UNITED STATES REPORTS VOLUME 1 1 8 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1885 AND OCTOBER TERM, 1886 J. C. BANCROFT DAVIS REPORTER NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1886 Copyright, 1886, By BANKS & BROTHERS. 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. George Augustus Jenks.?' clerk. James H. McKenney'. MARSHAL. John G. Nicolay. * Mr. Jenks was commissioned July 30,1886, to succeed Mr. Goode, who retired from office August 5,1886. He took the oath of office August 10,1886. Mb. Justice Woods, by reason of illness, took no part in the hearing and decisions at October Term, 1886, which are reported in this volume. See Appendix for 1. In Memoriam: Noah H. Swayne, LL.D. 2. In Memoriam: Ward Hunt, LL.D. 3. In Memoriam: David Davis, LL. D. 4. In Memoriam: Chester Alan Arthur, LL.D. ERRATA. Page 617, line 9 from bottom : before “ privity ” insert “ the.” TABLE OF CASES. PAGE Amador & Sacramento Canal Company, Cashman -w. . 58 Amador & Sacramento Canal Company, Plymouth Gold Mining Company v. ..... 264 Arrowsmith v. Harmoning ...... 194 Ashburn, Cambria Iron Company v. . . . . 54 Attorney General, Kansas City, Lawrence and South Kansas Railroad Company v. . . . . . 682 Benjamin v. Dubois..................................46 Bohanan v. Nebraska ....... 231 Boston, Hartford & Erie Railroad Company, Graham v. 16.1 Butler, Charlestown Five-Cent Savings Bank v. . . 655 Butler, Delano v. . . . . . . . . 634 Butler, Mills v....................................655 Butler, Morrison v......... 655 Butler, Taunton Savings Bank v. . . . . 655 Butler, Whitney v...................... . . 655 Cadman v. Peter.....................................73 California v. Central Pacific Railroad Company . . 394 California v. Northern Railway Company . . . 417 California, Southern Pacific Railroad Company v. . 109 California v. Southern Pacific Railroad Company . . 394 Cambria Iron Company v. Ashburn .... 54 Cannon v. United States.......................... 355 Cape Girardeau County Court v. Hill . . . . 68 Carson v. Hyatt........................ . . 279 Cashman v. Amador & Sacramento Canal Company . 58 Central Pacific Railroad Company, California v. . . 394 Central Pacific Railroad Company, United States v. . 235 Central Vermont Railroad Company, Paine v. . .152 vi TABLE OF CASES. PAGE Charlestown Five-Cent Savings Bank v. Butler . . 655 City of Norwich (The)............................468 Clark, Libby v. ........ 250 Clay v. Freeman...................................97 Conley v. Nailor.................................127 Covington, Hopper v..............................148 Delano v. Butler.................................634 District of Columbia, Johnston v. ... . 19 Dobson v. Dornan..................................10 Dornan, Dobson v................................ 10 Dubois, Benjamin v................................46 Dupont, Hartranft v..............................223 Dyer v. National Steam Navigation Company . . 507 Elgin Mining and Smelting Company, Iron Silver Mining Company v. . .................................196 Emerson v. Senter . . ........................3 Erie and Western Transportation Company, Phoenix In- surance Company v. ...........................210 Evans v. Pike....................................241 Ex parte Lothrop. . . . '. . ... 113 Ex parte Phenix Insurance Company .... 610 Fifth National Bank, New York Elevated Railroad v. 608 Flinn, Francis v.................................385 Francis v. Flinn................. . . 385 Freeman, Clay v...................................97 Gardner v. Herz . . . . . . . . 180 Giles, Little v.......... 596 Goldstucker v. Wilkins . . . . . . 230 Goodnow, Oakley v. . . . . . . . .43 Graham v. Boston, Hartford & Erie Railroad Company 161 Grant, Keyes v....................................25 Great Western (The).......................520 Hailey, United States v...................233 Harkness v. Russell.................. . 663 TABLE OF CASES. vii PAGE Harmoning, Arrowsmith v.........................194 Hart, New Orleans Board of 'Liquidation v. . . 136 Hart v. United States............................62 Hartranft v. Dupont ....... 223 Herz, Gardner v. ....... 180 Hill, Cape Girardeau County Court v. . 68 Hollister, Salt Lake City v.................. . 256 Hopkins, Wo Lee v. ...... 356 Hopkins, Yick Wo v......................' . . 356 Hopper v. Covington.............................148 Huntu Oliver . . . . . . * . 211 Hyatt, Carson v......... 279 Illinois, Wabash, St. Louis and Pacific Railway Company v......................................557 Iron Silver Mining Company v. Elgin Mining and Smelting Company . ...................196 Jacksonville, Pensacola and Mobile Railroad Company v. United States . . . . . . . 626 Johnson v. Wilkins..............................228 Johnston v. District of Columbia.................19 Kagama, United States v. . .....................375 Kansas City, Lawrence and South Kansas Railroad Com- pany v. The Attorney General .... 682 Keyes v. Grant . 25 Landram, United States v. . . . . . .81 Langston, United States v........................389 Libby v. Clark...................................250 Little v. Giles..................................596 Loring v. Palmer . . . . . . . . 321 Lothrop, Ex parte................................113 Louisiana Board of Health, Morgan’s Steamship Com- pany v. ' . . . ■........................455 Mexican Construction Company v. Reusens ... 49 Mills v. Butler.............................. . 655 viii TABLE OF CASES. PAGE Morgan’s Steamship Company v. Louisiana Board of Health .... .... 455 Morrison v. Butler . 655 Mullan v. United States..............................271 Nailor, Conley v.....................................127 Nashville, Chattanooga & St. Louis Kailway Company, United States v..................................120 National Steam Navigation Company, Dyer v. . . 507 Nebraska, Bohanan v..................................231 New Orleans Board of Liquidation v. Hart . . .136 New York Elevated Kailroad v. Fifth National Bank . 608 Northern Kailway Company, California u 417 Norton v. Shelby County . . . . . . 425 Norwich & New York Transportation Company, Place v. 468 Oakley v. Goodnow.....................................43 Oliver, Hunt v. .................................. . 211 Paine v. Central Vermont Railroad Company . . 152 Palmer, Loring v.................................. . 321 Pennsylvania Railroad Company u St. Louis, Alton & Terre Haute Railroad Company .... 290 Pennsylvania Railroad Company, St. Louis, Alton & Terre Haute Railroad Company v...................290 Pennsylvania Railroad Company v. St. Louis, Alton and Terre Haute Railroad Company .... 630 Pennsylvania Railroad Company, St. Louis, Alton and Terre Haute Railroad Company v. . . . . 630 Peter, Cadman v. .....................................73 Phenix Insurance Company, Ex parte . . . . 610 Phoenix Insurance Company v. Erie and Western Trans- portation Company.............................. 210 Pike, Evaps v. . . . . . . . . 241 Place v. Norwich & New York Transportation Com- pany ............................................468 Plymouth Gold Mining Company v. Amador & Sacramento Canal Company..............................264 Putnam, Vicksburg and Meridian Railroad Company v. 545 TABLE OF CASES. ix PAGE Reusens, Mexican Construction Company v. . . .49 Russell, Harkness v........................663 St. Louis, Alton & Terre Haute Railroad Company v. Pennsylvania Railroad Company .... 290 St. Louis, Alton & Terre Haute Railroad Company, Pennsylvania Railroad Company v.............290 St. Louis, Alton and Terre Haute Railroad Company v. Pennsylvania Railroad Company .... 630 St. Louis, Alton and Terre Haute Railroad Company, Pennsylvania Railroad Company -y. . .' 630 Salt Lake City v. Hollister 256 San Bernardino County v. Southern Pacific Railroad Company............................ . 417 Santa Clara County v. Southern Pacific Railroad Com- pany . . ... . . . . . 394 Scotland (The)....................... . 507 Senter, Emerson -y. ........ 3 Shelby County, Norton v....... 425 Snow v. United States.................... 346 South Boston Iron Company v. United States . . 37 Southern Pacific Railroad Company v. California . 109 Southern Pacific Railroad Company, California v. . 394 Southern Pacific Railroad Company, San Bernardino County v. ....... 417 Southern Pacific Railroad Company, Santa Clara County v. 394 Spraigue v. Thompson........................90 Sun Mutual Insurance Company v. United States ex rel. Hart......................................147 Taunton Savings Bank v. Butler .... 655 The City of Norwich . •..................468 The Great Western........................ 520 The Scotland...............................507 Thommessen v. Whitwill.....................520 Thompson, Spraigue v. . . . . . . .90 United States, Cannon -y...................355 United States v. Central Pacific Railroad Company . 235 United States v. Hailey . . . . . . 233 X TABLE OF CASES. PAGE United States ex rel. Hart, Sun Mutual Insurance Company v...............................................147 United States, Hart v..............................62 United States, Jacksonville, Pensacola and Mobile Railroad Company v.......................................626 United States v. Kagama...............................375 United States v. Landram . . . . . .81 United States v. Langston ............................389 United States, Mullan v...............................271 United States v. Nashville, Chattanooga & St. Louis Railwag Company . . . . ■ . . . 120 United States, Snow J.................................346 United States, South Boston Iron Company v. . ■. 37 United States v. Wilson ..............................86 United States Rifle & Cartridge Company v. Whitney Arms Company ....... 22 Vicksburg and Meridian Railroad Company v. Putnam . 545 Wabash, St. Louis and Pacific Railway Company v. Illinois............................... . . 557 Wells v. Wilkins......................................230 Whitney v. Butler . . . . . . . 655 Whitney Arms Company, United States Rifle & Cartridge Company v.....................................22* Whitwill, Thommessen v................................520 Wilkins, Goldstucker v................................230 Wilkins, Johnson v. ...... 228 Wilkins, Wells v........................... . . . 230 Wilson, United States v......................... . 86 Wo Lee v. Hopkins.....................................356 Yick Wo v. Hopkins ..................................356 TABLE OF CASES CITED IN OPINIONS. Page Adderly v. Storm, 6 Hill, 624 660 JEtna Ins. Co. v. Tyler, 16 Wend. 385 495 Allore v. Jewell, 94 U. S. 506 133 Alpena (The), 10 Bissell, 436 624 American Bank v. Jenness, 2 Met. 288 160 American Ins. Co. v. Canter, 1 Pet. 511 117, 118, 380 Ames v. Kansas, 111 U. S. 449 112 Anderson v. Philadelphia Ware- . house Co., Ill U. S. 479 660 Anderson v. Santa Anna, 116 U. S. 356 170 Appeal of N. B. & M. R. R. Co., 32 Cal. 499 413 Armington v. Houston, 38 Vt.448, 675 Armstrong v. Huddleston, 1 Moore P. C. 478 135 Armstrong’s Foundry, 6 Wall. 766 67 Ashbury Railway Carriage, &c. Co. v. Riche, L. R., 7 H. L. 653 308 Aspinwall v. Commissioners of Daviess County, 22 How. 364 452 Atchafalaya Railroad, &c. Co. v. Bean, 3 Rob. La. 414 145 Ayres v. Wiswall, 112 ü. S. 187 601 Babbitt v. Clark, 103 U. S. 606 289 Bahain v. Langfield, 16 La. Ann. 156 246 Ballard v. Burgett, 40 N. Y. 314 674, 675 Ballou v. Famum, 11 Allen, 73 554 Barbier v. Connolly, 113 U. S. 27 367, 423 Barnes v. District of Columbia, 91 U. S. 540 21 Barrett v. Pritchard, 2 Pick. 512 671, 673 Barrow v. Coles, 3 Campbell, 92 668 Page Barton v. Syracuse, 36 N. Y. 54 21 Basey v. Gallagher, 20 Wall. 670 90 Bean v. Edge, 84 N. Y. 510 675 Benefactor (The), 102 IT. S. 214 ; Ä C. 103 U. S. 239 489, 504, 624 Berthold ®. Goldsmith, 24 How. 536 221 Bethell v. Demaret, 10 Wall. 537 353 Bishop v. Shillito, 2 B. & Aid. 329 668 Blackburn ®. The State, 3 Head, 690 448 Board of Commissioners of Tippecanoe County ®. Railroad Co., 50 Ind. 85 312 Boissac v. Downs, 16 La. Ann. 187 247 Bond v. Dustin, 112 U. S. 604 158 Boston, Hartford & Erie Railroad Co. In re, 9 Blatchford, 409 168 Bostwick ®. Brinkerhoff, 106 IT. S. 3 48 Bowdell v. National Bank, Brown’s Nat. Bk. Cas. 146 660 Boyd ®. United States, 116 U. S. 616 504 Boynton v. Libby, 62 Maine, 253 675 Bradshaw v. Warner, 54 Ind. 58 677 Brandt v. Bowlby, 2 Barn. & Adolph. 932 668 Bridge Co. v. Mayer, 31 Ohio St. 317 170 Brig Wilson (The)®. United States, 1 Brock. 423 467 Brooks ®. Marbury, 11 Wheat. 78 10 Brooks ®. Mobile School Board, 31 Ala. 227 85 Broome ®. Taylor, 76 N. Y. 564 151 Broughton ®. Pensacola, 93 U. S. 266 241 Brown ®. Adams, 5 Bissell, 181 660 Brown ®. Haines, 52 Maine, 578 675 Brown v. Houston, 114 U. S., 622 589 xii TABLE OF CASES CITED. Page Brown v. Maryland, 12 Wheat. 419 573 Brown v. O’Connell, 36 Conn. 432 448 Brown v. Wilkinson, 15 M. & W. 396 531 Brundage v. Camp, 21 Ill. 330 678 Buchanan v. Litchfield, 102 U. S. 278 151 Bunn ®. Winthrop, 1 Johns. Ch. 329 134 Burdino ®. Amperse, 14 Mich. 91 343 Butler v. Hopper, 1 Wash. C. C. 499 467 Cadman v. Peter. 12 Fed. Rep. 363 77 Call v. Seymour, 40 Ohio St. 670 676 Camp v. Clark, 14 Vt. 387 160 Campau ®. Campau, 44 Mich. 31 341 Cannon v. New Orleans, 20 Wall. 587 462, 463 Cannon v. United States, 116 U. S. 55, 347, 354, 355 Capen v. Foster, 12 Pick. 485 370 Carleton v. The People, 10 Mich. 250 445, 447 Carlisle v. United States, 16 Wall. 147 67 Carpenter v. Providence Washing- ton Ins. Co., 16 Pet. 495 494 Carroll v. Boston Marine Ins. Co. 8 Mass. 515 494, 495 Carver ®. Jackson, 4 Pet. 1 553 Case v. Peters, 20 Mich. 298 80 Central Railroad v. Richards, 62 Georgia, 306 554 Chamberlain v. Smith, 44 Penn. St. 131 676 Chapman v. Brewer, 114 U. S. 158 89 Chapman v. Douglass County, 107 U. S. 348 263 Chartered Mercantile Bank v. Dickson, L. R. 3 P. C. 574 160 Chase v. Ingalls, 122 Mass. 381 673 Cherokee Nation v. State of Geor- gia, 5 Pet. 1 379, 382 Chew Heong ®. United States, 112 U. S. 536 393 Chicago, Burlington, &c. Railroad v. Iowa, 94 U. S. 155 564, 566, 567, 594 Chicago & Northwestern Railroad Co. v. United States, 104 U. S. 680 627 Child v. Boston, 4 Allen, 41 21 China (The), 7 Wall. 53 534 Chy Lung v. Freeman, 92 U. S. 275 374, 462 City of Baltimore ®. Radecke, 49 Maryland, 217 372 City of Norwich (The), 118 U. S. 468 518, 525, 264 Page Claiborne County v. Brooks, 111 U. S. 400 440 Clark v. Barnard, 108 U. S. 436 167 Clark v. Commonwealth, 29 Penn. St. 129 447 Clark v. United States, 95 U. S. 539 42 Clay v. Field, 115 U. S. 260 105 Cocke v. Halsey, 16 Pet. 71 447 Coe v. Erroll, 116 U. S. 517 589 Coggill v. Hartford & New Haven Railroad, 3 Gray, 545 671 Cole v. Berry, 13 Vroom (42 N. J. Law), 308 676 Cole ®. Mann, 62 N. Y. 1 675 Coleman v. Eastern Counties Rail- way Co., 10 Beav. 1 315 Columbia Insurance Co. v. Law- rence, 10 Pet. 507 494 Commonwealth ®. Slack, 19 Pick. 304 239 Cook v. Pennsylvania, 96 U. S. 566 573 Cooke v. United States, 91 U. S. 389 125 Cooley v. Board of Wardens, 12 How. 299 465, 585 Copland v. Bosquet, 4 Wash. C. C. 588 676 Copley v. Grover & Baker Sewing Machine Co., 2 Woods, 494 262 Core ®. Vinal, 117 U. S. 347 601 Cornish v. Dews, 18 Ark. 172 9 Cotton v. New Providence, 18' Vroom, 401 151 County of Mobile v. Kimball, 102 U. S. 691 574 County of Santa Clara v. Railroad Companies, 118 U. S. 394 418, 421 Coyle v. Davis, 116 U. S. 108 80 Cragin v. Lovell, 109 U. S. 194 151 Crandall v. Nevada, 6 Wall. 35 585, 589, 591 Craweour v. Robertson, 9 Ch. Div. 419 • 668 Craweour ®. Salter, 18 Ch. Div. 30 669 Crespigny ®. Wittenoom, 4 T. R. 790 239 Crow Dog, Ex parte, 109 U. S. 556 382, 393 Crump v. Thurber, 115 U. S. 56 601 Daggett v. Hudson, 1 Western Reporter, 789 371 Daniel Ball (The), 10 Wall. 557 565 Daviess County ®. Dickinson, 117 U.S. 657 151,452 Davis ®. Calvert, 5 Gill & J. 269 135 Davis ®. Old Colony Railroad Co., 131 Mass. 258 308 Davis v. Society of Essex, 44 Conn. 582 660 TABLE OF CASES CITED. xiii Page Davis V. Stevens, 17 Blatchford, 259 660 Dennett v. Leland, 13 Vt. 485 160 Deshon v. Bigelow, 8 Gray, 159 673 Dixon County ». Field, 111 U. S. 83 151 Dobson v. Bigelow Carpet Co., 114 U. S. 439' 14 Dobson v. Hartford Carpet Co., 114 U. S. 439 16 Donaldson v. Bouzan, 8 Martin, N. S. 16 J 249 Dows ». Kidder, 84 N. Y. 121 675 D. S. Gregory (The), 2 Benedict, 226; S. C. 9 Wall. 513 554 Dufour v. Camfranc, 11 Martin, 607 248 Dunbar ». Rawles, 28 Ind. 225 677 Duncan v. Elam, 1 Rob. La. 135 247 Duncans ». Stone, 45 Vt. 118 576 East Anglian Railways v. Eastern Counties Railway, 11 C. B. 775 £09 East Oakland ». Skinner, 94 U. S. 255 151 Eastern Counties Railway ». Hawkes, 5 H. L. Cas. 331 308 Easton, Ex parte, 95 U. S. 68 625 Eberts ». Fisher, 44 Mich. 551 341 Eckert v. Flowery, 43 Penn. St. 46 135 Ellis ». Davis, 109 U. S. 485 89 Erhardt ». Boaro, 113 U. S. 527 207 Escanaba Co. ». Chicago, 107 IT. S. 678 465, 583 Evans ». Bacon, 99 Mass. 213 178 Fairbanks ». Eureka Co., 67 Ala. 109 677 Fales ». Roberts. 38 Vt. 503 675 Farmington ». Pittsburgh, 114 U. S. 138 601, 603 Farwell ». Importers’ and Tra- ders’ Bank, 90 N. Y. 483 675 Felichy ». Hamilton, 1 Wash. C.C. 491 221 Fellows ». Blacksmith, 19 How. 366 • 384 Ferris ». Higley, 20 Wall. 375 118 Fink ». O’Neil, 106 U. S. 272 125 Forbes ». Marsh, 15 Conn. 384 673 Fowler». Beebe,9 Mass. 231 448 Frazier ». Browning, 11 Lea, 253 90 Fussell ». Gregg, 113 U. S. 550 89 Gamble ». Witty, 55 Mississippi, 26 416 Gardner ». Herz, 16 Blatchford, 303 187 Gardner ». Herz, 20 Blatchford, 538 188 Garland, Ex parte, 4 Wall. 333 67 Gay ». Parpart, 106 ü. S. 679 134 Gelpcke ». Dubuque, 1 Wall. 175 150 George ». Stubbs, 26 Maine, 243 675 Page Gibbons ». Ogden, 9 Wheat. 1 464, 573, 584 Gibson r. Chouteau, 13 Wall. 92 125 Giles ®. Little, 104 U. S. 291 529 Gilman v. Philadelphia, 3 Wall. 713 465, 582, 585 Gilson v. Gilson, 16 Vt. 464 160 Gloucester Ferry Co. ®. Pennsylvania, 114 U. S. 196 564, 575 Goodrill ®. Milwaukee, 24 Wis. 422 343 Gordon, Ex parte, 104 U. S. 515 626 Gordon v. Ogden, 3 Pet. 33 609 Graham v. Boston, Hartford, &c. Railroad Co., 14 Fed. Rep., 753 163 Great Western (The), 118 U. S. 520 625 Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139 679 Green Bay & Minnesota Railroad Co. v. Union Steamboat Co., 107 U. S. 98 308 Grenada Cô. ®. Brogden, 112 U. S. 201 . 170 Haak v. Linderman, 64 Penn. St. 499 676 Haggerty ®. Palmer, 6 Johns. Ch. 437 673 Hall ®. De Cuir, 95 U. S. 485 465, 565. 585, 593, 670 Hall & Long ®. Railroad Companies, 13 Wall. 367 210 Harding ®. Handy, 11 Wheat. 103 133 Haït ®. Carpenter, 24 Conn. 427 673 Hart ®. United States, 12 C. Cl. 319 63 Hart ®. United States, 15 C. Cl. 414 64 Hart ®. United States, 16 C. Cl. 459 64 Hayes ®. Holly Springs, 114 U. S. 120 * . 151 Hecht ®. Boughton. 105 U. S. 235 235 Hefflin ®. Bell, 30 Vt. 134 675 Hemmenway ®. Fisher, 20 How, 255 519 Hempstead ®. Johnston, 18 Ark. 123 9 Henderson ®. Mayor of New York, 92 U. S. 259 374, 462, 464 Henderson ®. Wadsworth, 115 U. S. 204 609 Herring ®. Hoppock, 15 N. Y. 409 674 Hervey ®. Rhode Island Locomotive Works, 93 U. S. 664 678, 679, 680 Heryford v. Davis, 102 U. S. 235, 680 Hildreth ®. McIntire, 1 J.J.Marsh, 206 442 Hilton ®. Dickinson. 108 U. S. 165 609 Hipp ®. Babin, 19 How. 271 89 XIV TABLE OF CASES CITED. Page Hirschom v. Canney, 98 Mass. 149 673 Hobbs v. McLean, 117 IT. S. 567 241 Hodson ®. Warner, 60 Ind. 214 677 Holland v. Challen, 110 IT., S. 15 89 Holroyd ®. Gwynne, 2 Taunt. 176 670, 671 Hook ®. Pratt, 78 N. Y. 371 134 Horn ®. Baker, 9 East 215 669, 671 Howe ®. Freeman, 14 Gray, 566 170 Howland ®. Blake, 97 U. S. 624 80 Hunt ®. Weiner, 39 Ark. 70 10 Hurst ®. Hollingsworth, 94 IT. S. Ill 269 Hussey ®. Thornton, 4 Mass. 404 671 Hyde ®. Ruble, 104 IT. S. 407 601 Inman Steamship Co. ®. Tinker, 94 U. S. 238 462 Insurance Co. ®. Huntington, 117 U. S. 280 601 Irons ®. Manufacturers’ National Bank, 27 Fed. Rep. 591 660 Jefferson ®. Driver, 117 U. S. 272 57 Jennings ®. Brown, 9 M. & W. 496 134 Jerome ®. M’Carter, 21 Wall. 17 53, 54 Johnson ®. Colburn, 36 Vt. 695 416 Johnston ®. Laflin, 103 U. S. 800 660 Kanaga ®. Taylor, 7 Ohio St., 134; 8. C. 70 Am. Dec. 62 677 Kansas Indians, 5 Wall. 737 384 Kennard ®. Cass County, 3 Dillon, 147 151 Killian & Ebbinghaus, 110 U. S.. 568 89 King ®. Bates, 57 N. H. 446 675 Knapp v. Banks, 2 How. 73 610 Kurtz ®. Moffitt, 115 IT. S. 487 354 Lambert ®. Taylor, 4 B. & C. 138; 8. C. 6 D. & R. 188 126 Lamond ®. Davall, 9 Q. B. 1030 668 Lamp Chimney Co. ®. Brass and Copper Co., 91 IT. S. 656 179 Lexington v. Butler, 14 Wall. 282 150 Libbey ®. Clark, 14 Kansas, 435 255 Libby v. Burnham, 15 Mass. 144 416 Lindsey v. Miller, 6 Pet. 666 125 Littlefield ®. Perry, 21 Wall. 205 16 Losee ®. Dunkin, 7 Johns. 70 160 Lottawanna (The), 21 Wall. 558 534, 585 Louisiana ®. Pilsbury, 105 IT. S. 278 140 Louisiana ®. Wood, 102 U. S. 294 263 Louisville & Nashville Railroad Co. ®. Ide, 114 U. S. 52, 601, 602 Lucas ®. Campbell, 88 Ill. 447 678 Lynch ®. Dalzell, 4 Bro. P. C. 431; 8. G. 3 Bro. P. C., 1st Ed. 497 494 McBurney ®. Carson, 99 IT. S. 567 281 McCormick ®. Hadden, 37 Ill. 370 678 Page McCracken v. City of San Francisco, 16 Cal. 591 452 McCready ®. Gurdians of the Poor of Philadelphia, 9 S. & R. 94 263 McDonald v. Black, 20 Ohio, 185 495 McDonald v. Chicago & North- western Railroad, 26 Iowa, 124 554 McFarland v. Farmer, 42 N. H. 386 675 McGirr ®. Sells, 60 Ind. 249 677 McGregor ». Dover & Deal Rail- way, 18 Q. B. 618 309 McLoughlin v. United States, 107 U. S. 526 278 McNeill, Ex parte, 13 Wall. 236 585 Macon County ®. Shores, 97 U. S; 272 150 Madison, &c. Plank Road Co. ®. Watertown, &c. Plank Road Co., 7 Wis. 59 315, 316 Magniac «. Thompson, 7 Pet. 348 553 Mahn v. Harwood, 112 U. S. 354 191 Malek Adhel, 2 How. 210 534 Mandel ®. Peay, 20 Ark. 325 10 Marbury ®. Brooks, 7 Wheat. 556 10 Marchioness of Annandale ®. Har- ris, 2 P. Wms. 432 134 Marquette Manufacturing Co. ®. Jefferey, 49 Mich. 283 677 Marsh ®. Fulton County, 10 Wall. 676 151, 451 Marsh ®. Mathiot, 14 S. & R. 214 676 Marston ®. Baldwin, 17 Mass. 606 671 Maryland ®. Baldwin, 112 U.S.490 126 Marsey ®. Ferich, 24 La. Ann. 28 247 Melendy «. Spaulding, 54 Vt. 517 158 Meyer ® .Construction Co., 100 U. S. 457 286 Michigan Central Railroad ®. Phillips, 60 Ill. 190 678 Miller ®. Ewer, 27 Maine, 509 169 Miller ®. State, 38 Ala. 600 126 Mills ®. Brooklyn, 32 N. Y. 499 21 Mining Co. ®. Canal Co., 118 U. S. 264 601 Mining Co. ®. Consolidated Mining Co., 102 U. S. 167 276 Mining Co. ®. Tarbet, 98 U. S. 463 208 Mires ®. Solebay, 2 Mod. 243 668 Mitchell ®. Harmony, 13 How. 115 553 Mitchell v. Torup, Parker, 227 504 Mobile ®. Kimball, 102 U. S. 691 585 Moffat ®. United States, 112 U. S. 24 279 Monroe ®. Collins, 17 Ohio St. 665 371 Moore ®. Robbins, 96 U. S. 530 279 Morgan ®. United States, 113 U. S. 476 160 Moseley ®. Shattuck, 43 Iowa, 540 676 Moshier®. Robie, 11 Maine (2 Fair-field), 137 416 TABLE OF CASES CITED. xv Page ' Miller v. Dows, 94 U. S. 444 298 Munn v. Illinois, 94 U. S. 113 467, 564, 566, 567, 569, 575, 593, 594 Murch v. Wright, 46 Ill. 487 678 Murphy «. Ramsey, 114 U. S. 15 380 Myers v. Swann, 107 U. S. 546 58 Neal v. Delaware, 103 U. S. 370 374 Nebraska City v. Campbell, 2 Black, 590 554 New Jersey Express Co.u Nichols, 3 Vroom,-166; 4 Vroom, 430 554 New Jersey Steam Navigation Co. ®. Merchants’ Bank, 6 How. 343 533 New Orleans Gas Light Co. v. Louisiana Light Co., 115 U. S. 650 464 New York Indians, 5 Wall. 761 384 New York & Maryland Line Rail- road Co. ®. Winans, 17 How. 30 308 Nichols v. MacLean, 98 U. S. 458 53 Norwich Co. v. Wright, 13 Wall. 104 490, 528, 530, 624 Nougué v. Clapp, 101 U. S. 551 177 Nudd ®. Burrows, 91 U. S. 426 553 Osborne v. Mobile, 16 Wall. 479 585, 593 Packet Co. v. Catlettsburg, 105 U. S. 559 465, 585 Packet Co. v. Keokuk, 95 U. S. 80 585 Packet Co. v. St. Louis, 100 U. S. 423 462 Parker ®. Baxter, 86 N. Y. 586 675 Passenger Cases, 7 How. 283 467 Patapsco (The), 12 Wall. 451 610 Pearce ®. Madison & Indianapolis Railroad Co., 21 How. 441 308, 316 Peete ®. Morgan, 19 Wall. 581 462, 463 Peik v. Chicago & Northwestern Railway, 94 Ü. S. 164 564, 566, 567, 592, 594 Pennsylvania ®. Wheeling Bridge Co., 18 How. 421 467 Pennsylvania Railroad Co. v. Loco- motive Truck Co., 110 U. S. 490 193 People ®. North Pacific Coast Railroad Co., 9 West Coast Rep. 574 425 People ®. Sacramento County, 59 Call. 321 411 People ®. Wabash, St. Louis & Pacific Railway, 104 Ill. 476 564, 579 Père v. Goldman, Louque’s Dig. 442, pl. 9 247 Philadelphia, Wilmington & Baltimore Railroad Co. ®. Quigley, 21 How. 202 261 Phillips v. London & Southwestern Railway, 4 Q. B. D. 406 ; 5 Q. B. D. 78 ; 5 C. P. D. 280 ; Page & C. 49 Law Journal (Q. B.) 233 554, 555 Pickard v. Pullman Southern Car Co., 117 U. S. 34 564, 575 Pike v. Evans, 94 U. S. 6 244 Pirie®. Tvedt, 115 U.S. 41 270,601,602 Planing Machine Co. v. Keith, 101 U. S. 479 24 Plymouth (The), 3 Wall. 20 618, 621 Plympton v. Insurance Co., 43 Vt. 497 495 Pope ®. Phifer, 3 Heiskell, 682 437 Post v. Supervisors, 105 U. S. 667 440 Pound v. Turck, 95 U. S. 459 465, 585 Powles v. Innes, 11 M. & W. 10 495 Providence, &c. Steamship Co. v. Hill Manufacturing Co., 109 U. S. 578 621, 625 Provident Savings Society ®. Ford, 114 U. S. 635 44 Pullman Palace Car Co. v. Speck, 113 U. S. 84 289 Pumpelly v. Green Bay Co., 13 Wall. 166 151 Railroad Commission Cases, 116 U. S. 307 593 Railroad Co. ®. Fuller, 17 Wall 560 585, 593 Railroad Co. ®. Harris, 12 Wall. 65 168 Railroad Co. v. Maryland, 21 Wall. 456 590 Railroad Co. ®. Mississippi, 102 U. S. 135 112 Railroad Co. v. Vance, 96 U. S. 450 313 Railway Co. v. Whitton, 13 Wall. 270 * 298 Randall «. Baltimore & Ohio Rail- road Co., 109 U. S. 478 36 Ready v Kearsley, 14 Mich. 215 343 Red Rock ®. Henry, 106 U. S. 596 241 Reed ®. Home Savings Bank, 130 Mass. 443 262 Reiche v. Smythe, 13 Wall. 162 240 Removal Cases, ICO U. S. 457 286 Reynolds ®. Crawfordsville Bank, 112 U. S. 405 89 Reynolds v. United States, 98 U. S. 145 349 Ridgeway v. Kennedy, 52 Missouri, 24 677 Robertson v. Carson, 19 Wall. 94 281 Rochester White Lead Co. v. Ro- chester, 3 N. Y. 463 21 Rogers v. Whitehouse, 71 Maine, 222 675 Rose ®. Story, 1 Penn. St. 190 676 Rowley ®. London & Northwestern Railway, L. R. 8, Ex. 221 554 Sadlers Co. v. Badcock, 2 Atk. xvi TABLE OF CASES CITED. Page San Antonio v. Mehaffy, 96 U. S. 312 150 San Francisco ®. Central Pacific Railroad Co., 63 Cal. 467 413 San Francisco & North Pacific Railroad Co. v. State Board of Equalization, 60 Cal. 12 412, 414 Sanders v. Keber, 28 Ohio St. 630 677 Santa Clara Railroad Tax Case, 9 Sawyer, 165 410, 418 Sargent v. Gile, 8 N. H. 325 675 Sargent v. Metcalf, 5 Gray, 306 673 Sauter v. New York Central Rail- road, 66 N. Y. 50 554 Sawyer v. Fisher, 32 Maine, 28 675 Saxby v. Gloucester Wagon Co., 7 Q. B. D. 305 193 Scotland (The), 105 U. S. 24 490, 527, 537, 624 Scoville v. Thayer, 105 U. S. 143 654 Sewing Machine Cases, 18 Wall. 553 . 58 Shanks v. Klein, 104 U. S. 18 8 Shaw ®. Norfolk Railroad Co., 5 Gray, 162 170 Shelby County v. Butterworth (not reported) 438, 444 Sheppard ®. Gosnold, Vaughan, 159 504 Sherlock v. Alling, 93 U. S. 103 594 Shireman ®. Jackson, 14 Ind. 459 677 Sinking Fund Cases, 99 U. S. 700 238 Slayton, Ex parte, 105 U. S. 451 624 Sloane ®. Anderson, 117 U. S. 275 270, 601 Smith ®. Lozo, 42 Mich. 6 677 Smith v. Rines, 2 Sumner, 348 601 Smyth v. Lynes, 1 Seid. (5 N. Y.) 41 674 Snow v. United States, 118 U. S. 346 355 Soon Hing v. Crowley, 113 U. S. 703 367,374 South Ottawa v. Perkins, 94 U.S. 260 440 Starin v. New York, 115 U. S. 248 112, 601 State v. Carroll, 38 Conn. 449 445, 448 State ®. Stoll, 17 Wall. 425 398 State Freight Tax Cases, 15 Wall. 232 564, 570, 574, 589, 591 State of Ohio ex ret. &c. v. Cincinnati Gas-Light, &c. Co. 18 Ohio St. 262 371 State Randolph, &c. ®. City of Plainfield, 38 N. J. L. (9 Vroom), 93 416 State Tax on Railway Gross Re- ceipts, 15 Wall. 293 566, 593, 594 Page State Tonnage Tax, 12 Wall. 204 462 Steamship v. Port Wardens, 6 Wall. 31 463 Steevens v. Earles, 25 Mich. 40 343 Steel v. Smelting Co., 106 U. S. 447 279 Stockton ®. Downey, 6 La. Ann. 581 249 Stone v. Bean, 15 Gray, 42 416 Stone v. Farmers’ Loan & Trust Co., 116 U. S. 307 564, 575 Stone ®. South Carolina, 117 U. S. 430 287 Stringfellow®. Cain, 99U. S. 610 235 Strong ®. Taylor, 2 Hill. 326 673 Stulze v. Schaeffle, 16 Jurist, 909 135 Succession of Taylor, 10 La. Ann. 509 144 Sumner ®. Cottey, 71 Missouri, 121 677 Sumner®. Woods, 67 Ala. 139 677 Supervisors ®. Schenck, 5 Wall. 772 150 Swain ®. Shepherd, 1 Mood. & Rob. 223 • 668 Sylvester ®. Crapo, 15 Pick, 92 160 Taylor ®. Huey, 11 La. Ann. 614 249 Taylor ®. Skrine, 3 Brevard. 516 446 Telegraph Co. ®. Texas, 105 U. S. 460 565,573 The King ®. Morrall, 6 Rice, 24 125 Thomas ®. Railroad Co., 101 U. S. 71 263, 307, 308, 810, 311, 317 Thompson ®. Boisselier, 114 U. S. 1 191 Thompson ®. Butler, 95 U. S. 694 610 Thompson ®. Railroad Companies, 6 Wall. 134 90 Thompson ®. Waters, 25 Mich. 214 343 Thorpe ®. Fowler, 57 Iowa, 541 676 Tilden ®. Streeter, 45 Mich. 533 80 Tompkins ®. Wheeler, 16 Pet. 106 10 Transportation Co. ®. Parkersburg, 107 U. S. 691 465, 584 Transportation Line ®. Hope, 95 U. S. 297 553 Trescott ®. Lewis, 11 La. Ann. 184 246 Trustees ®. Greenough, 105 U. S. 527 519 Turnbull v. Payson, 95 U. S. 418 660 Union Bank ®. Stafford, 12 How. 327 246 Union Pacific Railroad Co. ®. United States, 104 ü. S. 662 238 United States ®. Bank of Metropolis, 15 Pet. 377 125 TABLE OF CASES CITED. XVII Page United States v. Barker, 4 Wash. C. C. 464; S. C. 12 Wheat. 