of indebtedness in payment of all taxes due to the State of South Carolina, except the special tax levied to pay interest on the public debt. And in all cases where a tender of said treasury certificates of indebtedness is made, and the same refused, an injunction may issue restraining the county treasurer so refusing from selling property, or in any manner enforcing payment of said taxes. “ IV. Any party to these suits may apply at the foot of this decree for further orders in the premises.” From those decrees the appeals were prosecuted, and the two causes were argued as one. 62 OCTOBER TERM, 1885. Argument for Appellees. Mr. Charles Richardson Miles, Attorney-General of South Carolina, and Mr. Le Roy F. Youmans for appellants. Mr. Dennis McMahon for appellees (Mr. Thomas S. Cavender and Mr. James H. Rion were with him on the brief). The distinction in Marye v. Parsons, 114 IT. S. 325, as to relief to be given to persons who are tax-payers, and those who are not tax-payers is contrary to the provision in sec. 2, Art. IV. of the Constitution, “that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” The true ground for the decisions in that case, and in Williams v. Hagood, 98 IT. S. 72, is, that neither had put himself, by previous demands or tenders, in a position to ask a judicial determination of his rights in the court. The statute of South Carolina of March 2,1872, wrhen executed by the surrender of the guaranteed bonds, created a contract between the State and the holders of the certificates. See Antoni v. Greenhow, 107 IT. S. 769; Poindexter v. Greenhow, 114 U. S. 270; Williams v. Louisiana, 103 IT. S. 637. The Federal courts have jurisdiction to enforce rights under this contract. The laws of the State impose upon the State officers who are parties duties connected with the levying and collection of taxes, which can be enforced by a citizen of South Carolina in the courts of that State by remedies analogous to those sought in these bills. D* Oylefs Case, 1 Brevard, 238 ; Watson v. May-rant, 1 Rich. S. C. Eq. 449 ; Singleton n. Commissioners, 2 Bay, 105. The remedies asked for are proper to be granted. See observations of this court in Allen n. Baltimore ch Ohio Railroad Co., 114 IT. S. 311, 315, 316. See Transportation Co. v. Par k&rsburgK, 107 IT. S. 691, 695; Tomlinson v. Branch, 15 Wall. 460; Cummings v. National Bank, 101 IT. S. 153, 157; Memphis Railroad Co. v. Commissioners, 112 IT. S. 609; Osborn v. Bank of the United States, 9 Wheat. 738; Clark v. Barnard, 108 IT. S. 436 ; Cunningham v. Macon (& Brunswick Railroad 'Co., 109 IT. S. 446; Board of Liquidation n. McComb, 92 U. S. 531, 541; Davis v. Gray, 16 Wall. 203, 220. See also Murray N. Cha/rleston, 96 IT. S. 432; Edwards v. Kearzey, 96 HAGOOD v. SOUTHERN. 63 Opinion of the Court. U. S. 595 ; Tennessee v. Sneed, 96 U. S. 69 ; Allen v. Baltimore & Ohio Railroad Co., 114 U. S. 311, 315, 316; Transportation Co. v. Parkersburgh, 107 U. S. 691, 695 ; Tomlinson v. Branch, 15 Wall. 460; remarks in Poindexter v. Greenhorn, 114 U. S. at page 295 on equitable remedies; Cummings v. National Bank, 101 U. S. 153, 157. If the court reaches the conclusion that all the relief given below should not be awarded, it may modify the decrees. But the fact that the granting the relief in question, so far as it orders the State officers of South Carolina to levy the tax specified and provided for in the act of March 4,1872, constituting the contract in question, trenches upon the political power of the State of South Carolina, ought not to be an objection to affirming the decree in question. See United States v. Peters, 5 Cranch, 115—a most remarkable case; Martin v. Hunter, 1 Wheat. 304; McCulloch v. State of Maryland, 4 Wheat. 316; Cohens v. Virginia, 6 Wheat. 264; Osborn v. Bank of the United States, 9 Wheat. 738. See observations of Field, J., in Louisiana v. Jumel, 107 U. S. 733, in his dissenting opinion. These certificates were not issued in violation of the Constitution of the United States ; nor were they issued in violation of the provisions of the Constitution of South Carolina—Mr. McMahon also argued at length other points not passed upon in the opinion of the court. Mr. Justice Matthews delivered the opinion of the court. After stating the case as above reported, he continued : No specific provision is made in these decrees for the redemption of the revenue bond scrip in which the assignees of the Blue Ridge Railroad Company claim an interest, nor any direction to the treasurers of the counties in which its taxes are due to receive the scrip in payment therefor from the company; but the command of the decrees is broad enough to include such relief in their favor. But it is difficult to conceive on what theory of the relation between the railroad company and the State it can be maintained. The revenue bond scrip was issued by the State in exchange for the bonds of the railroad company guaranteed by the State, and in order that by 64 OCTOBER TERM, 1885. Opinion of the Court. their surrender and cancellation the State might be relieved from its liability on that account. The State was surety for the railroad company and not debtor to it, and was not liable to it, either upon the guaranty or the certificates of indebtedness issued in lieu thereof. Neither was available as a demand against the State except in the hands of a holder for value, and neither constituted a contract until value had thus passed, as a consideration for the promises of the State. The railroad company is certainly not such a holder, and its assignees in bankruptcy are in no better position. As between the railroad company and the State, the former is primarily liable for any debt represented by the revenue bond scrip, or for which it is held by others as security, and is bound to indemnify the State against loss on account of its suretyship. To authorize the railroad company to pay its taxes in these certificates, is simply to exonerate it from taxation, and to compel payment of them to it, is to reverse the order of the obligation, by compelling the surety not only to become principal debtor to strangers, but to convert its debtor into a creditor. No other parties to these suits, including those who have merely proved their claims before the master under the order of reference, have made any tender of revenue bond scrip in payment of specific taxes due from them; and, so far as the contract is that such payment may be made, no breach is shown. The discredit cast upon the scrip by the general refusal to accept it by the tax collectors of the State, and the depreciation in value occasioned thereby, are not actionable injuries. In this aspect, the case falls precisely within that of Marye v. Parsons, 114 IT. S. 325, and does not materially differ from the case as made on the previous bill of Williams, and decided in Williams n. Hagood, 98 U. S. 72. So far as the instrument contains a promise that it will be received in payment of taxes, it is a contract with the holder for the time being, who has taxes to pay; and although such a stipulation, faithfully executed, would give commercial value to the paper, in whosesoever hands it may happen to be, it cannot be said, as a matter of law, that the contract is broken, until it has been tendered for taxes due from a holder and been refused, nor that the legal HAGOOD v. SOUTHERN. 65 Opinion of the Court. right of the holder is threatened, unless he is in a situation to make a present tender for that purpose. He has no legal right to have this scrip received for taxes, unless he owes taxes for which it is receivable ; and in order that it may be used for the payment of the taxes of another, he must transfer it to the new holder, and that would divest himself of all right to enforce a contract to which he is no longer a party and in which he has ceased to have a legal interest. But it is urged, with earnestness and zeal, that the complainants, Williams and Wesley, are entitled to so much of the relief prayed for as in effect would operate to compel the comptroller-general of the State to execute in their favor the provisions of the act of March 2, 1872, relating to the levy, collection, and application of the tax pledged by the fourth section of that act to the redemption of the revenue bond scrip. The ground on which that relief is based, of course, is, that the act of March 2, 1872, must still be regarded as subsisting, notwithstanding the subsequent formal repeal by the Legislature ; which must be treated as null and void, because it impairs and destroys the obligation of the contract between the holders of these certificates of indebtedness and the State of South Carolina. Treating the repealing acts, then, as of no force, the inference is drawn that the duty of the officers of the State remains, as declared and defined by the act of March 2,1872, and its performance may be enforced by judicial process in behalf of every one having a legal interest in the subject. It is to be borne in mind, however, that the State of South Carolina denies the existence and validity of the alleged contract. It asserts that the revenue bond scrip was issued in violation of the Constitution of the State, which provides, Art. IX., sec. 7, that public debts may be contracted for thè purpose of defraying extraordinary expenditures ; sec. 10, that no scrip, certificate, or other evidence of State indebtedness, At Law. No. 12,890. James S. Negley, Def’t. ) “ This cause coming on to be heard upon the defendant’s motion to vacate the judgment and set aside the verdict entered herein ex parte on the 3d day of April, 1879, because of irregularity, surprise, fraud, and deceit, and the same having been argued by counsel on both sides, and duly considered, it is considered by the court .that said verdict and judgment be, and the same are hereby, vacated, set aside, and for nothing held, and a new trial granted.” From this order an appeal was taken to the court in general term, December 9,1882, and on February 15,1883, the defendant moved the court to dismiss the appeal, on the ground that an appeal would not lie from such an order made at the Circuit Court or special term. The proceedings in general term resulted in the following order entered February 19, 1883: PHILLIPS v. NEGLEY. 669 Argument for Defendant in Error. “ Now come here as well the plaintiff as the defendant, by their respective attorneys, whereupon, because it appears to the court here that there is no error in the record and proceedings of the special term, therefore, the court remands the case to the special term, there to be proceeded with as if no appeal had been taken from its order of December 2, 1882, which appeal is hereby dismissed with costs, to be taxed by the clerk. The plaintiff gives notice that he will prosecute a writ of error, and the penalty of his supersedeas bond is fixed at $500.” To reverse these proceedings and orders this writ of error was prosecuted. Mr. John Selden and Mr. W. Hallett Phillips for plaintiff in error. Mr. Job Barnard for defendant in error. Mr. James S. Edwards was with him on the brief. A writ of error will not lie to review an order granting a new trial. Ins. Co. v. Barton, 13 Wall. 603; Newcomb n. Wood, 97 U. S. 581; Railway Co. v. Heck, 102 U. S. 120. If the order is subject for review it was one within the jurisdiction of the court and proper to be made. Harris v. Hardeman, 14 How. 334; Herbert v. Rowles, 30 Maryland, 271, 278; Stacker v. Cooper County, 25 Missouri, 401; Millspaugh v. McBride, 1 Paige, 509. It was entirely irregular under the rules of the Supreme Court of the District to file a joinder of issue and note of issue, in the absence of defendant and his attorney, and knowing of such absence; with no permission from the court, and in the absence of a notice of trial. We desire to call the attention of the court to these, rules.* * 81. Replication, &c.—“After the plea filed and served, the plaintiff shall reply, and after replication filed, the defendant shall rejoin, and so on till issue is joined, within ten days after the last pleading filed, excluding the day of such filing ; otherwise, on motion and notice thereof the suit may be dismissed, or judgment taken by default, according as the failure is by the plaintiff or defendant.” 42. Notice of trial.—“ At any time after issue joined, and at least ten days before the sitting of the court at which the cause stands for judgment or trial, either party may give notice of trial. ” 670 OCTOBER TERM, 1885. Argument for Defendant in Error. The action of the court below was in accordance with what we understand to be the settled law and practice of this court. Bronson n. Schulten, 104 U. S. 410, when taken in connection with the facts in that case, is no authority against it : and the whole current of previous authority sustains the jurisdiction. Walden v. Craig, 9 Wheat. 576; Boyle v. Zacharie, 6 Pet. 648 ; Pickett v. Legerwood, 7 Pet. 144, 147 ; Harris v. Hardeman, above cited. The rulings in the Circuit Courts are the same. Sheepshanks v. Boyer, Baldw. 462 ; Den v. McAllister, 4 Wash. C. C. 393 ; ATbree v. Johnson, 1 Flippin, 341 ; Dawson v. Daniel, 2 Flippin, 301. In any event the courts of the District of Columbia possess such power. The laws of Maryland previous to the cession are in force in the District, and among those laws was the act of 1787, ch. 9, § 6, which, as construed by the courts of Maryland, undoubtedly conferred upon the courts of Maryland the jurisdiction exercised in this case. See Tiernan v. Hammond, 41 Maryland, 548. The courts of the District so understood, and practised upon it. Sherburne v. King, 2 Cranch, C. C. 205 ; McCormick v. Magruder, 2. Cranch, C. C. 227 ; Union Bank v. Crittenden, 2 Cranch, C. C. 238 ; Ault v. Elliott, 2 Cranch, C. C. 372 ; Bing- 52. “ If the defendant fail to appear when the cause is called for trial, the plaintiff may have him called, and take a judgment by default.” 60. Motions for a new trial.—“ Motions for a new trial, which are designed to set aside a verdict and procure a new trial of a case, are of two kinds, to wit : “ 1. Those which are grounded upon alleged error of law by the justice presiding, &c. “ 2. Those which are grounded upon the following, and similar allegations : 1. “ That the party moving for the new trial had no notice, and did not appear at the trial ; 2. “ Misbehavior of the successful party ; ****** 6. “ That the verdict was obtained by surprise, &c.” “ These motions are addressed to the discretion of the Justice presiding at the trial, and are not appealable.” 90. Motion to vacate judgment.—“ This motion will not be entertained, if made after the defendant has taken any fresh step after the knowledge of the irregularity, or surprise, or fraud, or deceit complained of ; nor can it be made after the execution executed, unless defendant had no notice of the judgment,” &c. PHILLIPS v. NEGLEY. 671 Opinion of the Court. gold v. Elliott, 2 Cranch, C. C. 462; Beiling v. Bolier, 3 Cranch, C. C. 212. Mb. Justice Matthews, after stating the case as above reported, delivered the opinion of the court. There appears to be an ambiguity, if not an inconsistency, in the terms of the order or judgment of the general term. It affirms that there is no error in. the record and proceedings of the special term, but does not affirm its order, which was appealed from, but in fact dismisses the appeal, as though it had no jurisdiction either to affirm or reverse the order brought up by the appeal. Interpreting the judgment of the general term by the opinion of the learned judge, who spoke for the court, Phillips v. Negley, 2 Mackey, 236, we must infer that it was intended to dismiss the appeal for want of jurisdiction to entertain it, on the ground that the order of the special term, vacating its own judgment, rendered at a previous term, was not only within the power of that court, but was so purely discretionary that it was not reviewable in an appellate court. The same consideration is urged upon us as a ground for dismissing the present writ of error for want of jurisdiction in this court, it being alleged that the order of the Supreme Court of the District at special term is one not only within the discretion of that court, but that, as it merely vacates a judgment for the purpose of a new trial upon the merits of the original action, it is not a final judgment, and, therefore, not reviewable on writ of error. If, properly considered, the order in question was an order in the cause, which the court had power to make at the term when it was made, the consequence may be admitted, that no appellate tribunal has jurisdiction to question its propriety; for, if it had power to make it, and it was a power limited only by the discretion of the court making it, as in other cases of orders setting aside judgments at the same term at which they were rendered, and granting new trials, there would be nothing left for the jurisdiction of an appellate court to act upon. The vacating of a judgment and granting a new trial, in the exercise of an acknowledged jurisdiction, leaves no judgment in force to be reviewed. If, on 672 OCTOBER TERM, 1885, Opinion of the Court. the other hand, the order made was made without jurisdiction on the part of the court making it, then it is a proceeding which must be the subject of review by an appellate court. The question of the jurisdiction of this court to entertain the present writ of error, therefore, necessarily involves the jurisdiction of the Supreme Court of the District, both at special and general term, and the nature and effect of the order brought into review, so that the question of our jurisdiction is necessarily included in the question of the validity of the proceeding itself. The legal proposition involved in the judgment complained of, and necessary to maintain it, is, that the Supreme Court of this District at special term has the same discretionary power over its judgments, rendered at a previous term of the court, without any motion or other proceeding to that end made or taken at that term, to set them aside and grant new trials of the actions in which they were rendered, which it . has over judgments, when such proceedings are taken during the term at which they were rendered; and that this being true, the proceeding and order of the court, in the exercise of this jurisdiction and discretion, cannot be reviewed on appeal or writ of error. This proposition, it is argued, may be deduced from the inherent and implied powers of all courts of record, according to the course of the common law; and, if that fails, is supplied by the law of Maryland, as to the Supreme Court in the District of Columbia, adopted by the act of Congress of 27th February, 1801. 2 Stat. 103. The first branch of this, proposition is conclusively negatived for this court, in regard to the powers of the courts of the United States, by the decision in Bronson v. Schulten, 104 U. S. 410, 415, which is an authority directly upon the point. It was there said by Mr. Justice Miller, speaking for the court: “ In this country all courts have terms and vacations. The time of the commencement of every term, if there be half a dozen a year, is fixed by statute, and the end of it by the final adjournment of the court for that term. This is the case with regard to all the courts of the United States, and if there be PHILLIPS v. NEGLEY. 673 Opinion of the Court. exceptions in the State courts they are unimportant. It is a general rule of the law that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them, during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modified or annulled by that court. But it is a rule equally well established that, after the term has ended, all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify or correct them; and if errors exist, they can only be corrected by such proceeding, by a writ of error or appeal, as may be allowed in a court which, by law, can review the decision. So strongly has this principle been upheld by this court that, while realizing that there is no court which can review its decisions, it has invariably refused all applications for rehearing made after the adjournment of the court for the term at which the judgment was rendered. And this is placed upon the ground that the case has passed beyond the control of the court.” The opinion then notices an exception to this rule founded upon the common law writ of error coram vobis, by which errors of fact might be corrected, limited generally to the facts that one of the parties to the judgment had died before it was rendered, or was an infant and no guardian had appeared or been appointed, or was a feme covert, and the like, or error in the process through the fault of the clerk; for which writ, as was said in Picketts Heirs v. Legerwood, 7 Pet. 144, in practice, a motion is now substituted, heard in a summary manner upon affidavits. And it is then added, that this remedy by motion has been extended in some States so as to embrace some of the cases where equitable relief had been administered by courts of chancery. ’“This practice,” it was said, “has been founded in the courts of many of the States on statutes which conferred a prescribed and limited control over the judgment of a court after the expiration of the term at which it was rendered. In other cases the summary remedy by motion has been granted as founded in the inherent power of the vol. cxvn—48 674 OCTOBER TERM, 1885. Opinion of the Court. court over its own judgments, and to avoid the expense and delay of a formal suit in chancery.” But it is added : “ The question relates to the power of the courts, and not to the mode of procedure. It is whether there exists in the court the authority to set aside, vacate, and modify its final judgments after the term at which they were rendered ; and this authority can neither be conferred upon nor withheld from the courts of the United States by the statutes of a State or the practice of its courts.” . 104 U. S. 417. Although the opinion also shows that, upon the facts of that case, the action of the Circuit Court in vacating its judgment after the term could not be justified upon any rule authorizing such relief, whether by motion or by bill in equity, nevertheless the decision of the case rests upon the emphatic denial of the power of the court to set aside a judgment upon motion made after the term and grant a new trial, except in the limited class of cases enumerated as reached by the previous practice under writs of error coram vobis, or for the purpose of correcting the record according to the fact, where mistakes have occurred from the o ' __ . misprision of the clerk. We content ourselves with repeating the doctrine of this recent decision, without recapitulating previous cases in this court, in which the point has been noticed, for the purpose of showing their harmony. It has been the uniform doctrine of this court. “ No principle is better settled,” it was said in Sibbald v. The United States, 12 Pet. 488, 492, “ or of more universal application, than that no court can reverse or annul its own final decrees or judgments, for errors of fact or law, after the term in which they have been rendered, unless for clerical mistakes; Cameron n. McRoberts, 3 Wheat. 591; Bank of Kentucky v. Wistar, 3 Pet. 431; or to reinstate a cause dismissed by mistake; The Palmyra, 12 Wheat. 1; from which it follows that no change or modification can be made which may substantially vary or affect it m any material thing. Bills of review, in cases in equity, and writs of error coram vobis at law, are exceptions which cannot affect the present motion.” And see Bank of the United States N. Moss, 6 How. 31, 38; Schell n. Dodge, 107 U. S. 629. It is equally well established by the decisions of this court PHILLIPS v. NEGLEY. 