559 125 United States v. Bowen, 100 U. S. 508 57 United States v. Buford, 3 Pet. 12 125 United States v. Burlington & Missouri River Railroad, 98 U. S. 334 695 United States ®. Coombs, 12 Pet. 27 241 United States v. Denver Pacific Railway Co., 99 U. S. 460 .. 240 United States v. Fisher, 109 U. S. 143 392 United States v. Freeman, 3 How. 556 239 United States v. Kansas Pacific Railway Co., 99 U. S. 455 239 United States v. Klein, 13 Wall. 128 66, 67 United States v. Knight, 14 Pet. 301 125 United States v. Mason, 6 Bissell. 350 503 United States v. Mitchell, 109 U.S. 146 392 United States v. Mullan, 7 Sawyer, 466 276 United States v. Peters, 3 Dall. 121 626 United States v. Padelford, 9 Wall. 531 67 United States v. Railroad Co., 105 U. S. 263 235 United States v. Rogers, 4 How. 567 380 United States v. Schurz, 102 U. S. 378 279 United States v. Selmv, 102 U. S. 378 ' 279 United States ®. Stone, 2 Wall. 525 278 United States ®. The Mollie, 2 Woods, 318 227 United States v. Thompson, 98 U. S. 486 125 United States ®. Union Pacific Railroad Co., 91 U. S. 72 238 United States v. White, 2 Hill (IV, Y.) 59 126 United States Rifle, &c. Co. v. Whitney Arms Co., 14 Bl. 94; S. G. 2 Ban. & Ard. 493 24 Page Van Broeklin v. Tennessee, 117 U. S. 151 126 Vandewater v. Mills, 19 How. 82 534 Van Duzor v. Campbell, 90 Ill. 499 678 Vannevar v. Bryant, 21 Wall. 41 58 Virginia, Ex parte, 100 U. S. 339 374 Wabash, St. Louis & Pacific Rail- way v. Illinois, 105 Ill. 236 580 Wade v. Leroy, 20 How. 34 554 Wadsworth v. Supervisors, 102 U. S. 534 453 Wait v. Green, 36 Barb. 585; S. C. 36 N. Y. 556 674 Wangler v. Franklin, 70 Missouri, 650 677 Ward v. Chamberlain, 2 Black. 430 89, 534 Weightman ®. Washington, 1 Black, 39 21 Wells ®. Burbank, 17 N. H. 393 416 Welton v. Missouri, 91 U. S. 275 574, 589 Western Pacific Railroad Co. v. United States, 108 U. S. 512 276, 278 Western Union Telegraph Co. ®. Rogers, 93 U. S. 565 610 White v. White, 21 Vt. 250 158 Whitney v. Eaton, 15 Gray, 225 673 Whitney ®. McConnell, 29 Mich. 12 677 Wickliffe v. Eve, 17 How. 467 8 Williams ®. Goude, 1 Hagg. Eccl. 577 135 Willson v. Blackbird Creek Marsh Co., 2 Pet. 245 465, 581 Wilson ®. Hill, 3 Met. 66 495 Wilson v. McNamee, 102 U. S. 572 . 585 Wolff ®. New Orleans, 103 U. S. 358 140 Woolf v. Hamilton, 108 U. S. 15 235 Worcester ®. State of Georgia, 6 Pet. 515 382, 384 Wright «. Norwich & New York Transportation Co., 13 Wall. 104 528 Yale Lock Manufacturing Co. ®. Greenleaf, 117 U. S. 554 192 Yergrer. Ex varie. 8 Wall. 85 393 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. Page 1789, Sept. 24, 1 Stat. 73, Judiciary.........56, 352, 353, 354, 616 1799, Feb. 23, 1 Stat. 619, Quarantine.464 1822, March 30, 3 Stat. 654, Territory of Florida: Judicial power, where vested ...............................117 1836, April 20, 5 Stat. 10, Territorial government of Wisconsin 117 1836, July 4, § 6, 5 Stat. 117, Patents for inventions 23, 191 1841, Sept. 4, 5 Stat. 543, Public lands: mineral lands 277 1842, Aug. 23, 5 Stat. 518, Supreme Court: power to regulate practice in Circuit and District Courts.................................619, 620 1850, Sept. 9, § 9, 9 Stat. 455, Writs of error, &c., from Supreme Court of Utah Territory to Supreme Court of United States.... 348 1851, March 3, 9 Stat. 635, Limited liability of ship owners. .526, 530, 531, 533, 534, 535, 619, 621 1853, March 2, 10 Stat. 175, Writs of error, &c., from Supreme Court of Washington Territory to Supreme Court of United States. 348,352 1853, March 3, 10 Stat. 247, California lieu lands..273, 276, 278 1856, May 17, 11 Stat. 16, Grant of lands for Florida railroads 627 1862, June 2, 12 Stat. 411, Navy Department contracts... 42 1862, June 5, 12 Stat. 421, Diplomatic representative to Hayti. 390 1862, July 1, 12 Stat. 489, Pacific Railroad land grants.. .236, 237, 238, 239, 240, 241, 402, 403 1862, July 11, 12 Stat. 553, 534, Salary of Commissioner to Hayti 390 1862, July 1, 12 Stat. 501, Polygamy.............349, 350 1863, Feb. 24, 12 Stat. 664, 665, Arizona: Supreme Court.117 1863, March 3, 12 Stat. 772, Grant of lands to State of Kansas to aid railroads. .688, 689, 690, 692, 693, 694, 695 1864, June 20, 13 Stat. 139, Salary of Consul at Hayti................... 390 1864, July 1, 13 Stat. 339, Grant of lands to State of Kansas to aid railroads.. ..688, 689, 691, 692, 695 1864, July 1, 13 Stat. 343, Public lands............................276, 277 XX TABLE OE STATUTES CITED. Page 1864, July 1865, Jan. 1865, March 1866, July 1866, July 1866, July 1866, July 1866, July 1866, July 1867, Feb. 1867, March 1867, March 1868, Feb. 1868, March 1868, June 1868, July 1869, March 1870, July 1870, July 1871, Feb. 1871, March 1871, March 1872, May 1872, May 1872, May 1872, Dec. 1873, Feb. 1874, June 1874, June 1875, Feb. 1875, Feb. 1875, March 1876, July 1876, Aug. 1877, Feb. 1877, March 2, 13 Stat. 356, Pacific Railroad land grants.236, 237,238, 239, 240, 241, 403 24, 13 Stat. 424, Salary of Consul at Hayti........ 390 3, 13 Stat. 529, Public lands..................... 276 23, 14 Stat. 218, Land titles in California quieted.... 276 25, 14 Stat. 225, Salary of Consul at Hayti........ 390 26, 14 Stat. 251, Mineral lands................... . 208 26, 14 Stat. 289, Land grant to State of Kansas to aid Union Pacific Railroad.. 686, 687, 688, 689, 690, 691, 692, 694, 695 27, 14 Stat. 292, Atlantic and Pacific Railroad. .110, 398, 399 27, 14 Stat. 306, Removals...................... 57 5, 14 Stat. 386, Judiciary...................... 352 2, 14 Stat. 558, Removals : Local prejudice..... 57 2, 14 Stat. 571, United States not to pay. certain claims.............................. 65 28, 14 Stat. 514, Salary of Consul at Hayti.....390 30, 15 Stat. 58, Salary of Minister to Hayti... 390 25, 15 Stat. 76, Claims against United States, when to be transmitted to Court of Claims.................................62, 66 20, 15 Stat. 125, Internal Revenue : Stamps, commis- sions......................... .83, 84 3, 15 Stat. 321, Salary of Minister to Hayti...... 390 8, 16 Stat. 198, Patents.............13, 14, 15, 24, 191 9, 16 Stat. 219, Salary of Minister to Hayti......390 21, 16 Stat. 417, Salary of Minister to Hayti.....390 3, 16 Stat. 544, Indians................................ 382 3, 16 Stat. 573, Texas Pacific Railroad........110, 400 2, 17 Stat. 59, Texas Pacific Railroad.................. 110 10, 17 Stat. 91, Mineral lands.............205, 207, 208 22, 17 Stat. 142, Salary of Minister to Hayti...... 390 24, 17 Stat. 401, Internal Revenue: Collectors’ commissions ...................................................... 84 22, 17 Stat. 471, Salary of Minister to Hayti........... 390 11, 18 Stat. 67, Salary of Minister to Hayti........... 390 23, 18 Stat. 253, Courts and judicial officers in Utah.349, 350, 351 8, § 12, 18 Stat. 307, Internal Revenue: deputy collectors ............................................ .81, 82 18, 18 Stat. 321, Salary of Minister to Hayti...... 390 3, 18 Stat. 470, Removals. .44, 45, 55, 56, 58, 59, 61, 111, 112, 286, 289, 602, 603, 604 12, 19 Stat. 78, Appropriation, Post Office.... 629 15, 19 Stat. 170, Salary of Minister to Hayti... 390 26, 19 Stat. 233, Salary of Minister to Hayti...390 3, 19 Stat. 271, Indian Interpreters: Appropriation.. 393 TABLE OF STATUTES CITED. xxi Page 1877, March 3, 19 Stat. 362, Payments to Mail Contractors in Southern States before Rebellion.. 67 1878, April 29, 20 Stat. 37, Quarantine........................464 1878, May 7, 20 Stat. 56, Railroads to Pacific: Liabilities of United States.. .237, 238, 239, 240, 241 1878, June 4, 20 Stat. 92, Salary of Minister to Hayti..390,394 1878, June 17, 20 Stat. 140, Appropriation, Post Office...... 629 1879, Jan. 27, 20 Stat. 267, Salary of Minister to Hayti.. 390 1879, March 1, § 25 20 Stat. 327, Internal Revenue: deputy collectors, 81, 82, 84, 85 1880, May 14, 21 Stat. 134, Salary of Minister to Hayti.390, 391 1880, May 28, 21 Stat. 145, Internal Revenue: Collector’s com- missions, stamps...............84, 85 1881, Feb. 24, 21 Stat. 339, Salary of Minister to Hayti.390, 391 1882, March 22, 22 Stat. 30, Polygamy.347, 350, 351, 353, 354 1882, July 1, 22 Stat. 128, Salary of Minister to Hayti.........391 1885, March 3, § 9 23 Stat. 341, Indian Criminals...............376, 377, 385 1885, March 3, 23 Stat. 443, Appeals and writs of error from Territorial courts............351, 352 Revised Statutes, §§ 512-515. Navy Department.............................. 42 § 639. Removals...................................................... 57 § 649. Circuit Courts. Issues of fact tried by Court................ 158 § 688. Supreme Court. Writs of Prohibition.......................... 616 § 700. Cases tried by Circuit Court without jury.................... 158 § 702. Writs of error and appeals from Territorial courts... 347, 348 § 709. Judgments and decrees of State courts on Writs of Error..............................................349, 352 § 862. Mode of proof in equity and admiralty causes..................620 § 913. Mesne process in equity and admiralty.....................620,621 § 917. Supreme Court. Power to regulate practice in Circuit, etc.. Courts...................................... ; 620 § 1063. Court of Claims. Claims referred by Departments.......... 63 § 1064. Court of Claims. Procedure in cases transmitted by Departments................................................. 63 § 1065. Court of Claims. Judgments in cases transmitted by Departments.................................................. 63 § 1683. Diplomatic Representatives of United States..................390 §1846. Territories. Legislative powers.............................. 114 § 1851. Territories. Legislative powers.................... 114 § 1856. Territories. Election of Justices of the Peace, etc. ..... 119 § 1864. Territories. Supreme Court.......................... 114 § 1865. Territories. Judicial Districts.......................... 114 § 1866. Territories. Jurisdiction of Courts, how limited... 115 § 1868. Territories. Jurisdiction of Supreme and District Courts 114 § 1869. Territories. Writs of error, etc...................114, 118 § 1886. Territories. Accounts .................................... 118 § 1907. Judicial power in certain Territories...................... 115 § 1908. Judicial power in Arizona........................115,116, 117 xxii TABLE OF STATUTES CITED. Page Rev. Stat. § 1909. Writs of error, etc., from final deeisions of Supreme Courts of Territories ............................348, 349 § 1911. Writs of error, etc., from Washington Territory....349, 352 § 1977. Civil Rights. Equal rights under the law............... 369 §2070. Indians. Salaries of interpreters....................... 392 § 2076. Indians.............................................. 392 § 2079. Indians. No future treaties with Indian tribes.......... 382 § 2146. Indians. Crimes.........’.............................. 383 § 2320. Public lands. Mineral lands............................ 205 § 2322. Public lands. Mineral lands.........................205, 206 § 2324. Public lands. Mineral lands........................... 206 § 3185. Internal Revenue : Monthly Returns, etc................. 88 § 3314. Internal Revenue : Collectors’ Stamps......82, 83, 84, 85, 86 § 3466. Debts due to United States : Priority established....... 88 § 3480. United States not to pay certain claims..............65, 67 §§ 3744-3747. Public Contracts................................... 42 § 4235. State Regulation of Pilots.............................. 94 § 4237. Pilots : Discrimination in rates, when prohibited.......94, 95 § 4282. Shipping : Loss by fire........................... 526, 533 § 4283. Shipping : Limited liability of owner of vessel. .490, 491, 493 524, 536, 539, 616, 617 §4284. Shipping: Liability of owner of vessel to injured party, 491, 616, 617, 624 § 4285. Shipping : Transfer of interest of owner to trustee.. .491, 493 524, 526, 537, 616, 617 § 4399. What vessels are steam-vessels......................... 225 § 4400. What steam-vessels are subject to provisions of Title. 52,225,226 §4401. Coasters : How subject to Navigation Laws of United States......................................... 95 § 4418. Inspection of boilers of steam-vessels................. 225 § 4421. Certificate of Inspection.............................. 225 § 4426. Inspection of hull and boilers of ferry-boats, etc..225, 226, 227 § 4499. Penalty for not complying with terms of Title 52....... 225 § 4792-4800. Public Health.................................... 464 § 4886. Patents for Inventions................................ 191 §5142. National Banks : Increase of Capital.................648, 649 § 5151. National Banks : Liability of Shareholders..646, 653, 654, 657 § 5152. National Banks......................................... 657 § 5205. National Banks : Failure to pay up capital stock.651, 653, 654 §5234. National Banks : Receiver.............................. 651 § 5302. Crimes : Bigamy.................................. .349, 350 (C.) Treaties. 1831, Feb. 28, 7 Stat. 348, Seneca Indians............................ 255 1862, June 24, 12 Stat. 1237, Ottawa Indians.............251, 252, 253, 254 1880, Nov. 17, 22 Stat. 827, Treaty with China........................ 368 (D.) Statutes, of the States and Territories. Arizona, 1864, Howell Code, ch. 45. Certain courts established......... 119 TABLE OF STATUTES CITED. xxiii PAGE Arizona (cont.'), 1885, March 12. County court, Cochise County.........115 California, 1852, Mayl. Graⁿt of rⁱght of wa^ to Uⁿⁱted Sfcates ( for railroad......................... 402 1861, May 20. Southern Pacific Kailroad.......399, 403, 414 1863, April 27. Sale of State lands.............. 273 1864, April 4. Pacific Railroad....................... 402 1868, March 28. Management and sale of State lands..... 273 1870, April 4. Southern Pacific Railroad.............. 399 1881, March 14. Taxation of Railroads................. 406 Political Code,) Dₑfᵢₙᵢₜᵢₒₙₒ£ ₜₑᵣₘₛ.....................412 § 3617. f § 3664. Assessment of Railroads.. .405, 409, 410, 411 o g^gg j Duplicate assessment book may be dis- 1 pensed with............................408 § 3899. Collection of Taxes by action.......... 408 Connecticut, 1863, June 25. Boston, Hartford & Erie Railroad........ 169 1866 Mav 11 J Mortgage of Boston, Hartford & Erie ( Railroad............................. 170 1873, May 29. New York & New England Railroad Co. 171 Georgia, Code, § 1512. Pilots ..................................... 93, 95 § 3248. Judge expressing opinion On facts. Error 553 Illinois, 1851, Jan. 28. Terre Haute & Alton Railroad..................296 1855, Feb. 12. Railroads.............................. 309 1869, March 11. Indianapolis & St. Louis Railway... .313, 314 1871, April 7. Railroads. Discrimination in rates. .562, 578 1873, May 2. Railroads. Discrimination in rates. .563, 578 Rew Stat. 1874, | Cₕₐₜₜₑₗ Mortgages.................... 679 Rev. Stat. ch. ) jjₐiiᵣₒₐ₍iₛ Discrimination in rates....561 114, § 126. > Indiana, 1848, Feb. 14. . Ohio & Mississippi Railroad...........452 1849, Jan. 15. Ohio & Mississippi Railroad ............452 1851, Feb. 11. Terre Haute & Alton Railroad.... ...... 297 1852, June 11. Towns................................ 150 1853, Feb. 23. Railroads.............................. 311 1865, Dec. 18. Railroads.............................. 310 1869, May 15. Bonds of Cities and Towns.............. 150 Rev. Stat. 1881, )Rₐᵢₗᵣₒₐdₛ............................ § 3973. ) Louisiana,' 1834, March 10. Sales at public auction : Limitations._____244 1855, State Board of Health................. 458 1876, March 6. Debt of New Orleans, Premium Bonds... 139 1880 Anril 10 5 Liquidation of debt of New Orleans. 139, 140, ’ P 1 141, 142, 143, 146 1882 June 30 1 Boⁿds City of New Orleans. .138, 139, 141, ’ ' ( 142, 143, 146, 147 1884 Julv 9 5Liquidation of debt of New Orleans.. ’ X ’ t 138,139,142,143, 146 xxiv TABLE OF STATUTES CITED. •a PAGE Louisiana(conZ.),Civil Code,Art.) Dₒₙₐₜᵢₒₙ ᵢₙ cₒₙₛᵢdₑration of Marriage... 246 1551. ) Art. 8149. Personal engagements, how to be fulfilled. 144 Art 3150 5 I>roPerty °t debtor common pledge of ’ creditor................................ 144 Art. 3328. Mortgages. Certificate.. ..................... 246 Revised Civil ) gₐjₑₛ ₐ£ pUb]jc auctions. Limitations... 244 Code, Art. 3543 ) Code of Prac-) Hypothecary action, when property in tice, Art. 68.) hands of third person................. 246 ‘ Art. 680. Execution Sales................................ 245 Art. 681. Execution Sales .................'.............. 245 Art. 719. Execution Sales............................245 Art. 720. Execution Sales........................... 245 Massachusetts, 1866, April 12. 5 Mortgage of Boston, Hartford & Erie ( Railroad Company................................................ 170 1873 May 15 I^ew York & New England Railroad ’ ( Company......................... 171 Gen. Stat. 1860,) n ini ch. 53, §§8,10. i, Pub. Stat. 1882,) D d ₙQₜₑₛ............;.................. ₁₆₁ ch. 77, §§12,14 i Michigan, 2 Howell’s Ann. ) rpᵣᵤₛₜₛ 343 Stat. § 5567. ) §5573. Express Trusts.....................339, 343 ,,. . 1 ₒ„ₒ ,, , ( Act to facilitate construction of railroads Missouri, 1868,March 23. . ( in Missouri.............................. 71 1871 March 10 -i Subscription to stock of Railroads by ’ ' ( Counties, etc ......................... 72 1885, March 24. Subscription to Capital Stock of Railroads 72 Rev. Stat. 1879, ) Rₑᵥjₛₑd statutes : what to contain...... 72 §.3154. f § 3161. What acts continued in force .............. 72 ,T . .. ( Consolidation of Boston, Hartford & Erie New York, 1864, April 25. ... ’ . ,„ₒ ( Railroad Co. with other companies.. 166, 168 * -t ₙ. ( Boston, Hartford & Erie Railroad Com-1866, April 24.4 ,ₙₙ ( pany Mortgage........................... 170 M 91 J -^ew York & New England Railroad ’ ay"* 1 Company... ......................68,172 , T , , , ₒ„ₒ T (Mortgage of Boston, Hartford & Erie Rhode Island, 1866, Jan. 1 ( Railroad Company..... ................. 170 1873 Ma 29 -i ^ew York & New England Railroad ’ ay ’ 1 Company......................... 171 South Carolina 1799. 5 Judges aPPoⁱⁿted ⁱⁿ Place of judges sick, ( etc .....................................446 Code of Prac- ) pᵣₒcₑdᵤᵣₑ . When complaint to be filed.. 288 tice, § 278. ) Tennessee, 1867, Feb. 25. Mississippi River Railroad.............434, 449 TABLE OF STATUTES CITED. xxv PAGE Tennessee (cont.), 1867, March 9. Shelby County bonds. .434, 436, 439, 444, 450 1867, Nov. 5. Mississippi River Railroad.. ........ 450 1869, March 12. Mississippi River Railroad........... 437 1869, Feb. 12. Mississippi River Railroad............434 Code, § 5043. Chancery Court. Jurisdiction.......... 90 Vermont, 1870, Nov. 22. Demand notes, when overdue.................. 161 Gen.Stat. 186^,) gₐᵤₛₑₛ ₘₐy be referred bv rule of Court. 158 ch. 30, £ 52. f J Rev. Laws, 1880, ) Rₑfₑᵣₑₙcₑ ₒf Causes.............. 158 § 985. f § 2013. Demand note when due................. 161 (E.) Foreign Statutes. Belgium, 1855, June 19. Liability of Shipowners................. 532 Finland, 1874, Maritime) LᵢₐbᵢHₜy ₒf Sₕiₚₒwₙₑrs................. 532 Code, Art. 17.) France, 1681, Ordon-} nance de la > Shipping : Liability of owners......496, 531 Marine. ' 1874, Dec. 10. Shipping : Liability of owners. .501, 502, 531 Code de Com- ) . . T. ..... „ . , ^Shipping : Liability of owners. .496, 500, 531 merce,Art.216 ) Great Britain, 21 Jac. 1, c. 19, Bankrupts.....................*..... 671 ^159° ’ C^' I BesPoⁿsⁱbⁱlⁱt5r Shipowners....... 531 Prussia, 1794, Code. \ Shipping : Liability of owners to injured ( parties......................... 501,531 I. CASES ADJUDGED AT OCTOBER TERM, 1885. VOL. CXVIII—1 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1885. EMERSON (as-^h^fpleader}^. SENTER & Another. ERROR TO THE OIRCm^'^DURT OF; THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. Submitted March 9, 1886.—Decided April 12, 1886. A sole surviving partner of an insolvent firm, who is himself insolvent, may make a general assignment of all the firm’s assets, for the benefit of all joint creditors, with preferences to some of them: and such assignment is not invalidated by the fact that the assignor fraudulently withheld from the schedules certain partnership property for his own benefit, without the knowledge of the assignee or of the beneficiaries of the trust. This suit was commenced by the defendants in error as plaintiffs, creditors of the firm of A. Butler & Co. One Moores, sole surviving partner, was defendant, and property which had belonged to the firm was attached. The plaintiff in error interpleaded, setting up title to the attached property under an assignment from Moores for the benefit of the creditors of the firm. Judgment for plaintiffs; to review which the interpleading creditor sued out this writ of error. The facts are stated by the court as follows : Butler and Moores constituted a mercantile firm doing busi- 4 OCTOBER TERM, 1885. Statement of Facts. ness in the State of Arkansas under the name of A. Butler & Co. The former died on the 17th day of December, 1881, and thereafter, February 23,1882, Moores, as surviving partner, executed a deed of assignment to Emerson, the plaintiff in error. The deed recited the death of Butler, the insufficiency of assets to discharge the partnership debts, and the desire of Moores, as surviving partner, to provide for their payment, so far as in his power, “ by an assignment of all the property belonging to him as such surviving partner.” The grantor, for the purposes named, and in consideration of one dollar paid by the grantee, transferred and assigned to Emerson, his successors and assigns, “ all the stock in trade, goods, wares, and merchandise, debts, choses in action, property and effects of every description, belonging to the said firm of A. Butler & Co.,” or to the grantor, “ as such surviving partner, mentioned, contained, or referred to in the schedule hereunto annexed.” The conveyance was in trust that the assignee take possession of the property described, “•sell the same as provided by lav?*, and, with all reasonable dispatch,” collect the debts and demands assigned, and apply the proceeds: 1. To pay all the just and reasonable expenses, costs, and charges of executing the assignment, and carrying into effect the trust thereby created ; 2. To pay in full, if the residue of the proceeds is sufficient for that purpose, all the debts and liabilities then due or to become due from Moores, as surviving partner, with interest thereon, to certain preferred creditors, among whom were the defendants in error, Senter & Co.; 3. To apply the balance to all other debts and liabilities of A. Butler & Co., or of Moores, as surviving partner ; 4. To repay the latter, as surviving partner, whatever may remain after meeting the costs and expenses of the trust, and the amounts due respectively to other creditors. The deed invested the assignee with all the power and authority necessary to the full execution of the trust created by it. It was accepted by Emerson and by some of the preferred creditors therein mentioned. The debts of the firm largely exceeded its assets, and Moores individually, as well as as surviving partner, was insolvent when he made the assignment. In addition to the recitals in the EMERSON v. SENTER. 5 Argument for Defendant in Error. deed of a desire to make an assignment of all the property in his hands as surviving partner, Moores represented to his creditors that he had done so. Nevertheless, for the purpose of hindering and cheating his creditors, he omitted from his sched-ule five hundred dollars worth of goods which belonged to him as surviving partner; and, with like intent, left out of the schedule, and withheld from his assignee, one thousand dollars in cash and other property which he held as surviving partner ; appropriating to his own use the property so omitted from the schedule. Neither the assignee nor the preferred creditors who accepted the deed had any knowledge of the alleged fraud of the grantor, until after their acceptance of its provisions. Upon an issue formed between Emerson, asserting the validity of the deed, and Senter & Co., who, as creditors of the firm, attached the assigned effects as the property of the surviving partner, the deed of assignment was held to be void, and the claim of the assignee denied. Mr. U. M. Rose for plaintiff in error. Mr. Thomas C. McRae for defendants in error. I. A surviving partner has no power to make an assignment of the partnership assets in his hands, for the benefit of creditors, with preferences. He is a trustee. If the fund in his hands is not enough to pay partnership debts in full, all debts being payable equally, he can do nothing to disturb this equality. Parsons on Partnership, 2d. ed. 442, 443 ; RichardsN. New Hampshire Ins. Co., 43 N. H. 263; Marsh v. Bennett, 5 McLean, 117,122. In the case of Hoyt v. Sprague, 103 U. S. 613, this does not seem to have been considered. The power to prefer is not necessarily incident to the power to assign. Limited partnerships, for instance, may make general assignments, but they cannot make preferences. Burrill on Assignments, 3d ed. §§ 90, 171; Arkansas Digest, 1884, § 4842. It does not follow that, because a surviving partner may practically prefer a creditor of the firm by paying him, he may pre- 6 OCTOBER TERM, 1885. Argument for Defendant in Error. fer him in a general assignment. Wall v. Lakin, 13 Met. 167; United States v. Bank of the United States, 8 Rob. La. 262. II. The fraud of the assignor vitiated the assignment. The assignee is affected with notice of it. He takes the assignor’s place, and is in no better position than he is. Haggerty v. Palmer, 6 Johns. Ch. 437; Root v. French, 13 Wend. 570; Mackie v. Cairns, 5 Cowen, 547, 555; Coddington v. Bay, 20 Johns. 637; Bay v. Coddington, 5 Johns. Ch. 54; Petrie v. Clark, 11 Serg. & Rawle, 377; McCarty n. Springer, 3 Rawle, 159; Dickerson v. Tillinghast, 4 Paige, 215; Hunt v. Weiner, 39 Ark. 70, 74, 75; Gere v. Murray, 6 Minn. 305; Knowles v. Lord, 4 Wharton, 500; Pierson v. Manning, 2 Mich. 445; Flanigan v. Lampman, 12 Mich. 58; Farrington n. Sexton, 43 Mich. 454; Stickney v. Crane, 35 Vt. 89; Hair grove v. Millington, 8 Kansas, 480,486; Ruble v. McDonald, 18 Iowa, 493; Lampson v. Arnold, 19 Iowa, 479 ; Stone v. Marshall, 1 Jones Law (N. C.) 300; Irwin v. Keen, 3 Wharton, 347; Swan v. Crafts, 124 Mass. 453; Clements v. Berry, 11 How. IT. S. 398; Burrill on Assignments, 391 and 484. The assignee is certainly open to all equities that might exist against the assignor. Wade on Notice, §§ 431, 436; United States v. Buford, 3 Pet. 12; Cowdrey v. Vandenberg, 101 U. S. 575. Though, in ante bellum days, while Arkansas had no commerce to speak of, in three cases cited by the appellant, the Supreme Court did, without reference to authority, hold, in chancery, that deeds of trust were not bad unless the creditors’ fraud concurred with that of the grantor; its present view, based upon more mature consideration, points the other way. For, at the end of a series of well-considered cases, in Hunt v. Weiner, 39 Ark. 70, 75, the court uses this language: “ Perhaps the rule which requires the grantee to participate in the fraud, in order to avoid the deed (a deed of assignment), has no just application, except in case of purchasers, or persons who have parted with some valuable right.” Any other view would afford an assignor vast opportunities for effectually compassing fraud. Beside the Arkansas cases referred to, appellant’s counsel cites decisions of this court, and of Ohio, Illinois, Missouri, EMERSON v. SENTER. 7 Opinion of the Court. Virginia, Tennessee, Michigan, and Alabama, to sustain his position. But a careful resumé of the authorities will show that the most of those cited by appellant’s counsel are either not in point, or are based upon some statute, or upon a hasty and ill-considered impression, authorities pro and con. not being considered. We deny that this court or the Supreme Court of Arkansas is opposed to the view of the lower court, or that the view it entertained is opposed to principle and the weight of authority. It is possible that Ohio and Missouri would not be with the appellant, if no statute prevailed. We deny that Alabama would be with him if the question were res nova. We deny that Michigan is with him. We admit that Virginia and Tennessee are with him, but assert that they are opposed to sounder views as expressed by the judges in Vermont, Massachusetts, New York, Pennsylvania, North Carolina, Michigan, Minnesota, Iowa, Kansas, Arkansas, and the Federal Circuit Court in Minnesota and Arkansas. Mr. Justice Harlan, after stating the facts in the language reported above, delivered the opinion of the court. The court below proceeded upon the ground, in part, that a sole surviving partner of an insolvent firm, who is himself insolvent, cannot make a valid assignment of partnership assets for the benefit of the joint creditors, with preference to some of them. We are unable to concur in this view. Some of the cases hold that one partner cannot, either during the continuance of the partnership, or after its dissolution by agreement, make such an assignment. It cannot, however, be doubted that, in the absence of a statute prohibiting it, such an assignment, whether during the continuance of the partnership or after its dissolution by agreement, would be valid where the partners all unite in executing it, or where one of them executes it by the direction or with the consent of the others. Partnership creditors have no specific lien upon the joint funds for their debts. 3 Kent. Com. 65 ; Story Partnership, § 358. They have no such relations with the partnership as entitles them to interfere with the complete control of the joint prop- 8 OCTOBER TERM, 1885. Opinion of the Court. erty by the partners, during the existence of the partnership, or with their right, after a dissolution, by agreement, of the partnership to dispose of it for the payment of their joint debts, giving such preference as they deem proper. When the partnership is dissolved by the death of one partner, the surviving partner is entitled to the possession and control of the joint property for the purpose of closing up its business. Wickliffe v. Eve, 17 How. 467; Shanks v. Klein, 104 U. S. 18. To that end, and for the purpose of paying the joint debts, he may, according to the settled principles of the law of partnership, administer the affairs of the firm, and, by sale or other reasonable disposition of its property, make provision for meeting its obligations. He could not otherwise properly discharge the duty which rests upon him to wind up the business, and pay over to the representative of the deceased partner what may be due to him after a final settlement of the joint debts. It is true that, in many cases—where, for instance, the surviving partner is not exercising due diligence in settling the partnership business, or is acting in bad faith—the personal representative of the deceased partner may invoke the interference of a court of equity, and compel such a disposition of the partnership effects as will be just and proper; this, because, as between the partners, and therefore, as betw’een the surviving partner and the personal representatives of the deceased partner, the joint assets constitute a fund to be appropriated primarily to the discharge of partnership liabilities; though not necessarily, and under all circumstances, upon terms of equality as to all the joint creditors. But, while the surviving partner is under a legal obligation to account to the personal representative of a deceased partner, the latter has no such lien upon joint assets as would prevent the former from disposing of them for the purpose of closing up the partnership affairs. He has a standing in court only through the equitable right which his intestate had, as between himself and the surviving partner, to have the joint property applied in good faith for the liquidation of the joint liabilities. As with the concurrence of all of the pa rtners the joint property could have been sold or assigned, for the benefit of preferred creditors of the firm, the surviving EMERSON V. SENTER. 9 Opinion of the Court. partner—there being no statute forbidding it—could make the same disposition of it. The right to do so grows out of his duty, from his relations to the property, to administer the affairs of the firm so as to close up its business without unreasonable delay ; and his authority to make such a preference— the local law not forbidding it—cannot, upon principle, be less than that which an individual debtor has in the case of his own creditors. It necessarily results that the giving of preference to certain partnership creditors was not an unauthorized exertion of power by Moores, the surviving partner. It is, however, contended that the assignment in question was void because of the fraudulent omission from the schedule by Moores of certain property which constituted a part of the partnership assets, and was appropriated by him to his own use. But this fraud upon the part of Moores did not affect the rights of the assignee and of the beneficiaries of the trust who ' were ignorant of the fraud of the grantor. Such seems to be the established doctrine of the Supreme Court of Arkansas. In Hempstead v. Johnston, 18 Ark. 123, 140, it was said that a deed of trust or other conveyance is not necessarily void “ because its effect is to hinder and delay the creditors of the grantor in the collection of their claims. But such must be its object. It must be a fraudulent contrivance for that purpose; and the grantee, or person to be benefited by the conveyance, must be party privy to the fraudulent design.” Referring to the facts which existed in that case, that the grantor was in failing circumstances when the deed of trust was made; that suits were pending against him; and that some of the beneficiaries were his near relatives, the court said : “ But all these facts may and do exist in many cases, consistently with the hypothesis that the conveyance was made in good faith to secure preferred creditors, whose demands are just.” In Cornish v. Dews, 18 Ark. 172,181, the court said : “ As held in the case of Hempstead v. Johnston, supra, if the deed was valid when executed, no subsequent conduct on the part of the grantor, or the trustee, however fraudulent, could avoid the deed, and deprive the creditors, accepting it in good faith and not participating in the fraud, of their rights under it. And even if Cor- 10 OCTOBER TERM, 1885. Syllabus. nish (the grantor) had the purpose, when he made the deed, of hindering and delaying creditors not provided for by it, yet, if the preferred creditors were not parties or privies to his fraudulent purpose, but accepted the deed in good faith to secure the debts really due them, it would be valid as to them.” See also Handel v. Peay, 20 Ark. 325,329; Hunt v. Weiner, 39 Ark. 70, 75. The rule announced by the Supreme Court of Arkansas is in harmony with the settled doctrines of this court, and accords with sound reason. Marbury v. Brooks, 7 Wheat. 556, 577 ; Brooks v. Marbury, 11 Wheat. 78, 89; Tompkins v. Wheeler, 16 Pet. 106, 118. There was nothing upon the face of the deed to Emerson to indicate that it was made for any other purpose than in good faith, to make provision for the payment of certain debts held against the grantor as surviving partner; first, debts due to the preferred creditors, and, then, debts held by other creditors. If the intentional omission by the grantor of certain property from his schedule, and his appropriation of it to his own use, was such a fraud as would vitiate the deed where the assignee or the preferred creditors have previous notice of such omission, that result cannot happen when they were ignorant of the fraud at the time they accepted the benefit of the conveyance. The judgment is reversed, with directions to enter judgment on the special finding of facts in favor of the plaintiff in DOBSON & Another v. DORN AN & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. Argued March 31, 1886.—Decided April 19, 1886. The specification of letters patent for a design for a carpet, which is accompanied by a photographic illustration, and merely states that the nature of the design is fully represented in such illustration, and claims “the configuration of the design hereunto annexed, when applied to carpeting,” sets forth a sufficient description and claim, and the patent is valid. DOBSON v. DORNAN. 11 Counsel for Parties. An interlocutory decree which awards a recovery for profits and damages for the infringement of a patent for a design for a carpet, and orders an account of the profits from infringing by the manufacture, use and sale of carpeting bearing the design, and of the damages by reason of the infringement, is not open to the objection that it awards the profits and damages resulting from the making and selling of the carpeting, instead of those resulting from the use of the design. On the question of the infringement of a patent for a design for carpeting, in a suit in equity, where exhibits of carpets containing the patented and the infringing designs were produced in the Circuit Court, and it decided the question of infringement against the defendant, by the aid of ocular inspection of those exhibits, and, on an appeal by him, those exhibits were not produced in this court, and there was, in the record, testimony tending to show infringement, this court held, that, although there was contradictory testimony, it could not, in the absence of ocular inspection, say that the Circuit Court erred in finding infringement-. The decision in Dobson v. Hartford Carpet Co. (114 U. S. 439,) as to the rule of damages in a suit in equity for the infringement of a patent for a design for a carpet, confirmed. The plaintiff must show what profits or damages are attributable to the use of the infringing design. The defendant made no profits on the manufacture and sale of carpets containing the infringing design. The plaintiff made a certain percentage of profit on the manufacture and sale of carpets containing the patented design. The defendant’s carpets were far inferior in quality and market value to those of the plaintiff. The Circuit Court presumed that the defendant’s carpets displaced those of the plaintiff, to the extent of the defendant’s sales, and held that the entire profit which the plaintiff would have received, at such percentage, from the sale of an equal quantity of his own carpets of the same pattern, was the proper measure of his damages. There was no satisfactory evidence that those who bought the defendant’s cheap carpets would have bought the plaintiff’s higher priced ones, or that the design added anything to the defendant’s price, or promoted his sale of the particular carpet ; and none to show what part of the defendant’s price was to be attributed to the design : Held, That the Circuit Court was in error. The decree was reversed, and the case remanded, with direction to disallow the award of damages, and to award six cents damages, and to allow to the defendant a recovery of his costs after interlocutory decree, and to the plaintiff a recovery of his costs to and including interlocutory decree. Bill in equity to restrain the infringement of a patent for a carpet design. The case is stated in the opinion of the court. JZr. Hector T. Fenton and Hr. Fichard P. White for appellants. Hr. Ludovic C. Cleemann for appellees. 12 OCTOBER TERM, 1885. Opinion of the Court. Mr. Justice Blatchford delivered the opinion of the court. This is a suit in equity brought in February, 1875, by the appellees, trading as Dornan, Maybin & Co., against the appellants, John Dobson and James Dobson, in the Circuit Court of the United States for the Eastern District of Pennsylvania, for the infringement of letters patent No. 6822, for a design for a carpet, granted to Charles A. Righter, August 19, 1873, for 3| years. The entire specification is as follows: ■ ‘ Be it known, that I, Chas. A. Righter, of the city of Philadelphia, county of Philadelphia, State of Pennsylvania, have invented and produced a new and original design for carpets, of which the following is a specification: The nature of my design is fully represented in the accompanying photographic illustration, to which reference is made. I claim as my invention—The configuration of the design hereunto annexed, when applied to carpeting.” The photographic illustration is a six-inch square, containing a single figure or design. The only defence set up in the answer is non-infringement. Issue being joined, proofs were taken, and the case was heard, and in April, 1876, a decree was made finding that the patent was valid and had been infringed, and awarding to the plaintiffs costs and an account of profits and damages before a master, and a perpetual injunction. The master made his report in April, 1882. He found that the defendants had made no profits, and stated thus the contending views of the parties as to the proper rule of damages: ⁱl The complainants asked to have awarded to them, as damages and compensation for the injury inflicted upon them, whatever profit the defendants may have made, and also whatever loss they, the complainants, had incurred, which could be measured by the profits that would have accrued to them if they had made the exclusive sales of the carpet, deducting in such case the amount of profits, if any, made by the defendants. The defendants, however, contended that all that the complainants were entitled to was not what they, the defendants, had made or saved on the carpets, but only what they made or saved by reason of the use of the pattern, as compared with what they could have made without it, and, therefore, unless they could sell the carpet bearing the design, at a higher price DOBSON v. DORNAN. 13 Opinion of the Court. than other carpets, whereby they made more or lost less, no profit resulted to them. They further contended, that, unless it was shown by direct evidence that the complainants would have made the sales which the defendants did, had they not infringed, the fact could not be inferred.” The master found, that the profit of the plaintiffs consisted in the exclusive use of the invention, and in the monopoly of manufacturing for others to use; that they sold their carpets at from 10 to 15 cents a yard more than the defendants did, and made a profit, in 1874, of 13| per cent., and in 1875, of lOf per cent., their average price per yard being more than one dollar; that the defendants might have made an equal profit if they had asked the same prices, and the benefit, gain or advantage to them might be reasonably estimated as equivalent to the money profit they might have made; that it was to be presumed that the defendants’ carpets displaced the plaintiffs’ in the market; that it was proper to award to the plaintiffs an amount equal to the profits they could have made, in 1874 and 1875, on the carpets made and sold by the defendants, if the plaintiffs themselves had made and sold them; that the defendants made and sold, in 1874,19,243^ yards, which would have yielded, at $1 a yard, $19,243.50, on which the profits of the plaintiffs, at 13f per cent., would have been $2645.97; that the defendants made and sold, in 1875, 31,280| yards, which would have yielded, at $1 a yard, $31,280.50, on which the profits of the plaintiffs, at 10J per cent., would have been $3362.65; and that, therefore, the plaintiffs had sustained $6008.62 damages by the infringement of the patent. The defendants excepted to the report, but the court confirmed it, and, in October, 1882, rendered a decree for the plaintiffs for $6128.79, from which the defendants have appealed. It is assigned for error, that the patent is void on its face, for want of a sufficient description and claim. It was issued under the Act of July 8, 1870, ch. 230, 16 Stat. 198. Sections 71, 72 and 76 of that act provided as follows: “ Sec. 71. Any person who, by his own industry, genius, efforts, and expense, has invented or produced any new and original design for a 14 OCTOBER TERM, 1885. Opinion of the Court. manufacture, bust, statue, alto-relievo, or bas-relief ; any new and original design for the printing of woollen, silk, cotton, or other fabrics; any new and original impression, ornament, pattern, print, or picture, to be printed, painted, cast, or otherwise placed on or worked into any article of manufacture ; or any new* useful, and original shape or configuration of any article of manufacture, the same not having been known or used by others before his invention or production thereof, or patented, or described in any printed publication, may, upon payment of the duty required by law, and other due proceedings had, the same as in cases of inventions or discoveries, obtain a patent therefor.” “ Sec. 72. The commissioner may dispense with models or designs when the design can be sufficiently represented by drawings or photographs.” “ Sec. 76. All the regulations and provisions which apply to the obtaining or protection of patents for inventions or discoveries, not inconsistent with the provisions of this act, shall apply to patents for designs.” It is contended that § 26 of the Act of July 8, 1870, applies to the present case. That section provides, that, before any person shall receive a patent for his invention or discovery, he shall file in the Patent Office a written description of it, and “ particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.” It is urged that § 26 was not complied with in this case, and that the patent is void because it contains no description, and no proper claim. But we are of opinion that the description and claim are sufficient. The purport of the description is, that what the photographic illustration represents as a whole is the invention. It is that which is claimed, when applied to carpeting. The design is a pattern to be worked into a carpet, and is within the statute. Claiming “ the configuration of the design ” is the same thing as claiming the design, or the figure, or the pattern. It is better represented by the photographic illustration than it could be by any description, and a description would probably not be intelligible without the illustration. In Dobson v. Bigelow Carpet Co., 114 U. S. 439, 446, the DOBSON v. DORNAN. 15 Opinion of the Court. claim of the design patent was, “ the design for a carpet, substantially as shown.” Objection was taken to the form of the claim. But this court said it saw no good objection to the form, and that the claim referred to the description as well as the drawing, in using the word « shown.” The drawing there was a photographic illustration of the body and border of the carpet, described in the specification as representing a face view. But the description was merely, that a was an irregular shield-like figure, surrounded by a border embellished by floral decoration: that b b were two irregular figures of the same design, but having a different ground color from a, and arranged at opposite sides diagonally of each shield; that c c were tassel-like ornaments, arranged beneath the several figures a ; that d were bouquets, and there were other floral ornamentations ; that the border contained an inner plain stripe/*, and an outer zigzag stripe y, having inwardly projecting semicircular ornaments h ‘ that between the stripes f and g were representations of shields resembling the shield a, and floral decorations extending over the stripe /*, as shown; and that the tassel-like ornaments c were also in the border. Unaided by the illustration, probably many different designs might have been drawn, to which the description would have applied; and the description furnished no aid whatever in identifying the design. So, in the present case, the design is sufficiently identified by the illustration, without the aid of any description. In the language of § 72, before cited, the design is sufficiently represented by the photograph. Undoubtedly the claim in this case covers the design as a whole, and not any part of it as a part; and it is to be tested as a whole, as to novelty and infringement. The answer admits that Righter was the original and first inventor of the design for which the patent was granted, and does not question the novelty of the invention. Exception is taken to the form of the interlocutory decree, in that, while it awards a recovery for the profits and damages from the infringement of the design, it orders an account to be taken of the profits of the defendants from infringing upon the exclusive rights of the plaintiffs-«by the manufacture, use and 16 OCTOBER TERM, 1885. Opinion of the Court. sale of carpeting bearing said patented design,” and of the additional damages suffered by the plaintiffs “ by reason of said infringements.” We do not think the decree is open to the objection made. It is not like the decree in Littlefield v. Perry, 21 Wall. 205, 228. It directs an account of the profits from the infringement. The infringement could be committed only by making, using, and selling carpets containing the patented design; but the profits and damages to be accounted for are described as only those from the infringement. It is also contended, that the weight of the evidence on the question of infringement was with the defendants. The court below found otherwise. It appears by the record that a piece of carpet, Exhibit No. 2, was introduced in evidence as containing the patented design; and another piece of carpet, Exhibit No. 3, as being the defendants’ carpet, alleged to infringe. Those exhibits have not been produced on the hearing in this court, although the brief for the appellants states that the Circuit Court evidently decided the question of infringement with little aid other than ocular inspection of the samples. This court has not the benefit of any such aid. We find, however, in the record, testimony of a witness to the effect that, from his experience as a seller of carpets, he thinks it would be almost impossible for any one who had not seen the two carpets together to tell them apart; and of another witness, that, in his opinion, not one customer in twenty-five would know the difference; and other testimony tending to the same result. While there is evidence contradictory of this, we cannot, in the absence of ocular inspection, take it upon ourselves to say that the Circuit Court erred in finding infringement. The only remaining question is that of the amount of damages. The master and the Circuit Court proceeded on a view which had been adopted by that court in the three cases adjudged by it, the decrees in which were reversed by this court in Dobson n. Hartford Carpet Co., 114 IT. S. 439. The present case was decided by the Circuit Court before such reversal. We are of opinion that the decision cited covers all the questions involved in the case at bar, and requires that the final decree in it should be reversed. In the cases in 114 IT. S., the DOBSON v. DORNAN. 17 Opinion of the Court. patents being for designs for carpets, it was found that no profits had been made by the defendant, but the Circuit Court allowed to the plaintiff, as damages, in respect to the yards of infringing carpet made and sold by the defendant, the sum per yard which was the profit of the plaintiff in making and selling carpets with the patented design, there being no evidence as to the value imparted to the carpet by the design. This court held that such award of damages was improper, and that only nominal damages should have been allowed. It is not necessary to recapitulate the views set forth in 114 U. S., which controlled that decision. The present case« cannot be distinguished. It is urged that the principle on which damages are to be computed in respect to a patent for a machine, or for an improvement in a machine, or for a process, is not applicable to a patent for a design, because, in a patent for a design, the result is patented, while in the other kind of patent the means are patented; that in the design patent there is no other way of effecting the result, while in the other there generally is: and that, therefore, in the design patent the entire profits or damages on the article containing the design are to be given, while in the other only those belonging to the particular improvement patented are to be allowed. But we think all that is here urged is covered by what was said in the cases in 114 IT. S. The plaintiff must show what profits or damages are attributable to the use of the infringing design. In the present case, the master found that the plaintiffs’ profit on their carpets was a certain percentage, and assumed or presumed that the defendants’ carpets, which were far inferior in quality as well as in market value, displaced those of the plaintiffs to the extent of the sales by the defendants, and held that the entire profit which the plaintiffs would have received, at such percentage, from the sale of an equal quantity of their own carpets of the same pattern, was the proper measure of their damages. The defendants’ carpets were so inferior in quality that they sold them at a much less price than the plaintiffs got for their carpets, and even at those prices the defendants made no profits. Under these circumstances there vol. cxvin—2 18 OCTOBER TERM, 1885. Opinion of the Court. can be no presumption that the plaintiffs would have sold their better quality of carpets in place of the defendants’ poorer quality, if the latter had not existed, or that the pattern would have induced the purchasers from the defendants to give to the plaintiffs the higher price. On the contrary, the presumption is at least equal that the cheaper price, and not the pattern, sold the defendants’ carpets. There was no satisfactory testimony that those who bought the cheap carpets from the defendants would have bought the higher priced ones from the plaintiffs, or that the design added anything to the defendants’ price, or promoted their sale of the particular carpet; and none to show what part of the defendants’ price was to be attributed to the design. It does not evade the force of the principle governing the case, that, in arriving at the percentage of profit made by the plaintiffs on their sales, the cost was made up by computing all the items which entered irlto the production of their carpets. The objection is to taking the whole of that profit as the measure of damages, on the assumption that the whole of it was due solely to the design, and on the further assumption that the plaintiffs would have sold of their higher grade carpets a quantity equal to the cheaper lower grade carpets sold by the defendants. The final decree of the. Circuit Court is reversed, and the case is remanded to that court, with direction to disallow the award of da/mages, and to award six cents damages, and to allow to the defendants a recovery for their costs after interlocutory decree, and to the plaintiffs a recovery for their costs to and including interlocutory decree. Mr. Justice Field.—I concur in the reversal of the decree, but am of opinion that the patent was invalid, and that the bill should, therefore, be dismissed. JOHNSTON v. DISTRICT OF COLUMBIA. 19 Statement of Facts. JOHNSTON- v. DISTRICT OF COLUMBIA. ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Argued March 23, 24,1880.—Decided April 19, 1886. Evidence that the plan on which a sewer has been constructed by municipal authorities had not been judiciously selected is inadmissible to support an action against the municipality by the owner of land injured by the overflow of water from the sewer. This was an action against the District of Columbia by a citizen and taxpayer in Washington to recover damages caused to his house and land fronting on Missouri Avenue, in the summer of 1877, by the overflow of foul water from a sewer in that avenue, which the declaration alleged that the defendant knowingly constructed and continued upon an unreasonable and defective plan, and of inadequate capacity for its purpose, and wrongfully permitted to become choked up. The defendant denied its liability. The plaintiff’s bill of exceptions stated that he testified that at the time alleged his house and land were overflowed and injured by foul water from this sewer; that he noticed that the water in the avenue was very deep ; and that he never saw or knew of any flooding or overflow of the avenue or of his property until the sewer was constructed. The rest of the bill of exceptions was as follows: “ And to sustain further the issues joined, the plaintiff put upon the stand, as his witness, Benjamin Severson, a citizen of Washington, and an engineer by profession, who testified to the Tiber sewer being two feet lower at its base than the Missouri Avenue sewer where they meet each other; and being asked by the counsel for the plaintiff what, in his opinion, the consequence would be in case of a freshet or great fall of rain, the question was objected to by the counsel of the defendant, unless the counsel for the plaintiff stated his object in asking such question; and thereupon it appeared that it was asked with the view of showing by that witness that the plan on which the sewer had been constructed by the authorities of the 20 OCTOBER TERM, 1885. Opinion of the Court. District had not been judiciously selected; and thereupon the testimony was objected to, and the court, after argument, sustained the objection, to which ruling the plaintiff’s counsel excepted.” The jury returned a verdict for the defendant, the exceptions were overruled by the court in general term, and the plaintiff sued out this writ of error. J/r. Frank T. Browning for plaintiff in error cited: Rochester White Lead Co. v. Rochester, 3 N. Y. 463; Barton n. Syracuse, 36 N. Y. 54; Logansport v. Wright. 