675 Opinion of the Court. that the appropriate remedy for relief against judgments at law, wrongfully obtained, is by a bill in equity, and the cases in which that remedy is applicable have been clearly defined. That rule was formulated by Chief Justice Marshall in a case arising in this District, of Marine Insurance Company of Alexandria v. Hodgson, 7 Cranch, 332, and more tersely stated by Mr. Justice Curtis in HendricksonN. Hinckley, 17 How. 443, 445, as follows: “ A court of equity does not interfere with judgments at law, unless the complainant has an equitable defence of which he could not avail himself at law, because it did not amount to a legal defence, or had a good defence at law, which he was prevented from availing himself of by fraud or accident, unmixed with negligence of himself or his agents.” This rule was supported by Creath v. Sims, 5 How. 192, and Walker v, Bobbins, 14 How. 584, and was followed in Crim v. Handley, 94 U. S. 652 ; in Brown v. County of Buena Vista, 95 U. S. 157; and in Embry v. Palmer, 107 U. S. 3; where it was considered and applied in a case in which the Supreme Court of Errors of Connecticut, having enjoined proceedings in that State upon a judgment of the Supreme Court of this District for causes not sufficient in law to have authorized the latter to set it aside, the judgment of the Connecticut Court was reversed, although no question was made of the right of that court to entertain the jurisdiction to enjoin proceedings upon the judgment in question, equally with that of the court by which it was rendered. This independent jurisdiction in equity over judgments at law, by implication, negatives the remedy at law in the same courts where they are rendered, for the same causes, because that equitable jurisdiction is resorted to only because there was no adequate remedy at law, the jurisdiction of the courts of law over the cause and the parties having been exhausted when the judgment became final. But it is argued that the power exercised in the present instance is vested in the Supreme Court of this District by virtue of the laws of Maryland in force February 27, 1801, adopted by the act of Congress of that date. The statute of Maryland supposed to confer this power is an 676 OCTOBER TERM, 1885. Opinion of the Court. act of 1787, ch. 9, 2 Kilty Laws, Thomp. Dig. 173, relating to continuances, the sixth section of which is as follows: “ In any case where a judgment shall be set aside for fraud, deceit, surprise, or irregularity in obtaining the same, the said courts respectively may direct the continuances to be entered from the court when such judgment was obtained, until the court such judgment shall be set aside, and may also continue such cause for so long a time as they shall judge necessary for the trial of the merits between the parties, not exceeding two courts after such cause has been reinstated, unless, &c.” This statutory provision, it will be observed, is entirely silent as to the mode according to which a judgment may be set aside at a subsequent term, whether by a writ of error coram volts or coram nobis, bill in equity, or other procedure, and does not, either in express terms or by any necessary implication, provide that it may be done by a motion and summary proceedings thereon; and also, that it seems to proceed upon the idea that continuances should regularly be entered to show that the proceeding, if at law, to set a judgment aside, in theory at least, ought to originate at the same term at which the judgment was rendered. The remedy by writ of error coram nobis continued in force and in use in Maryland. Hawkins v. Bowie, 9 G. & J. 428,437; Bridenddlph v. Zeller’s Executors, 3 Maryland, 325. And in the first of these cases it was held that a reversal of a judgment upon such a writ was a final judgment from which an appeal would lie. The court said: “ Now, if reversing the original judgment and awarding costs to the plaintiff in error in this proceeding in error coram nobis, was not so far final as to fall within that class of judicial acts from which an appeal will lie to this court, we cannot see the reason, nor can we well conceive of any remedy the parties would have if the county courts were to undertake to vacate and annul all the judgments in their records.” This remark equally applies whether the result is reached by this writ or by the more summary mode of a motion. It was so decided in Graff v. Merchants' & Miner# Transportation Co., 18 Maryland, 364, and Craig n. Wroth, 47 Maryland,'281. In the last-named case, it was said by the PHILLIPS v. NEGLEY. 677 Opinion of the Court. court: “ The power to set aside judgments upon motion for fraud, deceit, surprise, or irregularity in obtaining them, is a common law power incident to courts of record in this State, and was not conferred upon them by the act of 1787, ch. 9, sec. 6, which is partially but not fully embodied in section 38, art. 75 of the Code. This legislation assumes that the power resides in the courts, and provides for the entering of continuances when it is put in force. In deciding such motions made after the term is past, the court acts in the exercise of its quasi equitable powers, and will, therefore, properly consider all the facts and circumstances of the case, and require that the party making the application shall appear to have acted in good faith and with ordinary diligence; relief will not be granted wThen he has knowingly acquiesced in the judgment complained of, or has been guilty of laches and unreasonable delay in seeking his remedy.” This seems to be the settled doctrine of the Maryland courts, as shown by a series of decisions, all of which, however, have been made since the cession of the present territory within the District of Columbia. Kemp v. Cook, 18 Maryland, 130; Montgomery v. Murphy, 19 Maryland, 576. In Kemp v. Cook, the court said: “ The powTer of setting aside judgments upon motion is a common law power incident to courts of record, and exercised usually under restraints imposed by their own rules and rarely after the term in which the judgment was rendered.” “ The judgment records of the State are the highest evidences of debt known to the law; they are presumed to have been made up after the most careful deliberation, upon trial or hearing of both parties. To permit them to be altered or amended without the most solemn forms of proceeding would be contrary to law and good policy.” It appears also from the case of Kearney v. Sascer et al., 37 Maryland, 264, that the jurisdiction of the Court of Chancery, upon a bill in equity, to grant relief against a judgment on equitable grounds, constitutes part of the remedial system in that State, notwithstanding the practice to set aside judgments on motion made after the term; and in that case the court quoted and adopted the rule regulating the measure of relief, and the circumstances justifying the court in granting it, as 678 OCTOBER TERM, 1885. Opinion of the Court. declared by Chief Justice Marshall in Marine Ins. Co. v. Hodgson, 7 Cranch, 332, 336. It thus appears that in Maryland, prior to 1801, the only statute in existence referring to the subject, while it assumes the existence of a power in the courts to set aside their judgments, after the term in which they were rendered, for certain causes, does not specify the modes in which that relief may be administered, and does not enumerate a summary proceeding by motion as one of them; that the cases in which that relief has been administered in that way have all arisen and been decided since the date of the cession to the United States of the territory constituting the District of Columbia ; that these decisions are based, not upon the statute as creating or conferring such power, but upon an interpretation of the common law by which all courts of record are assumed to be possessed of it, as adherent in and incident to their constitution as courts of justice; that, in whatever form, the proceedings are regarded, not as interlocutory steps in the original cause, but as independent applications to a legal discretion governed by fixed rules, and, therefore, terminating in final judgments, subject as in other cases to review or error in a court of appeal; and that the jurisdiction of chancery by a plenary suit in equity is not excluded, but is maintained and exercised in conformity with the general principles of equity jurisprudence. It follows from this statement that these decisions of the Maryland courts, being founded upon general principles, and made since the organization of the District of Columbia, are not binding upon the courts of the District as authorities, though entitled to all the respect due to the opinions of the highest court of the State; a rule acted upon in this court in Quid v. Washington Hospital, 95 U. S. 303, and approved in Russell v. Allen, 107 U. S. 163, 171. We feel at liberty, therefore, to follow our own convictions as to the power of the courts of the District over their judgments; and are of opinion, and so decide, that, after the term at which they were rendered, the power of the court over the parties and over its record remains only in the excepted cases already noticed, when, on motion, it may be purged of clerical errors, or the judgment reversed by • JACKSON v. LAWRENCE. 679 Syllabus. proceedings for errors in fact, in analogy to the practice in cases of writs of error coram vobis, unless it is invoked by a formal bill in equity upon grounds recognized as furnishing a title to relief. We are, therefore, of opinion that the Supreme Court of the District, both at special and general term, in entertaining and granting the motion to set aside the judgment in the present case, committed error, and the proceedings and judgment thereon are Reversed, and the cause remanded, with directions to dismiss the motion of the defendant, but without prejudice to his right to file a bill in equity. JACKSON & Another v. LAWRENCE & Others. APPTCAT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI. Submitted April 1, 1886.—Decided April 12, 1886. L made and delivered to W his promissory note for $1300 payable in ninety days, and a deed of a tract of land absolute on its face. It was orally agreed between them that the deed was executed as security for the payment of the note, and that, if the note was not paid at maturity, W was authorized to sell the land. The note not being paid at maturity W, with the knowledge and assent of L, sold and conveyed the land to T and applied the proceeds to the payment of the debt. After the completion of the contract and execution of the deed, but before its delivery to T, a creditor of L who had recovered judgment against him, levied on this tract of land to satisfy the judgment, and caused it to be sold. The purchaser at the sheriff’s sale after receiving his deed, filed a bill in equity against the heirs and devisees of T, praying to be admitted to redeem the land on payment of the note. Held : (1) That the transaction was in equity a mortgage : (2) That parol evidence was admissible to show when the power of sale in the mortgage became absolute : (3) That W had an absolute power of sale when the conveyance was made to T, the execution of which carried the land free from the mortgage. Bill in equity to redeem from a mortgage. The case is stated in the opinion of the court. 680 OCTOBER TERM, 1885. Opinion of the Court. Mr. Aaron S. Everest, Mr. T. J. Johnston, and Mr. H. M. Jackson for appellants. Mr. B. F. Lucas for appellees. Mr. Justice Woods delivered the opinion of the court. The appellants filed the bill in the Circuit Court. The following facts are shown by the record. One Alvin K. Lancaster being the owner in fee simple of certain lands in Worth, Nodaway and Atchison Counties, in the State of Missouri, conveyed them on September 15, 1875, to Edward L. Wells by deed absolute on its face. At the time the deed was executed Lancaster made and delivered to Wells his promissory note for $1300, payable in ninety days. There was at the time a verbal understanding between them that the deed was made as security for the payment of the note, and that if .the note was not paid at maturity Wells should have the right to sell the land to whom he pleased. The note was not paid at maturity. Wells pressed Lancaster for payment, and on his failure to pay, about January 5, 1876, contracted to sell the lands to George C. Tailman, and executed to him a quit-claim deed of that date therefor, which, however, was not delivered until January 20, 1876. On January 15, 1876, the plaintiffs in this suit began, by attachment, in the Circuit Court of Worth County, Missouri, an action against Lancaster, in which the lands in controversy were seized, and on October 24, 1876, they recovered judgment against him for $895. On February 21,1878, executions were issued on the judgment to the sheriffs of the counties where the lands lay, and the lands were sold by virtue thereof, and purchased by the plaintiffs, to whom deeds therefor were made. George C. Tallman, the vendee of Wells, died on May 5,1880, and the defendants in the present suit were his devisees of the lands above mentioned. Afterwards, on January 31,1882, the plaintiffs filed a bill in this case, in which they alleged that the deed of Lancaster to Wells was in effect a mortgage executed to secure the note made by the former to the latter. They tendered to the defendants the amount due on the note, with JACKSON V. LAWRENCE. 681 Opinion of the Court. all the taxes paid by the latter on the lands, and prayed for a decree permitting them, as purchasers of Lancaster’s equity of redemption, to redeem the lands, and for general relief. The defendants answered, that at the time George C. Tailman purchased the lands, and at the time of the delivery of said deed, which they averred to be on January 5, 1876, he had no notice of any claim of the plaintiffs against Lancaster, or that the title of Wells to the lands in controversy was other or different from the absolute title which the deed from Lancaster to him purported to convey, and that Tallman intended to purchase, and did purchase, the absolute title thereto, for which he paid a full and valuable consideration. On final hearing the Circuit Court dismissed the bill, and the plaintiffs appealed. There is no conflict in the testimony, or disagreement between the parties touching the terms on which Lancaster conveyed the lands in controversy to Wells. Lancaster, Wells, and one Jordan, who acted as agent for Wells in the transaction, all give the same account. The deed was executed to secure the payfnent of the note made by Lancaster to Wells for 81300, due in ninety days, with the distinct agreement that if the note was not paid when due, Wells should be authorized to sell the land. No other account is given of this transaction by any witnesses. The deed from Lancaster to Wells was, therefore, in effect a mortgage, for it is settled that an absolute deed intended by the parties as a security for a debt is in equity a mortgage. Hughes v. Edwards, 9 Wheat. 489 ; Sprigg v. Bank of Mount Pleasant, 14 Pet. 201; Morris v. Nixon, 1 How. 118 ; Peugh y. Davis, 96 IT. S. 332; Teal v. Walker, 111 IT. S. 242; Brant v. Pol>ert8on, 16 Missouri, 129; Worley v. Dryden, Missouri, 226; (/Neill v. Capelle, 62 Missouri, 202. Is is also settled that evidence written or oral may be admitted to show the real character of the transaction. Russell v. Southard, 12 How. 139; Babcock v. Wyman, 19 How. 289; Peugh v. Da/ois, ubi supra; Brick n. Brick, 98 IT. S. 514. There being no dispute, therefore, in relation to the terms of the agreement between Lancaster and Wells, on which the 682 OCTOBER TERM, 1885. Opinion of the Court. deed of the former to the latter was executed and delivered, it is to be read in equity precisely as if the agreement were set out therein, and is to be considered a mortgage to secure the payment of the note made by Lancaster to Wells according to its tenor, with power to Wells in default of payment to sell the mortgaged premises. This condition must be taken as a whole; no part of it can be rejected. The authority to Wells to sell the premises, in default of payment of the note, was just as much an element in the condition as the right of Lancaster to a reconveyance upon payment of the note. The right of Wells to sell the premises in default of payment was a right of property which he had bought and paid for, which could not be impaired by an attachment levied on the property by Lancaster’s creditors. Their attachment was as much subject to the right of Wells to sell in default of payment of the note, as it w’ould have been to his right to foreclose a mortgage made in the usual form. After the attachment was levied Wells exercised the right to sell. He sold, as the record abundantly shows, with the knowledge and concurrence of Lancaster. * The property brought enough to pay the debt, and no more. It is not disputed that the sale was fair and bona fide. It, therefore, cut up by the roots all title of Lancaster, and all claim of the plaintiffs acquired by their attachment upon the lands in question, and left neither in them nor Lancaster any right to redeem. The vendee of Wells stands upon the same ground as if he had bought the premises at a foreclosure sale, and his title is indefeasible. This conclusion does not depend upon the fact whether or not Tailman purchased with or without notice of the verbal condition under which the deed from Lancaster to Wells was executed. The rights of Lancaster and those claiming under him are not strengthened by the fact that the condition was a verbal one. They are in no better position than if the condition had been incorporated in the deed and put upon the public records, thereby giving constructive notice to all the world. In the latter case it is clear that Wells, having power to sell, could sell to whomsoever he chose. Therefore, whether ZEIGLER v. HOPKINS. 683 Syllabus. the vendee had notice of the condition would be immaterial. But the proof in the record that Tailman had no knowledge or notice of the condition, and that when he bought he supposed the deed was what it purported to be, an absolute conveyance, is clear and positive. The case, therefore, in all its elements, falls within the rule laid down by the Supreme Court of Missouri in Wilson n. Drumrite, 21 Missouri, 325. In that case a deed absolute on its face was executed by Wilson to Drumrite, but was in fact given as a security for a debt. There was a verbal agreement between Wilson and Drumrite that the latter should reconvey if the debt was paid when due; in case of default Drumrite was authorized to sell the land to enforce payment of his debt. Wilson failed to pay the debt when due, and Drumrite sold part of the land to a purchaser without notice. The court, laying stress upon the fact that the vendee had no notice of the condition, held that the sale was valid, but that Drumrite must account to Wilson for the land sold, and must reconvey the residue. In the present case, even under the rule laid down by the Supreme Court of Missouri, there is no right of redemption. Upon the whole record, therefore, the decree of the Circuit Court dismissing the bill was right. Decree affirmed. ZEIGLER v. HOPKINS. EEEOE TO THE CIECUIT COUET OF THE UNITED STATES FOE THE DISTRICT OF CALIFORNIA. Submitted March 1, 1886.—Decided April 12,1886. A statute of California authorized the opening of a street in San Francisco, to be known as Montgomery Avenue, the cost and expenses to be assessed on certain specified lots in proportion to the benefits accruing therefrom; and provided that when a majority in frontage of the owners of these benefited lots should petition certain officials for the opening, those officials should 684 OCTOBER TERM, 1885. Opinion of the Court. organize into a board and proceed to open it and to apportion the cost in the manner pointed out by the statute. A petition being presented to the designated officials, they organized, and certified that the petition had been subscribed by the owners of the requisite amount of frontage, and proceeded to lay out the street and apportion the costs and expenses among those benefited in the manner provided by the statute. They reported their action to the county court as required by the statute, and the report was confirmed by the court. A tax was thereupon levied in the ordinary way in 1878-9 to meet the portion of the costs and expenses payable that year by the terms of the statute. H, an owner of a lot thus assessed and levied on, declining to pay, the land was seized and sold for the default to Z, who thereupon brought ejectment to recover possession. Held: That on the trial of this action H was not estopped by the acceptance of the petition by the officials and their certificate upon it, or by the judgment of the county court confirming their report, from showing that the petition for the opening was not signed by the owners of the requisite amount of frontage. Mulligan v. Smith, 59 Cal. 206, approved and applied. The court below having found that the property in dispute is worth $5000, this court, on motion to dismiss, disregards affidavits that it is worth less, although, taken by themselves, the affidavits show that it may be worth less than that sum. Ejectment. Motion to dismiss. The case is stated in the opinion of the court. J/?. Samuel Shell,larger, Mr. Jeremiah M. Wilson, Mr. Daniel Rogers, Mr. E. F. Preston and Mr. Philip G. Galpin, for plaintiff in error. Mr. D. M. Delmas and Mr. A. U. Garland for Rosenbaum. Mb. Chief Justice Waite delivered the opinion of the court. This was an action of ejectment brought by Henry Zeigler for a lot in the city and county of San Francisco, and his right to recover .depends on the validity of a sale of the property for nonpayment of a tax levied and assessed under “an act to open and establish a public street in the city and county of San Francisco, to be called ‘ Montgomery Avenue,’ and to take private lands therefor,” approved April 1, 1872. Stat. Cal. 1871-2, 911. By that act a strip of land, particularly described, was taken for Montgomery Avenue, and the cost and expenses “ incidental to the taking and opening of said avenue ” were ZEIGLER v. HOPKINS. 685 Opinion of the Court. to be assessed on certain “ lots, pieces and subdivisions of land,” particularly described, “ in proportion to the benefits accruing therefrom to said several lots, subdivisions and pieces of land respectively, which said lands ” were “ declared to be benefited by the opening of said avenue. ” By § 5, it was provided that “ whenever the owners of a majority in frontage ” of the property declared to be benefited, “ as said owners are or shall be named on the last preceding annual assessment-roll for the state, city and county taxes,” should “ petition the mayor of said city and county in writing for the opening of Montgomery Avenue,” a “ board of public works,” to be composed “of the mayor, the tax collector, and the city and county surveyor of the city and county of San Francisco,” should “ proceed to organize by the election of a president.” This board was to ascertain and “ set down in a written report . . . the description and actual cash value of the several lots and subdivisions of land included in the land taken for said Montgomery Avenue, and the amount of damage that will be occasioned to the property along the line and within the course of said avenue.” The same board was also to ascertain and “ set down in a written report a description of the several subdivisions and lots of land included ” in those which by the law were to be assessed, and the amount which, in the judgment of the board, “ the said lot or subdivision has been or will be benefited by reason of the taking and opening of said avenue relatively to the benefits therefrom accruing to the other lots or subdivisions respectively.” This report when completed was to be kept at the office of the board for thirty days open for inspection by all parties interested, and notice thereof given by publication. Any person interested who felt himself aggrieved “ by the action or determination of said board, as shown in said report,” was permitted to apply to the county court of the city and county of San Francisco within a limited time for a review, and from the action of the county court on such a petition an appeal could be had to the Supreme Court. If no application for review was filed in the court within the time fixed, it was made the duty of the board to submit the report to the county court with a petition that it be approved and confirmed. 686 OCTOBER TERM, 1885. Opinion of the Court. The court was authorized to make or cause to be made alterations or modifications, if in its opinion necessary, and, when completed to its satisfaction, “ to approve and confirm said report.” When the report was approved and the action thereon had become final, the board was required to prepare and issue coupon bonds, to be known and designated as “ Montgomery Avenue bonds,” payable in thirty years from their date, with interest at six per cent, per annum, to the amount necessary to pay and discharge the damages, costs, and expenses incident to the taking and opening of the avenue. These bonds could be taken by the parties interested in payment of the amounts due to them respectively, or the bonds could be sold by the board and the proceeds used for that purpose. By an express provision of the act, the city and county of San Francisco was not, in any event whatever, to be liable for the payment of these bonds, and any person purchasing them, or otherwise becoming the owner thereof, was to take them “ upon that express stipulation and understanding.” It was, however, provided that “ there shall be levied, assessed and collected, annually, at the same time and in the same manner as other taxes are levied, assessed, and collected in said city and county, a tax upon the lands,” which had been declared to be benefited by the opening of the avenue, “ sufficient to pay the interest upon said bonds ” as it matured, and also “ a tax of one per cent, upon each hundred dollars’ valuation, which shall constitute a sinking fund for the redemption of said bonds.” The money arising from these taxes was to be paid to the treasurer of the city and county, and by him used for the purposes intended. These taxes were to be assessed upon the “ values of the respective parcels of land as fixed in the said . . . report of said board.” The case was tried in the court below without a jury, and comes here on a finding of facts, which shows that a petition, regular in form, for the opening of the avenue, was presented to the mayor of the city and county in the month of April, 1872, but which was not in fact subscribed by the owners of a majority in frontage of the land declared to be benefited “as said owners ” were “ named in the last preceding annual as- ZEIGLER v. HOPKINS. 687 Opinion of the Court. sessment-roll for the state, city, and county taxes,” although it purported on its face to have been so signed. After the filing of this petition, the persons at that time filling the offices respectively of mayor of the city and county, tax collector, and surveyor, annexed thereto their several certificates that the petition had been subscribed by the owners of the requisite amount of frontage. This being done, the board of public works, consisting of the mayor, tax-collector, and surveyor, organized, opened the avenue, and assessed the benefits conferred on the property declared to be benefited, for the purposes of taxation. Their report, after being left at their office for thirty days, and the requisite notice thereof given, was filed with and confirmed by the county court. The lot now in question was among those declared by the law to be benefited, and was assessed by the board for the purposes of taxation. A tax levied for the year 1878-9 upon this assessed value, to meet the annual obligations under the law, was not paid by the owner, and for this default the sale was made under which Zeigler now claims title. Upon these facts the court below gave judgment against him, and to reverse that judgment this writ of error was brought. There is in reality but a single question presented for our consideration in this case, and that is whether, in an action of ejectment brought to recover the possession of lands sold for the nonpayment of taxes levied to defray the expenses of opening Montgomery Avenue generally, and not in obedience to an order of a court of competent jurisdiction to meet some particular liability which had been judicially established, the landowner is estopped from showing, by way of defence, that the petition for the opening presented to the mayor was not signed by the owners of the requisite amount of frontage; and this depends on whether the owner is concluded, (1), by the acceptance of the petition by the mayor and his certificate as to its sufficiency and the action of the board of public works thereunder ; or, (2), by the judgment of the county court confirming the report of the board of public works. This precise question was most elaborately considered by the Supreme Court of California in J^luUigcvn v. Smith, 59 Cal. 206^ 688 OCTOBER TERM, 1885. Opinion of the Court. and decided in the negative, after full argument. With this conclusion we are entirely satisfied. It is supported by both reason and authority. The opinions of Justices M’Kee, Sharp-stein, and Ross, which are found in the report of the case, leave nothing further to be said on the subject. “ A petition from the owners of a majority in frontage of the property to be charged with the cost of the improvement was necessary to set the machinery of the statute in motion,” and “no step could be taken under the provisions of the statute until the requisite petition had been presented.” Neither the mayor nor the county court was “authorized to enter into any investigation of the frontage as represented by the petition, or to adjudicate its sufficiency, or to make any record in reference to it.” “ The only powers which the county court, as a court of limited jurisdiction, was authorized to exercise,” were such as related to the matters contained in the report of the board of public works, and this did not include the petition. The case has been argued here as though it was between the taxpayers and bona fide holders of negotiable securities issued by them or for their account; but nothing of that kind is presented by the record. It does not appear affirmatively that a bond was ever issued. But if we are to presume from the finding that after the presentation of the petition the “ mayor, tax collector, and surveyor proceeded to perform the duties imposed upon the board of public works,” bonds of some kind were put out, it does not appear either that they were in such a form as to make them valid in the hands of bona fide holders if they were in fact issued without authority, or that there are any such holders. No other questions are now to be considered than such as would arise if it appeared affirmatively on the face of the record that the tax was levied simply to raise the means to pay the members of the board their own salaries as specially provided for in the act. All we are now called on to decide is whether the presentation to the mayor of a petition, signed by the owners of less than a majority in frontage of the property to be assessed, as they were named in the last preceding annual assessment-roll, was sufficient to authorize the levy of the tax for which the lots in controversy were sold, and we have no CANTRELL v. WALLICK. 689 Syllabus. hesitation in saying it was not. It will be time enough to consider the rights of bona fide holders of “Montgomery Avenue bonds,” if there be any, when a case arises which involves such questions. It remains only to dispose of a motion which has been made by or on behalf of Albert S. Rosenbaum, who claims to be a holder of Montgomery Avenue bonds, to dismiss the case; (1), because the value of the matter in dispute does not exceed $5000; and (2), because the suit is colorable only, and got up by collusion so as to preclude a decision favorable to the holders of Montgomery Avenue bonds. Without deciding how far it is allowable for persons not parties to a suit to intervene with a motion of this kind, it is sufficient to say that we see no evidence of any improper collusion in this case. We are entirely satisfied that the suit was instituted in good faith, by real parties, for the determination of a substantial right, and that it fairly presents the questions involved. The court below found as a fact that the value of the premises in dispute exceeds $6000, and this appears on the face of the record. While the affidavits as to value presented by Rosenbaum, taken by themselves, show that possibly the property may be worth less than $5000, they are not enough to overcome the finding of the court below that it was actually worth more than that sum. Affirmed. CANTRELL & Another v. WALLICK. appeal from the circuit court of the united states for THE EASTERN DISTRICT OF PENNSYLVANIA. Argued March 30,1886.—Decided April IS, 1886. Two patents may be valid when the second invention is an improvement on the first, and if the second includes the first, neither patentee can lawfully use the invention of the other without his consent; but a stranger, sued for infringing the second patent, cannot defend by setting up the existence of the first patent. vol. cxvii—44 690 OCTOBER TERM, 1885. Opinion of the Court. Two machines or devices are substantially identical when they perform substantially the same thing in substantially the same way, to obtain the same result; and they differ from each other in the sense of the patent law, when they perform different functions, or in a different way, or produce substantially different results. Machine Co.v. Murphy, 97 U. S. 120, affirmed and applied. The defendant in a suit for the infringement of a patent for an invention, who sets up prior use and want of novelty as a defence, has the burden of proof upon him to establish the facts set up beyond all reasonable doubt; and in this case the defendants have failed to show the alleged prior use even by preponderance of proof. This was a bill in equity to restrain the infringement of letters patent. The case is stated in the opinion of the court. Mr. John Walker Shortlidge for appellants. Mr. Charles Howson for appellee. Mr. Justice Woods delivered the opinion of the court. This was a bill in equity filed by Wallick, the appellee, to restrain the infringement by Cantrell and Petty, the appellants, of letters patent granted to Wallick, dated May 25, 1875, for an “ improvement in apparatus for enamelling mouldings,” on an application filed October 16, 1874. The specification stated the object of the invention to be “ a rapid and economical production of enamelled mouldings.” It appears from the record that the mouldings referred to are those which, after being enamelled, are gilded and used for picture and mirror frames and other like purposes. In order to prepare the moulding to receive and retain the gilding it is necessary to enamel the surface to be gilded with a composition made of glue and whiting. Long before the date of the plaintiff’s application the method of doing this was by passing the moulding through a vessel containing the enamelling material, the vessel having at its opposite sides and in the same line apertures of the shape of a section of the moulding, and large enough to permit the moulding to pass through and leave a proper quantity of the enamel to pass out with and adhere to it. As early as October, 1851, a patent had been granted to Robert Marcher for an improvement in machinery CANTRELL v. WALLICK. 691 Opinion of the Court. for enamelling mouldings. In Marcher’s contrivance the bottom of the box or hopper which contained the enamelling composition was left open. The opposite sides of the box were made with apertures of suitable size and shape for receiving the end of the moulding, and when the end of the moulding was thrust through both the apertures the moulding formed the bottom of the box. The result was that on passing a moulding through the box its face was enamelled, but its back, which did not come in contact with the composition in the box, was not. The means used to drive the mouldings through the box were not covered by this patent; but this was done sometimes by hand and sometimes by passing them between revolving feed-rollers. The latter became the more common method. In order to give a good enamel it was necessary to pass the moulding through the box several times. According to the contention of the plaintiff, this was the state of the art when he invented the device covered by his patent. The specification of the plaintiff’s patent stated that in enamelling certain forms of moulding, for instance the mouldings shown in figures 2 and 3 of the drawings [page 692], feedrollers could not be used for passing the mouldings through the Marcher box without disturbing the coats of enamel on which the upper feed-roller must bear. It then proceeded thus: “ The main aim of my invention has been to so construct an enamelling box and so form the strips of wood that feed-rollers may be employed to pass the strips through the reservoir containing the enamelling composition. “ For enamelled mouldings like Figs. 1 and 2, for instance, I prepare a strip of wood, Fig. 5, with a groove, x, above for receiving the upper feed-roller, and a groove, y, below for receiving the lower feed-roller, and then pass the strip through an enamelling box of peculiar construction, so that the rounded edges only are coated, and when these edges have received the proper number of coats I sever the strip, so as to produce either of the mouldings, Figs. 1 and 2; “ For making mouldings like Fig. 3 I prepare a strip of the- 692 OCTOBER TERM, 1885. Opinion of the Court. form shown by Fig. 6, so that upper and lower feed-rollers may be used to force the strip through the enamelling box. “After the edges of the strip have been properly enamelled I sever it in the middle, thereby producing two mouldings, like Fig- 3- . “ The box by which the enamel is applied to these strips is CANTRELL v. WALLICK. 693 Opinion of the Court. illustrated, in the vertical section, Fig. 8, and transverse vertical section, Fig. 9, of the accompanying drawing, the box being, in the present instance, arranged for enamelling the strip, Fig. 5. “A and A' are two plates, which are confined by suitable bolts a a', two bent plates, b b', forming, under the circumstances explained hereafter, two reservoirs, J? B', for containing the fluid or semi fluid enamelling composition. The distance between the turned up portion, z, of one plate, b, and that of the other plate is equal to the width of the groove y of the strip, Fig. 5. A permanent longitudinal bar, d, extends from the plate A to the plate A', and to each side of this bar is secured a plate, e, of metal, the distance across the bar and its two plates being equal to the width of the groove x of the strip,. Fig. 5, against the edges of which groove the said plates bear. “ In each of the plates A A' there is an opening, conforming in shape and dimensions to that of the strip, Fig. 5, and these openings bear such relations to the turned up edges of the plates b b' and to the bar d that the strip, when introduced into the box, will be in the position shown in Fig. 9, so that no parts of the strip, excepting the rounded edges, are exposed to the enamelling composition. After thus passing the end of the strip of moulding through the openings in the plates A A! the composition may be introduced into the reservoirs B B', for all avenues for the escape of the fluids are cut off by the strip itself. “ Feed-rollers X X' (shown in dotted lines) may be used for forcing strip after strip through the enamelling box, the said rollers in no way interfering with the different coatings of enamel, because they are never in contact with the enamelled surfaces. “ In other words, the enamelling box is separated into two reservoirs, partly by a permanent partition and partly by the strip, which is passed through the box so that the edges only of the strip are exposed to the enamelling composition, one edge to the composition in one compartment and the other edge to that in the other compartment.” The claim was as follows: 694 OCTOBER TERM, 1885. Opinion of the Court. u An enamelling box divided into two compartments by a slotted partition, and having openings at the ends in a line with the slot in the partition, all substantially as and for the purpose set forth.” The defences relied on were that the specification was too broad and embraced and appropriated the Marcher box; noninfringement ; and prior use by Frederick W. Werner and T. C. Ladd & Co., of Brooklyn. The first defence is based on the theory that a patent cannot be valid unless it is new in all its elements as well as in the combination, if it is for a combination. But this theory cannot be maintained. If it were sound no patent for an improvement on a known contrivance or process could be valid. And yet the great majority of patents are for improvements in old and well known devices, or on patented inventions. Changes in the construction of an old machine which increase its usefulness are patentable. Seymour v. Osborne, 11 Wall. 516. So a new combination of known devices, whereby the effectiveness of a machine is increased, may be the subject of a patent. Loom Co. n. Higgins, 105 U. S. 580 ; Hailes n. Van Wormer, 20 Wall. 353. Two patents may both be valid when the second is an improvement on the first, in which event, if the second includes the first, neither of the two patentees can lawfully use the invention of the other without the other’s consent. Star Salt Caster Co. v. Crossman, 4 Cliff. 568. Therefore, letters patent for an improvement on a patented invention cannot be declared void because they include such patented invention. Much less does it lie in the mouth of a party who is infringing both the improvement and the original invention to set up the existence of the first patent as an excuse for infringing the improvement. It is only the patentee of the original invention who has the right to complain of the use made of his invention. We are, therefore, of opinion that the first defence to the suit must fail. On the question of infringement, a comparison of the model of the plaintiff’s patent with the model of the device shown to be in use by the defendants, makes it clear that the defendants have adopted substantially the invention of the plaintiff. It CANTRELL y. WALLICK. 695 Opinion of the Court. would baffle the ingenuity of the most skilled expert to show a substantial difference between the invention claimed by the plaintiff and that which it is conceded that the defendants use. It may be true, as contended by the defendants, that the device used by them is in some respects better than that of the plaintiff, but this cannot relieve them from the charge of infringement, if the devices are substantially alike. The rule was well stated by Mr. Justice Clifford, in delivering judgment in the case of Machine Company v. Murphy, 97 U. S. 120, 125, where he said that, “ in determining the question of infringement, the court or jury, as the case may be, are not to judge about similarities or differences by the names of things, but are to look at the machines or their several devices or elements in the light of what they do or what office or function they perform, and to find that one thing is substantially the same as another, if it performs substantially the same function in substantially the same way, to obtain the same result; always bearing in mind that devices in a patented machine are different in the sense of the patent law when they perform different functions or in a different way, or produce a substantially different result.” Tested by this rule the charge of infringement made against the defendants is clearly made out. It remains to inquire whether prior use and want of novelty have been shown. The prior use and consequent want of novelty alleged by the defendant was the making in 1866, and the use from that date until 1871, by Frederick W. Werner, of a box for enamelling mouldings in which the invention described in the patent of the plaintiff was embodied. Werner testified to this making and use, and to the further fact that, in 1874, he sold the box to Ladd, who some time afterwards began using it. The burden of proof is upon the defendants to establish this defence. For the grant of letters patent is prima facie evidence that the patentee is the first inventor of the device described in the letters patent and of its novelty. Smith v. Goodyear Dental Vulcanite Co., 93 IT. S. 486; Lehnbeuter x. Holthaus, 105 U. S. 94. Not only is the burden of proof to 696 OCTOBER TERM, 1885. Opinion of the Court. make good this defence upon the party setting it up, but it has been held that “ every reasonable doubt should be resolved against him.” Coffin v. Ogden, 18 Wall. 120, 124; Washburn v. Gould, 3 Story, 122, 142. The proof of prior use in this case depends on the testimony of Werner and T. C. Ladd. The contrivance to which the testimony of these witnesses refers is not produced nor any model of it. It is merely represented in a drawing made by Werner six years after he had sold the box to Ladd. These two witnesses are contradicted by four others who were engaged in the factory where the box was used, and who had frequently seen the box referred to when in use and the mouldings enamelled by its use. Their testimony shows that the distinctive element in Wallick’s contrivance was not used in the box, but that it was substantially the old Marcher box. The defendants have, therefore, failed to show by preponderance of proof, much less beyond reasonable doubt, the prior use on which they rely. On the contrary the weight of the evidence is against this defence. Decree affirmed. APPENDIX. i. GORDON v. UNITED STATES. APPEAL EROM THE COURT OF CLAIMS. Decided December Term, 1864. This cause was submitted on the 18th December, 1863. On the 4th of April, 1864, the court ordered it to be argued on the second day of the following December Term. Mr. Chief Justice Taney had prepared an opinion expressing his views upon the question of jurisdiction. This he placed in the hands of the clerk in vacation, to be delivered to the judges on their reassembling in December. Before the judges met he died. The clerk complied with his request. It is the recollection of the surviving members of the court, that this paper was carefully considered by the members of the court in reaching the conclusion reported in 2 Wall. 561; and that it was proposed to make it the basis of the opinion, which, it appears by the report of the case, was to be subsequently prepared. The paper was not restored to the custody of the clerk, nor was the proposed opinion ever prepared. At the suggestion of the surviving members of the court, the reporter made efforts to find the missing paper, and, having succeeded in doing so,* now prints it with their assent. Irrespective of its intrinsic value, it has an interest for the court and the bar, as being the last judicial paper from the pen of * The following account of the paper is furnished by the gentleman from whom the copy was received. “ This copy was made by the late David M. Perine, the life-long friend of Chief Justice Taney, and one of his executors. It was kept by Mr. Perine until his death, a couple of years ago, and since then by his only son and executor, from whom I get it. The original we cannot find ; but the copy bears the mark of Mr. Perine as having been ‘ Ex’d/ and can be relied upon absolutely.” 