25 Ind. 512; Lndianapolis n. ILuffer, 30 Ind. 235 ; Weis v. Madison, 75. Ind. 241; Cummins v. Seymour, 79 Ind. 491; Evansville v. Decker, 84 Ind. 325; Dixon v. Baker, 65 Ill. 518; Ashley n. Port Huron, 35 Mich. 296; Weightman v. Washington, 1 Black, 39; Barnes v. District of Columbia, 91 U. S. 540, 556; Dillon on Municipal Corporations (2d ed.), §§ 778, 802; (3d ed.) §§ 980, 1047, 1048 ; Cooley on Torts, 580. Mr. Henry E. Davis for defendant in error cited: Wilson n. New York, 1 Denio. 595; Mills v. Brooklyn, 32 N. Y. 489; Hines v. Lockport, 50 N. Y. 238; Erquhart N. Ogdensburgh, 91 N. Y. 67, and 97 N. Y. 238; Child v. Boston, 4 Allen, 41; Emery v. Lowell, 104 Mass. 13; Merrifield v. Worcester, 110 Mass. 216, 221; Hill v. Boston, 122 Mass. 344, 358, 359, 375, 376; Ca/rr v. Northern Liberties, 35 Penn. St. 324; Grant v. Erie, 69 Penn. St. 420; Fair v. Philadelphia, 88 Penn. St. 309; Detroit n. Beckman, 34 Mich. 125; Lansing v. Toolan, 37 Mich. 152; Yan Pelt v. Davenport, 42 Iowa, 308; Foster v. St. Louis, 71 Missouri, 157; Roll v. Lndianapolis, 52 Ind. 547; Rozetl v. Anderson, 91 Ind. 591; Dillon on Municipal Corporations (3d ed.), §§ 948, 949, 966, 980, 997, 1041, 1043, 1044, 1046-1051. Mr. Justice Gray, after stating the case as above reported, delivered the opinion of the court. The duties of the municipal authorities, in adopting a general plan of drainage, and determining when and where sewers shall JOHNSTON v. DISTRICT OF COLUMBIA. 21 Opinion of the Court. be built, of what size and at what level, are of a quasi judicial nature, involving the exercise of deliberate judgment and large discretion, and depending upon considerations affecting the public health and general convenience throughout an extensive territory ; and the exercise of such judgment and discretion, in the selection and adoption of the general plan or system of drainage, is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land. But the construction and repair of sewers, according to the general plan so adopted, are simply ministerial duties; and for any negligence in so constructing a sewer, or keeping it in repair, the municipality which has constructed and owns the sewer may be sued by a person whose property is thereby injured. The principal decisions upon the subject are collected in the briefs of counsel, and generally, if not uniformly, support these propositions. The leading authorities are the judgments of the Supreme Judicial Court of Massachusetts, delivered by Mr. Justice Hoar, in Child v. Boston, 4 Allen, 41, 51-53, and of the Court of Appeals of New York, delivered by Chief Justice Denio, in Mills v. Brooklyn, 32 N. Y. 489, 495-500. In Barnes n. District of Columbia, 91 U. S. 540, 556, it was said that in Rochester White Lead Co. v. Rochester, 3 N. Y. 463, “ the city was held liable because it constructed a sewer which was not of sufficient capacity to carry off the water draining into it. The work was well done; but the adoption and carrying out of the plan was held to be an. act of negligence.” But this was clearly a mistake; for in the Rochester Case the fact was distinctly found that the insufficiency of the culvert to carry off the water was owing, not merely to the smallness of its size, but to “ the want of skill in its construction ; ” 3 N. Y. 465; and the case was distinguished on that ground in Mills v. Brooklyn, 32 N. Y. 499. The question in judgment in Barnes v. District of Columbia, as well as in Weightman n. Washington, 1 Black, 39, was of municipal liability, not for an injury to property by a sewer, but for a personal injury to a traveller by a want of repair in the highway, a question not now before us.' In Barton v. Syracuse, 36 N. Y. 22 OCTOBER TERM, 1885. Syllabus. 54, also cited for the plaintiff, the ground of action was not the plan of constructing the sewer, but the neglect to keep it in repair. In the present case, the only evidence offered by the plaintiff, which was excluded by the court, was evidence of what, in the case of a freshet, or of a great fall of rain, would be the consequence of the difference in level between the sewer in question and another sewer connecting with it ; and this evidence, as the plaintiff’s counsel avowed, was offered “ with the view of showing that the plan on which the sewer had been constructed by the authorities of the District had not been judiciously selected.” The evidence excluded was clearly inadmissible for the only purpose for which it was offered. As showing that the plan of drainage was injudicious and insufficient, it was incompetent. As bearing upon the question whether there was any negligence in the actual construction or repair of the sewer, or the question whether the sewer was so constructed as to create a nuisance upon the plaintiff’s property, it wTas immaterial. The instructions given to the jury are not reported and must be presumed to have been accurate and sufficient. Judgment affirmed. UNITED STATES RIFLE & CARTRIDGE COMPANY & Others v. WHITNEY ARMS COMPANY & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CONNECTICUT. Argued March 10, 11, 1886.—Decided April 19,1886. The decision of the Commissioner of Patents, granting an application for a patent, a former application for which has been rejected or withdrawn, is not conclusive upon the question of abandonment of the invention in a suit brought for the infringement of the patent. An inventor, whose application for a patent has been rejected by the Patent Office and withdrawn by him, and who, without substantial reason or ex- RIFLE & CARTRIDGE CO. v. WHITNEY ARMS CO. 23 Opinion of the Court. cuse, omits for eight years to reinstate or renew it, during which time many patents embodying the substance of the invention are granted to other persons, must be held to have abandoned the invention. Bill in equity for the infringement of letters patent. The case is stated in the opinion of the court. Mr. Frederic H. Betts and JZr. J. E. Hindon Hyde for appellants. Mr. B. F. Thurston for appellees. Mr. Justice Gray delivered the opinion of the court. This was a bill in equity for the infringement of letters patent granted May 7, 1872, to John W. Cochran for an improvement in breech-loading firearms, of which one of the plaintiffs was the owner, and the others were the exclusive licensees. The answer denied that Cochran was the original inventor, and alleged that his application, upon which the letters patent were issued, was made and filed in the Patent Office on May 6,1868; that for more than two years before that date the thing patented had been in public use and on sale with his consent and allowance; and that long prior to that date the invention had been abandoned by him to the public. A general replication was filed, and evidence taken, by which the material facts appeared to be as follows: On January 10, 1859, Cochran filed an application for a patent for this invention, which, on February 8,1859, was rejected by the Commissioner of Patents for want of novelty; and on February 20, 1860, was withdrawn by Cochran, and $20 refunded to him, at his request, agreeably to the act of July 4, 1836, ch. 357, §7. 5 Stat. 120. At various dates from November 19, 1861, to February 11, 1868, eighteen patents were granted to other persons for the same devices or their equivalents, and the defendants bought some of those patents, and afterwards manufactured firearms under them. On May 6, 1868, Cochran filed a new application, which was rejected by the examiners, on the ground of abandonment. On 24 OCTOBER TERM, 1885. Opinion of the Court. June 9,1869, Mr. Commissioner Fisher, on appeal, affirmed their decision. His opinion is published in the Decisions of the Commissioner of Patents for 1869, p. 30. On appeal to the Supreme Court of the District of Columbia, his decision was reversed. On July 7, 1870, he rejected the application. But on December 5, 1870, Cochran filed a formal renewal of his application, under the act of July 8,1870, ch. 230, § 35; and on May 7,1872, the patent sued on was granted to him by Mr. Fisher’s successor. During the time between the applications of 1859 and of 1868, Cochran applied for and obtained twenty-two other patents, nine of them for improvements in breech-loading firearms, some of which he sold for considerable sums. He was poor and in debt; but upon the whole evidence it is quite clear that his delay in renewing the application of 1859 was not owing to want of means, but to his regarding this patent as of less value than the others. The Circuit Court was of opinion that the invention had been abandoned before May, 1868, and therefore entered a decree dismissing the bill. 14 Blatchford, 94; (X, 2 Banning & Arden, 493. From that decree this appeal is taken. The renewal of Cochran’s application on December 5, 1870, was under the provision of the act of July 8, 1870, ch. 230, § 35, which allowed any inventor, whose application for a patent had been rejected or withdrawn before the passage of that act, to renew it within six months after its passage; and provided that upon the hearing of such renewed application abandonment should be considered as a question of fact. 16 Stat. 202. The rules of law which must govern this case are clearly established by the judgment of this court in Planing Machine Co. v. Keith, 101 U. S. 479. The decision of the Commissioner in favor of the applicant, upon the question whether the invention has been abandoned, is not conclusive, but may be contested and reviewed in a suit brought for the infringement of the patent. There may be an abandonment of an invention to the public, as well after an application has been rejected or withdrawn, as before any application is made. Such abandonment KEYES v. GRANT. 25 Statement of Facts. may be proved either by express declarations of an intention to abandon, or by conduct inconsistent with any other conclusion. An inventor, whose application for a patent has been rejected, and who, without substantial reason or excuse, omits for many years to take any step to. reinstate or renew it, must be held to have acquiesced in its rejection, and to have abandoned any intention of further prosecuting his claim. In the case at bar, the first application was both rejected by the Commissioner and withdrawn by the applicant; and the question presented is well put in the opinion of Mr. Commissioner Fisher, above referred to: “ Can an inventor withdraw his application, make no effort to renew it for eight years, during which time the subject-matter of the invention has been incorporated into the substance of many other subsequent inventions, and then file a new application and obtain a patent, which, to support the novelty of the invention, shall relate back to the first application? ” We concur with him and with the Circuit Court in deciding that an inventor cannot do this. Decree affirmed. KEYES & Another -v. GRANT & Another. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. Argued April 2, 1886.—Decided April 19,1886. When the defendant in a suit for the infringement of a patent sets up a prior publication of a machine anticipating the patented invention, and it appears that there are obvious differences between the two machines in the arrangement of the separate parts, in the relation of the parts to each other, and in their connection with each other in performing the functions for which the machine is intended, and experts differ upon the questions whether these differences are material to the result, and whether they required the faculty of invention, those questions are questions of fact to be left to the determination of the jury, under proper instructions from the court. This was a suit at law to recover damages for the infringe-ment of letters patent. The case is stated in the opinion of the court. 26 OCTOBER TERM, 1885. Opinion of the Court. George Harding and Hr. G. G. Symes for plaintiffs in error. Hr. Francis T. Chambers was with them on the brief. Hr. Benjamin F. Thurston and Hr. Thomas Hacon for defendants in error. Hr. E. T. Wells, Hr. B. T. HcNeal were with them on the brief, and Hr. W. H. Gramt filed an argument for defendants in error. Mr. Justice Matthews delivered the opinion of the court. This was an action at law to recover damages for an alleged infringement of letters patent No. 121,385, issued November 28, 1871, to the plaintiffs for an improvement in furnaces for smelting lead and other ores. There were several defences set up by way of pleas, but the two chiefly relied on were that “ the plaintiffs’ pretended invention ’ ’ had been described “ in a certain printed publication entitled ‘ System der Mettal-lurgie,’ von Dr. J. B. Karsten (published at Berlin, Prussia, in 1831-2, in 5 volumes, with an atlas of plates, I., at pages 315, 316, 317, 318, 319, 320, 321 and 322, of volume III., and pages 150 to 166, both inclusive, and 166 to 180, both inclusive, of volume V., and figures 479, 480, 481, 482, 483, 484,473, 474, 475 on plate XXI., and figures 850 to 868, both inclusive, of plate XLI. of the atlas accompanying said work); ” and, secondly, that, in view of the state of the art at the date of the alleged invention, the improvement was not patentable as not requiring the exercise of invention. The issues came on for trial before a jury, and there was a verdict for the defendants and judgment thereon, to reverse which this writ of error is brought. It appears from the bill of exceptions that the plaintiffs read in evidence the patent sued on, the substantial part of the specifications attached to which was as follows: “ The object of this invention is to provide a novel, simple, and improved method of tapping or withdrawing lead and other metals, when in a molten state, from the bottom of a smelting furnace, so that the metal may be obtained therefrom in a clean state, and also that the formation of hard matters or incrustations on the sides and bottom of the furnace may KEYES v. GRANT. 2T Opinion of the Court. be avoided. The nature of this invention consists in the use or employment of a basin of suitable dimensions, located a short distance from one side of the furnace and at a suitable elevation above the bottom of the furnace ; which said basin is connected with the furnace by means of a tube which extends from the bottom of the basin to the bottom of the furnace. As the molten metal fills the lower part of the furnace it rises to the same level in the tube until it reaches the basin, from whence it may be removed as clean metal. “To enable others skilled in the art to make and use our invention we will proceed more particularly to describe the same. “ The figure represents a sectional elevation of a portion of a smelting furnace with our improvements. “A represents the furnace, which may be of ordinary or common construction. B is a basin of suitable dimensions, located at the top of an extension built on one side of the furnace and at a suitable elevation above the bottom of the furnace. The basin may be constructed of any material suitable for receiving and holding the molten metal. Extending from the bottom of the basin B, to the bottom of the furnace A, through the above-mentioned extension, is a tube, ¿7, which connects the basin with the furnace, and which may be made of iron, clay, or other material suitable for the purpose. “ The metal as it melts falls to the bottom of the furnace ; as the surface of the molten metal rises within the furnace, it rises to the same level in the tube C until it reaches the basin B, from which it may be removed with a ladle. “ The advantages of this invention are obvious, as by this means the metal is tapped or withdrawn from the furnace free from impurities, and it will also be seen that the difficulties arising from the formation of hard matter or incrustations on the bottom or sides of the furnace, occasioned by the usual method of drawing off a large quantity of molten metal at one time, are obviated. “ Having thus described our invention what we claim as new, and desire to secure by letters-patent of the United States, is— 28 OCTOBER TERM, 1885. Opinion of the Court. “The method of tapping or withdrawing molten lead or other metals from a smelting furnace by means of the basin B and tube or connection, C', in combination with the furnace substantially as shown and described.” The drawing referred to is as follows: Albert Arents, one of the plaintiffs, testified to his own qualifications as an expert in the art of smelting, and also “ that the obtaining of clean metal from the side of a furnace of ordinary construction automatically by the means described in the specifications in the patent was novel and useful, and a great improvement over the old method of withdrawing clean metal from smelting furnaces; that the specifications were sufficiently full, clear, and precise to enable persons skilled in the art to which they appertained, to wit, the art of smelting, to construct a furnace which would produce the useful result claimed by the patent,to wit, the.obtaining clean metal automatically from a smelting furnace when in operation of ordinary construction ; that a furnace of ordinary construction, as it existed at the date of plaintiff’s patent, as defined by the art of smelting, so far as is material to this case, consisted of an inner hearth with an open breast or sump, into which the molten masses of the furnace, when fused, collected, and settled, according to their specific gravities ; that the front of a smelting furnace was that part of the furnace where the slag KEYES v. GRANT. 29 Opinion of the Court. ran and was handled by the smelter ; that the back of the furnace was opposite to the front, and that those parts of the furnace to the right and left were known and called the sides: that the slag ran off through a spout over the open breast of the furnace in front, and the clean metal was tapped periodically from a taphole at the bottom of and from the side of the furnace; that each part in the construction of the furnace had its particular functions, which were important as understood and known and taught in the art of smelting at that time, to wit, the front was the working door of the furnace, and was where the slag ran off and was handled; the back and sides where the tuyeres were situated, through which the blast was forced into the furnace, and the clean metal was periodically drawn or tapped from one side or other of the furnace.” The plaintiff then introduced a model on the scale of one inch to the foot, in sections, showing what a furnace of ordinary construction was at the date of the patent, as known in the art of smelting, showing the improvement of the plaintiffs and the old mode of tapping, of which the following are drawings : A—Section of Furnace of ordinary construction in 1871, showing plaintiffs device. B—Basin similar to that shown in, plaintiff's patent. C—Tube connecting bottom of Basin with bottom of Furnace. B—Section of same Furnace. E—Basin to receive clean metal when Furnace was tapped. F—Tap hole through which clean metal was periodically tapped by th e old method into Basin E. G—Section of same Furnace. H—Inner hearth. I—Forehearth or Sump. K—Slag spout or exit. L—Tuyere holes. 30 OCTOBER TERM, 1885. Opinion of the Court. The plaintiffs then corroborated this testimony of Arents’ by that of numerous experts, and gave evidence tending to prove infringement by the defendants, and rested their case. The defendants put in evidence certain extracts from the text and illustrative drawings of smelting furnaces of the treatise upon metallurgy by Dr. J. B. Karsten, published at Berlin in 1831-32, mentioned in the plea, translated as follows: “(318) The fore-hearth is that part of the crucible projecting in front of the fire-walls of the furnace. “ Crucible furnaces are those, shaft furnaces in which the crucible is entirely on the inside. They are divided into eyecrucible furnaces and tap-crucible furnaces. The former have an eye in the front wall from which the slag flows continuously, the metal and matte being tapped off at intervals into basins. “The tap-crucible furnaces are those in which the metal, matte and slag are all tapped off from time to time. “ Sump-furnaces are those shaft-furnaces in which the crucible is partly in the furnace and partly in front of the furnace._ The slag runs off continuously over the fore-hearth. The metal and matte are tapped off into receiving vessels or tap-basms. Sometimes the sump-furnaces are not provided with tap-basins, KEYES v. GRANT. 31 Opinion of the Court. and the metal in them is dipped with ladles direct from the fore-hearth. “ Spur or channel-furnaces are shaft-furnaces without a crucible. The molten contents flow through the eye directly from the furnace hearth into receiving vessels. These different furnaces can be more advantageously studied from drawings than from written descriptions. “ (319) In some countries the crucible-furnace is preferred; in others, the sump-furnace. It is not advisable to use the channel-furnace when clean metal is produced. With this furnace the metal is not protected from oxidation. It is used chiefly in smelting copper ores, with a view to producing copper matte. “ The drawings, figures 461 to 463, represent an eye-crucible furnace. The slag runs continuously through a hole in the front wall. The metal and matte are tapped off at intervals through a hole in the side of the crucible. “ The drawings, figures 464 to 466, represent an eye-crucible furnace, which differs from the former, in that the tap-hole is in the front wall and at the bottom of the crucible. “ The drawings, figures 467 to 469, represent a tap-crucible furnace. The metal, matte and slag are tapped off from time time into receiving basins. “ The drawings, figures 470 to 472, represent an eye-crucible similar to the one represented by drawings, figures 464 to 466; it is provided with two tap-basins. The slag also passes through a basin, for the purpose of allowing the small particles of metal and matte mixed with it to settle. “(320) The drawings, figures 473 to 475, represent a sumpfurnace with a covered eye, in which the brasque (a mixture of fire-clay and coke dust) under the front wall divides the sump into two communicating’ vessels. “ The slag runs off continuously through the eye between the bottom of the front wall and the top of the brasque partition. “ This arrangement is used when it is desired to dip the clean metal with ladles from the fore-hearth instead of drawing it off into tap-basins. 32 OCTOBER TERM, 1885. Opinion of the Court. “The drawings, figures 476 to 478, represent a sumpfurnace with an entirely open breast, in which the slag passes off immediately over the fore-hearth. “The drawings, figures 479 and 480, represent a sumpfurnace with a covered eye, and with a tap-basin, into which the metal and matte are tapped from the fore-hearth. This furnace might be regarded as a channel-furnace, by simply considering the short canal, or eye, which connects the sump under the shaft wTith the fore-hearth, as a channel. But, by means of this short canal or eye, the sump and the forehearth stand in combination with each other as a pair of communicating tubes or vessels; consequently, it is a sump, and not a channel-furnace. The slag may pass through the covered eye into the fore-hearth, or through an open eye above the fore-hearth, the latter eye being used exclusively for the slag. “ In smelting operations, where little or no slag is produced, the upper eye is dispensed with entirely.” The following are figures 858-860 and their scale from Plate XLI. of Karsten’s Atlas: [See also pages 33 and 34.] KEYES v. GRANT. 33 Opinion of the Court. The defendants also introduced experts as witnesses, whose testimony tended to prove that, as stated by one of them— “ The furnaces thus figured by Karsten are planned for. withdrawing the reduced metal continuously, and as fast as possible, from the oxidizing action of the blast and the intensely heated part of the slag. So, the metal is made to flow constantly outward and upward through the open eye into the forehearth, which is made as high as the inner crucible; and, generally, the clean molten metal alone is passing through this bottom eye. When much slag is formed it is run off separately by another eye placed higher up; when very little slag is produced it accumulates for a long time on the top of the molten metal in the inner crucible, and the clean metal in the fore-bay vol. cxvin—3 34 OCTOBER TERM, 1885. may be partially removed many times without allowing any of the slag to escape through the eye.” One of the defendants, James Grant, was called to prove that he had constructed an experimental furnace of small size, according to the description and drawing of Fig. 860 of Karsten’s publication, and worked it successfully. A model was exhibited, the proportions and features of which are shown in the following drawings: KEYES v. GRANT. 35 Opinion of the Court. A—Horizontal section. B—Fore-hearth. (J— Open eye. E—Slag emt made by defendants, with spout over fore-hearth. F—Front section. G— Open eye. H—Slag emt made by defendants. I—Vertical section. K—Fore-hearth. L—Hidden eye. M—Open eye. N—Tuyeres. And his testimony was supported by that of others who had seen the furnace in operation. On the other hand, the plaintiffs, in rebuttal, called expert witnesses, who testified that the plaintiffs’ furnace, as described in the patent, differed materially from that described by Karsten, and from the model of the one made by the defendant Grant, and who pointed out in their evidence the particulars in which that difference consisted, in the construction and arrangement of the furnace, in the principle of its operation, and in the results produced. All of the evidence on both sides having been given, the whole of which is set out in the bill of exceptions, the court having refused to charge the jury as requested by the plaintiffs, instfucted the jury to return a verdict for the defendants, which was done, and to this ruling exception was duly taken, and is now assigned for error. 36 OCTOBER TERM, 1885. Opinion of the Court. The judgment entered on the verdict rendered in favor of the defendants, in pursuance of the direction of the court, can be maintained only on the ground, either that the legal identity of the furnace described by Karsten with that covered by the plaintiffs’ patent was manifest as a matter of law, or that it was established as a matter of fact so conclusively by the evidence that a verdict the other way could not be supported, within the rule as stated in Randall v. Baltimore & Ohio Railroad Co., 109 U. S. 478. Clearly it was not a matter of law that the specification of the plaintiffs’ patent, and the publication of Karsten, taken in connection with the drawings intended in illustration, described the same thing. The differences were obvious, in the arrangement of the parts, and the relation of the basin in one, and the fore-hearth in the other, to the interior of the furnace, and the mode of connecting the one with the other, for the purpose of drawing the metal from the furnace. So that it certainly was not a matter of mere judicial knowledge, that these differences were either not material in any degree to the result, or, if material at all, were only such as would not require the exercise of the faculty of invention, but would be suggested by the skill of an experienced workman employed to produce the best result in the application of the well-known arrangements of the furnace. It was claimed, on behalf of the plaintiffs, that the furnace described in the patent and as used by them, embodied an idea not contained in or suggested by Karsten’s publication. That idea consisted in the employment of a basin to receive the molten metal, located at a suitable elevation above the bottom of the furnace, and connected with the interior of the furnace by means of a tube, so that, instead of tapping a lead smelting furnace by withdrawing the molten metal through a tap-hole near the bottom, it was proposed to allow the metal to flow upward into the receiving basin under the operation of the familiar natural law that liquids will seek the same level in communicating vessels. The object to be attained by this arrangement was that clean metal, unaccompanied with slag or other impure products resulting from the operation of smelting lead ores, should, after settling to the bot- SOUTH BOSTON IRON CO. v. UNITED STATES. 