698 APPENDIX. Mr. Chief Justice Taney. This case comes before the court upon appeal from the judgment of the Court of Claims. The appeal is taken under the act of March 3, 1863, entitled “An Act to amend an Act to establish a court for the investigation of claims against the United States.” The 5th section of this act provides that either party may appeal to the Supreme Court of the United States from any final judgment or decree which may thereafter be rendered in any case by the Court of Claims wherein the amount in controversy exceeds $3000, under such regulations as the Supreme Court may direct; Provided, that such appeal be taken within ninety days after the rendition of such judgment or decree, and Provided, further, that when the judgment or decree will affect a class of cases, or furnish a precedent for the future action of any Executive Department of the government in the adjustment of such class of cases, or a constitutional question, and such facts shall be certified to by the presiding Justice of the Court of Claims, the Supreme Court shall entertain an appeal on behalf of the United States, without regard to the amount in controversy. The 7th section provides that in all cases of final judgment by the Court of Claims, or, on appeal by the said Supreme Court, where the same shall be affirmed in favor of the claimant, the-sum due thereby shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of said judgment, certified by the clerk of the said Court of Claims, and signed by the Chief Justice, or in his absence by the presiding Judge of the court. The 14th section provides that no money shall be paid out of the Treasury for any claim passed upon by the Court of Claims, till after an appropriation therefor shall be estimated for by the Secretary of the Treasury. It will be seen by the sections above quoted that the claimant whose claim has been allowed by the Court of Claims, or upon appeal by the Supreme Court, is to be paid out of any general appropriation made by law for the payment and satisfaction of private claims : but no payment of any such claim is to be made until the claim allowed has been estimated for by the Secretary of the Treasury, and Congress, upon such estimate, shall make an appropriation for its payment. Neither the Court of Claims nor the Supreme Court can do anything more than certify their opinion GORDON v. UNITED STATES. 699 to the Secretary of the Treasury, and it depends upon him, in the first place, to decide whether he will include it in his estimates of private claims, and if he should decide in favor of the claimant, it will then rest with Congress to determine whether they will or will not make an appropriation for its payment. Neither court can by any process enforce, its judgment; and whether it is paid or not, does not depend on the decision of either court, but upon the future action of the Secretary of the Treasury, and of Congress. So far as the Court of Claims is concerned we see no objection to the provisions of this law. Congress may undoubtedly establish tribunals with special powers to examine testimony and decide, in the first instance, upon the validity and justice of any claim for money against the United States, subject to the supervision and control of Congress, or a head of any of the Executive Departments. In this respect the authority of the Court of Claims is like to that of an Auditor or Comptroller—with this difference only ; that in the latter case the appropriation is made in advance, upon estimates, furnished by the different Executive Departments, of their probable expenses during the ensuing year ; and the validity of the claim is decided by the officer appointed by law for that purpose, and the money paid out of the appropri-tion afterwards made. In the case before us the validity of the claim is to be first decided, and the appropriation made afterwards. But in principle-there is no difference between these two special jurisdictions created by acts of Congress for special purposes, and neither of them possesses judicial power in the sense in which those words are used in the Constitution. The circumstance that one is called a court and its decisions -called judgments cannot alter its character nor enlarge its power. But whether this court can be required or authorized to hear an appeal from such a tribunal, and give an opinion upon it without the power of pronouncing a judgment, and issuing the appropriate judicial process to carry it into effect, is a very different question, and rests on principles altogether different. The Supreme Court does not owe its existence or its powers to the Legislative Department of the government. It is created by the Constitution, and represents one of the three great divisions of power in the Government of the United States, to each of which the Constitution has assigned its appropriate duties and powers, and made each independent of the other in performing its appropri 700 APPENDIX. ate functions. The power conferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any other. The 3d Article of the Constitution, Section 1, provides that “ the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” And the last clause of the same article, after giving this court original jurisdiction in the cases therein specified, provides that in all other cases “ the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.” The existence of this Court is, therefore, as essential to the organization of the government established by the Constitution as the election of a president or members of Congress. It is the tribunal which is ultimately to decide all judicial questions confided to the Government of the United States. No appeal is given from its decisions, nor any power given to the legislative or executive departments to interfere with its judgments or process of execution. Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. Chancellor Kent says: “The judicial power of the United States is in point of origin and title equal with the other powers of the government, and is as exclusively vested in the court created by or pursuant to the Constitution, as the legislative power is vested in Congress, or the executive power in the President.” 1 Kent Com. 290-291, 6th ed. See also Story Const., pp. 449-450. The position and rank, therefore, assigned to this Court in the Government of the United States, differ from that of the highest judicial power in England, which is subordinate to the legislative power, and bound to obey any law that Parliament may pass, although it may, in the opinion of the court, be in conflict with the principles of Magna Charta or the Petition of Rights. The reason for giving such unusual power to a judicial tribunal is obvious. It was necessary to give it from the complex character of the Government of the United States, which is in part National and in part Federal: where two separate governments exercise certain powers of sovereignty over the same territory, each independent of the other within its appropriate sphere of action, GORDON v. UNITED STATES. 701 and where there was, therefore, an absolute necessity, in order to preserve internal tranquillity, that there should be some tribunal to decide between the Government of the United States and the government of a State whenever any controversy should arise as to their relative and respective powers in the common territory. The Supreme Court was created for that purpose, and to insure its impartiality it was absolutely necessary to make it independent of the legislative power, and the influence direct or indirect of Congress and the Executive. Hence the care with which its jurisdiction, powers, and duties are defined in the Constitution, and its independence of the legislative branch of the government secured. In No. 38 of the Federalist, written by Mr. Madison, the necessity and object of this provision is clearly stated. In that number, after explaining with great perspicuity the complex character of the government, being partly National and partly Federal, he proceeds to say (page 265 Towson’s Ed.): “In this relation, then, the proposed government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution, and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of. the compact.” It was to prevent an appeal to the sword and a dissolution of the compact that this Court, by the organic law, was made equal in origin and equal in title to the legislative and executive branches of the government: its powers defined, and limited, and made strictly judicial, and placed therefore beyond the reach of the powers delegated to the Legislative and Executive Departments. And it is upon the principle of the perfect independence of this Court, that in cases where the Constitution gives it original jurisdiction, the action of Congress has not been deemed necessary to regulate its exercise, or to prescribe the process to be used to bring the parties before the court, or to carry its judgment into execution. The jurisdiction and judicial power being vested in the court, 702 APPENDIX. it proceeded to prescribe its process and regulate its proceedings according to its own judgment, and Congress has never attempted to control or interfere with the action of the court in this respect. The appellate power and jurisdiction are subject to such exceptions and regulations as the Congress shall make. But the appeal is given only from such inferior courts as Congress may ordain and establish to carry into effect the judicial power specifically granted to the United States. The inferior court, therefore, from which the appeal is taken, must be a judicial tribunal authorized to render a judgment which will bind the rights of the parties litigating before it, unless appealed from, and upon which the appropriate process of execution may be issued by the court to carry it into effect. And Congress cannot extend the appellate power of this Court beyond the limits prescribed by the Constitution, and can neither confer nor impose on it the authority or duty of hearing and determining an appeal from a Commissioner or Auditor, or any other tribunal exercising only special powers under an act of Congress; nor can Congress authorize or require this Court to express an opinion on a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties, and process of execution awarded to carry it into effect. The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party ■without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this Court, in the exercise of its appellate jurisdiction: yet it is the whole power that the Court is allowed to exercise under this act of Congress. It is true the act speaks of the judgment or decree of this Court. But all that the Court is authorized to do is to certify its opinion to the Secretary of the Treasury, and if he inserts it in his estimates, and Congress sanctions it by an appropriation, it is then to be paid, but not otherwise. And when the Secretary asks for this appropriation, the propriety of the estimate for this claim, like all other estimates of the Secretary, will be opened to debate, GORDON v. UNITED STATES. 703 and whether the appropriation will be made or not will depend upon the majority of each House. The real and ultimate judicial power will, therefore, be exercised by the Legislative Department, and not by that department to which the Constitution has confided it. This precise point was decided by this Court as long ago as 1792, in Hayburn’s Case, 2 Dall. 409, and this decision has ever since been regarded as a constitutional law, and followed by every department of the government: by the legislative and executive branches as well as the Judiciary. It is referred to and recognized as authority in United States v. Ferreira, 13 How. 40. The case of Hayburn arose under an Act of Congress of March, 1792, which required the Circuit Courts of the United States to examine into the claims of the officers, soldiers and seamen of the Revolution, to the pensions granted to invalids by that act, and to determine the amount of pay that would be equivalent to the disability incurred, and to certify their opinion to the Secretary of War. And it authorized the Secretary, when he had cause to suspect imposition or mistake, to withhold the pension allowed by the Court, and to report the case to Congress at its next session. But-every judge of the Supreme Court (except Thomas Johnson of Maryland, who does not appear to have had the question before him) was of opinion that the law was unconstitutional and void, and that when the decision of the court was subject to the revision of a Secretary and Congress, it was not the exercise of a judicial power, and could not therefore be executed by the court. These opinions were all communicated to General Washington, who was then President of the United States, and the law was repealed at the next session. The case of the United States v. Ferreira, 13 How. 40, hereinbefore referred to, was decided on the same principle, and the distinction taken between judicial power in the sense in which these words are used in the Constitution, and a power given by law to examine a particular class of cases, and to certify an opinion as to their respective merits to an officer of the Executive Department, who might or might not act on it. Speaking of the laws under which the judge acted, the Court say, p. 48, “ The powers conferred by these acts of Congress upon the judge, as well as the Secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised by both of them. But it is nothing more than the power ordinarily given by law to a com 704 APPENDIX. missioner appointed to adjust claims to land or money under a treaty ; or special powers to inquire into or decide any other particular class of controversies, in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a Secretary as well as on a Commissioner. But it is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the Courts of the United States.’1 And it is very clear that this Court has no appellate power over these special tribunals, and cannot, under the Constitution, take jurisdiction of any decision, upon appeal, unless it was made by an inferior court, exercising independently the judicial power granted to the United States. It is only from such judicial decisions that appellate power is given to the Supreme Court. Indeed no principle of constitutional law has been more firmly established or constantly adhered to, than the one above stated —• that is, that this Court has no jurisdiction in any case where it cannot render judgment in the legal sense of the term ; and when it depends upon the legislature to carry its opinion into effect or not, at the pleasure of Congress. It was upon this principle that the case of Hunt n. Pallas, 4 How. 589, was decided. That case was originally decided in the territorial court of Florida. When the Territory became a State, Congress omitted to make provision for the transfer of the records to a tribunal of the United States, or to provide any tribunal to which a mandate might be directed, if any of the judgments of the territorial court should be affirmed or reversed. A motion was made here for a writ of error to be directed to the judges of the State court. But the motion was overruled, and the court said : “ It would be useless and vain for this Court to issue a writ of error, and bring up the record and proceed to judgment upon it, when, as the law now stands, no means or process is authorized, by which our judgment could be executed.” The decision in Hunt n. Pallas was recognized and the principle again affirmed in the case of Me Natty v. Patty, 10 How. 72, 79, and in a multitude of cases which have occurred since the present troubles began. The court has uniformly refused to take jurisdiction where there was not a court of the United States m existence, in possession of the original record, to which we were authorized by law to send a mandate to carry into effect the judgment of this court. The mandate is the form in which the judgment of this court is given, upon an appeal from an inferior court, GORDON v. UNITED STATES. 705 West v. lirashear, 14 Pet. 51; and the court can give no judgment, and award no execution, unless there is an inferior court of the United States, in possession of the original record, over which this court has appellate power, and which it may compel to execute its judgments. If no such court exists, it could merely express an opinion, which, as we have said before, binds no one, is no judgment in the legal sense of the term, and may or may not be carried into effect at the pleasure of Congress. In relation to appeals from a State court, there is a special provision in the act of 1789, authorizing, in certain contingencies, a judgment and execution by this court. The Constitution of the United States delegates no judicial power to Congress. Its powers are confined to legislative duties, and restricted within certain prescribed limits. By the second section of Article VI., the laws of Congress are made the supreme law of the land only when they are made in pursuance of the legislative power specified in the Constitution ; and by the Xth amendment the powers not delegated to the United States nor prohibited by it to the States, are reserved to the States respectively or to the people. The reservation to the States respectively can only mean the reservation of the rights of sovereignty which they respectively possessed before the adoption of the Constitution of the United States, and which they had not parted from by that instrument. And any legislation by Congress beyond the limits of the power delegated, would be trespassing upon the rights of the States or the people, and would not be the supreme law of the land, but null and void ; and it would be the duty of the courts to declare it so. For whether an act of Congress is within the limits of its delegated power or not is a judicial question, to be decided by the courts, the Constitution having, in express terms, declared that the judicial power shall extend to all cases arising under the Constitution. This power over legislative acts is not possessed by the English courts. They cannot declare an act of Parliament void, because in the opinion of the court it is inconsistent with the principles of Magna Charta or the Petition of Rights. They are bound to obey it and carry it into execution. Yet, in that country, the independence of the Judiciary is invariably respected and upheld by the King and the Parliament as well as by the courts ; and the courts are never required to pass judgment in a suit where they cannot carry it into execution, and where it is inoperative and of no value, vol. cxvn—45 706 APPENDIX. unless sanctioned by a future act of Parliament. The judicial power is carefully and effectually separated from the executive and legislative departments. The language of Blackstone upon this subject is plain and unequivocal. 1 Bl. Com. 268, 269. “ In this distinct and separate existence (says Blackstone) of the judicial power in a peculiar’ body of men, nominated indeed but not removable at pleasure by the crown, consists one main preservative of public liberty, which cannot subsist long in any State unless the administration of common justice be in some degree separated from the legislative and executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions and not by any fundamental principles of law, which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, the union might soon be an overbalance for the legislative. For which reason, by Stat. Car. I. c. 10, which abolished the Court of Star Chamber, effectual care is taken to remove all judicial power out of the hands of the King’s Privy Council, which it was then evident, from recent instances, might soon be inclined to pronounce that for law which was most agreeable to the Prince or his officers.” These cardinal principles of free government had not only been long established in England, but also in the United States from the time of their earliest colonization, and guided the American people in framing and adopting the present Constitution. And it is the duty of this Court to maintain it unimpaired as far as it may have the power. And while it executes firmly all the judicial powers entrusted to it, the Court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution. For the reasons above stated we are of opinion that this appeal cannot be sustained, and it is therefore Dismissed for want of jurisdiction* * The judgment of the Court dismissing Gordon v. United States for want of jurisdiction was announced March 9, 1865. On the 17th March, 1866, Congress passed an act repealing § 14 of the act of March 3, 1863, 14 Stat. 9, and giving an appeal to the Supreme Court from all judgments of the Court of Claims theretofore rendered of the character mentioned in the 5th section of that act, except in cases where the judgment hadbeen paid at the Treasury : the appeal to be taken within ninety days from the passage of the act. The court thereupon promulgated the rules found in 3 Wall, vn.-vin., and the first case decided under them was De Groot v. United States, 5 Wall. 419. APPENDIX. 707 IL THOMAS A. HENDRICKS. SUPREME COURT OF THE UNITED STATES, October Term, 1885. Monday, November 30, 1885. Mr. Attorney-General Garland addressed the court as follows : May it please the Court: Since the adjournment of this court on last Wednesday, the heart of the nation has been sorely touched by the death of the Vice-President, Thomas A. Hendricks. This is not a proper occasion to pronounce a eulogy upon the useful life and splendid character of Mr. Hendricks, but he has been so long conspicuous in the public service—has filled thoroughly and admirably so many places of high trust, including the second in rank in the gift of the people, and he has been a prominent member of this bar for so many years, I deem it becoming to request the court to lay aside its docket and pause before this sad event that now overshadows the whole country, and out of respect for the memory of this “ good and faithful servant,” to cease its labors until after the last funeral rites are performed on to-morrow; and I therefore suggest the court do now adjourn until Thursday next. The Chief Justice replied as follows : The court heartily concurs in your remarks, Mr. Attorney-General, and in the suggestion which you make. Justices Matthews and Blatchford are now on their way to represent the court at the funeral in Indianapolis to-morrow, and as a further mark of respect to the memory of the deceased, we will now adjourn until Thursday next, 708 APPENDIX III. AMENDMENT TO RULES. IN THE SUPREME COURT OF THE UNITED STATES. October Term, 1885. Ordered, That the following regulations be established under section 765 of the Revised Statutes : Rule 34. CUSTODY OF PRISONERS ON HABEAS CORPUS. 1. Pending an appeal from the final decision of any court or judge declining to grant the writ of habeas corpus, the custody of the prisoner shall not be disturbed. 2. Pending an appeal from the final decision of any court or judge discharging the writ after it has been issued, the prisoner shall be remanded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in custody of the court or judge, or be enlarged upon recognizance, as hereinafter provided. 3. Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. (Promulgated March 29, 1886: and, as amended, May 10, 1886.) INDEX. ACTION. See Bankruptcy, 1; Contract, 1; Constitutional Law, 8; Tax and Taxation, 1. AMENDMENT. See Equity Pleading ; Judgment, 1, 2, 3. ANCIENT DEED. See Evidence, 2, 3, 4, 7, 8. APPEAL. On the authority of Jerome v. McCarter, 21 Wall. 17, the court declines to increase the amount of the bond given on appeal in this case, or to require additional securities. Harwood n. Dieckerhoff, 200. ASSIGNMENT. See Insurance, 8. BANK. 1. A depositor in a bank, who sends his pass book to be written up and receives it back with entries of credits and debits and his paid checks as vouchers for the latter, is bound personally or by an authorized agent, and with due diligence to examine the pass book and vouchers, and to report to the bank, without unreasonable delay, any errors which may be discovered in them ; and if he fails to do so, and if the bank is thereby misled to its prejudice, he cannot afterwards dispute the correctness of the balance shown by the pass book. Leather Manufacturers' Bank v. Morgan, 96. 2. If a depositor in a bank delegates to a clerk the examination of his written up pass book and paid checks returned therewith as vouch INDEX. 710 ers, without proper supervision of the clerk’s conduct in the examination, he does not so discharge his duty to the bank as to protect himself from loss, if it turns out that without his knowledge the clerk committed forgery in raising the amounts of some of those checks, and thereby misled the bank to its prejudice, in spite of due care on the part of its officers, lb. 3. In this case it was held that the question whether the depositor exercised in regard to such examination the degree of care required of him in the circumstances disclosed by the evidence, including the relations of the parties, and the established usages of business, and the question whether the endorsement of a particular check was, under the evidence, an endorsement in blank or one for deposit to the credit of the depositor, were for the jury to determine, under proper instructions as to the law. Ib. BANKRUPTCY. 1. A discharge in bankruptcy is no bar to an action on a judgment, recovered against the bankrupt after the discharge in a suit against him founded on a contract, provable in the bankruptcy proceedings, which suit was commenced before the bankruptcy and was pending when the discharge was granted. Dimock n. Revere Copper Co., 559. 2. A discharge in bankruptcy does not release real estate of the bankrupt assigned to him as a homestead under the provisions of Rev. Stat. § 5045 from the lien of a mortgage created by him before the bankruptcy, to secure a debt against him which is not proved nor released under the provisions of Rev. Stat. § 5075. Long v. Ballard, 617. See Local Law, 2. CASES AFFIRMED OR APPROVED. 1. Ackley School District n. Hall, 113 U. S. 135, affirmed and applied. New Providence v. Halsey, 336. 2. Bernard Township v. Stebbins, 110 U. S. 341, affirmed and applied. Ib. 3. Bostwick v. Brinkerhoff, 106 U. S. 4, affirmed. Johnson v. Keith, 199. 4. Coe v. Errol, 116 U. S. 517, cited and applied. Turpin v. Burgess, 504. 5. The true rule for damages in this case is stated in Cook v. South Park Commissioners, 61 Ill. 116. Kerr v. South Park Commissioners, 379. 6. Elgin n. Marshall, 106 U. S. 578, affirmed.' Bruce n. Manchester & Keene Railroad, 514. 7. Gibson v. Bruce, 108 U. S. 561, affirmed and applied. Akers v. Akers, 197. 8. Jerome v. McCarter, 21 Wall. 17, affirmed and applied to this case. Harwood v. Dieclcerhoff, 200. 9. Louisiana v. Jumel, 107 U. S. 711, affirmed and applied. Ib. INDEX. 711 10. Machine Co. n. Murphy, 97 U. S. 120, affirmed and applied. Cantrel v.' Wallick, 689. 11. Marye v. Parsons, 114 U. S. 325, and Williams v. Hagood, 98 U. S. 72, affirmed. Hagood v. Southern, 52. 12. Mason v. Sargent, 104 U. S. 689, applied. Sturges v. United States, 363. 13. Mulligan v. Smith, 59 Cal. 206, approved and applied. Zeigler v. Hopkins, 683. 14. Pace v. Burgess, 92 U. S. 372, reaffirmed. Turpin v. Burgess, 504. 15. Pirie v. Tredt, 115 U. S. 41, affirmed and applied. Sloane v. Anderson, 275. 16. Stebbins v. Buncan, 108. U. S. 32, affirmed. Applegate v. Lexington Mining Co., 255. CASES DISTINGUISHED OR EXPLAINED. 1. Hough v. Bailway Company, 100 U. S. 213, explained. District of Columbia v. McElligott, 621. 2. Insurance Co. v. Wilkinson, 13 Wall. 222, and Insurance Co. v. Mahone, 21 Wall. 152, distinguished. New York Life Ins. Co. v. Fletcher, 519. 3. Wilson v. Boyce, 92 U. S. 320, distinguished. Alabama v. Montague, 602. 4. Winona & St. Peter Bailroad Co. v. Barney, 113 U. S. 618, explained. Barney v. Winona & St. Peter Bailroad Co., 228. CHAMPERTY. See Promissory Note, 3. CHEROKEE INDIANS. 1. By treaties with the Cherokees the United States have recognized them as a distinct political community, so far independent as to justify and require negotiations with them in that character. The Cherokee Trust Funds, 288. 2. The Cherokees in North Carolina dissolved their connection with the Cherokee Nation when they refused to accompany the body of it on its removal, and have had no separate political organization since; though fostered and encouraged, they have not been recognized by the United States as a nation, in whole .or in part; and as now organized, they are not the successor of any organization recognized by any treaty or law of the United States. Ib. 3. The claim of the Cherokees of North Carolina to a share of the commuted annuity fund of $214,000, and of the fund created by sales o( lands west of the Mississippi ceded to the Cherokee Nation, has no substantial foundation; those funds and that property being dedicated by the Constitution of the Cherokees and intended by their treaties with the United States for the benefit of the united nation, and T12 INDEX. not in any respect for those who had separated from it and become aliens to their nation. Ib. CIRCUIT COURTS OF THE UNITED STATES. See Jurisdiction, B. CITIZEN. See Domicil, 1, 2; Evidence, 1; Removal of Causes, 7. CLAIMS AGAINST THE UNITED STATES. See Partnership, 2 (1) (2). COMMON CARRIER. See Insurance, 2, 3. Railroad, 1, 2, 6. CONFEDERATE CURRENCY. See Money, 1, 2. CONFLICT OF LAW. See Removal of Causes, 14, 15. CONSOLIDATION OF CORPORATIONS. See Tax and Taxation, 2, 3. CONSTITUTIONAL LAW. A. Of the United States. 1. Section 6 of the Act of the Legislature of Tennessee, passed March 16, 1877, Laws of 1877, ch. 16, p. 26, which imposes a privilege tax of $50 per annum on every sleeping car or coach used or run over a railroad in Tennessee and not owned by the railroad on which it is run or used, is void so far as it applies to the inter-State transportation of passengers carried over railroads in Tennessee, into or out of or across that State, in sleeping cars owned by a corporation of Kentucky and leased by it for transportation purposes to Tennessee railroad corporations, the latter receiving the transit fare, and the former the compensation for the sleeping accommodations. Pickard v. Pullman . Southern Car Co. 34. 2. Thé case of Pickard v. Pullman Southern Car Co., (No. 1 above) confirmed and applied to a privilege tax of $75 a year, on each sleeping car, imposed by the act of Tennessee of April 7, 1881. Laws of 1881, ch. 149, p. 202. Tennessee v. PuUman Southern Car Co., 51. INDEX. M3 3. When a suit is brought in a court of the United States against officers of a State to enforce performance of a contract made by the State, and the controversy is as to the validity and obligation of the contract, and the only remedy sought is the performance of the contract by the State, and the nominal defendants have no personal interest in the subject matter of the suit, but defend only as representing the State, the State is the real party against whom the relief is sought, and the suit is substantially within the prohibition of the Xlth Amendment to the Constitution of the United States. Hagood v. Southern, 52. 4. The jurisdictional distinction pointed out between cases in which the relief sought is the performance of a plain official duty requiring no exercise of discretion, or where State officers under color of a State authority which is unconstitutional have invaded and violated personal and property rights; and cases like the present, in which the relief sought is affirmative official action by State officers in performing an obligation which attaches to the State in its political capacity. Ib. 5. Property of the United States is exempt by the Constitution of the United States from taxation under the authority of a State. Van Brocldin v. Tennessee, 151. 6. A crime punishable by imprisonment in a State prison or penitentiary, with or without hard labor, is an infamous crime, within the provision of the Fifth Amendment of the Constitution, 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.” Mackin v. United States, 348. 7. The exportation stamp required to be affixed to every package of tobacco intended for exportation, before its removal from the factory, again declared constitutional. Turpin v. Burgess, 504. 8. An excise laid on tobacco, before its removal from the factory, is not a duty on “exports,” or “on articles exported,” within the prohibition of the Constitution, even though the tobacco be intended for exportation. Ib. B. Of the States. 1. The requirement of the Constitution of Illinois that “no private or local law which may be passed by the general assembly shall embrace more than one subject, and that shall be expressed in the title,” is satisfied if the law has but one general object, and that object is expressed in the title and the body of the act is germane to the title. Mahomet v. Quackenbush, 508. 2. A statute of Illinois which is entitled “An Act to amend the articles of association of the Danville et cet. Railroad Company, and to extend the powers of and confer a charter upon the same,” and which, in the body of the act, authorizes incorporated townships along the route to subscribe to its capital stock on an assenting vote of a majority of the legal voters, and further legalizes assents of voters of certain townships given at meetings field previous to the passage of the act, com INDEX. 714 plies with the requirement of the Constitution of that State that “no private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title.” Lb. CONTRACT. 1. D, a dealer in ice, finding himself late in the season of 1879 in possession of a large quantity, which threatened to become a total loss, pressed O, another dealer, to buy a part of it. O declined to purchase, but offered to take a cargo and “return the same to you next year from oUr houses.” D accepted O’s offer, and delivered the cargo of ice to him that season. Early in July of the season of 1880 D verbally requested O to deliver the ice. On the 7th of July O wrote to D : “It is not just or equitable for you to expect us to give you ice now worth $5 per ton when we have letters of yours offering the ice that we got at fifty cents per ton. We must therefore decline to ship the ice for you this season, and claim as our right to pay you for the ice in cash at the price you offered it to other parties here, or give you ice when the market reaches that point.” D answered by letter, dated July 10th, that he had sold the ice in advance in expectation of its delivery to him, and it did not seem to him right that O should ask for a postponement in the delivery. To this O answered on the 15th of July by letter, in which, after restating facts which made the demand in his opinion inequitable, he said : “We cannot therefore comply with your request to deliver the ice claimed, and respectfully submit that you ought not to ask this of us in view of the facts stated herein and in ours of the 7th.” “We will be glad to hear from you in reply, but will be more pleased to have a personal interview, and venture to suggest that you come here for the purpose.” No reply was made to this suggestion, either personally or by letter, and this suit was commenced six days later. Held, (1) That the contract gave O the option, during the whole shipping season of 1880, of delivering ice to D in return for the cargo received in 1879, he giving D reasonable notice of the time of delivery when fixed, and an opportunity to prepare for receiving and taking it away from O s houses. (2) That O’s answers of the 7th and 15th July were not intended by him to be, and were not a final refusal to perform the contract on his part; and that at the time of the commencement of the action there had been no breach of the contract; and therefore, (3) That it was unnecessary to discuss or decide whether an absolute refusal by O, in the middle of the shipping season of 1880, to perform his contract at all would have conferred upon D a right of action for a breach before the expiration of the contract period for performance. Dingley n. Oler, 490. 2. When a contract is open to two constructions, the one lawful and the other unlawful, the former must be adopted. Hobbs v. McLean, 567. INDEX. 715 8. O & H, partners, contracted with the District of Columbia to put down a water main. They notified the agent of the District that they authorized C to perform the work and receive the money, and the agent accepted the arrangement. C performed the work, and receipted from time to time for payments on the contract. On a suit in his own name for extra work: Held, That he was bound by the terms of the contract in that respect, and by receipts given in accordance therewith. Campbell v. District of Columbia., 615. See Insurance, 3, 4; Partnership, 1, 2; Municipal Bond, 1, 2; Railroad, 3, 4. CORPORATION. See Tax and Taxation, 2, 3. COSTS. 1. In order to avail to stop costs, an offer to submit to entry of judgment should be made in open court, and the court be asked to act thereon, after due notice to the other party. New Providence v. Halsey, 336. 2. Each one of the two principal appellants having succeeded in part on his appeal, no costs were allowed in this court for or against any party, and the expense of printing the record was charged equally on such two appellants. Union Trust Co. v. Illinois Midland Railway, 434. See Partnership, 2, (6); Patent for Invention, 6. Trust, 2, 3. COURT AND JURY. When, after giving a party the benefit of every inference that can fairly be drawn from all the evidence, it is insufficient to authorize a verdict in his favor, it is proper for the court to give the jury a peremptory instruction for the other party. Marshall v. Hubbard, 415, See Domicil, 2. COURT OF CLAIMS. See Union Pacific Railway Company, 1; Appendix, 697. CUSTOMS DUTIES. Under § 2504, Schedule M, of the Revised Statutes, p. 480, 2d ed., “Henry’s Calcined Magnesia,” imported in glass bottles, is liable to a duty of 50 per cent, ad valorem, as being a medicinal preparation, 716 INDEX. recommended to the public as a proprietary medicine, and not to a duty of 12 cents per pound, as calcined magnesia, under the same section and schedule, p. 477. Ferguson n. Arthur, 482. DAMAGES. See Cases Affirmed or Approved, 5; Evidence, 6. DECEIT. In order to recover for injuries caused by false representations, through which plaintiff was induced to perform an act and was injured thereby, it is necessary to establish the making of the false representations by defendant ; that he knew them to be false and uttered them with intent to deceive plaintiff and to induce him to act upon them ; and that plaintiff relied upon them and acted, and suffered injury thereby. Marshall v. Hubbard, 415. DEED. By an act of the Legislature of Alabama the State loaned its credit to the Alabama & Chattanooga Railroad Company, upon condition that the company should first give to the State “a first mortgage upon the lands granted by the United States to said Railroad Company ” and a first mortgage “on the telegraph line and telegraph offices along the line of said road belonging to said company ; also on the machine shops and all other property in the State and in Georgia, Tennessee and Mississippi belonging to said company ; also on all coal mines now opened or hereafter to be opened and worked, belonging to said company; also upon all iron or other mineral lands, and all iron-manufacturing establishments now in operation and hereafter to be constructed.” The company made a mortgage to the State in which the words of description were identical with the language of the statute. In a suit in equity brought to foreclose the mortgage, as covering some town lots in Tennessee not granted by the United States to the company, and not coming within either of the specified classes : Held, (1) That the words of description in the mortgage did not cover the lots. (2) That the words “ or other property ” were intended to cover property of the company in and about the telegraph offices, machine shops, coal mines, iron mines and manufacturing establishments, about which a doubt might otherwise arise whether it was part of those classes of property. Alabama v. Montague, 602, 611. See Evidence, 2, 3, 4. DEPOSITOR. See Bank, 1, 2, 3. INDEX. 717 DESCRIPTION. See Deed. DILIGENCE. See Negligence. DISTRICT OF COLUMBIA. Whether the District of Columbia is, in every case, exempt from liability for the negligence of its supervisor of roads, resulting in personal injury to those who labor under his direction on public work, is not decided. District of Columbia v. McEUigott, 621. Bee Contract, 3. Judgment, 3 ; Negligence. DOMICIL. 1. A citizen of one State who in good faith gives up his residence there, goes to another State, and takes up a permanent residence therein, loses his former citizenship and acquires citizenship in the new place of domicil. Chicago & N. W. Railway v. Ohls, 123. 2. On the facts in this case the court properly left it to the jury, and by proper instructions, to decide whether the defendant in error had acquired a citizenship in Illinois, and if so when that citizenship was acquired, lb. See Evidence, 1. EJECTMENT. See Evidence, 7, 8 ; Jurisdiction, B, 3; EMINENT DOMAIN. See Evidence, 6. EQUITY. 1. A jury being empanelled on the law side of the court below to settle an issue sent from the chancery side, rendered a verdict which was certified by the clerk to the chancery side, and thereupon a decree was entered in conformity with it. At the next succeeding term the court ordered a transcript of the evidence on the trial of the issue, together with the charge of the court, to be filed on the chancery side. Held, that this order nunc pro tunc was proper in order to prevent 718 INDEX. in justice, and was within the power of the court. Kerr v. South Park Commissioners, 879. 2. A verdict on an issue from chancery was taken on the law side of the court, and was subsequently set aside there, and a new trial ordered there, which was had with a second verdict on the same issue. This second verdict was certified to the chancery side of the court, and a decree was made there founded upon it, in which the setting aside of the first verdict was recited. Held, That this was an approval, adoption, and confirmation of the acts of the law side of the court recited in the decree. Ib, See Judgment, 2. EQUITY PLEADING. After hearing of the proofs, a bill in equity may be amended so as to put in issue matters in dispute and in proof, but not sufficiently put in issue by the original bill.. Graffam v. Burgess, 181. ESTOPPEL. A statute of California authorized the opening of a street in San Francisco, to be known as Montgomery Avenue, the cost and expenses to be assessed on certain specified lots in proportion to the benefits accruing therefrom; and provided that when a majority in frontage of the owners of these benefited lots should petition certain officials for the opening, those officials should organize into a board and proceed to open it and to apportion the cost in the manner pointed out by the statute. A petition being presented to the designated officials, they organized, and certified that the petition had been subscribed by the owners of the requisite amount of frontage, and proceeded to lay out the street and apportion, the costs and expenses among those benefited in the manner provided by the statute. They reported their action to the county court as required by the statute, and the report was confirmed by the court. A tax was thereupon levied in the ordinary way in 1878-9 to meet the portion of the costs and expenses payable that year by the terms of the statute. H, an owner of a lot thus assessed and levied on, declining to pay,’ the land was seized and sold for the default to Z, who thereupon brought ejectment to recover possession. Held, That on the trial of this action H was not estopped by the acceptance of the petition by the officials and their certificate upon it, or by the judgment of the county court confirming their report, from showing that the petition for the opening was not signed by the owners of the requisite amount of frontage. Zeigler v. Hop* kins, 683. See Municipal Bond, 2, 3; Partnership, 2 (5). INDEX. 719 EVIDENCE. 1. An affidavit made by an officer of a railway company on information and belief as to the citizenship of the plaintiff, in a suit in a State court against the company, and filed therein for the purpose of requiring security for costs, is admissible against the company in an issue made in the Circuit Court of the United States after removal of the cause there, on the motion of the plaintiff to have it remanded. Chicago & Northwestern Railway n. Ohle, 123. 2. When an ancient deed forms part of the original papers in a suit in a court of record to determine the title to land to which the deed relates, the record of the case is admissible against the persons who are not parties or privies to the suit in order to prove the antiquity of the deed and to account for its custody. Applegate v. Lexington Mining Co., 255. 3. An ancient, uncontradicted, and apparently genuine certificate of a recorder that a deed was recorded in a specified year long gone by, endorsed upon the original deed, is competent and sufficient evidence that the deed was put on record in the year named. Ib. 4. When it appears that a deed is at least thirty years old, and that it is found in proper custody, and possession under it or other equivalent corroborative proof of authenticity is shown, the deed may be admitted in evidence. Ib. 5. When a court of general jurisdiction, empowered by statute to acquire by constructive notice jurisdiction over rights of non-resident defendants in property within its jurisdiction, takes jurisdiction of a cause involving such rights, after ordering service of notice upon an absent defendant in the manner required by the statute and after the lapse of the requisite time of service, and adjudges the case, it will be presumed that every step necessary to obtain jurisdiction has been taken, unless the statute requires evidence of it to appear on the record. Ib. 6. Plaintiff’s land was taken for a public park by right of eminent domain. On a trial before a jury to determine its value on the day when the Park Commissioners took possession of it, plaintiff offered to show the prices at which sales had been made of lands immediately adjoining the proposed park, which derived special benefit from its location, which sales were made after the exterior lines of the park had been determined. Held, That it was inadmissible. Kerr v. South Park Commissioners, 379. 