37 Syllabus. tom of the furnace, by reason of its greater specific gravity, ascend through the connecting tube, as the mass of molten metal accumulates and rises within the furnace, into the receiving basin, and be dipped thence with a ladle. It was insisted by the patentees that no such arrangement and combination were to be found in Karsten’s publication or in the furnaces depicted in his figures, and that the improvement which they constituted was not the result of mere mechanical skill, but sprang from a genuine effort of invention. And this view was supported by the opinion of many experts skilled in the art. In our opinion this was a question of fact properly to be left for determination to the jury, under suitable instructions from the court upon the rules of law, which should guide them to their verdict. And there was evidence upon both sides of the issue sufficient to require that it should be weighed and considered by the jury in the determination of the question, and this implies that, if it had been submitted to the jury and the verdict had been for the plaintiffs, it would not have been the duty of the court to have it set aside as not supported by sufficient evidence. The court erred, we think, in withdrawing the case from the jury as it did by directing a verdict for the defendants. For this error the judgment is Il eversed and the cause is remanded, with directions to gra/nt a new trial. SOUTH BOSTON IRON COMPANY v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. Argued April 8, 1886.—Decided April 19,1886. H offered to the Secretary of the Navy by letter to construct new boilers for certain vessels of the Navy. The offer was accepted at the Navy Department, by letter, and he was also thereby informed that the drawings and specifications would be furnished as soon as possible. A few days later he was notified to discontinue all work contracted for by him with the Depart- 38 OCTOBER TERM, 1885. Statement of Facts. ment. On a suit brought in the Court of Claims for damages for nonperformance of the contract, Held, that the letters did not constitute a contract with the United States under the provisions of Rev. Stat. §§ 3744-3749. This was a suit in the Court of Claims to recover of the United States $75,000 damages, and $143,264.06 profits, which the claimant there alleged that it had suffered, or had been deprived of, by reason of the breach of two contracts which it claimed it had made for the construction of boilers for vessels belonging to the Navy of the United States. The defendants pleaded the general issue. The only proof of the alleged contract and of the breach and claim for damages was contained in the following correspondence: “ Boston, March 5th, 1877. Wm. H. Shock, Chief of Bureau of Steam Engineering, Navy Department, Washington. Sir : Having learned that new boilers are required for the U. S. steamers Narragansett and Tuscarora, now at Mare Island Navy Yard, California, I submit the following proposition for the consideration of the Bureau of St. Engineering, viz.: I will build such new boilers as may be required for the above-named ships, complete in all respects, from drawings and specifications furnished by the bureau, the material to be of the very best quality, and the workmanship to be first class in all respects ; the boilers to be finished complete, ready for use, excepting erection on board the vessels, or in sections convenient for shipment, as the bureau may determine ; the price of the same to be, if erected complete, ready for use, thirty and seven-eighths (30f) cents per pound ; if in sections, thirty and three-quarter (30|) cents per pound; in either case to be delivered alongside of ship at New York or Boston, as may be determined by the bureau. I agree to receive in part payment such old material as may be at the disposal of the Department at the highest market prices. I will also build one small boiler, complete in all respects, ready for use, for the tug-boat Snowdrop, now at Norfolk, from designs and specifications furnished by the bureau, and deliver at navy yard, Norfolk; material and workmanship SOUTH BOSTON IRON CO. v. UNITED STATES. 39 Statement of Facts. to be of the best quality ; price to be thirty and seven-eighths (30|) cents per pound. Very respectfully, your ob’d’t serv’t, William P. Hunt, President South Boston Iron Co. (Endorsement.) “ Bureau of Steam Engineering, Navy Department, March 7, 1877. Received at the Navy Department, March 7,1877. Accepted by verbal directions of the Secretary of the Navy, in obedience to his order of this date. W. H. Shock, Chf of Bu. Shm JËng.” “ Navy Department, Bureau of Steam Engineering, Washington, March 1th, 1877. Sir : By direction of the Hon. Secretary of the Navy, your offer of the 5th inst. for boilers for the Narragansett and Tuscarora is accepted, upon the terms and conditions named in said letter, the same to be delivered alongside vessel in New York harbor for shipment to Mare Island Navy Yard ; also your offer for boilers for the tug Snowdrop, to be delivered in the Norfolk Navy Yard. The specifications and drawings will be furnished as soon as prepared. Respectfully, Wm. H. Shock, Chief of Burea/a. Wm. P. Hunt, President South Boston Iron Co., Boston, Mass! “ Boston, March 3, 1877. Sir : Having learned that new boilers are required for the iron-clad monitor Dictator, I submit the following proposition for the consideration of the Bureau of Steam Engineering, viz. : I will build such new boiler as may be required for the above-named vessel complete in all respects from drawings 40 OCTOBER TERM, 1885. Statement, of Facts. and specifications furnished by the Bureau; the materials to be of the very best quality and the workmanship to be first-class in all respects, the boiler to be furnished complete, ready for use and erection on board the vessel; the price of the same to be thirty and seven-eighths (30|) cents per pound, to be delivered alongside ship at New York. Very respectfully your obedient servant, Wm. P. Hunt, President South Boston-Iron Company. Wm. H. Shock, Chief of Bureau of Engineering, Navy Department, Washington.” “ Received at the Navy Department, March 8,1877.” (1st Endorsement.) “ Bureau will accept.” G. M. R. Sedfy” (2d Endorsement.) “ Navy Department, Bureau or Steam Engineering, Ma/rch 10, 1877. Accepted by direction of the Hon. Secretary of the Navy, in obedience to his order of this date. W. H. Shock, Chief of Bureau” “ Navy Department, Bureau of Steam Engineering, Washington, March \Mh, 1877. Sir : By direction of the Hon. Secretary of the Navy, your offer of the 3d inst. for boilers for the U. S. iron-clad Dictator is accepted, upon the terms named in said letter, the same to be delivered alongside ship or navy yard wharf (as may be required) in New York. The specifications and drawings will be furnished as soon as possible. Respectfully, Wm. H. Shock, Chief of Bureau. Wm. P. Hunt, Boston, Mass” SOUTH BOSTON IRON CO. v. UNITED STATES. 41 Statement of Facts. “ Navy Department, Washington, March 16, 1877. Gentlemen : You are hereby notified to discontinue all work by you contracted for with this Department or any bureau thereof since March 1, 1877, until you shall be otherwise directed by the Secretary of the Navy. Respectfully yours, R. W. Thompson, Secretary of the Navy. South Boston Iron Co., South Boston, Mass.” “Riggs House, Washington, D. C., March 24th, 1880. Hon. R. W. Thompson, Secretary of the Navy. Sir : You are hereby notified that the South Boston Iron Company claims damages, interest and expenses of the United States in the sum of two hundred thousand ($200,000) dollars, by reason of the suspension by you of a certain contract made by your immediate predecessor in office (Mr. Robeson) on or about the 7th of March, 1877, which contract was for boilers to be furnished by said company to the Navy Department of the said United States, as specified in said contract, and that a suit for the recovery of the same will be commenced immediately. Very respectfully, Timothy Davis, Agent and Attorney-in-Fact for the South Boston Iron Company” “ Riggs House, Washington, D. C., March 30th, 1880. Hon. Secretary of the Navy. Sir : I had the honor on the 24th inst. to communicate to you the claim and intentions of the South Boston Iron Company under the contracts made by your predecessor with said company for boilers on or about the 7th and 10 th of March,1877. I have received no acknowledgment of the receipt of said communication by you, and I have now respectfully to inquire if said communication reached you, and if you have any views to express as to said company’s claim for damages, before the commencement of a suit, as indicated in my said letter of the 24th instant. Very respectfully, your ob’t servant, Timothy Davis, Agent South Boston Iron Company” 42 OCTOBER TERM, 1885. Opinion of the Court. “Navy Department, Washington, Harch 30ZA, 1880. Sib : Your letter of the 24th inst. and your letter of this date have been received. Very respectfully, R. W. Thompson, Secretary of the Navy. Timothy Davis, Esq., Ag't South Boston Iron Co., Washington? The Court of Claims held that the'provision in Rev. Stat. § 3744, which requires all contracts made with the Secretary of the Navy “ to be reduced to writing, and signed by the contracting parties with their names at the end thereof,” was mandatory, and that contracts which did not comply with its requirements were void, and dismissed the claimant’s petition, from which judgment the claimant appealed. Hr. John C. Fay for appellant. Hr. Solicitor General for appellee submitted on his brief. Mr. Chief Justice Waite delivered the opinion of the court. In Clark v. The United States, 95 U. S. 539, it was decided that, to bind the United States, contracts by the Navy Department must be in writing, and signed by the contracting parties. Such, in the opinion of the court, was the effect of the act of June 2,1862,12 Stat. 411, ch. 93, now in force as §§ 3744-3747 and §§ 512-515 of the Revised Statutes. An effort has been made in this case to show a contract in writing, but we agree entirely with the Court of Claims that the papers relied on for that purpose are nothing more in law or in fact than the preliminary memoranda made by the parties for use in preparing a contract for execution in the form required by law. This was never done, and, therefore, the United States never became bound. Within a very few days after the memoranda were made the whole matter was abandoned by the Department, and the Iron Company has neither performed any of the work which was referred to, nor has it ever been called on to do so. The judgment is Affirmed. OAKLEY v. GOODNOW. 43 Opinion of the Court. OAKLEY v. GOODNOW. ERROR TO THE SUPREME COURT OF THE STATE OF IOWA. Submitted April 13,1886.—Decided April 19, 1886. When the right of removal of a cause from a State court to a Circuit Court of the United States is denied by a State court, this denial raises a Federal question, within the jurisdiction of this court. The Circuit Courts of the United States have no power to take jurisdiction of a case by removal from a State court, when a colorable assignment has been made to prevent such removal ; but resort can only be had to the State courts for protection against the consequences of such an encroachment on the rights of a defendant. Provident Savings Society v. Ford, 114 U. S. 635, affirmed. This was a motion to dismiss accompanied by a motion to affirm. The case is stated in the opinion of the court. J/r. George Crane for the motions. JZr. C. H. Gatch opposing. Mr. Chief Justice Waite delivered the opinion of the court. This suit was brought in a State court of Iowa by Edward K. Goodnow, a citizen of New York, against Elizabeth T. Oakley, another citizen of the same State, to recover an amount claimed to be due for taxes paid by the Iowa Homestead Company and the Dubuque and Sioux City Kailroad Company, both Iowa corporations, on lands belonging to the defendant. Before the suit was begun the two corporations assigned their respective claims to Goodnow, under an agreement by which he was “ to use or exercise reasonable care or diligence to enforce said claims, demands, or rights of action, and, after deducting all costs and expenses in so doing, to hold the proceeds or amounts collected in trust for the use and benefit of the parties owning.” A copy of this agreement was annexed to the petition as an exhibit. On the 16th of December, 1880, which was in time, the defendant presented her petition for a removal of the suit to the Circuit Court of the United States for the District of Iowa, on 44 OCTOBER TERM, 1885. Opinion of the Court. the ground that Goodnow “ is only a nominal party to said suit, and has no interest therein whatsoever, but is prosecuting the same for the sole and exclusive use and benefit of the Iowa Homestead Company and Dubuque and Sioux City Railroad Company, which were, at the commencement of this suit and still are, corporations created and existing under and by virtue of the laws of the State of Iowa, each having its principal place of business in said State of Iowa, which said railroad and homestead companies directed the commencement of said suit, employed counsel to prosecute the same, and are directing and controlling its prosecution.” The State court proceeded with the suit, notwithstanding the petition for removal, and gave judgment against the defendant. This judgment was affirmed by the Supreme Court of the State on an appeal, that court being of opinion that the suit had not been removed. To reverse that judgment this writ of error was brought, and Goodnow now moves to dismiss for want of jurisdiction, and with that he unites a motion to affirm. The motion to dismiss must be denied, because a right of removal under the act of March 3, 1875, 18 Stat. 470, ch. 137, was claimed by the defendant and the decision was against the right. This presents a Federal question and gives us jurisdiction, but, as the decision was in accordance with our judgment in Provident Savings Society v. Ford, 114 IT. S. 635, 641, the motion to affirm is granted. In that case it was said: “We know of no instance where the want of consideration in a transfer, or a colorable transfer of a right of action from a person against whom the defendant would have a right of removal to a person against whom he would not have such a right, has been held a good ground for removing a cause from a State to a Federal court. Where an assignment of a cause of action is colorably made for the purpose of giving jurisdiction to the United States court, § 5 of the Act of Congress of March 3, 1875, . . . has now given to the Circuit Courts power to dismiss or remand the cause at any time when the fact is made to appear. And by analogy to this law, it may, perhaps, be a good defence to an action in a State court, to OAKLEY v. GOODNOW. 45 Opinion of the Court. show that a colorable assignment has been made to deprive the United States court of jurisdiction; but, as before said, it would be a defence to the action, and not a ground of removing that cause into the Federal court.” Our attention was called in the argument to the fact that in the present case it appears that the assignee is “ only a nominal party to said suit,” and that the assignor “ directed the commencement of the suit, employed counsel to prosecute the same, and is directing and controlling its prosecution,” while in the other it was only alleged that the assignment was “ merely colorable,” and that the plaintiff was “ not the real party in interest; ” but the opinion in the other case, p. 638, shows that it was further alleged that the assignment “ was made without any consideration, and merely for the purpose of prosecuting and collecting ” the claim for the benefit of the assignor, “and to avoid the necessity of” the assignor’s “giving security for costs as a non-resident of this State, and to embarrass, and, if possible, prevent the transfer of this action to the United States courts, and that the controversy . . . is in reality and in substance between the defendant ” and the assignor, “ who are citizens of different States.” The two cases are thus substantially alike, and this is clearly governed by that. While, therefore, the courts of the United States have under the act of 1875 the power to dismiss or remand a case, if it appears that a colorable assignment has been made for the purpose of imposing on their jurisdiction, no authority has as yet been given them to take jurisdiction of a case by removal from a State court when a colorable assignment has been made to prevent such a removal. Under the law as it now stands resort can only be had to the State courts for protection against the consequences of such an encroachment on the rights of a defendant. The motion to dismiss is denied, and that to affirm granted. 46 OCTOBER TERM, 1885. Opinion of the Court. BENJAMIN’S Heirs v. DUBOIS, Administrator. APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Argued April 14,1886.—Decided April 15, 1886. • A will having been proved in Missouri, a copy thereof and of the probate were admitted to record in the District of Columbia and letters testamentary granted. In subsequent proceedings respecting the distribution of property found in the District, a question arose as to the domicil of the testator. After hearing testimony, the Supreme Court of the District decided at special term that “his domicil was in the city of Washington,” and “this court has original jurisdiction in the matter of his estate,” which was on appeal affirmed. Held, That this was not a final judgment within the meaning of the acts of Congress giving this court jurisdiction on appeals or writs of error. Bostwick v. Brinkerhoff, 106 U. S. 3, affirmed and applied. The case, which is stated in the opinion of the court, arose on a motion to dismiss which was filed to be heard with the hearing on the merits. After commencement of the argument on the merits, the court ordered the motion to dismiss to be first heard. fffr. A. 8. Worthington for the motion. J/r. 8. 8. Henkle opposing. Mr. Chief Justice Waite delivered the opinion of the court. When this case was called for argument a motion to dismiss was interposed, because the decree appealed from was not a final decree in the suit. The facts are these: On the 8th of March, 1877, John F. Benjamin died in the District of Columbia, leaving a will by which he gave to his adopted daughter, Mrs. Guy H. Allen, the wife of James M. Allen, all his interest in the partnership of Bigelow and Benjamin, all debts owing to him by persons residing in the District of Columbia, and all real estate owned by him in the District of Columbia. He also gave to George C. B. Rowan $100, and to his wife all his property in Missouri, $12,000 in District of Columbia six per cent, gold bonds, and other property. Joshua M. Ennis was named as executor, so far as the BENJAMIN v. DUBOIS. 47 Opinion of the Court. property in Missouri was concerned, and George Truesdell was appointed to wind up business in the District of Columbia. Previous to the year 1874 Benjamin had resided in Missouri. During that year he went to Washington, in the District of Columbia, where he engaged in business with Otis Bigelow, and remained until his death. The will was first admitted to probate in Missouri, and letters testamentary granted to Ennis. A copy of the will and of the proof and probate thereof in Missouri were admitted to record in the Supreme Court of the District of Columbia, on the 5th of June, 1877, and letters testamentary granted to Truesdell of all the personal property in the District. Truesdell thereupon proceeded with the settlement of the estate in the District of Columbia, and on the 5th of January, 1880, Mrs. Allen and Rowan filed their petition in the Supreme Court of the District, setting forth that all debts had been paid, and praying that Truesdell be directed to pay to Rowan his legacy in full, and to Mrs. Allen so much of that to her as he might have in his possession. Notice of the filing of this petition was given to Truesdell, to Ennis, the Missouri executor, and to the heirs of Benjamin. Truesdell and George H. Benjamin, one of the heirs, answered, and in the answer of Benjamin the defence was made that the legal domicil of John F. Benjamin at the time of his death was in Missouri, where the validity of the will was being litigated, and not in the District of Columbia, and that no distribution of the estate in the District should be ordered in this proceeding until the litigation in Missouri was ended. Upon the question of the actual domicil of the testator much testimony was taken, and on the 28th of February, 1880, the court, after full hearing, decided that his domicil⁽ⁱ was the city of Washington, in the District of Columbia,” and “ that this court has original jurisdiction in the matter of his estate.” An entry to this effect was made at special term, and George H. Benjamin thereupon took an appeal to the general term. Afterwards a final decree was entered, notwithstanding this appeal, approving the accounts of Truesdell, and directing him to pay over the funds in his hands as provided for in his account. This order George H. Benjamin moved to set aside, but his motion was denied, and 48 OCTOBER TERM, 1885. Opinion of the Court. afterwards the court at general term affirmed the decree of the 28th of February, 1880, and from that decree this appeal was taken. As was said in Bostwick v. Brinkerhoff, 106 U. S. 3, “ the rule is well settled and of long standing that a judgment or decree to be final, within the meaning of that term as used in the acts of Congress giving this court jurisdiction on appeals or writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree which had been rendered.” The effect of the appeal below from the special to the general term was to take to the general term for review only the finding of the special term upon the question of domicil. Consequently the appeal from the general term to this court brings up nothing more. The suit was for the money in the hands of Truesdell given to Rowan and to Mrs. Allen by the will, and the litigation between thé parties is not ended until a decree to that effect is entered. The jurisdiction of the court to make the decree seems to have been thought to depend on the fact of the domicil of the testator in Washington at the time of his death. The finding that such was his domicil settled the disputed question of jurisdiction, but it did not decree the payment of any money, which was the only purpose of the suit. It opened the way to that end, but nothing more. If we should affirm the decree as it stood when the appeal from the special term to the general term was taken, there would be no order of the court to carry into execution. No relief had then been granted the petitioners. All the court had then decided was that it had jurisdiction and power to order the payment of the money which was prayed for. It follows that we have no jurisdiction, and The motion to dismiss is granted. MEXICAN CONSTRUCTION CO. v. REUSENS. 49 Statement of Facts. MEXICAN CONSTRUCTION COMPANY v. REUSENS. ORIGINAL MOTION IN A SUIT PENDING IN ERROR FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Submitted April 12, 1886.—Decided April 23, 1886. The discretion which is reposed in the judge below as to the security to be taken on appeal, extends not only to the amount of the security but to the number of sureties to be required; and when a bond has been taken below withone surety, where the law provides that two shall be required, this court will not require a new bond to be furnished for that reason only, if the original bond is not invalidated thereby. Jerome, v. Me Carter, 21 Wall. 17, applied to this case. This was a motion by defendant in error to compel plaintiff in error to furnish additional security. The motion was founded upon the following affidavit, entitled in the cause: “ State of New York, 1 Southern District of New York, f ss’ ’ “Michael H. Cardozo, being duly sworn, doth depose and say: I am one of the attorneys and of counsel for the defendant in error, and have had continuous charge of this action for him as such attorney and counsel from its commencement. “On or about the 6th day of 'February, 1884, Guillaume Reusens, the defendant in error, commenced an action at law in the Supreme Court of the State of New York, in and for the City and County of N$w York, against the Mexican National Construction Company, the plaintiff in error, to recover a sum of money only, to wit, the sum of $25,000 and interest, as for money had and received by the plaintiff in error to the use of the defendant in error. “ Thereafter, and on or about the said 6 th day of February, 1884, the said defendant in error obtained a warrant of attachment in due form of law against the property of the said plaintiff in error, in said action in said Supreme Court, pursuant to the Code of Civil Procedure of the State of New York; said attachment was duly served by the Sheriff of the City and vol. cxvni—4 50 OCTOBER TERM, 1885. Statement of Facts. County of New York, and the sum of $30,000 then on deposit in the American Exchange National Bank, in said city, to the credit of said plaintiff in error, was duly levied on by said sheriff to secure said claim, interests and costs. “ On or about the 11th day of February, 1884, the said plaintiff in error duly appeared in said action by Theodore F. H. Meyer, as its attorney. “ On or about the 20th day of February, 1884, the said plaintiff in error served an undertaking for the purpose of discharging said attachment, pursuant to sections 687 and 688 of the Code of Civil Procedure of the State of New York. “ Said undertaking was executed and delivered by the Fidelity and Casualty Company, of New York, in said undertaking mentioned, pursuant to the provisions of an Act of the Legislature of the State of New York, passed June 13th, 1881, being Chapter 486 of the Laws of 1881, entitled ‘An Act to facilitate the giving of bonds required by law.’ “ A copy of said undertaking is hereto annexed and marked Schedule ‘ A.’ “ Said undertaking was allowed by one of the Justices of said Supreme Court against the protest and objection of deponent on or about the 23d day of February, 1884. “The Fidelity and Casualty Company of New York gave said undertaking in pursuance of the following rule, adopted by the Supreme Court of the. State of New York, subsequent to the passage of the aforesaid Act of 1881. “‘Rule—The Fidelity and Casualty Company of New York is hereby designated as a company duly authorized and empowered by an act of the Legislature of the State of New York, entitled “An Act to facilitate the giving of bonds required by law,” passed June 13th, 1881, to guarantee all bonds and undertakings required or permitted by law, conditioned for the faithful performance of any duty, or for the doing or not doing of anything in said bond or undertaking specified; and any justice of this court is authorized in his discretion to accept and approve of the sufficiency of any bond or undertaking in any suit or action in this court, or in any proceeding, except in criminal cases, in which by law it is provided that any bond or MEXICAN CONSTRUCTION CO. v. REUSENS. 51 Statement of Facts. undertaking shall be accepted or approved by any justice of this court, whenever such bond or undertaking is conditioned for the faithful performance of any duty, or the doing or not doing of anything in such bond or undertaking specified, and the performance of the conditions thereof is guaranteed by the Fidelity and Casualty Company of New York or the same is executed by said company as surety, subject, however, to the requirement by said justice of a justification by such company, as such surety, through its president or secretary, in the same manner as is required by law of other sureties. The secretary of said company shall transmit to the justices holding the first general term in the first department, in each year, a statement under oath, showing its financial condition on the 31st day of December preceding said statement.’ “ On or about the 25th day of February, 1884, the complainant was duly served in said action; and on or about the 28th day of April, 1884, issue was joined by the service of a general demurrer on behalf of said plaintiff in error. “ The issues of law raised by said demurrer were upon the day calendar of said Supreme Court on or about the 5th day of May, 1884, for trial. “ On said 5th day of May, 1884, upon the petition of said plaintiff in error, said action was removed to the Circuit Court of the United States for the Southern District of New York. “ On or about the 1st day of December, 1884, said action came on for trial before the Honorable William J. Wallace, Circuit Judge, upon said demurrer, and was duly tried; and thereafter a decision was duly rendered in favor of said defendant in error upon said demurrer, but granting leave to said plaintiff in error to answer said complaint. “ In the month of January, 1885, said plaintiff in error duly served an answer to said complaint. “ On or about the 3d day of June, 1885, said cause was duly called for trial before the Honorable Hoyt H. Wheeler, sitting as Circuit Judge, and a jury, and the issues of fact and law were duly tried; and thereupon a verdict was duly rendered by direction of the court in favor of said defendant in error and against said plaintiff in error for the sum of $27,708.05. 52 OCTOBER TERM, 1885. Statement of Facts. “ On or about the 12th day of August, 1885, judgment was duly entered against the said plaintiff in error for the sum of $28,062.86; and notice thereof was on that day duly served upon the said attorney for said plaintiff in error. “On or about the 22d day of August, 1885, a writ of error was allowed by the Honorable William J. Wallace, Circuit Judge, and a citation was thereupon issued, directed to said defendant in error, returnable the second Monday in October, 1885. This cause is now upon the docket of this court, numbered 980. “ Upon allowing the aforesaid writ of error, a bond, as security to the said defendant in error, of which a copy is hereto annexed, marked Schedule B, was approved by the Honorable William J. Wallace, Circuit Judge. “ The said writ of error was allowed, and said bond approved, without any notice whatever to the said defendant in error or his attorneys or counsel. “Michael H. Cardozo. • “ Subscribed and sworn to before me ) this 20th day of March, 1886, j “ Edgar J. Nathan, “ Notary Public in and for the City and County of New York” Schedule A, referred to in this affidavit, contained the undertaking of the Mexican Construction Company of February 24, 1884, “ pursuant to the statute in such case made and provided, in the sum of twenty-nine thousand dollars, that the defendant will, on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against the defendant, not exceeding the above mentioned sum with interest.” This was duly acknowledged, and was followed by this guarantee, also acknowledged (both being entitled in the suit). “' In pursuance of the provision of an Act of the Legislature of the State of New York, entitled ‘ An Act to facilitate the giving of bonds required by law,’ passed June 13, 1881, The Fidelity and Casualty Company of New York, in consideration of one dollar to it in hand paid, the receipt whereof is hereby CAMBRIA IRON COMPANY v. ASHBURN. 53 Opinion of the Court. acknowledged, hereby guarantees the performance of the covenants and conditions of the within undertaking. “ In witness whereof, the said Fidelity and Casualty Company of New York has caused its corporate seal to be hereto affixed, and the same to be attested by the signatures of its President and Secretary. “Wm. M. Richards, President. [seal] ₐ jdqb'ₜ j Hillas, Ass’t Sec’y. Schedule B was the bond of the Mexican Construction Company, with two sureties, conditioned “ that if the above named Mexican National Construction Company shall prosecute said writ of error to effect and answer all damages and costs, if it fail to make its plea good, then this obligation shall be void ; otherwise the same shall be and remain in full force and virtue.” JZ?. Michael II. Cardozo for the motion, cited Nichols v. Mac-Lean, 98 N. Y. 458, decided since the undertaking of the Fidelity Company in this case was given, to show that it was void for want of a second surety. Hr. Theodore F. II. Meyer and Mr. Joseph U. Choate opposing. Mr. Chief Justice Waite delivered the opinion of the court. This motion is denied on the authority of Jerome v. M' Carter, 21 Wall. 17. Neither the circumstances of the case, nor of the parties, nor of the sureties on the bond have changed since the security was taken. All these things are now as they were then. We do not understand the case of Nichols v. MacLean, 98 N. Y. 458, to decide that the guarantee by the Fidelity and Casualty Company of New York, of the undertaking of the Mexican National Construction Company for a discharge of the attachment, is void because signed by one surety and not by two; but only that it need not have been accepted by the 54 OCTOBER TERM, 1885. Statement of Facts. judge as sufficient security. It was accepted, however, and the attachment was discharged. It stands, therefore, as security for the payment of the judgment, and the judge, when he took the supersedeas bond, acted with reference to a judgment which was “otherwise secured” within the meaning of Rule 29, and could be governed accordingly. The present motion is not made because the condition of the Fidelity Company has changed since the security was taken, but because another surety ought to have been required before the attachment was discharged. This was one of the facts existing at the time the security was accepted, and, therefore, under the rule in Jerome v. JMC Carter, not open to consideration here for the purposes of a review of the action of the judge who fixed the amount. Denied. CAMBRIA IRON COMPANY v. ASHBURN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO. Submitted April 5, 1886.—Decided April 19, 1886. United States v. Bowen, 100 U. S. 508, affirmed, to the point that where the meaning of the Revised Statutes is plain, the court cannot recur to the original statutes to see if errors were committed in revising them, but it may do so, when necessary to construe doubtful language used in the revision. Jefferson v. Driver, 117 U. S. 272, affirmed and applied to the point that the removal of a cause from a State court on the ground of local prejudice can be had, only where all the parties to the suit on one side are citizens of different States from those on the other : and that 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. This was an appeal from an order remanding the cause to the State court from whence it had been removed. The case is stated in the opinion of the court. CAMBRIA IRON COMPANY v. ASHBURN. 55 Opinion of the Court. Mr. William M. Ramsey, Mr. Lawrence Maxwell Jr., and Mr. Mortimer Matthews for appellant. Mr. C. B. Matthews for appellee. Mr. Chief Justice Waite delivered the opinion of the court. This is an appeal under § 5 of the act of March 3, 1875, 18 Stat. 470, ch. 137, from an order of the Circuit Court remanding a cause which had been removed from the State court. The facts are these: On the 14th of September, 1883, Stephen Feike brought suit in the Court of Common Pleas of Scioto County, Ohio, against the Cincinnati and Southeastern Railroad Company to collect a debt due to him from the railroad company and asking the appointment of a receiver. On the same day that the petition was filed the railroad company, then the only defendant, entered its appearance and waived both process and notice of an application for the appointment of a receiver. At the same time W. R. McGill, another creditor of the company, came in, and by leave of the court made himself a party defendant, and filed an answer and cross-petition, in which he asked for himself the same relief that had been prayed by Feike. Immediately upon the filing of these pleadings a receiver was appointed with full power to take possession of and manage the railroad and other property of the company. On the 20th of September, R. M. Shoemaker, T. Q. Ashburn, M. Jamison, P. F. Swig, and L. W. Bishop, trustees under various mortgages of the railroad company, came in voluntarily and by leave of the court made themselves parties defendant. On the 5th of November, Shoemaker, one of the trustees, answered the petition. On the 21st of February, 1884, the Lomas Forge and Bridge Company was made a defendant and filed a cross petition, asking to be paid certain claims for supplies out of the earnings of the road. On the 5th of June, 1884, the Cambria Iron Company, a Pennsylvania corporation, filed an answer and cross-petition, by leave of the court, to recover the price of a quantity of steel 56 OCTOBER TERM, 1885. Opinion of the Court. rails which had been delivered to the railroad company a short time before the appointment of the receiver and used in the construction of the railroad, or to have a return of the rails with a reasonable compensation for their use. A judgment for damages was also asked, because of a refusal to accept other rails which had been contracted for and a delivery tendered. On the 15th of June, Post & Co. were admitted defendants, and they filed an answer and cross-petition asking payment of an amount due them for spikes, angle-bars and bolts, and on the 19th of July, D. M. Richardson filed an answer and crosspetition, in which he asked payment of an amount due him for the construction of part of the road. On the 6th of January, 1885, Shoemaker & Ashburn filed an answer and cross-petition for a foreclosure of the mortgagee executed to them as trustees, and on the 5th of February Richardson demurred to the answer and cross-petition of the Cambria Iron Company. On the 5th of August the case was referred, on motion of Feike, Richardson and Ashburn, and with the consent of all the other parties, to a master to take testimony and report upon the questions and issues raised by the pleadings. This report was filed December 10, 1885, and on the 24th of the same month the Cambria Iron Company presented a petition for the removal of the suit to the Circuit Court of the United States for the Southern District of Ohio, on the ground of prejudice and local influence. This petition set forth that the Iron Company was a citizen of Pennsylvania and all the other parties to the suit citizens of Ohio. The suit was entered in the Circuit Court, and on the 8th of February, 1886, Ashburn, one of the parties, moved that it be remanded, (1) because it was not removable, and (2) because the petition was not filed in time. This motion was granted February 10, and from an order to that effect the appeal was taken. There is here but one suit, and that between Stephen Feike, the plaintiff, a citizen of Ohio, on one side, and the several defendants, one a citizen of Pennsylvania, and the others citizens of Ohio, on the other side. It is conceded that the petition was filed too late for a removal under the act of 1875, and that the Iron Company is not entitled to a removal on its CAMBRIA IRON COMPANY v. ASHBURN. 57 Opinion of the Court. separate petition under the third subdivision of § 639 Rev. Stat., unless because its cross-petition presents a separate controversy in the suit in which that company alone appears as plaintiff and all the other parties as defendants. It was decided at the present term, in Jefferson v. Driver, 117 U. S. 272, that the provision for a removal of a separable controversy in the second subdivision of -§ 639 did not apply to removals under the third subdivision, but it is now argued that this cannot be so, because the original local prejudice act of March 2, 1867, 14 Stat. 558, ch. 196, was enacted as an amendment of the removal act of July 27, 1866, 14 Stat. 306, ch. 288, which had no other purpose than to authorize the removal of separable controversies. The law which governs this subject now is all found in § 639, and it was decided in United States v. Bowen, 100 U. S. 508, that “ the Revised Statutes of the United States must be accepted as the law on the subjects which they embrace as it existed on the first of December, 1873. When their meaning is plain, the court cannot recur to the original statutes to see if errors were committed in revising them, but it may do so when necessary to construe doubt-, ful language used in the revision.” There is nothing of doubtful meaning in this section. It is divided into three subdivisions, all relating to the removal of suits, but each providing for a separate class. The first embraces the cases provided for in § 12 of the Judiciary Act of 1789, 1 Stat. 79, ch. 20; the second the cases in which there is a separable controversy, and the third the cases affected by prejudice or local influence. Each subdivision is complete in itself and in no way depends on any other. Each describes the particular class of suits to which it relates, and without reference to the others. The language of the third subdivision is, “When a suit is between a citizen of the State in which it is brought and a citizen of another State, it may be so removed on the petition of the latter,” if he files with his petition “ an affidavit that he has reason to believe and does believe, that, from prejudice and local influence, he will not be able to obtain justice in such State court.” This is the language substantially of the act of March 2, 1867, 14 Stat. 559, 58 OCTOBER TERM, 1885. Opinion of the Court. as to which it was held in Sewing Machine Cases, 18 Wall. 553, Vannevar v. Bryant, 21 Wall. 41, and Myers v. Swann, 107 U. S. 546, 547, that there could be no removal under that act if all the parties on one side of the suit were not citizens of different States from those on the other. In the last case it was added: “ It is not enough that there be a separable controversy between parties having the necessary citizenship, nor that the principal controversy is between citizens of different States. If there are necessary parties on one side of the suit, citizens of the same State with those on the other, the Circuit Court cannot take jurisdiction.” We see no reason for departing from the decisions which have thus been made, and the order remanding the suit is Affirmed. CASHMAN v. AMADOR & SACRAMENTO CANAL COMPANY, & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. Submitted April 5,1886.—Decided April 19,1886. On the facts stated in the opinion of the court, it is held that the assignment of the cause of action to the plaintiff in error was collusively made for the purpose of creating a case cognizable by the Circuit Court of the United States, and that the controversy is really and substantially between one of the counties of California and citizens of California, and is not properly within the jurisdiction of the Circuit Court. The case is stated in the opinion of the court. Mr. A. L. Rhodes for appellant. Mr. J. H. McKune for appellees. Mr. Chief Justice Waite delivered the opinion of the court. This is an appeal under § 5 of the act of March 3, 1875, 18 Stat. 470, ch. 137, from an order of the Circuit Court dismissing 7 ’ O CASHMAN v. AMADOR, &c., CANAL COMPANY. 59 Opinion of the Court. a suit, on the ground that it did not really and substantially involve a dispute or controversy properly within the jurisdiction of that court. The facts are these : Cashman, the plaintiff, was an alien, and he owned a tract of seven hundred acres of land in Sacramento County, California, situated on the Cosumnes River, which it is claimed was injured by the mining débris thrown on it in the working of certain mines by hydraulic process. On the 9th of September, 1885, a bill in chancery was filed in the Circuit Court of the United States, in the name of Cashman, against the Amador and Sacramento Canal Company, a California corporation, and certain other defendants, all citizens of California, to restrain them from operating their mines so as to allow the débris to be deposited on his premises. Subpoenas were issued and served on some or all of the defendants, returnable on the 2d of November. On the return day a motion was made by some of the defendants, and among others the Amador and Sacramento Canal Company, to dismiss the suit for want of jurisdiction, and because it was commenced and prosecuted in violation of the provisions of § 5 of the act of March 3,1875. At the hearing of this motion it appeared, by the admission of both parties, that the County of Sacramento and Cashman had, on or before the 6th of October, 1885, entered into a contract in writing, of which the following is a copy : * “ Whereas the County of Sacramento desires to restrain the miners working by hydraulic process on the Cosumnes River and using the bed thereof as a place for the deposits and wastage of the tailings and débris from their mines ; and whereas it is desired to bring such suit in the Circuit Court of the United States for the District of California and in the ninth circuit ; and whereas George Cashman has brought, or is about to bring, such suit in said Circuit Court against the miners working on the Cosumnes River by hydraulic process ; and whereas the county of Sacramento is directly interested in the said suit and in the subject-matter of litigation, and the same is brought for its benefit, the county being unable to sue in such court ; and whereas the county of Sacramento, by a resolution duly passed by its board of supervisors on the 22d day of September, 1885, 60 OCTOBER TERM, 1885. Opinion of the Court. has agreed to pay the costs and expenses of such suit, and to keep the said George Cashman safe and harmless from all counsel fees, costs, and charges to be paid or incurred therein: “ Now, therefore, this contract and indenture, made in pursuance of said resolution between the County of Sacramento, the party of the first part, and George Cashman aforesaid, party of the second part, witnesseth: That the party of the first part, the said County of Sacramento, does hereby stipulate, covenant, and agree to supply the said George Cashman with the services of competent attorneys, to wit, A. L. Rhodes, S. C. Denson, and Robert T. Devlin, to institute, conduct, and manage such suit, and does further covenant and agree to pay all the charges, costs, and expenses thereof or connected therewith, and to hold and keep him, the said George Cashman, safe and harmless from any costs, counsel fees, charges, or expenses to be paid or incurred in the institution, conduct, and prosecution of the said suit. “ The said George Cashman, the party of the second part, does hereby stipulate, covenant, and agree not to compromise, dismiss, or settle the said suit without the consent of the County of Sacramento, and to allow the said county and the attorneys aforesaid in its behalf to manage and conduct the said suit to the same extent and in the same manner as if such suit had been commenced by and was prosecuted in the name of the said County of Sacramento. “ In witness whereof the parties hereto, the party of the first ------- by the chairman of its board of supervisors, he being, by a resolution of said board passed September 22,1885, duly thereunto authorized, have hereunto set their hands and seals this 26th day of September, 1885. “ This contract being executed in duplicate, each party retaining one. [Seal of the Board of Supervisors of the County of Sacramento.] “ County of Sacramento, “ By L. H. Fassett, Chairman Board of Supervisors. “ Geo. Cashman. [seal.] ” CASHMAN v. AMADOR, &c., CANAL COMPANY. 61 Opinion of the Court. Upon this showing, there being nothing against it, the court granted the motion.. To reverse an order to that effect this appeal was taken. It is very apparent from the face of the agreement, on which the right to the dismissal depends, that the suit was originally brought by the County of Sacramento for its own benefit, and that the name of Cashman was used with his consent, because the county could not sue in its own name in the Circuit Court of the United States. The recital shows in express terms that the suit was brought for the benefit of the county, because it desired to restrain the miners from depositing the debris from their mines in the bed of the river, and it could not sue therefor in its own name in the courts of the United States. < For this reason the county provided the attorneys who were to “institute, conduct, and manage such suit,” and it agree’d “ to pay all the charges, costs, and expenses thereof or connected therewith, and to hold and keep . . . Cashman safe and harmless from any costs, counsel fees, charges, or expenses to be paid or incurred in the institution, conduct and prosecution of the suit.” And Cashman, on his part, agreed “ not to compromise, dismiss, or settle the . . . suit without the consent of the county, . . . and to allow the . . . county and the attorneys ... in its behalf to manage and conduct the . . . suit to the same extent and in the same manner as if such suit had been commenced and prosecuted in the name of the county.” From the very beginning the suit was and is in reality the suit of the county, with a party plaintiff “ collusively made,” “for the purpose of creating a case cognizable” by the Circuit Court of the United States under the act of March 3, 1875. While, therefore, the “dispute or controversy” “involved ” is nominally between Cashman, an alien, and the defendants, citizens of California, it is “ really and substantially ” between one of the counties of California and citizens of that State, and thus not “ properly within the jurisdiction ” of the Circuit Court. The order dismissing the suit is Affirmed. 62 OCTOBER TERM, 1885. Opinion of the Court. HART v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. Argued Ma^ch 25, 1886.—Decided April 26, 1886. Under section 7 of the act of June 25, 1868, ch. 71, 15 Stat. 76, the Secretary of War transmitted a claim against the United States to the Court of Claims. That court found the claimant to be a person who had “ sustained the late rebellion,” and that the claim accrued before April 13, 1861, and as the payment of such a claim was forbidden by joint resolution No. 46, approved March 2, 1867,14 Stat. 571, it decided that it had no jurisdiction to proceed to judgment on the reference made, but could only find the facts and dismiss the petition: Held, no error. Although, before the joint resolution was passed, the claimant had received from the President a pardon “ for all offences committed by him arising from participation, direct or implied, in the rebellion,” the pardon did not authorize the payment of the claim, nor did the joint resolution take away anything which the pardon had conferred. The case distinguished, as to the effect of the pardon, from Ex parte Garland, 4 Wall. 333; Armstrong's Foundry, 6 Wall. 766; United States v. Padelford, 9 Wall. 531; United States v. Klein, 13 Wall. 128, and Carlisle v. United States, 16 Wall. 147, 151. The act of 1868 did not extend to claims covered by the joint resolution. The case is stated in the opinion of the court. J/r John J. Weed for appellant. J/r. Solicitor-General for appellee submitted on his brief. Mr. Justice Blatchford delivered the opinion of the court. Section 7 of the act of Congress, approved June 25, 1868, ch. 71, 15 Stat. 76, enacted as follows: “It shall and may be lawful for the head of any executive department, whenever any claim is made upon said department involving disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars; or where the decision will affect a class of cases or furnish a precedent for the future action of any executive department in the adjustment of a class of cases, without regard to the amount involved in the particular case; or where any authority, right, HART v. UNITED STATES. 63 Opinion of the Court. privilege, or exemption is claimed or denied under the Constitution of the United States; to cause such claim, with all the vouchers, papers, proofs and documents pertaining thereto, to be transmitted to the Court of Claims, and the same shall be there proceeded in as if originally commenced by the volun-* tary action of the claimant. . . . Provided, however, That no case shall be referred by any head of a department unless it belongs to one of the several classes of cases to which, by reason of the subject-matter and character, the said Court of Claims might, under existing laws, take jurisdiction on such voluntary action of the claimant. And all the cases mentioned in this section which shall be transmitted by the head of any executive department, . . . shall be proceeded in as other cases pending in said court, and shall, in all respects, be subject to the same rules and regulations; and appeals from the final judgments or decrees of said court therein to the Supreme Court of the United States shall be allowed in the manner now provided by law. The amount of the final judgments or decrees in such cases so transmitted to said court, where rendered in favor of the claimants, shall in all cases be paid out of any specific appropriation applicable to the same, if any such there be; and where no such appropriation exists, the same shall be paid in the same manner as other judgments of said court.” These provisions are now embodied in sections 1063, 1064 and 1065 of the Revised Statutes. Under them the Secretary of War, on the 14th of October, 1873, transmitted to the Court of Claims the claim of Henry B. Hart, as the assignee of Simeon Hart. Thereupon, on the 9th of January, 1874, Simeon Hart, for the use of Henry B. Hart, filed in that court a petition, claiming to recover from the United States $50,391.52. In July, 1874, the United States filed a plea setting up a counter-claim of $9000 against Simeon Hart, and in August, 1874, a plea setting up a bar by a six years’ limitation after the first accruing of the claim. In December, 1874, Simeon Hart having died, the suit was revived in the name of A. B. Hyde, as his administrator. In January, 1877, the claimant demurred to the plea of the statute of limitation, and the demurrer was sustained. 12 C. Cl. 64 OCTOBER TERM, 1885. Opinion oi the Court. 319. On the 9th of May, 1877, the claimant filed an amended petition, to which, three days afterwards, the United States filed a traverse, and a plea setting up a bar by a six years’ limitation. In October, 1878, the claimant replied to the plea of counter-claim, that the $9000 had been paid by Simeon Hart. In November, 1879, the United States, by leave of court, filed a special demurrer to the petition and the amended petition, but it was overruled. In June, 1880, James P. Hague, as administrator of Simeon Hart, and successor of Hyde, was substituted in place of Hyde, as claimant. At the same time the claimant filed an amended petition, praying that any assignment of the claim to Henry B. Hart be treated as void, and withdrawing items four and five of the claim contained in the original petition. The case was then heard, on the evidence, and on the 7th of June, 1880, the court filed its findings of fact and conclusions of law, and an opinion, 15 C. Cl. 414, whereby the petition was dismissed, and a judgment to that effect was entered on that day. In January, 1881, a motion for a new trial was granted, and the case was reheard, on additional evidence, and, on the 16th of May, 1881, the court filed its findings of fact and conclusions of law, and an opinion, 16 C. Cl. 459, whereby the petition was dismissed, and a judgment to that effect was entered on that day, from which the claimant appealed. Since the appeal Juan S. Hart, as administrator, in place of Hague, has been substituted as appellant. The findings of fact, on the second hearing, which are quite voluminous, are set forth at length in the report in 16 C. Cl. Those which are material, in the view we take of the case, are as follows: On the 3d of March, 1861, Simeon Hart was residing at El Paso, Texas, and was in active sympathy with those who were inciting to rebellion. In April, 1861, he joined the insurgents, and then and afterwards furnished them with supplies, money, and means of transportation to carry on their invasion and campaign into New Mexico. On the 3d of November, 1865, the President granted to him a full pardon and amnesty for all offences committed by him arising from participation, direct or implied, in the rebellion. Hart claimed cer- HART v. UNITED STATES. 65 Opinion of the Court. tain sums as due to him for flour, corn, and forage delivered to the United States before April 13, 1861, and certain sums for flour, corn, and forage delivered after that date. There is nothing due from the United States to the claimant for flour delivered after April 13, 1861; and the United States paid to Hart, or his assignees, for flour alleged to have been delivered after April 13, 1861, but never delivered, more than the amounts claimed as due for corn and forage, those payments being made partly in cash, and partly by retaining and charging against him the $9000 so set up as a counterclaim. The Court of Claims applied to those demands of the claimant which accrued before April 13,1861, the provisions of joint resolution No. 46, approved March 2, 1867, 14 Stat. 571, now embodied in section 3480 of the Revised Statutes, and which was as follows: “ Until otherwise ordered, it shall be unlawful for any officer of the United States government to pay any account, claim, or demand against said government, which accrued or existed prior to the thirteenth day of April, a.d. eighteen hundred and sixty-one, in favor of any person who promoted, encouraged, or in any manner sustained the late rebellion; or in favor of any person who, during said rebellion, was not known to be opposed thereto, and distinctly in favor of its suppression ; and no pardon heretofore granted, or hereafter to be granted, shall authorize the payment of such account, claim, or demand, until this resolution is modified or repealed : Provided, That this resolution shall not be construed to prohibit the payment of claims founded upon contracts made by any of the departments, where such claims were assigned or contracted to be assigned prior to April first, eighteen hundred and sixty-one, to creditors of said contractors, loyal citizens of loyal States, in payment of debts incurred prior to March first, eighteen hundred and sixty-one.” It was urged before the Court of Claims that the pardon and amnesty granted by the President to Hart, on the 3d of November, 1865, “ for all offences committed by him arising from participation, direct or implied, in the rebellion,” operated to set aside the provisions of the joint resolution as to him and vol. cxvni—5 66 OCTOBER TERM, 1885. Opinion of the Court. his claims. The court held otherwise. Its view was, that Hart was guilty of numerous acts for which he could, on conviction, have been punished in his person and his property, and that the pardon freed him from liability for those offences; that his disability to receive from the United States a debt due to him was not a consequence attached to or arising out of any such offence; that it grew out of the fact stated in the joint resolution, that he had been a public enemy; that every disability which a state of war imposed upon him was removed by the cessation of the war; that it needed no pardon to effect that result; that, as the pardon conferred on him no new right, so the joint resolution did not take from him anything which the pardon had conferred; that it did not, like the legislation considered in United States v. Klein, 13 Wall. 128, attempt to pre-cribe to the judiciary the effect to be given to a pardon, in regard to a matter to which the pardon extended, but merely forbade certain debts to be paid until Congress should otherwise order; that a creditor of the United States can only be paid in accordance with the provision of the Constitution, Art. 1, sec. 9, subd. 7, which declares that “ no money shall be drawn from the Treasury, but in consequence of appropriations made by law; ” that by this joint resolution Congress had declared, by law, that this claimant should draw no money from the Treasury, and that no general appropriation should extend to his claim; that, therefore, no executive department could consider the claim; that the act of 1868 did not extend to claims covered by the joint resolution; and that, as the claim in question could not be paid, the Court of Claims had no jurisdiction to proceed to judgment in regard to it, on the reference made. The views of the court were set forth at great length in the opinion, and its conclusion was, that as to all items which accrued prior to April 13, 1861, it was its duty to decline to take jurisdiction further than to find the facts. As to the items for flour and corn and forage furnished after April 13, 1861, the court held, on the facts it found, that there was nothing due to the claimant for flour delivered after that date; and that the United States had paid Hart, or his assignees, for flour alleged to have been delivered after HART v. UNITED STATES. 