7. In ejectment, after proving a patent of the premises from the State of Virginia to S. Y. in 1787, the plaintiff offered in evidence a duly recorded deed from S. C. Y., his son and sole heir, to J. H., dated in 1819, proved the hand-writing of the magistrate who took the acknowledgment of it and the signature of a witness who had been dead over fifty years, and showed that the patent and deed were found among the papers of J. H, after his death in 1834. Held, That the deed was 720 INDEX. admissible in evidence as an ancient document without further proof. Fulkerson v. Holmes, 389. 8. An ancient deed reciting the death, intestate, of a former owner of lands conveyed by it, and that the grantor in the deed was his only son and heir, in whom title to the lands vested on his death, and conveying the lands to a person under whom the plaintiff in an action of ejectment claimed, is admissible in evidence at the trial of that action after the lapse of over sixty years, in order to prove the pedigree of the son. Ib. 9. A territorial court is bound to take judicial notice of the statutes of the Territory in operation affecting a subject brought before it in the regular course of procedure. Hoyt v. Russell, 401. 10. On May 8, 1873, the Legislature of Montana enacted that any person who should thereafter discover a mining claim should file in the office of the recorder of the county a statement in some material respects different from the statement previously required by law to be filed in such case, and that the act should take effect on and after its passage. On that date a statute was in force there which provided that “all acts of the legislature declaring that they should take effect from and after their passage shall so take effect only at the seat of government and in other portions of the Territory, allowing fifteen miles from the seat of government for each day.” On the 13th of May, 1873, at a place in the Territory in which the act of May 8, 1873, had not come into force, H & G discovered a lode, and located it, and subsequently filed a notice of location complying in all respects with the law as it was before the passage of the act of May 8, 1873, but not complying with the requirements of that act. R, who had made a conflicting location, filed an adverse claim under Rev. Stat. § 2326. On the trial, the court refused to receive proof of the location by H & G, because they did not also prove affirmatively that the act of May 8 had not taken effect at the lode at the time of the location, by reason of its distance from the seat of government. Held, That the court should have taken judicial notice of the fact that that statute was not then in force there, and that it was error to exclude the evidence for the want of such proof. Lb. 11. In a suit brought by an assignee of a policy of life insurance, obtained on the application of the assured at the instigation of the assignee, to recover of the insurers after the death of the assured, the defendants set up that it was plaintiff’s purpose, in procuring the insurance to be obtained, to cheat and defraud defendants, and offered to show that he effected insurances upon the life of the assured in other companies at or about the same time for the like fraudulent purpose. Held, That the evidence was admissible. New York Mutual Life Ins. Co. v. Armstrong, 591. See Mortgage, 3; Promissory Note, .1,• INDEX. T21 EXCEPTION. The record recited the substance and effect of plaintiffs’ evidence, a motion for nonsuit by defendant on the ground that there was no case in law for the jury, that the motion was granted and judgment ordered to be entered in favor of defendant, and that the plaintiffs then and there excepted to this ruling of the court. Held, That the exceptions applied to the whole facts in the record to which the ruling of law that was excepted to applied. Kleinschmidt v. McAndrews, 282. EXECUTION. See Fraud, 3, 4. EXPRESS COMPANIES. See Railroad, 1, 2. FLORIDA INTERNAL IMPROVEMENT FUND. On the facts: Held, That the bonds in controversy should be surrendered to the Trustees of the Internal Improvement Fund of the State of Florida, and should be applied by them in accordance with the prayer of their answer. Littlefield v. Trustees of Internal Improvement Fund of Florida, 419. FRANCHISE. See Tax and Taxation, 9. • FRAUD. 1. A judicial sale of real estate will not be set aside for inadequacy of price, unless the inadequacy be so great as to shock the conscience, or unless there be additional circumstances against its fairness. Graffam v. Burgess, 180. 2. Great inadequacy of price at a judicial sale of real estate requires only slight circumstances of unfairness in the conduct of the party benefited by the sale, to raise a presumption of fraud. Ib. 3. If the inadequacy of price paid for the purchase of real estate at a sale on an execution be so gross as to shock the conscience, or if in addition to gross inadequacy the purchaser has been guilty of unfairness or has taken any undue advantage, or if the owner of the property or the party interested in it has been for any other reason misled or surprised, then the sale will be regarded as fraudulent and void, and the party injured will be permitted to redeem the property sold. Tb. 4. Looking at the whole facts in this case the court finds traces of design on the part of plaintiff in error to mislead defendant in error, to lull vol. cxvn—46 722 INDEX. her into security, and thus prevent her from redeeming her property sold on execution within the period allowed by the statute of the State; and the court sustains the action of the court below in making a decree allowing redemption of the same after the expiration of that period. Ib. See Sale; Trust, 1. HABEAS CORPUS. 1. When a person is in custody, under process from a State court of original jurisdiction, for an alleged offence against the laws of such State, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the Circuit Court of the United States has a discretion whether it will discharge him in advance of his trial in the court in which he is indicted, but this discretion should be subordinated to any special circumstances requiring immediate action. After conviction of the accused in the State court, the Circuit Court has still a discretion whether he shall be put to his writ of error to the highest court of the State, or whether it will proceed by writ of habeas corpus summarily to determine whether he is restrained of his liberty in violation of the Constitution of the United States. Ex parte Royall, 241. 2. The petitioner prayed for a writ of habeas corpus on the ground that the State statute under which he was arrested and held in custody was repugnant to the Constitution of the United States: Held, That, without deciding whether the court has power under existing legislation, and on habeas corpus, to discharge a prisoner held in custody under process of a State court of original jurisdiction for trial on an indictment charging him with an offence against the laws of that State, such power ought not, for reasons given in Ex parte Royall, ante, 241, to be exercised in advance of his trial. Ex parte Royall, 254. 3. A petition for a writ of habeas corpus alleged that the petitioner had been convicted in a Circuit Court of the State of Michigan of embezzling the funds of a National Bank, and set forth various reasons why the conviction should be held to be in contravention of the Constitution and laws of the United States, but showed no reason why the Supreme Court of the State might not review the judgment, or why it should not be permitted to do so without interference by the courts of the United States. Held, That leave to file the petition should be denied. Ex parte Fonda, 516. See Jurisdiction, B, 4. HENDRICKS, THOMAS A. See Appendix, 707. INDEX. 723 HUSBAND AND WIFE. See Insurance, 4. INFAMOUS CRIME. See Constitutional Law, A, 6. INSOLVENT LAWS. A State insolvent statute, passed at a time when an act of Congress establishing a uniform system of bankruptcy is in force, is inoperative, so far as in conflict with that act, while the act is in force ; but on its repeal, the State statute becomes operative. Tua v. Carriere, 201. See Local Law, 2. INSURANCE. 1. The right, by way of subrogation, of an insurer, upon paying for a total loss of the goods insured, to recover over against third persons, is only that right which the assured has. Phoenix Ins. Co. v. Erie & Western Transportation Co. 312. 2. A common carrier may lawfully obtain insurance on the goods carried against loss by the usual perils, though occasioned by the negligence of his own servants. Ib. 3. In a bill of lading, which provides that the carrier shall not be liable for loss or damage of the goods by fire, collision, or dangers of navigation, a further provision that the carrier, when liable for the loss, shall have the full benefit of any insurance that may have been effected upon the goods, is valid, as between the carrier and the shipper ; and therefore, in the absence of any misrepresentation or intentional concealment by the shipper in obtaining insurance upon the goods, or of any express stipulation on the subject in the policy, limits the right, by way of subrogation, of the insurer, upon paying to the shipper the amount of a loss by stranding, occasioned by the negligence of the carrier’s servants, to recover over against the carrier. Ib. 4. A policy of insurance, made to a wife on the life of her husband, contained this clause : “This policy of insurance, after two annual premiums shall have been paid thereon, shall not be forfeited or become void by reason of the non-payment of premiums ; but the party insured shall be entitled to have it continued in force for a period to be determined as follows, to wit : The net value of the policy when the premium becomes due and is not paid shall be ascertained according to the combined experience or actuaries’ rate of mortality, with interest at four per cent, per annum. Four fifths of such net value shall be considered as a net single premium of temporary insurance, and the term for which it will insure shall be determined ac 724 INDEX. cording to the age of the party at the time of the lapse of premium, and the assumption of mortality and interest aforesaid ; or at his option may receive a paid up policy for the full amount of premium paid : Provided, That unless this policy shall be surrendered and such paid up policy shall be applied for within ninety days after such nonpayment of premium as aforesaid then this policy shall be void and of no effect.” Held, that the words “paid up policy,” in the proviso, included an insurance for the amount of the original policy for a time computed according to its net value at the time of the failure to pay a premium, as wrell as an insurance for the term of the original policy for an amount computed according to the premiums paid ; and that the wife was not entitled to have the policy continued or renewed in either form without surrendering it and applying for a new policy within ninety days after the nonpayment of a premium. Held, also, that the rights of the parties were not affected by the husband having procured a cancellation of the original policy by fraudulently representing that the wife was dead. Kiwpp v. Homeopathic Life Ins. Co. 411. 5. A person applied in St. Louis to an agent of a New York Insurance Company for insurance on his life. The agent under general instructions, questioned him on subjects material to the risk. He made .answers which, if correctly written down, and transmitted to the company, would have probably caused it to decline the risk. The agent, without the knowledge of the applicant, wrote down false answers concealing the truth, "which were signed by the applicant without reading, and by the agent transmitted to the company, and the company thereupon assumed the risk. It was conditioned in the policy that the answers were part of it, and that no statement to the agent not thus transmitted should be binding on his principal ; and a copy of the answers w’ith these conditions conspicuously printed upon it, accompanied the policy. Held: That the policy was void. New York Life Ins. Co. v. Fletcher, 519. 6. If an applicant for life insurance is required to answer questions relating to material facts in writing, and to subscribe his name thereto as part of the application upon which the policy is issued, it is his duty to read the answers before signing them, and it will be presumed that he did read them. Ib. 7. If a policy for life insurance on which premiums have been paid is void by reason of untrue representations as to material facts in the application, made without design on the part of the applicant, the only recovery which’ can be had on the policy after the assured’s death is for the premiums paid on it. Ib. 8. A policy of life insurance payable to the assured or his assigns at a future day named, or if he should die before that day to his legal representatives within sixty days after notice and proof of his death, is assignable if the assignment is not made to cover a speculative risk ; and an assignment of it passes to the assignee the right to receive the INDEX. 725 sum insured in case of the death of the assured before the day named. N. Y. Hut. Life Ins. Co. v. Armstrong, 591. 9. Proof that the assignee of a policy of life insurance caused the death of the assured by felonious means is sufficient to defeat a recovery on the policy. Ib. See Evidence, 11; Mortgage, 1. INTERNAL REVENUE. 1. The pleadings in a suit inr^n brought by the United States, in a Circuit Court of the United States in Kentucky, for the forfeiture of property after its seizure for the violation of the internal revenue laws, are not required by section 914 of the Revised Statutes, to be governed by the statute of Kentucky in regard to pleadings in civil actions ; but are to be, as before the enactment of section 914, according to the course of admiralty. Coffey v. United States, 233. 2. A testator died July 17, 1870, leaving by his will a legacy to his sou payable “within three months after he shall arrive at the age of 21 years.” The legatee arrived at the age of 21 on the 21st day of February, 1872. Held, That the legacy was not subject to a legacy tax. Sturges v. United States, 363. See Constitutional Law, A, 7, 8. JUDGMENT. 1. Final judgments at law cannot, by proceedings taken after the close of the term at which they were entered, be reversed or annulled for errors of fact or law by the court which rendered them; except that clerical mistakes, and such mistakes of fact not put in issue or passed upon as may be corrected by writ of error coram wbis (or on motion in place of that writ where such practice prevails) and a mistake in the dismissal of a cause may be corrected after that time: the same rule applies in equity, excepting, further, the right to take jurisdiction of bills for review. Phillips v. Negley, 665. 2. The appropriate remedy to set aside or enjoin the execution of judgments at law, wrongfully obtained, is by bill in equity. Ib. 3. So far as the rule prevails in Maryland that judgments may, at a term subsequent to that at which they were entered, be amended in essential matters, reversed, or annulled by the court which rendered them, that rule, whether founded on a construction of the Maryland statute of 1787 by the highest court of the State, or on an interpretation of the common law, is not binding on the courts of the United States in the District of Columbia. Ib. JUDICIAL NOTICE. See Evidence, 9, 10. 726 INDEX. JURISDICTION. A. Jurisdiction of the Supreme Court. 1. A judgment of reversal in a State court, accompanied by an order remanding rhe cause for a retrial, is not a final judgment for the purpose of a writ of error to this court. Johnson v. Keith, 199. 3. Inadvertent expressions in an opinion of the court, which are not material to the decision of the case, are not decisions of the court within the general rule that what is decided in a case on appeal is not open to reconsideration in the same case on a second appeal on similar facts. Barney v. Winona & St.-Peter Railway, 228. 3. If the trial below is by the court without a jury, and the findings of facts are general, only such rulings of the court in the progress of the trial can be reviewed as are presented by a bill of exceptions. Boardman v. Toffey, 271. 4. The matter in dispute on which the jurisdiction of this court depends, is the matter which is directly in dispute in the particular cause in which the judgment or decree sought to be reviewed has been rendered ; and the court is not permitted, for the purpose of determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties. Bruce v. Manchester & Keene Railroad, 514. 5. The fact being found that the property in dispute is worth $5000, this court, on motion to dismiss, disregards affidavits that it is worth less, although, taken by themselves, the affidavits show that it may be worth less than that sum. Zeigler v. Hopkins, 683. See Appendix, 697; Removal of Causes, 13. B. Jurisdiction of Circuit Courts of the United States. 1. A Circuit Court of the United States having, by removal from a State court by reason of citizenship of the parties, properly acquired jurisdiction of an action against a tenant for the possession of land, is not ousted of it by admitting as codefendant, under the provisions of a State statute, his landlord, a citizen of the same State as the plaintiff. Phelps n. Oaks, 236. 2. Section 914 of the Revised Statutes, which requires the forms and modes of proceeding in civil causes other than equity and admiralty causes in Circuit and District Courts to conform, as near as may be, to the forms and modes of proceeding existing at the time in like causes in the courts of record in the State within which the Circuit or District Courts are held, does not require the courts of the United States, by adopting the forms and modes of the State courts, to divest themselves of a jurisdiction once lawfully acquired under an act of Congress. Ib. 3. In ejectment against a tenant in possession of real estate whose landlord is a citizen of another State, the plaintiff has “ a real and substantial controversy ” with the defendant within the meaning of the act for INDEX. 727 removal of causes from State courts, which continues after his landlord is summoned in and becomes a party for the purpose of protecting his own interests. Ib. 4. Circuit Courts of the United States have jurisdiction on habeas corpus to discharge from custody a person who is restrained of his liberty in violation of the Constitution of the United States, but who, at the time, is held under State process for trial on an indictment charging him with an offence against the laws of the State. Ex parte Royall, 241. 5. In an action at law in a Circuit Court of the United States against a township to recover on bonds issued by the township, the plaintiff is not entitled to recover on bonds transferred to him by citizens of the State in which the town is situated for the mere purpose of being sued in a court of the United States. New Providence n. Halsey, 336. See Habeas Corpus ; Removal of Causes. C. Generally. See Evidence, 5. LATENT AMBIGUITY. See Will, 1, 3. LAW AND EQUITY. See Equity, 1, 2. LEGACY TAX. See Internal Revenue, 2. LIFE INSURANCE. See Insurance, 4, 5, 6, 7, 8, 9. LOCAL LAW. 1. In Louisiana, on the death of one of several members of a firm, the survivors may surrender their own undivided interests in the assets of the firm for the benefit of the creditors of the firm, but cannot surrender the interest of the deceased partner for that purpose; but, when such surviving members make such a surrender, purporting to include both their own interest therein and the interest of the deceased partner, and it is accepted by the court and acted upon in the manner provided by the law of the State, the action of the court therein is a judicial act, which cannot be attacked collaterally by an attaching creditor of the firm, interested in setting aside the proceedings for the purpose of retaining the lien of his attachment. Tua v. Carriere, 201. 728 INDEX. 2. The insolvent laws of Louisiana were in force before and when the uniform Bankrupt Act of 1867 was enacted by Congress, and revived when that act was repealed. Ib. 3. The act of the Legislature of Kentucky, of December 19, 1795, “to establish District Courts in this Commonwealth,” conferred upon such a court jurisdiction over suits to foreclose mortgages upon real estate situated within its territorial jurisdiction. Applegate v. Lexington Mining Co., 255. 4. An exception to a decision of the court on a motion for a nonsuit, ordering the same on the ground that the plaintiff had made no case for the jury, is an exception within the meaning of § 279 of the Montana Code of Civil Procedure. Kleinschmidt v. McAndrews, 282. 5. Possession of land in Montana under claim of title for more than three years prior to August 1, 1877, perfected title as against adverse claimants. Dunphy v. Sullivan, 346. See Constitutional Law, B, 1, 2 ; Judgment, 3 ; Sale. MASTER AND SERVANT. Whether a supervisor of public roads and a laborer employed under him on the roads are fellow servants, within the meaning of the general rule that the common employer is not responsible to one employé for injuries caused by the negligence of a coemployé in the same branch of service, is not decided. District of Columbia v. McElligott, 621. MONEY. 1. Payment in good faith at its maturity in Virginia in confederate currency of a debt contracted there in 1860 to be paid there in 1862, and the receipt and, acceptance of the same by the creditor, discharged the debt. Glasgow v. Lapse, 327. 2. In 1860 two brothers, executors of the will of their father, who had resided in Virginia, and had died there, contracted in that State to convey, under a power in the will, real estate of the testator on the payment, among other things, of a bond then executed by the purchaser for the payment of a sum of money in 1862. One of the executors resided in Indiana, and continued to reside there during and after the close of the war. The other executor remained in Virginia, and in 1862 at the request of legatees entitled to share in the distribution of the estate received payment of the bond in confederate money, and his accounts as executor, showing the receipt of that money, were duly settled and allowed by the court in 1864. In a suit commenced by the surviving executor against thq executor of the obligor on the bond to recover payment of the bond, Held : That "the ■ payment to the resident executor in confederate currency was a valid payment. Ib. INDEX. T29 MORTGAGE. 1. A father owning in fee an equal undivided one-third part of a lot of land, and having a life tenancy in the other equal undivided two-third parts, and his two daughters each owning in fee an equal undivided one-third part, subject to such life tenancy, the three executed a mortgage on the lot, for a loan of $30,000, in which the mortgagors agreed to keep the building on the lot insured against fire, in its fair insurable value, and assign the policy to the mortgagee, to be held by him “as collateral and additional security,” with the right to collect the insurance money and apply it on the mortgage. On a partition of the lot between the father and the daughters, they paid $10,000 to the mortgagee, on the principal, and he released from the mortgage the part belonging to the father. The father, with the money loaned, had erected a building on the part of the lot allotted to the daughters, and he thereafter collected for his own use the rents, and paid the interest on the mortgage, and the taxes, and the fire insurance premiums. The building, being insured for $15,000 by a policy in the name of the father, the loss being made payable to the mortgagee, was destroyed by fire. The loss being more than that sum, the mortgagee received a draft for $15,000 on the insurance company, drawn by its agent, to the order of the mortgagee, and agreed in writing with the father, by an instrument which stated that the mortgagee held the policy as collateral security for the payment of the loan, that the right to apply the $15,000 on the debt was waived, and that the money should be deposited in a bank to be selected by the father, to his credit and at his risk, to be used in erecting a building on the lot, the money to be paid out on the father’s checks, countersigned by the mortgagee, within six months, or the waiver to be of no effect, and the mortgagee to have the right to apply the money on the debt. Thereupon the mortagee endorsed the draft to the order of the father, he designating as the bank of deposit a bank of which he was president, and taking the draft and collecting it, and depositing the money to his credit in the bank. The mortgagee countersigned no checks against the money, and no building was put up. The daughters had no knowledge of the transaction. In a suit to foreclose the mortgage, the daughters claimed that the $15,000 should be credited on the mortgage, as against them. Held, (1.) Authority in the father, as representing his daughters, to make the agreement as to the $15,000, could not be implied from the general power he exercised over the property, in managing it, and procuring insurance and paying taxes, the daughters having themselves executed the mortgage; (2.) The insurance was obtained in pursuance of the requirements of the mortgage, and must be presumed to have covered the interests of all the mortgagors, as an entirety; 730 INDEX. (3.) The mortgagee in fact dealt with the $15,000, not as che father’s money, but as representing a further security furnished under the mortgage, and as something which concerned the rights of all the mortgagors, because the agreement with the father recognized the obligation either to credit the money on the mortgage or to see that it went to restore the building; (4.) The provision of the policy, that the loss should be payable to the mortgagee, placed him in the same position as if the policy had been in the name of all the mortgagors and been assigned to the mortgagee, and he was bound to apply the money in accordance with the provisions of the mortgage, for the benefit of all the mortgagors, unless all consented to a different disposition of the money; (5.) In any view, if the agreement with the father was valid, as against the daughters, the mortgagee was bound to see that the money was used to restore the building, or else credit it on the mortgage; (6.) That the transaction amounted to a collection of the $15,000 by the mortgagee, and as a satisfaction of the mortgage to that extent, as respected the estate of the daughters, leaving the mortgage a lien for $20,000, as regarded the life estate of the father. Connecticut Mut. Life Ins. Co. v. Scammon, 634. 2. It is proper to sell the estate in remainder and the life estate separately, and to apply the proceeds of the latter first to satisfy the amount for which it is the sole security, not applying any of such proceeds to pay costs, or taxes, or any part of the debt for which there is other security, till the full payment of the sum for which the life estate is the sole security. Ib. 3. L made and delivered to W his promissory note for $1300 payable in ninety days, and a deed of a tract of land absolute on its face. It was orally agreed between them that the deed was executed as security for the payment of the note, and that, if the note was not paid at maturity, W was authorized to sell the land. The note not being paid at maturity W, with the knowledge and assent of L, sold and conveyed the land to T and applied the proceeds to the payment of the debt. After the completion of the contract and execution of the deed, but before its delivery to T, a creditor of L who had recovered judgment against him, levied on this tract of land to satisfy the judgment, and caused it to be sold. The purchaser at the sheriff’s sale after receiving his deed, filed a bill in equity against the heirs and devisees of T, praying to be admitted to redeem the land on payment of the note. Held: (1) That the transaction was in equity a mortgage : (2) That parol evidence was admissible to show when the power of sale in the mortgage became absolute: (3) That W had an absolute power of sale when the conveyance was made to T, the exe INDEX. 731 cution of which carried the land free from the mortgage. Jackson y. Lawrence, 679. See Deed ; Trust, 1. MUNICIPAL BOND. 1. A municipal bond m the ordinary form is a promissory note negotiable by the law merchant within the meaning of that term in the act of March 3, 1875. New Providence v. Halsey, 336. 2. The issue of township bonds by commissioners under the act of the legislature of New Jersey of April 9, 1868, “to authorize certain towns in the counties of Somerset, Morris, Essex and Union to issue bonds and take stock in the Passaic Valley and Peapack Railroad Company,” was conclusive as to the amount that could be put out under the statute and estopped the township from setting up against a bona fide holder that the issue was in excess of the amount authorized. Ib. 3. A statute of Kentucky authorized a county court to subscribe to such an amount as it might determine in the stock of a railroad company, and to levy the taxes necessary to pay for the stock so subscribed, or to issue bonds of the county for the amount, the bonds to be in such sums and payable at such times as the county court might determine; but provided that a proposition to subscribe for stock to an amount to be suggested and fixed by commissioners named in the statute should be first submitted to the voters of the county, and approved by a majority of the votes cast. The county court, upon the suggestion of those commissioners, submitted to the voters a proposition to subscribe for $250,000 of the stock, and, in obedience to their vote, ordered that the county court subscribe that amount, and that bonds to that amount, for sums and payable at times specified in the order, with the signatures of the presiding judge and the clerk of the county court and the seal of the county, should be sold or disposed of by a committee appointed for the purpose, and a list of them entered upon the records of the county. The presiding judge and clerk issued such bonds for a greater amount, so signed and sealed, and with a certificate on the back of each, signed by the judge only, that it was issued as authorized by the statute and by an order of the county court in pursuance thereof. All the bonds as they were delivered were entered upon the records of the county court, in a register open to public inspection." Held, That the county court had power to issue bonds to the amount of $250,000 only; that the bonds issued in excess of that amount were unlawful and void, even as against a purchaser before maturity, for value, and without notice of the over-issue; that the bonds to that amount, which were first delivered,.were the valid ones, and that the county was not estopped to deny the validity of the others, either by the certificate endorsed thereon by the judge, T32 INDEX. or by payment of interest on all the bonds. Daviess County v. Dickinson, 657. See Constitutional Law, B, 2; Jurisdiction, B, 5. MUNICIPAL CORPORATION. See Estoppel. NEGLIGENCE. A supervisor of county roads in the District of Columbia was repairing them with a force of laborers, one of whom was at work on a bank of gravel. There was evidence tending to show that he discovered that the bank was in an unsafe condition, and asked the supervisor for a man to watch it, and received assurance that such assistance would be given; and that it was not given. The laborer continued to work there for half a day, when the bank fell upon, and seriously injured him. He brought suit against the District to recover damages for the injury. On the trial it was not alleged nor proved that the supervisor was incompetent. The court, after instructing the jury that the negligence of the supervisor was one of the risks which the laborer took upon himself, and that the District was not liable Unless he was incompetent, and such incompetency was known or ought to have been known to it, added further that if the jury found that the laborer notified the supervisor of the dangerous condition of the bank, he would be relieved from the imputation of negligence during the time necessary to provide a man to watch it. Held: (1) That the latter instruction was inconsistent with the former, and calculated to mislead the jury. (2) That it was the duty of the laborer, having knowledge of the dangerous condition of the bank, to exercise diligence and care in protecting himself from harm, without regard to any assurances which he might have received from the supervisor that the assistance he had asked for would be given. District of Columbia v. McEUigott, 621. See Bank, 1, 2, 3; Insurance, 2, 3; District of Columbia; Master and Servant. OMAHA BRIDGE. See Union Pacific Railroad Company, 2. PARTIES. See Removal of Causes, 7. PARTNERSHIP. 1. Where three persons form a partnership, and agree to bear the losses INDEX. 733 and share the profits of the partnership venture in proportion to their contribution to its capital, and two of the partners furnish all the money and do all the work, they are entitled to be repaid their advances out of its assets before payment of the individual creditors of the partner who paid nothing and did nothing to promote the partnership business. Hobbs v. McLean, 567. 2. A, having contracted with the United States to furnish supplies of wood and hay to troops in Montana, entered into partnership with B and C for the purpose of executing the contract. A was to furnish half the capital, B and C one-fourth each, and profits and losses were to be divided on that basis: but in fact the capital was furnished by B and C. A delivered the wood according to the contract, but failed to deliver the hay, and payment being refused, he brought suit in his own name in the Court of Claims against the United States to recover the contract price of the wood. In this suit B and C each was a witness on behalf of A, and each testified that he had “no interest direct or indirect in the claim,” except as a creditor of A, holding his note. Pending the suit A became bankrupt, and then died. His administratrix was admitted to prosecute the suit, but before entry of final judgment his assignee in bankruptcy was substituted in her place. Final judgment was then rendered in favor of the assignee, and the amount of the judgment was paid to him. B and C as surviving partners then filed a bill in equity against the assignee and the attorneys and counsel, to recover their shares in the partnership property. Held: (l).That the interests of B and C in the partnership property were not affected by the fact that thè contract under which they claimed was not made and attested by witnesses after the issue of a warrant for payment, as required by Rev. Stat. § 3477. (2) That they were not affected by the provisions of Rev. Stat. § 3737 that a transfer of a contract with the United States shall cause an annulment of the contract so far as the United States are concerned. (3) That the cause of action to recover of the assignee their proportionate shares of the partnership fund in his hands accrued to B and C on the receipt of the money by the assignee. (4) That B and C were not subject in this suit to the disabilities as witnesses imposed by Rev. Stat. § 858 upon parties to suits by or against executors, administrators or guardians. (5) That B and C were notestopped by their declarations in the Court of Claims as to their interest in the claim there in controversy, from setting up the interest in it which they seek to enforce in this suit. (6) That the assignee was entitled to no allowance for Compensation for services, expenses and attorney’s fees, in recovering the fund in the Court of Claims from the United States. Ib. See Promissory Note, 2; Removal of Causes, 17. PATENT FOR INVENTION. 1. The feature of varying eccentricity in the rollers is an essential part of 734 INDEX. the invention protected by letters patent No. 98,622 granted to James Sargent, January 4, 1870, for an improvement in permutation locks. Yale Lock Co. n. Sargent, 373. 2. Claim 1 of reissued letters patent No. 4696, granted to James Sargent, January 2, 1872, for an “improvement in locks,” on an application filed September 25, 1871, the original patent, No. 57,574, having been granted to him August 28, 1866, namely, “1. In a combination lock for safe or vault doors, a bolt, I, which turns on a pivot or bearing, when said bolt, I, is used in a lock having no ordinary sliding lock-bolt, and in connection with the separate bolt work of the door, and so arranged as to receive the pressure of the said bolt-work without transmitting it to the wheels or other equivalent works of the lock,” is not invalid, as being an unlawful expansion of claim 1 of the original patent, namely, “ 1. The rotating tumbler I, when separated and isolated in action from the permutation wheels, and so arranged that any inward pressure upon the bolt will be exerted upon the bearing of said tumbler, and have no action nor effect upon the said permutation wheels, substantially as and for the purpose herein specified.” The invention covered by claim 1 of the reissue defined, and certain prior structures held not to have anticipated it. The defendant’s lock held to be an infringement of that claim. Yale Lock Co. v. Sargent, 536. 3. The plaintiff granted no licenses under his patent, but sold locks made by himself containing the invention. The defendant sold infringing locks at less prices than the plaintiff, and compelled the plaintiff to lower his prices. As the turning bolt was an essential feature in each of the two locks, and the plaintiff could not sell his patented device unless, in a lock, and thus made a profit on the entire lock, and was deprived of that profit by such enforced reduction of prices : Held, That the infringement caused the entire loss of the plaintiff, after allowing a proper sum for any other patented device contained in the defendant’s lock and for any other causes which gave to the defendant an advantage in selling his lock. Lb. 4. Such loss on the locks sold by the plaintiff, by the reduction of price, was allowed to the plaintiff as damages, in a suit in equity for infringement, although the defendant made no profit. Ib. 5. The plaintiff, as legal owner of the patent, was entitled to recover the damages, although he had a partner in making and selling the locks, lb. 6. As the bill alleged infringement of the reissue generally, and the answer set up that the reissue was not for the same invention as the original patent, and one of the claims of the reissue not disclaimed before this suit was brought was invalid, as an unlawful expansion of the original patent, although the claim on which a recovery was allowed was good, this court, the patent, having expired, but there having been no unreasonable delay in filing a disclaimer to the invalid INDEX. 735 claim, reversed so much of the decree below as awarded costs to the plaintiff, and affirmed it in all other respects, each party to bear his own costs in this court and one half of the expense of printing the record. Ib. 7. The scope of letters patent must be limited to the invention covered by the claim ; the claim may be illustrated, but it cannot be enlarged by language used in other parts of the specification. Tale Lock Co. n. GreenleafJ 554. 8. The change made by George Rosner, in the devices used in previous combinations for the purposes described in his application for a patent, September 18, 1860, were such as would occur to an unskilled mechanic, and were not inventions within the meaning of the patent laws. Ib. 9. The first claim in the patent 30,092, September 18, 1860, Reissue 4488, July 25, 1871, granted to George Rosner, was anticipated by the application and specification of D. H. Rickards, filed March 13, 1852, and by locks manufactured by Evans & Watson in 1853. Ib. 10. If a patent includes a prior valid patent, neither patentee can use the other’s invention without consent ; but a stranger cannot set up the first as a defence in a suit for infringing the second. CantreU v. Wal-lick, 689. 11. Two machines are identical when in substance they perform the same thing in the same way to obtain the same result ; and different when their functions or mode of performing them or results are substantially different. Ib. 12. Defendant in a suit for infringing a patent who sets up prior use and want of novelty as a defence has the burden of proof to establish the facts set up beyond all reasonable doubt. Ib. PRACTICE. The parties having filed a stipulation concerning the method of adjusting the accounts under the decree of the court the decree is modified in accordance therewith. Express Cases, 601. See Appeal ; Equity, 1, 2 ; Costs, 1, 2 ; . Equity Pleading ; Court and Jury ; Jurisdiction, A, 2, 3. PRESUMPTION. ♦ See Evidence, 5. PRINCIPAL AND AGENT. See Mortgage 1, (1). PROMISSORY NOTE. 1. In a suit at law, by the payee of a promissory note or his representatives, against the maker, evidence is inadmissible to show that the 736 INDEX. note was not intended to be a promissory note, but was given as a memorandum not to be enforced against the maker. Bumes v. Scott, 582. 2. A defence in an action at law by the payee of a promissory note, or his representatives, that there was a failure of consideration in that the note was based upon certain partnership transactions between the parties which are still unsettled, and the amount due from the one to the other therefore unknown, is an equitable defence which cannot be set up in that action. II). 3. The making of a champertous, and therefore under the law of the State void and illegal, contract for the prosecution of a suit tocollect a promissory note, cannot be set up in bar of a recovery on the note. II. See Municipal Bond, 1. PUBLIC LAND. 1. In the construction of land grant acts in aid of railroads, “granted lands ” are those falling within the limits specially designated, the title to which attaches as of the date of the act of Congress, when the lands are located by an approved and accepted survey of the line of the road filed in the Land Department ; but “indemnity lands” are lands selected in lieu of parcels lost by previous disposition or reservation for other purposes, the title to which accrues only from the time of their selection. Barney v. Winona & St. Peter Railway, 228. 2. The provision in § 3 of the act of March 3, 1865, that any lands granted to Minnesota by the act of March 3, 1857, which might be located within the limits of the extension made by said act of 1865 to the original grant made by said act of 1857, should be deducted from the full quantity of lands granted by the act of 1865, applies to “granted lands” of the prior grant falling within the six-mile limit, and not to possible indemnity lands which might be subsequently acquired. 11. 3. The title of the railroad companies within the ten-mile limit to lands granted by Congress to Iowa by the act of May 12, 1864, 13 Stat. 72, relates back to the date of the grant, and where two roads cross each other they take such granted lands in equal moieties ; but the title to indemnity or lieu lands outside that limit is acquired by priority of selection, approved by the Secretary of the Interior. Sioux City & St. Paul Railroad v. Chicago, Milwaukee & St. Paul Railway, 406. RAILROAD. 1. Railroad companies are not required by usage, or by the common law, to transport the traffic of independent express companies over their INDEX. 737 lines in the manner in which such traffic is usually carried and handled. Express Cases, 1. 2. Railroad companies are not obliged either by the common law or by usage to do more as express carriers than to provide the public at large with reasonable express accommodation ; and they need not in the absence of a statute furnish to all independent express companies equal facilities for doing an express business upon their passenger trains. Ib. 3. The Kentucky and Great Eastern Railway Construction Company, which had a contract with the Kentucky and Great Eastern Railway Company, made May 22, 1873, to construct for it a railway in Kentucky, from Newport to Catlettsburg, and did work between Maysville and Catlettsburg, completing about seven miles of road, and purchasing and putting down the iron rails and other materials, acquired no lien on the road or on any part of its line, completed or not completed. Wright v. Kentucky & Great Eastern Railway Co., 72. 4. The Kentucky and Great Eastern Railway Company having previously, under a contract made by it January 15, 1873, with the owners of the Maysville and Big Sandy Railroad, for a conditional sale of that Railroad, taken possession of it, and the Construction Company having notice of that contract, when the construction contract was made, and the vendors having declared that contract to be void, according to its terms, and resumed possession of the railroad, with the consent of the vendee, the Construction Company acquired no rights in regard to so much of the line, completed or not completed, between Maysville and Catlettsburg, as was part of the line of the Maysville and Big Sandy Railroad, which were not subject to the rights of the vendors of that road. Ib. 5. A mortgage having been made by the Kentucky and Great Eastern Railway Company on February 15, 1872, to a trustee, to secure bonds, on the line from Newport to Catlettsburg, the trustee acquired under it no greater rights at any time than the Railway Company had, and, no bonds having been issued before the conditional sale of the Maysville and Big Sandy Railroad was made, on January 15, 1873, the trustee had, as against the vendors of that road, only such rights as the mortgagor had. Ib. 6. The service rendered by a railway company in transporting local passengers from one point on its line to another is not identical with the service rendered in transporting a through passenger over the same rails. Union Pacific Railway Co. v. United States, 355. 