67 Opinion of the Court. th$t date, but never delivered, more than the amounts now claimed to be due for corn and forage. We are of opinion that the judgment of the Court of Claims was right. In approving, as we do, the reasons above cited as assigned by that court, for the view it took on the question of the pardon, we do not depart, in the least, from what was held, on the subject of pardons, in the cases of Ex parte Garland, 4 Wall. 333 ; Armstrong's Foundry, 6 Wall. 766; United States v. Padelf ord, 9 Wall. 531; United States v. Klein, 13 Wall. 128; and Carlisle v. United States, 16 Wall. 147, 151. If the joint resolution had said nothing on the subject of a pardon, no pardon could have had the effect to authorize the payment out of a general appropriation, of a debt which a law of Congress had said should not be paid out of it. The pardon cannot have such effect ascribed to it merely because the joint resolution says that it shall not have such effect. It was entirely within the competency of Congress to declare that the claims mentioned in the joint resolution should not be paid till the further order of Congress. It is now within its competency to declare that they may be paid, in like manner as, by the act of March 3, 1877, ch. 105, 19 Stat. 362, it provided that section 3480 of the Revised Statutes, which is the joint resolution in question, should not apply to payments to be made out of a general appropriation made by that act to pay mail contractors for mail service performed in certain States in 1859, 1860, and 1861, and before they “ respectively engaged in war against the United States.” As to the claims which accrued after April 13, 1861, we see no reason to question the correctness of the judgment. • Affirmed. 68 OCTOBER TERM, 1885. Statement of Facts. CAPE GIRARDEAU COUNTY COURT & Others v. HILL. ERROR TO THE CIRCUIT COURT OK THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. Argued April 7, 1886.—Decided April 19,1886. A statute authorizing a municipal corporation to create a debt, required a tax to be levied on real estate to pay it. After the debt was contracted, an amendment to the act authorized the levy for that purpose to be made on personal property also. The debt not being paid, and both acts being in force, the creditor acquired by due proceedings the right to a writ of mandamus, directing the levy of a tax in order to pay his debt: Held, that he was entitled to a writ commanding the levy on both species of property. The act of the Legislature of Missouri of May 10, 1871, amending the act of March 28,1868, entitled “An Act to facilitate the construction of railroads in the State of Missouri ” was not repealed by the failure of the legislature to incorporate it into the Revision of 1879. This was a proceeding by mandamus commenced in the Circuit Court of the United States for the Eastern District of Missouri. The information was based upon a judgment obtained by the relator in that court April 7,1881, for the sum of $6659.80; the amount of certain past due coupons of bonds issued by the county of Cape Girardeau, in that State, for the payment of a subscription made by the township of the same name to the capital stock of the Cape Girardeau and State Line Railroad Company. The authority for making the subscription and issuing the bonds was a popular vote at a township election held on the 13th of April, 1869, under a statute of March 23, 1868, entitled “An A<*t to facilitate the construction of railroads in the State of Missouri.” Laws Missouri, 1868, p. 92. The first section of that act prescribed the condition upon which such elections could be ordered by the county court, and required coupon bonds to be issued, in payment of any subscription voted, “ if it shall appear, from the returns of such election, that not less than two-thirds of the qualified voters of such township voting at such flection are in favor of such subscription.” By the second section it was made the duty of the county CAPE GIRARDEAU COUNTY COURT v. HILL. 69 Statement of Facts. court, from time to time, in order to pay any subscription so voted, or the interest and principal of any bond issued on account of such subscription, to “ levy and cause to be collected, in the same manner as county taxes, a special tax, which shall be levied on all the real estate lying within the township making the subscription, in accordance with the valuation then last made by the county assessor for county purposes.” By an act passed March 10, 1871, the second section of the last-mentioned statute was so amended as to require this special tax to be “levied-on all the real estate and personalproperty, i/ncluding all statements of merchants doing business within the said city, town, township or county, lying and being within the township making the subscription, in accordance with the valuation then last made by the county assessor for county purposes : Provided, however, that no county, city, town or township shall ever in the aggregate subscribe a sum exceeding ten per cent, of the last annual assessment within said county, city or township.” Laws Missouri, 1871, p. 55. It was averred in the information that a demand was made upon the county court and the judges thereof to pay the said judgment, interest and costs, or that they levy and cause to be collected upon the real estate and personal property in the township subject to taxation, including merchants’ licenses, a tax according to law for the purpose of paying the said judgment, interest and costs; that such demand was refused ; and that the county had no property out of which the judgment, interest and costs could be made. The return to the alternative writ of mandamus admitted the right of the relator to a levy of a tax upon the real estate in the township, but to so much of the information as sought to compel a levy upon personal property and merchants’ licenses the county made the following defence: That the act of March 10, 1871, was repealed by the General Assembly of Missouri in 1879, before the relator obtained his judgment; and that the county court had not had since such repeal, and had not then, any authority to levy taxes upon personal property or merchants’ licenses in the township of Cape Girardeau for the purpose of paying relator’s judgment. TO OCTOBER TERM, 1885. Opinion of the Court. Upon the final hearing of the cause, it was ordered that the county court, within thirty days after being served with a copy of the order, should cause to be paid whatever amount of money may be in the treasury of the county to »the credit of the township, applicable to the payment of the judgment herein; “said amount being whatever sum has not been heretofore paid on judgments and writs thereunder, pro rata, rendered upon coupons for which taxes have been collected for the coupons due of the same year, from which said judgments and writs, if any other than the relators in this case, unless of equal date therewith, are to be excluded in said pro rata computation.” It was further ordered and adjudged that, in default of the payment of the full amount of the principal, interest, and costs, the county court “ cause to be levied and collected, in the same manner as county taxes are levied and collected, a special tax to be assessed and levied on all the real estate and personal property lying and being within the township of Cape Girardeau, in the said county of Cape Girardeau, and including all statements of merchants doing business within said township, for the purpose of paying the judgment of relator, or so much thereof as may remain unpaid at the time of making said levy, together, with interest and costs; ” that the levy so ordered and directed be made at the time of making the annual levy of taxes for State and county purposes in the year 1883; that the said special tax be extended on the regular tax-book for said year, in a separate column on said book; and that it “ cause the collection of said tax by suit, distraint, or otherwise, as by law required, and when collected to pay the same to the relator or his attorney of record.” From that judgment the present writ of error was prosecuted. Jfr. 7?. B. Oliver for plaintiffs in error. Mr. J. B. Henderson for defendant in error. Mr. Justice Harlan, after stating the case, as above reported delivered the opinion of the court. CAPE GIRARDEAU COUNTY COURT v. HILL. 71 Opinion of the Court. The plaintiffs in error concede, as they must have done, that the coupons upon which the relator obtained judgment are, in view of the decisions of this court, obligations which may be enforced by suit against the county. If any question could have been made as to their validity, it is concluded by the judgment which is the foundation of the present proceeding. The only question now before us is, whether the relator is entitled to have a tax levied upon any property other than real estate lying within the township. In behalf of the plaintiffs in error it is contended that, as the act of 1868 only required a tax to be levied on real estate, it was beyond the power of the legislature by subsequent enactment, after the bonds were issued, to subject any property other than real estate to taxation for the purpose of meeting this liability of the township. Such legislation, it is claimed, is in violation of the prohibition, found in both the National and State Constitutions, of laws impairing the obligations of contracts. This position cannot be maintained. There was not, within the meaning of such prohibition, any contract between the State and the township in respect either of the subscription which the latter voted, or of the bonds issued in its behalf. The township being a part of the civil government of the State established for public purposes, the powers conferred upon it were at all times subject to legislative control or modification—at least to such as was not inconsistent with the contract rights of third parties. But for the provision in the State Constitution making the assent of the voters of the township, given at an election held for that purpose, a condition precedent to the right of making a subscription, in its behalf, in aid of the construction of railroads, the legislature could have imposed the tax without submitting the question to popular vote. The provision in the act of 1868 subjecting real estate to the tax therein authorized, was nothing more than an expression of the legislative will, and did not prevent the enlargement, in the discretion of the legislature, of the subjects of taxation. The township having legally incurred an obligation to pay the bonds in question, it was competent for the legislature, at any time, to make provision for its being met by taxation upon any kind of property within 72 OCTOBER TERM, 1885. Opinion of the Court. the township that was subject to taxation for public purposes. The only remaining point to be considered is whether the act of 1871 was in force when this proceeding was commenced. We are of opinion that it was. It certainly had not then been expressly repealed. But it is argued that the legislature refused to incorporate it in the revision of 1879, and by such refusal indicated a purpose to repeal it. One answer to this argument is that it does not appear that the legislature so refused. Its express direction, at the regular session of 1879, was that the Revised Statutes, which it then ordered to be prepared, should contain all laws of a general nature in force at the commencement of that session and “ not expressly repealed, nor repugnant to the provisions ” of any act passed at that session, “ and continued in force by their own provisions.” Rev. Stat. Missouri 1879, § 3154. It was further declared that “ all acts or parts of acts of a general nature, in force at the commencement of the present session of the general assembly, and not repealed, shall be, and the same are hereby, continued in full force and effect, unless the same be repugnant to the acts passed or revised at the present session.”- § 3161. It is not claimed that the act of 1871 was repugnant to any act passed at the session of 1879, when the revision was set on foot; and as it had not then been “ expressly repealed,” it results that it was continued in full force. And this seems to have been the view of the legislature at a subsequent session; for by an act passed March 24, 1885, after the judgment below, the act of March 10, 1871, was expressly repealed. We perceive no ground for holding that the act of 1871 was repealed prior to the passage of the act of 1885. The judgment is Affirmed. CADMAN v. PETER. 73 Statement of Facts. CADMAN v. PETER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN. Argued April 13,14, 1886.—Decided April 26, 1886. If a deed of land is in fee, with a covenant of warranty, and there is no defeasance, either in the conveyance or in a collateral paper, parol evidence that it was intended to secure a debt and to operate only as a mortgage, must be clear, unequivocal and convincing, or the presumption that the instrument is what it purports to be must prevail. On the 25th of October, 1875, by a warranty deed, dated and acknowledged on that day, Charles C. Cadman and his wife, of Detroit, Michigan, conveyed to William Peter, of Toledo, Ohio, in fee, land in Newaygo county, Michigan, amounting to 8^- sections, or 5400 acres, the consideration named in the deed being $20,000. On the same day, by a mortgage dated and acknowledged on that day, Peter mortgaged the same land to Cadman, to secure the payment to Cadman of $10,000 in four months, and $10,000 in six months, from that date, with interest at 8 per cent., according to four promissory notes of $5000 each, of that date, executed by Peter, to Cadman. The deed and the mortgage were both of them recorded in October, 1875. On the 1st of April, 1881, Cadman filed a bill in equity against Peter, in the Circuit Court of the United States for the Western District of Michigan, and an amended bill on the 23d of April, 1881. The latter contained the following allegations: About the year 1874 or 1875, Cadman became indebted to Peter in $10,000, for money borrowed, Peter making his two notes, for $5000 each, with interest at 7 per cent, per annum, payable to Cadman, to be by him endorsed, and used to obtain money for Cadman’s benefit, which was done. The notes were renewed from time to time, Cadman paying up the accrued interest at each renewal, until October 25, 1875. On that day, Cadman owned the 5400 acres of land above mentioned, cov- 74 OCTOBER TERM, 1885. Statement of Facts. ered with pine timber and valued at upwards of $40,000, and was anxious to procure money, and applied to Peter to furnish him with $20,000 more, and the negotiations with Peter culminated in the following agreement: Peter agreed to loan to Cadman $20,000 more, by making two notes of $10,000 each. Cadman was to execute to Peter a deed of the land, as security for the entire $30,000. Peter was to hold the land until such time as it might be sold at a profit or for a greater sum than could be then realized, and, when such time should come, was to sell the land in the most advantageous manner possible, and out of the proceeds was to pay himself the $30,-000, and interest thereon at the rate of 7 per cent, per annum, and the taxes which he should have paid on the land, and should divide the surplus, if any, paying over to Cadman one half, and retaining the other half to recompense himself for his labor, trouble and expense in selling the land. Cadman received and used the notes for $20,000, and the transaction was intended to operate as a security from Cadman to Peter for the repayment of the $30,000, and interest, and was so considered by both of the parties. At the time of the agreement and conveyance, the financial affairs of the country were greatly depressed, and land valuable chiefly for its standing pine timber was not in great demand, and both parties knew that an adequate price therefor could not then be obtained, but also knew that within a short time such land would greatly appreciate in value, and that, by continuing to hold the land until it should rise in value, they would be able to dispose of it at a price much beyond $30,000. Cadman had estimates of the timber standing on the land, and alleges that there was upwards of 40,000,000 feet at the time, worth not less than $60,-000, and now worth, if none had been cut, from $80,000 to $120,000. During two years last past the property became valuable, and it could, at any time during the past eighteen months, have been readily sold for a sum sufficient to pay all of Cadman’s indebtedness to Peter, and all moneys Peter may have expended for taxes. Cadman, on the----------day of-------- 1878, applied, by letter, from San Francisco, California, to Peter, for an accounting of his doings in the matter, and received CADMAN v. PETER. 75 Statement of Facts. a reply that the land had not yet been sold, and consequently no account could be rendered. On the 4th of February, 1881, he again applied to Peter to settle the matter in some way, and Peter then ignored and repudiated the entire transaction, and stated to Cadman that he knew of no unsettled transaction between them, except an indebtedness of $10,000 from Cadman to Peter. Cadman thereafter offered to pay Peter $30,000 and interest, and any sums paid by Peter for taxes or other proper expenses, and requested Peter to release the security, and deed the land back to Cadman. Cadman offered to pay any sum that might be found due from him to Peter. The bill waived an answer on oath. It prayed for an accounting as to what was due from Cadman to Peter; and for a decree that the deed was an equitable mortgage, intended by the parties as a security for money loaned and expenses to be incurred about the land, and that Cadman be permitted to redeem the land on paying to Peter the money which should be found equitably due to him; and that then Peter might be directed to convey the land to Cadman. There was also a prayer for general relief. The answer contained the following averments: Peter made the two notes for $5000 each, to the order of Cadman, to enable him to obtain money for his individual benefit, but at an earlier date than that stated in the bill. The land conveyed was not, at the time, valued at $40,000. There were no negotiations between Cadman and Peter which culminated in the agreement set forth in the bill, and Peter never made any such agreement. The deed was not received as security for money. At the time Peter received it,. the affairs of the country were greatly depressed, and the land was valuable chiefly for the pine timber standing on it and was not in great demand, and an adequate price for it was difficult to be obtained, and this fact was known to both parties, and it was expected by both of them that it would appreciate in value, but that was a matter which should not affect Cadman, as he was in no way to have any interest in the land after the sale and the deed to Peter were made. The property had become valuable since Peter purchased it from Cadman, but he did not hold- it to se- 76 OCTOBER TERM, 1885. Argument for Appellant. cure any indebtedness from Cadman to him. Cadman did not, at any time in 1878, apply to Peter by letter for an accounting of his doings in the matter, and did not receive a reply that the land had not been sold and consequently no account could be rendered. On the 25th of October, 1875, Peter purchased the land from Cadman for $20,000, the price agreed on between them, and which was a fair price therefor at the time, and the sum had long since been paid. After the purchase, Cadman never claimed to have any interest in the land until a short time before the bill was filed. The answer also contained a demurrer to the bill, as not stating a cause of action warranting the relief prayed. Issue being joined, proofs were taken, and, on a hearing the bill was dismissed, in June, 1882. 12 Fed. Rep. 363. Mr. C. I. Walker for appellant. I. It is the settled law of Michigan, as well as of this court, that parol testimony is admissible to prove that a deed absolute is intended as a mortgage, and if so proved it may thus be treated. Wadsworth n. Lor anger, Harr. Mich, 113; Emerson n. Atwater, 7 Mich. 12; Tilden v. Streeter, 45 Mich. 533; Hurst v. Beaver, 50 Mich. 612; Ferris n. Wilcox, 51 Mich. 105 ; Russell v. Southard, 12 How. 139 ; Babcock v. Wyman, 19 How. 289 ; Villa v. Rodriguez, 12 Wall. 323, 339; Peugh v. Davis, 96 IT. S. 332 ; 1 Jones on Mortgages, § 285. II. Undoubtedly in these cases the burden of proof is upon the party seeking to show a deed absolute to be a mortgage, and the testimony must be clear. Howla/nd v. Blake, 97 U. S. 624 ; Tilden v. Streeter, 45 Mich. 533; 1 Jones on Mortgages, § 335. III. If the evidence shows that the deed was in fact given as a security for a pre-existing debt, or for advances made or to be made, or for both, it is to be treated as a mortgage, irrespective of its form. Whether given as a security, to use the language of Judge Swayne, “ is the very hinge of the controversy.” Bussell v. Southard, 12 How. 139, 148, 153 ; Villa v. Rodriguez, 12 Wall. 323, 336; Peugh v. Davis, 96 U. S. 332, 336; 2 Jones on Mortgages, § 1039. CADMAN v. PETER. 77 Opinion of the Court. IV. In determining this question whether a deed is to be construed as a mortgage, the adequacy of the consideration is an important element. Russell v. Southard, 12 How. 148, and cases cited; Peugh v. Davis, 96 U. S. 332. V. So also are the confidential relations between grantor and grantee. Babcock, v. Wyman, 19 How. 296-8. VI. So also are the necessities of the borrower. Russell n. Southard, 12 How. 155. VII. A promise to repay is not essential to constitute a deed a mortgage. Russell n. Southard, 12 How. 152, and cases above. VIII. The fact that the grantee is to have the entire management of the property does not prevent a deed becoming a mortgage. Babcock v. Wyman, 19 How. 289, 294; Emerson n. Atwater, 7 Mich. 12. IX. The cases cited by the-district judge to sustain the decree, are cases where it was held that the deed was not intended as a security, and they are therefore not applicable. Baker v. Thrasher, 4 Denio, 493; Macaulay v. Porter, 71 N. Y. 171. X. If the deed was intended as a security, the right to redeem attaches thereto, even if the grantor at the time agrees to release this right of redemption. 1 Jones on Mortgages, § 251; 2 Jones on Mortgages, § 1039. Mr. Ashley Pond and Mr. Harrison Geer for appellee. Mr. Justice Blatchford, after stating the case as above reported, delivered the opinion of the court. The decision in the court below, 12 Fed. Rep. 363, announced these propositions: The agreement set forth in the bill is inconsistent with a right to redeem, it being stated as an agreement under which Peter was to hold the land until he should sell it, and then share in any profit from the sale. Under that agreement, even if it was valid, the deed cannot be turned into a mortgage, although the execution of the agreement, if valid, might be compelled, when the land could be sold at a considerable profit. If the agreement is obnoxious to the statute which declares that no trust concerning or in any manner relating to land shall be 78 OCTOBER TERM, 1865. Opinion of the Court. created by parol, it cannot be enforced specifically nor employed to turn the deed into a mortgage. The agreement, if valid, would make Cadman a beneficiary under the deed, and create a trust in Peter concerning or relating to land, and, not being in writing and properly signed, is void under the statute of frauds. But the grounds of the conclusion reached were stated thus: Under the evidence, Cadman is not entitled to relief, conceding the bill to state a good case. 1. The conveyance was absolute on its face, for an expressed consideration of $20,000. To overcome the effect of the deed, and turn it into a mortgage, the evidence must be clear and convincing, beyond reasonable controversy. 2. Peter gave back to Cadman a mortgage, of the same date as the deed, to secure the payment of the notes for $20,000 given for the purchase price. The mortgage was accepted and speaks for both parties, as a contemporaneous writing expressing their intention, and adding to the effect of the deed, as evidence that there was an absolute sale. 3. On January 21, 1876, Cadman wrote to Peter that he had drawn on the latter, at one day’s sight, for $5000, to take up at a bank a note of $5000 made by Peter, due that day, which Cadman was unable to get extended by renewal. That note and another like it, due that day, were continuations of the $10,000 accommodation notes mentioned in the bill, which were in fact made in 1872. This $10,000 of paper is alleged by Cadman to have been secured by the deed. Peter had sent to Cadman two new notes to retire the two then coming due, and Cadman says, in his letter, that he had lodged one of the new notes as collateral to the draft. The draft, a copy of which is in the record, directs the amount to be charged to Cadman’s account. Peter, on January 22,1876, replied to Cadman thus: “ I accepted your draft this morning. What do you think of making a draft on me at one day for $5000 ? I do not have the money to pay this draft. This shows for itself how my notes are peddled in Detroit. I have told you before that my credit will suffer from such transactions. You say you do this to save my good name. This is a most cruel assertion to me CADMAN v. PETER. 