7. Three railroad companies in Illinois, with roads, one from Peoria to Decatur, one from Paris to Decatur, and one from Paris to the Indiana line, in the direction of Terre Haute, Indiana, each, before September, 1874, issued bonds secured by a mortgage on its road. In September, 1874, each of the other two companies conveyed its road to the Peoria and Decatur Company, the latter assuming “all vol. cxvii—47 738 INDEX. the bonded and floating indebtedness ” of the other companies. In November, 1874, it changed its name to that of the Illinois Midland Company, and in January, 1875, issued bonds secured by a mortgage covering all its property, original and purchased, with the view of exchanging them, dollar for dollar, for the bonds of the sectional roads. In September, 1875, the owner of a majority of the stock of the companies, with judgment creditors of the Paris and Decatur Company, brought a suit, in equity in a State court in Illinois against the Illinois Midland Company, to have a receiver of all its property appointed, and an account taken of all the claims and liens of its stockholders and creditors, and of those of the sectional companies, and to have them paid and adjusted according to equity. Such a receiver was immediately appointed, with power to run the road. In December, 1876, the Union Trust Company, trustee in the mortgages on the Paris and Decatur road, the Paris and Terre Haute road, and the Illinois Midland road, filed a bill in the proper Circuit Court of the United States in Illinois to foreclose those three mortgages ; and in September, 1877, it was made a defendant in the State court suit, on its own petition, alleging a default by October 1, 1875, in the payment of interest on the bonds embraced in all three of the mortgages. In February, 1878, it filed two bills in the same Federal court, each for the foreclosure of one of the two sectional road mortgages held by it. In April, 1878, it removed into that court the State court suit. In August, 1881, holders of Paris and Decatur bonds filed a bill in the same Federal court to foreclose the Paris and Decatur mortgage. By an order made in June, 1882, that court consolidated all the suits. Successive receivers, each displacing the prior one, were appointed by the State court in August, 1876, and by the Federal court in December, 1878, and April, 1882. In June, 1882, a special commissioner was appointed to report as to the certificates of indebtedness issued by the receivers. He made his report in April, 1883, and, on exceptions to it, an interlocutory decree was made in June, 1884, making specific adjudications as to various receiver’s certificates and other receiver’s debts, and directing the commissioner to report as to other matters. He did so in January, 1885, and exceptions were filed to the report. A final decree in June, 1885, disposed of the litigated questions, and provided for a sale of the mortgaged property and the distribution of the proceeds. Holders of Paris and Decatur bonds appealed because the decree gave to sixteen receiver’s certificates priority over those bonds. When the first order was made under which six of the certificates were issued, neither any of the Paris and Decatur bondholders, nor their trustee, were parties to the suit, but before any other order was made under which any of the certificates were issued, the trustee was made a party, and the Paris and Decatur interest had been in default for ten months when such first order was made: Held, (1.) Certificates issued for necessary repairs must be allowed priority; INDEX. 739 (2.) It is no objection to this rule, that the suit in which the first receiver was appointed was not brought by the bondholders, or their trustee ; (3.) The bill in that suit was sufficient to enable a court of equity to administer the property and marshal the debts; (4.) It was sufficient, if the bondholders and their trustee were, after they were made parties, heard as to the merits of such first order, and the application of the money for which the certificates were issued ; (5.) The certificates issued to pay tax liens are to have priority; (6.) Persons having no connection with the case or the parties, who take directly from the receiver receiver’s certificates issued to pay for necessary repairs, are not bound to see to the application of the proceeds; (7.) The holders of interest-bearing receiver’s certificates, taken within the limit of discount allowed by the court in the order authorizing the certificates to be issued, are entitled to the face of the certificates and the interest ; (8.) Receiver’s certificates issued to replace earnings diverted from paying for operating expenses and ordinary repairs, to pay for replacing worn-out parts of the road, while large debts had been incurred for the operating expenses and ordinary repairs, are to be allowed priority; (9.) It was not necessary to have the express consent of the bondholders, to create a lien prior to the bonds on the corpus of the property, on the facts of this case, and in view of the neglect of their trustee to interpose all the while the road was openly in the charge of the receiver, and being run, with the interest on the bonds in arrears ; (10.) Items for wages due employés-of receivers; debts due from them to other railroad companies, and for supplies and damages ; wages due employés of the road within six months immediately preceding the appointment of .the first receiver ; and debts incurred for the ordinary expenses of the receivers in operating the road may be allowed priority out of the corpus of the property, if there is no income fund, after scrutiny and opportunity for those opposing to be heard ; (11.) The terms of the first order appointing the receiver did not impair or exclude the authority of the court to give priority to the claims above mentioned ; (12.) It is proper to apportion among the three sectional roads, in proportion to their lengths, the items so allowed priority of lien, which include the terminal expenses and track rentals of the three sectional roads, although such expenses and rentals were different for each of them ; (13.) The objection that there was no authority to buy the Paris and 740 INDEX. Decatur road cannot prevail, because the non-action of the bondholders and their trustee, in allowing the court and the receivers to go on contracting debts in respect to the line operated as a unit, under circumstances where no separation can be made as to the matters questioned, and where important rights have accrued on the faith of the unity of the interests, amounts to such acquiescence as should operate as an estoppel. Union Trust Co. v. Illinois Midland Railway, 434. 8. As to 994 Paris and Decatur bonds, surrendered and exchanged absolutely for Illinois Midland bonds, and marked “«cancelled,” they cannot be reinstated and put on a footing with bonds not exchanged, because the contracts under which they were exchanged were complied with, and the transaction was completed, no surrender of any of the bonds having been made dependent on the surrender of any other bonds, or of the whole. Ib. 9. There being five several properties to be sold, it is proper to put up for sale each of the five separately, and then all five in gross, and, if the highest bid for the five in gross exceeds the aggregate of the highest separate bids, to strike off and sell the whole as an entirety to the person making the bid, and divide the proceeds into five parts, in proportion to the separate bids, and make distribution accordingly. Ib. 10. Certain debts due by the receivership to other railroads for rent of track, materials, and stores supplied, labor performed, and traffic balances, the debts having been purchased by other parties, are to be allowed priority. 11. Debts for large sums of money borrowed by the receiver without previous authority from the court, are not to be allowed priority, although the moneys were applied to pay expenses of the receivership, repairs, supplies, and pay-rolls, and to replace moneys which had been so applied; because there never could be any difficulty in obtaining an order of the court, if one were proper, to borrow money to a specified total amount, for specific purposes. Ib. 12. Rents due for use of rolling stock, and money due for extraordinary depreciation of rolling stock, and certain other items, were not allowed priority in this case. Ib. 13. No priority or preference among the debts and claims, whether receiver’s certificates or other debts, given precedence over the mortgage bonds, was allowed, (except as to debts for taxes, and receiver’s certificates issued to borrow money to pay taxes, or to discharge tax liens,) although, in the orders under which some certificates so given precedence were issued it was declared that each certificate should be a lien on the property in respect of which it should be issued, superior to all mortgage bonds and receiver’s debts, except receiver’s debts theretofore declared, by order of court, to be special liens on such property. Ib. See Constitutional Law, A, 1, 2; Public Land, 1, 2, 3 ; Deed; Tax and Taxation, 2, 3, 4, 5, 6. INDEX. 741 REBELLION. See Money, 1, 2. RECEIVER. See Railroad, 7, 10, 11, 18. REMAINDER. See Mortgage, 1, 2. REMOVAL OF CAUSES. 1. A suit cannot be removed from a State court under the act of March 3, 1875, unless the requisite citizenship for removal existed when the suit was begun, as well as when the application for removal was made. Akers n. Akers, 197. 2. A removal of a cause from a State court on the ground of local prejudice can only be had where all the parties to the suit on one side are citizens of different States from those on the other. Jefferson v. Driver, 272. 3. The provision as to the removal of a separable controversy under the second subdivision of Rev. Stat. § 639 has no application to removals under the third subdivision ; and the similar provision in the act of March 3, 1875, applies only to removals under that act. Ib. 4. A purchaser pendente lite of real estate who becomes party to the suit is subject to the disabilities of the parties at the time he comes in, in respect of removing the cause from a State court to a Circuit Court of the United States. Ib. 5. The filing of separate answers by several defendants, sued jointly in a State court, on an alleged joint cause of action in tort, in which each avers that he acted separately on his own account and not jointly, in the acts complained of, does not divide the suit into separate controversies so as to make it removable into the Circuit Court of the United States. Sloane v. Anderson, 275. 6. A creditor’s bill to subject encumbered property to the payment of his judgment, by sale and distribution of the proceeds among lien-holders according to priority, creates no separate controversy, within the meaning of the removal acts, as to the separate lien-holders parties respondent, although their respective defences may be separate Fidelity Ins. Co. v. Huntington, 280. • 7. A bill for the assignment of dower brought in a State court alleged that A, one of the defendants, in purchasing the property, acted as agent and trustee of B, and took and held title to the joint use and benefit of himself and B. The complainant and B were citizens of the sartie State ; A was a citizen of a different State. The answers took no INDEX. 742 notice of these allegations. Held, That the petition of A to remove the cause to the Circuit Court of the United States should be denied, as B was a necessary party to the suit. Rand v. Walker, 340. 8. The right to take steps for the removal of a cause to a Circuit Court of the United States on the ground of a separable controversy is confined to the parties actually interested in such controversy. Ib. 9. After removal of a bill in equity from a State court to a Circuit Court of the United States on motion of one of the respondents, the complainant filed a cross-bill alleging that a judgment obtained in the , Circuit Court in a suit in which she was not a party after the removal had been obtained collusively, and did not conclude her: Held, That this presented no reason why the cause, having been improperly removed should not be remanded. Ib. 10. After trial of a cause in a State court, reversal of the judgment by the State Appellate Court, and remand of the same to the trial court for retrial, it is too late to remove it to the Circuit Court of the United States on the ground of a separable controversy. Core v. Vinal, 347. 11. A separable controversy under the acts regulating removals from State courts to Circuit Courts cannot arise when defendants are sued jointly in trespass on the case and plead jointly the general issue. Ib. 12. The right to remove a suit from a State court to a Circuit Court of the United States, being once lost by reason of non-user “before or at the term at which said cause could be first tried and before the trial thereof, ” is not revived by a subsequent amendment of the pleadings which creates new and different issues. Phoenix Life Ins. Co. v. Walrath, 365. 13. Distinct decrees against distinct parties, on distinct causes of action, or on a single cause of action in which there are distinct liabilities, cannot be joined to give this court jurisdiction on appeal. Ex parte Phoenix Life Ins. Co. 367. 14s, A State court is not bound to surrender its jurisdiction of a suit on petition for removal, until a case has been made which on its face shows that the petitioner has a right to the transfer; and if it decides against the removal and proceeds with the eause, its ruling is reviewable here after final judgment. Stone v. South Carolina, 430. 15. All issues of fact made upon a petition for removal must be tried in the Circuit Court. Ib. 16. A suit between a State on the one side and citizens on the other, cannot be removed on the ground of citizenship. Ib. 17. A suit against partners to recover money received, for which they are jointly liablq, cannot be removed on the ground of a separable controversy on the petition of one of the partners. Ib. 18. A proceeding under the acts of the Legislature of Virginia for the identification and verification of coupons tendered in payment of taxes, • debts, or demands due the State is not a suit of a civil nature arising under the Constitution or laws of the United States, within the mean INDEX. 743 ing of the act of March 3, 1875, regulating removals of causes. Stewart v. Virginia, 612. RESIDENCE. See Domicil. RULES. See Appendix, 708. SALE. A bill of sale of personal property was made at nine o’clock in the evening. The property was twenty-three miles distant. Possession was delivered at four o’clock in the morning of the next day, and the vendee remained in possession until the property was seized in the afternoon of that day, on attachment at the suit of a creditor of the vendor : Held, That this was an immediate delivery of possession, with continued change of possession, under a statute of Montana making sales of personal property, “unless accompanied by immediate delivery and followed by actual and continued change of possession,” “conclusive evidence of fraud as against creditors.” Kleinschmidt v. McAndrews, 282. SALE ON EXECUTION. See Fraud, 1, 2, 3, 4. SLEEPING CARS. See Constitutional Law, A, 1, 2. STATUTE. A. Construction of Statutes. See Constitutional Law, B, 1, 2; Jurisdiction, B, 2; Insolvent Laws Public Land, 1; Internal Revenue, 1; Tax and Taxation, 2, 3, 4, 5. B. Statutes of the United States. See Bankruptcy, 2; Customs Duties ; Evidence, 10; Internal Revenue, 1; Jurisdiction, B, 2; Partnership, 2, (1), (2), (4); Public Land, 2, 3; Removal of Causes, 1,3; Union Pacific Railway Company, 1, 2. 744 INDEX. C. Statutes ok States and Territories. Alabama. See Deed. Illinois. See Constitutional Law, B, 2. Kentucky. See Local Law, 3. Louisiana. See Insolvent Laws ; Local Law, 2. Montana. See Evidence, 10; Local Law, 4; Sale. New Jersey. See Municipal Bond, 2. Tennessee. See Constitutional Law, A, 1, 2. Virginia. See Removal of Causes, 18. STATUTE OF FRAUDS. See Sale. SUBROGATION. See Insurance, 1. SUPREME COURT. See Jurisdiction, A. TAX AND TAXATION. 1. State scrip which declares on its face that it is receivable “ in payment of all taxes and dues to the State ” gives the holder no right to maintain a suit to compel its receipt for taxes, unless he owes the taxes for which it is receivable. Hagood v. Southern, 52. 2. A State statute incorporating a railroad company, which provides that the capital stock of the company shall be forever exempt from taxation and that the road with all its fixtures and appurtenances shall be exempt from taxation for the period of twenty years and no longer, exempts the road, its fixtures and appurtenances from taxation only for the term named in the act ; but forever exempts shares in the capital stock of the company in the hands of the various holders from taxation in the State. Tennessee v. Whitworth, 129. 3. When two railroad corporations, whose shares are by a State statute exempt from taxation in the State, consolidate themselves into a new company under a State law which makes no provision to the contrary, and issue shares in the new company in exchange for shares in the old company, the right of exemption from taxation in the State passes into the new shares, and into each of them. Ib. 4. The right to have shares in its capital stock exempt from taxation within the State is conferred upon a railroad corporation by State statutes granting to it “all the rights, powers and privileges” or INDEX. 745 “all the powers and privileges” conferred upon another corporation named in the act, if the latter corporation possesses by law such right of exemption : and there is nothing in the provision of Art. XI. Sec. 7 of the Tennessee Constitution of 1834 to change this general rule when applied to a statute of that State. Tennessee v. Whitworth, 139. 5. A State statute enacted that a railroad company should “for its government be entitled to all the powers and privileges, and, be subject to all the restrictions and liabilities imposed ” upon another railroad company: Held, That the words “for its government” implied for its regulation and control. Ib. 6. When two railroad corporations whose shares are by a State statute exempt from taxation within the State and a third company, created under the laws of another State and whose road is in the latter State, consolidate into a new company under a law of the first State which makes no provision to the contrary, and issues shares in the new company in exchange for shares in the old company, the right of exemption from taxation in the first State passes into the new shares and into each of them. Lb. 7. Land in a State which, pursuant to acts of Congress for the laying and collecting of direct taxes, is sold, struck off and purchased by the United States for the amount of the tax thereon, and is afterwards sold by the United States for a larger sum, or redeemed by the former owner, is exempt from taxation by the State, while so owned by the United States; and, for non-payment of taxes assessed by the State during that time, cannot be sold afterwards. Van Brocklin v. Tennessee, 151. 8. The proof in this case fails to show that the lands in controversy had become forfeited to the State of Virginia, for non-listing for taxation or for non-payment of taxes, at the time when the patents were issued under which the defendants, claim title. Fulkerson v. Holmes, 389. 9. An exemption from taxation granted by the government to an individual is a franchise, which can be lost by acquiescence under the imposition of taxes for a period long enough to raise a conclusive presumption of a surrender of the privilege; and such acquiescence for a period of sixty years (and, indeed, for a much shorter period) raises such a presumption. Given v. Wright, 648. See Constitutional Law, A, 1, 5; Estoppel. TRUST. 1. A creditor, who, by the terms of a trust deed executed in good faith by the debtor to secure payment of the debt, has the power to order the land to be sold either by public auction or private sale, and to direct the trustee to convey to the purchaser, and the amount of whose debt is thrice the value of the land, may accept the land in satisfaction of the debt, and cause it to be conveyed by the trustee to Ï46 INDEX. the debtor’s children, as a gift to them from the creditor, without affording to other creditors of the debtor any just cause of complaint. Van Riswick v. Spalding, 370. 2. When many persons have a common interest in a trust fund and one, for the benefit of all, at his own cost and expense, brings suit for its preservation or administration, a court of equity will order that the plaintiff be reimbursed his outlay from the property of the trust, or by proportional contribution from those who accept the benefit of his efforts. Hobbs v. McLean, 567. 3. When one brings adversary proceedings to take trust property from the possession of those entitled to it, in order that he may distribute it to those entitled adversely, and fails in his purpose, he cannot demand reimbursement of his expenses from the trust fund, or contribution from those whose property he has sought to misappropriate. Ib. UNITED STATES. See Constitutional Law, A, 5; Tax and Taxation, 7. UNION PACIFIC RAILWAY COMPANY. 1. Section 6 of the act of July 1, 1862, in aid of the construction of the railroads to the Pacific, required them to transport mails, troops, supplies, etc., for the government “at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same service.” The Union Pacific Railway Company filed its petition in the Court of Claims, setting forth the performance of such services for the government and its charges for the same, and averring that the several amounts were according to rates fixed by it both as respects the government and the public, which were fair and reasonable, and not exceeding the amounts paid by private parties for the same kind of service. The government denied the reasonableness of the rates, and averred that less amounts allowed by it were fair and reasonable. The Court of Claims, after hearing proof found “that the amounts allowed and retained by the Treasury Department for transportation of mails as aforesaid, are a fair and reasonable compensation for the service and not in excess of the rates paid by private parties for the same service.” Held, That this was a proper form of finding. Union Pacific Railway Co. v. United States, 355. 2. The provisions of § 6 of the act of July 1, 1862, respecting transportation done by the Union Pacific Railway Company for the United States, govern such transportation over its bridge between Council Bluffs and Omaha. Ib. USAGE. See Railroad, 1, 2. INDEX. w VIRGINIA COUPONS. See Removal of Causes, 18. WILL. 1. A latent ambiguity in a will, which may be removed by extrinsic evidence, may arise: (1), Either when it names a person as the object of a gift, or a thing as the subject of it, and there are two persons or things that answer such name or description; or (2), when the will contains a misdescription of the object or subject, as where there is no such person or thing in existence; or, if in existence, the person is not the one intended, or the thing does not belong to the testator. Patch v. White, 210. 2. When a careful study of the testator’s language, applied to the circumstances by which he was surrounded, discloses an inadvertency or mistake in a description of persons or things in a will, which can be corrected without adding to the testator’s language, and thus making a different will from that left by him, the correction should be made. Ib. 3. A made a will, in which, after saying “ and touching [my] worldly estate” “I give, devise and dispose of the same in the following manner, ” he devised certain specific lots with the buildings thereon, respectively, to each of his near relations, and, amongst others, to his brother H a lot described as ‘ ‘ lot numbered 6 in square 403, together with the improvements thereon erected.” He then devised to his infant son as follows: ‘ ‘ the balance of my real estate, believed to be and to consist in lots numbered six, eight and nine, &c.,” describing a number of lots, but not describing lot Nd. 3 in square 406, hereafter mentioned: Held, (1) That the testator intended to dispose of all his real estate, and thought he had done so; (2) That in the devise to H he believed he was giving him one of his own lots; (3) That evidence might properly be received to show that the testator did not, and never did, own lot No. 6 in square 403, which had no improvements thereon; but did own lot No. 3 in square 406, which had a house thereon, occupied by his tenants; and that this raised a latent ambiguity; and that this evidence, taken in connection with the context of the will, was sufficient to show that there was an error in the description, and that the lot really devised was lot No. 3 in square 406. lb. WITNESS. See Partnership, 2, (4).