79 Opinion of the Court. under the circumstances, as I derive no benefit from it. Let me know at once if I must raise the money to pay this draft. I have $5000 to pay to your bank the same day. I want you to send me something to show that the two notes and this draft are for your benefit, and for you to pay it in case I should be taken away, which we are all liable to be. My estate should have something to show—in fact, I myself should have it.” Peter would not have written thus, if the $10,000 of notes were for him to pay, and if, three months before, Cadman had given him security for the amount; nor would he have asked Cadman to give what he had no right to ask from him. To the above letter Cadman replied, on January 24, 1876 : “ I am sorely mortified and grieved that this should be the case, but I am entirely powerless to act. I think I can get the money on the other note in time to recall your acceptance. . . . I shall try and get the money, but if I do not, you can draw on me at three days’ sight, and I will get the money in meantime on the note. I hardly know what to do. I will do anything in my power. I will send you my notes, or anything I have.” Cadman would not have acquiesced in Peter’s demand for something to show that Cadman was to pay the paper, and that it was all for his benefit, unless Cadman so understood the fact. On January 30, 1876, Cadman having come to the end, wrote to Peter thus : “ I return your note, $5000, herein. I cannot use it, except to discredit you still more. I have resigned ; am a ruined man. ... I owe so much money outside that I cannot stand the pressure. . . . My family have gone into the country to board, and I am ruined and penniless. I console myself, in your case, that the great bargain you made in the Newaygo lands will, in some great measure, compensate you for the loss you must incur, for I cannot take care of the acceptance due early in February.” This was an acceptance by Cadman of a draft on him by Peter, drawn January 28, for $5000, at three days’ sight, to pay the $5000 draft of Cadman at one day’s sight, which Peter had accepted January 22. Peter having paid that draft, and there still being one $5000 note out against him, he would lose $10,000 by Cadman, having the land to represent the $20,000 of notes given for it, 80 OCTOBER TERM, 1885. Opinion of the Court. which had not matured. This last letter cannot be reconciled with Cadman’s version of the transaction as to the deed. At such a crisis in his affairs, with the transaction so recent, if he had a beneficial interest in the Newaygo lands, they being, as he now says, then worth $60,000, as against $30,000 of notes from Peter, he would not have dwelt on the great bargain Peter had made, as a matter of congratulation to Peter and consolation to himself, but would rather have taken consolation from the fact that he still had an interest in this valuable property. If the property, ample as Cadman now says it was, even at its value at that time, to secure to Peter the $30,000, was in fact merely a security to Peter for the $30,000, the idea of talking to Peter of loss was absurd. But if Peter owned the lands, had bought them at a bargain, and was likely to make by selling them a profit greater than $10,000, then the loss of the $10,000 by Cadman was properly called a loss to be compensated for out of a profit in selling the Newaygo lands for more than Peter had paid for them. These are the considerations which induced the Circuit Court to dismiss the bill. They seem to us of controlling weight. It is not necessary to enlarge on them. The rule* in cases of this kind is well settled. If the conveyance is in fee, with a covenant of warranty, and there is no defeasance, either in the conveyance or a collateral paper, parol evidence to show that it was intended to secure a debt, and to operate only as a mortgage, must be clear, unequivocal, and convincing, or the presumption that the instrument is what it purports to be must prevail. Howland v. Blake, 97 IT. S. 624 ; Coyle n. Davis, 116 U. S. 108; CaseN. Peters, 20 Mich. 298, 303; Tilden v. Streeter, 45 Mich. 533, 539, 540. Decree affirmed. UNITED STATES v. LANDRAM. 81 Opinion of the Court. UNITED STATES v. LANDRAM. APPEAL FROM THE COURT OF CLAIMS. Submitted April 5, 1886.—Decided April 19,1886. After the act of March 1,1879, amending the laws relating to internal revenue took effect, collectors of internal revenue were entitled to compensation as follows: (1) to salaries graded according to the amount of their annual collections, the minimum salary being $2000 and the maximun $4500 ; (2) in addition to the salary to a commission of one half of one per cent, on taxes or spirits collected by sales of tax-paid stamps, provided the total net compensation should not be more than $4500; (3) to such further allowance as the Secretary of the Treasury might make, provided the limitation of $4500 as the total net compensation was not exceeded. The case is stated in the opinion of the court. The cause was decided in the Court of Claims on the 18th of February, 1886, and at once brought here on appeal and submitted. J/r. Solicitor-General and JZk E. 1W. Watson for appellant. Jfr. Green B. Baum for appellee. Mr. Justice Woods delivered the opinion of the court. By § 2 of the act of March 1, 1879, entitled “An Act to amend the laws relating to internal revenue,” ch. 125, 20 Stat. 327, the 12th section of the act of February 8, 1875, ch. 36, 18 Stat. 307, was amended so as to read as follows : “ That each collector of internal revenue shall be authorized to appoint, by an instrument in writing under his hand, as many deputies as he may think proper, to be compensated for their services by such allowances as shall be made by the Secretary of the Treasury, upon the recommendation of the Commissioner of Internal Revenue. Allowances shall also be made in like manner for salary and office expenses of collectors, all of which shall be in lieu of the salary and commissions heretofore provided by law: Provided however, That the VOL. CXVIII—6 82 OCTOBER TERM, 1885. Opinion of the Court. salaries of collectors shall be fixed at two thousand dollars each per annum where the annual collections amount to twenty-five thousand dollars or less, and shall, by the Secretary, on the recommendation of the Commissioner, be graduated up to the maximum limit of four thousand five hundred dollars; which latter sum shall be allowed in all cases where the collections amount to one million of dollars or upward. . . . Prodded, That the Secretary of the Treasury, on the recommendation of the Commissioner of Internal Revenue, be authorized to make such further allowances, from time to time, as may be reasonable, in cases in which, from the territorial extent of the district, or from the amount of internal duties collected, it may seem just to make such allowances; but no such allowance shall be made if more than one year has elapsed since the close of the fiscal year in which the services were rendered. But the total net compensation of a collector shall not in any case exceed four thousand five hundred dollars a year; and no collector shall be entitled to any portion of the salary pertaining to the office unless such collector shall have been confirmed by the Senate, except in cases of commissions to fill vacancies occurring during the recess of the Senate.” By § 5 of the same act it was provided as follows: “ That section thirty-three hundred and fourteen [of the Revised Statutes shall] be amended by striking out all after said number and substituting the following: ‘The books of tax-paid stamps issued to any collector shall be charged to his account at the full value of the tax on the number of gallons represented on the stamps and coupons contained in said books; and every collector shall make a monthly return to the Commissioner of Internal Revenue of all tax-paid stamps issued by him to be affixed to any cask or package containing distilled spirits on which the tax has been paid, and account for the amount of the tax collected ; and when the said collector returns to the Commissioner of Internal Revenue any book of marginal stubs, which it shall be his duty to do as soon as all the stamps contained in the book when issued to him have been used, and accounts for the tax on the number of gallons UNITED STATES v. LANDRAM. 83 Opinion of the Court. represented on the stamps and coupons that were contained in said book, there shall be allowed to the collector a commission of one-half of one per centum on the amount of such tax in addition to any other commission by law allowed; Provided, That the total net compensation of collectors as fixed by this title shall not be thereby increased.’ ” This so-called amendment was simply a re-enactment of § 3314 without any change whatever. While these sections were in force, to wit, during the five fiscal years beginning with July 1, 1879, and ending with June 30, 1884, William J. Landram, the appellee, was the collector of internal revenue for the eighth district of Kentucky. During that period he received a salary as follows: For the years ending respectively on June 30,1880, and June 30,1883, $3000 for each year; for the years ending respectively June 30, 1881, and June 30, 1882, $2875 for each year; and for the year ending June 30, 1884, $4375. During each of the years above mentioned Landram collected a large amount of taxes on distilled spirits by the sale of tax-paid stamps, on which, limiting his total net compensation for each year to $4500, the commissions for the whole five years to which he would have been entitled, on the assumption that § 3314 of the Revised Statutes still remained in force, would amount to $4724.78. The accounting officers of the Treasury refused to allow him this sum or any part of it. He therefore brought his suit against the United States, in the Court of Claims, to recover it. Upon a finding of the foregoing facts the Court of Claims gave him judgment for said sum, and the United States appealed. The policy of allowing a commission of one-half of one per cent, on taxes collected from distilled spirits by the sale of tax-paid stamps was begun by the act of July 20, 1868, ch. 185, 15 Stat. 125, which required that the taxes on distilled spirits should be paid by affixing to the packages in which they were contained the prescribed stamps, and “ allowed a commission of one-half of one per centum on the amount of the tax on spirits distilled after the passage of ” that “ act in addition to any other commission by law allowed, which ” should “ be equally divided between the collector receiving the tax and the asses- 84 OCTOBER TERM, 1885, Opinion of the Court. sor of the district in which the distilled spirits were produced.” This policy was continued by the act of December 24, 1872, ch. 13, 17 Stat. 401, which, after abolishing by § 1 the office of assessor of internal revenue, provided by § 6 that the commission of one-half of one per centum allowed by the act of July 20, 1868, to the collector and assessor should be paid to the collector, provided that ‘ ‘ the total net compensation of collectors ” should not be thereby increased. The provisions of the acts of 1868 and 1872 remained in force until June 22, 1874, when, having been embodied in § 3314 of the Revised Statutes, they were re-enacted. By thé act of March 1, 1879, § 3314, though still in force, was re enacted in totidem verbis, and by the act of May 28, 1880, ch. 108, 21 Stat. 145, entitled “An Act to amend the laws in relation to internal revenue,” the same section was repeated and re-enacted, word for word. It is asserted by counsel for the appellee, and not disputed by counsel for appellant, that prior to the passage of the act of March 1, 1879, ubi supra, the right of collectors of internal revenue to the one-half of one per centum commissions on taxes collected on distilled spirits was never questioned. After June 22, 1874, the commissions were allowed and paid solely by virtue of the provisions of § 3314 of the Revised Statutes. On the passage of the act of March 1, 1879, the right of the collectors to commissions was for the first time disputed. It seems to us clear that this right was not taken away by that act. When it was passed § 3314 of the Revised Statutes allowing the commissions was in force. It was a plain, unambiguous provision whose meaning had not been doubted, and which was not open to construction. Being in force, there was no reason for its re-enactment by the act of March 1, 1879, except to express in a most unmistakable manner the purpose of Congress that it should continue in force, and should not be considered as in any way modified by that act. This purpose Congress reiterated by repeating and re-enacting the same section in the act of May 28, 1880. By virtue of the provisions thus enacted and re-enacted the right of the appellee to the commissions would seem to be plain. UNITED STATES v. LANDRAM. 85 Opinion of the Court. . The only ground upon which the appellants try to escape this conclusion is by an argument which amounts to this: that Congress, by § 2 of the act of March 1,1879, intended virtually to repeal by implication that part of § 3314 of the Revised Statutes relating to collectors’ commissions, which, by § 5 of the same act, it deliberately, and, word for word, re-enacted. Conceding that this, argument is entitled to any weight, it is to be noted that, if the provision referred to was repealed by the same act which re-enacted it, it was an independent enactment, and, without change or qualification, again restored to the statute book by the subsequent act of May 28, 1880, ubi supra, where it has remained ever since, covering more than four-fifths of the period for which the appellee claims the commissions sued for in this case. But it is not necessary to resort to the act of May 28, 1880, to sustain the right of the appellee to any part of his commissions. It is a settled rule of construction that “ one part of a statute must be so construed by another that the whole may, if possible, stand; ut res rnagis raleat quam, per eat j ” 1 Bl. Com. 89; or, as otherwise expressed, that every clause in a statute should have effect, and one portion should not be placed in antagonism to another. Brooks v. Mobile School Board, 31 Ala. 227. Applying this rule to the interpretation of §§ 2 and 5 of the act of March 1, 1879, so far as they relate to the compensation of collectors, their meaning appears to be, first, that salaries shall be allowed to collectors, graded according to the amount of their annual collections, the minimum salary being $2000 and the maximum $4500; second, that in addition to the salary a commission of one-half of one per centum on the taxes on spirits collected by sales of tax-paid stamps shall be allowed collectors, provided that their total net compensation shall not be more than $4500; and, third, that the Secretary of the Treasury may make further allowances, provided the limitation of $4500 as the total net compensation of the collector is not exceeded. Thus construed, both sections of the statute are given effect without violence to the language or spirit of either. No construction of the two sections would be so incongruous and unreasonable as to hold that Congress 86 OCTOBER TERM, 1885. Opinion of the Court. deliberately re-enacted the provision of § 3314 allowing commissions to the collectors without meaning anything by it ; for the case of the appellants cannot be sustained unless we virtually expunge from the statute book, after it had ex industria been put there by Congress, the provision allowing to the collectors commissions on taxes collected by the sale of tax-paid spirit stamps. Judgment affirmed. UNITED STATES v. WILSON. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF TENNESSEE. Argued April 15, 1886.—Decided April 26, 1886. A bill quia timet to remove a cloud from a legal title cannot ordinarily be ' brought in the courts of the United States by one not in possession of the real estate in controversy: but when a local statute of the State authorizes a bill in equity in such case, the remedy allowed in State courts may also be enforced in Federal courts ; and when a cloud upon the title to real estate prevents the enforcement of a lien at law to secure the payment of money, then the creditor may have his bill to remove the cloud. In equity. The case is stated in the opinion of the court. Mr. Assistant Attorney-General Maury for appellant. No appearance for appellee. Mr. Justice Matthews delivered the opinion of the court. This is a bill in equity filed by the United States, June 6, 1878, to which were made defendants the widow, personal representatives, and heirs-at-law of E. L. Allen, deceased, and C. S. Wilson, the appellee, and John T. Gill. The material allegations of the bill are, that in the year 1867 there was a firm of distillers in Lincoln County, Tennessee, under the name of Alexander & Co., of which E. L. Allen, since deceased, was a member; that the said firm UNITED STATES v. WILSON. 87 Opinion of the Court. became indebted to the United States in the sum of $3057.16 for taxes and penalties, which were duly assessed on the July list for 1867; that failing to pay the same, as required by law, the proper collector of internal revenue, on January 21, 1876, issued a distress warrant for the collection of the same, which, there not being a sufficiency of goods and chattels of the firm or either of the partners, was, on January 22, 1876, levied on all the right, title, claim, and interest of the said E. L. Allen, in and to certain real estate in said county of Lincoln, particularly described in the bill; that, pursuant to law, all proper notices having been previously given, the said premises were offered for sale at the court-house door, in the town of Fayetteville, on March 25, 1876, when said lots and parcels of land were offered separately at the minimum price placed on each, and no person offering to take them or either of them at said price, the same were purchased by the United States in accordance with the statutes in such cases made and provided; that no one appearing to redeem said lands within the time provided by law, on September 29, 1877, the collector of internal revenue, then in office in said district, conveyed to the United States by deed, under and by virtue of said assessment, distress-warrant, levy, and sale, all the interest in said lands of the said Allen, of which, at the time said taxes became due and were payable, it is averred the said Allen was owner in fee, holding the legal title thereto; that notwithstanding said taxes were a lien on said lands from the time the same became due and payable, the said Allen and the said Wilson conspired and confederated to hinder, delay, and defraud the United States in the collection of said taxes, and, in pursuance of said conspiracy and confederacy, on January 14, 1876, the said Allen made a pretended sale and conveyance of said tracts of land by deed to the said Wilson; that the said deed purported on its face to be an absolute conveyance in fee, and was duly registered and recorded as such, but the same was not so in fact, there being a secret agreement between the parties thereto by which it was converted into an assignment with benefits reserved to said Allen, and was made for the purpose of hindering, delaying, and defrauding the United States in the collection of said taxes, 88 OCTOBER TERM, 1885. Opinion of the Court. the said Allen being at the time insolvent, and the property conveyed being all his property subject to execution, and the conveyance to Wilson being, therefore, an assignment of all his effects by an insolvent debtor of the United States within the meaning of § 3466 of the Revised Statutes of the United States; that since this assignment and since the sale to the United States, the defendant Gill claims to have acquired an interest under Wilson in the said real estate. The prayer of the bill is that the conveyance by Allen to Wilson be declared fraudulent and void; that the paramount lien of the United States in said land for the said taxes be adjudged ’ and declared; that the priority of the United States be maintained and decreed, and the pretended conveyance of Allen to Wilson be removed as a cloud upon their title; an account for rents and profits, and a writ of possession to put the complainants in possession, and for general relief. The defendants answered, denying the legality of the tax and its assessment and the regularity of the steps taken for its enforcement, and the validity of the sale and conveyance to the United States, and denying all the allegations of fraud and trust in reference to the conveyance from Allen to Wilson, insisting that the same was an absolute conveyance, made in good faith and for a valuable consideration. The case was put at issue by a replication and heard upon the pleadings and proof. The Circuit Court, finding the preponderance of evidence against the allegation of a demand of payment of the tax, penalty and interest, as required by § 3185 of the Revised Statutes, and that the title set up by the United States had failed, dismissed the bill. From this decree the United States has appealed. Without examining the ground on which the Circuit Court proceeded, we are of opinion that the bill was rightly dismissed. The case as made by it is not one of equitable cognizance. It is not a creditor’s bill. The United States do not set forth a debt due and a lien on the land of the debtor, which it seeks to subject to the payment of the debt by a sale, and to marshal the liens thereon. The debt originally due by virtue of the assessment of the tax has been merged in the tax sale and the UNITED STATES v. WILSON. 89 Opinion of the Court. purchase in pursuance thereof. The United States claim, and, if the allegations of the bill can be supported by proof, own the legal title to the lands described, a title paramount to that under which the appellee claims; for the deed to the United States conveys, if it is effective, the title which Allen had when the tax was assessed in July, 1867, and operates by relation from that time. Having the legal title, then, but being kept, out of possession by defendants holding adversely, the remedy of the United States is at law to recover possession. Equity in such cases has no jurisdiction, unless its aid is required to remove obstacles which prevent a successful resort to an action of ejectment, or when, after repeated actions at law, its jurisdiction is invoked to prevent a multiplicity of suits, or there are other specific equitable grounds for relief. Bills quia timet, such as this is, to remove a cloud from a legal title, cannot be brought by one not in possession of the real estate in controversy, because the law gives a remedy by ejectment, which is plain, adequate and complete. This is the familiar doctrine of this court. Hipp v. Babin, 19 How. 271; Ellis v. Davis, 109 U. S. 485; Killian v. Ebbinghaus, 110 U. S. 568; Fussell n. Gregg, 113 U. S. 550, 555. The case of Ward v. Chamberlain, 2 Black, 430, 444, was one of a creditor’s bill, where the complainant, having a lien on the real estate of the defendant, by virtue of a decree in admiralty, for the payment of money, was held, as in other cases of creditors by judgment or decree, to be entitled to the aid of a court of equity to remove a cloud upon the title which obstructed or prevented the enforcement at law of his lien. The jurisdiction is invoked in such cases because it is necessary to give to the complainant the benefit of his remedy at law, which, without it, is not plain, adequate and complete. Where the local statute gives the remedy by a bill in equity to remove a cloud upon the legal title, without requiring the complainant to obtain prior possession, that remedy, it is admitted, may be administered in appropriate cases by the courts of the United States. Holland v. Challen, 110 U. S. 15 ; Reynolds v. Crawfordsville Bank, 112 U. S. 405; Chapman v. Brewer, 114 U. S. 158. 90 OCTOBER TERM, 1885. Syllabus. But there is no statute of Tennessee which gives an equitable remedy in such cases. It is true, indeed, that § 5043 of the Code of Tennessee provides that the Chancery Court “ shall have and exercise concurrent jurisdiction with the Circuit Court of all civil actions triable at law, except for injuries to person, property, or character, involving unliquidated damages; ” and it has been decided by the Supreme Court of that State that this gives the Chancery Court jurisdiction over an action of ejectment. Frazier v. Browning, 11 Lea, 253. But this does not efface the distinction between legal and equitable rights and remedies, and if it did, it could not confer upon the courts of the United States jurisdiction in equity to try cases at common law. Thompson, v. Railroad Companies, 6 Wall. 134; Basey v. Gallagher, 20 Wall. 670. The decree of the Circuit Court is accordingly Affirmed without prejudice to the right of the appellant to luring an action at law. SPRAIGUE & Others v. THOMPSON. ERRQR TO THE SUPREME COURT OF THE STATE OF GEORGIA. Argued April 5,1886.—Decided April 26, 1886. Section 1512 of the code of Georgia which provides that “ any person, master, or commander of a ship or vessel bearing toward any of the ports or harbors of this State, except coasters in this State, and between the ports of this State and those of South Carolina, and between the ports of this State and those of Florida, who refuses to receive a pilot on board, shall be liable, on his arrival in such port in this State, to pay the first pilot who may have offered his services outside the bar, and exhibited his license as a pilot, if demanded by the master, the full rates of pilotage established by law for such vessel,” conflicts with the Constitution of the United States, and is annulled and abrogated by the provision in Rev. Stat. § 4237, that “ no regulations or provisions shall be adopted by any State which shall make any discrimination in the rate of pilotage or half-pilotage between vessels sailing between the ports of one State and vessels sailing between the ports of different States, or any discrimination against vessels propelled in whole or in part by steam, or against national vessels SPRAIGUE v. THOMPSON. 91 Opinion of the Court. of the United States ; and all existing regulations or provisions making any such discrimination are annulled and abrogated.” A vessel owned in Philadelphia and running between Philadelphia and Savannah was licensed as a coastwise steam vessel. The master held a license as pilot under Title LIL Rev. Stat. The owners employed S (a Savannah pilot also licensed under the laws of the United States to conduct vessels over Tybee Bar and up the Savannah River), as their regular pilot to conduct the vessel through those waters, with pay from the time of leaving Philadelphia. T, licensed as a pilot under the laws of Georgia, spoke the vessel off Cape Romain, before any other pilot spoke it, and tendered his services to conduct it over the bar and up the river, and they were refused. Subsequently S met the vessel under the general arrangement and piloted it over the bar and up the river. Held: That pursuant to the provisions of Rev. Stat. §§ 4401, 4444, the vessel, both when T tendered his services, and when it passed over the bar and up the river, was under the lawful control and direction of a pilot licensed under the laws of the United States, and could not be required to take a pilot licensed under the provisions of the laws of Georgia. If a clause in a statute which violates the Constitution cannot be rejected without causing the act to enact what the legislature never intended, the whole statute must fall. The case is stated in the opinion of the court. Hr. Henry B. Tompkins for plaintiffs in error. No appearance for defendant in error. Mr. Justice Matthews delivered the opinion of the court. This was an action at law, begun by the defendant in error, in a magistrate’s court in Chatham County, Georgia, against the plaintiffs in error, to recover $93.16, claimed to be due under the pilotage laws of Georgia, for inward pilotage on account of the steamer Saxon, of which the defendants were owners, the vessel having been spoken by the pilot while she was bearing toward the port of Savannah, and his services offered outside of Tybee Bar, and refused, the vessel having arrived in port piloted by another Savannah pilot, who spoke her and entered on the discharge of his duties as pilot on the same day, but subsequently to the tender by the plaintiff below of his services. There was a judgment in favor of the plaintiff below in the 92 OCTOBER TERM, 1885. Opinion of the Court. magistrate’s court for the amount claimed, which was reversed on appeal by the Superior Court of Chatham County, which judgment was in its turn reversed by the Supreme Court of Georgia, which ordered judgment to be entered for the plaintiff below. To reverse this judgment this writ of error is brought. The case was submitted and decided upon an agreed statement of facts, as follows: “ It is agreed between the parties to the above-entitled cause that the same shall be tried on appeal in the Superior Court of Chatham County, on the following state of facts before the court, without a jury : That the steamship Saxon is a licensed coastwise steam vessel engaged in the trade between Philadelphia and Savannah, and belongs to Spraigue, Soullee & Co.; that on the 9th day of August, 1881, she was engaged in a voyage from Philadelphia, Pennsylvania, to Savannah, Georgia, and that S. W. Snow was her master; that said master was duly licensed, under title 52 of the Revised Statutes of the U. S., as master of a steam vessel, and as a pilot also, but-that his certificate as pilot did not include Tybee Bar and Savannah River, but that his certificate was for the Atlantic coast, and that his certificate as master and pilot was issued last November. “ That said steamship ‘ Saxon ’ was spoken by plaintiff off Cape Romain on the 9th day of August, 1881, and his services were tendered to said master of said steamship ‘Saxon’ as a pilot for Savannah River and Tybee Bar, and that at the time his said services were offered there was no pilot for Tybee Bar or Savannah River on board said steamship, and that said plaintiff was the first pilot who spoke said vessel on her said trip to Savannah. It was further admitted by counsel at the hearing that Philadelphia was the home port of said steamer ‘Saxon,’ and that the captains and masters of the Ocean Steamship Company steamers, whose home port is Savannah, have each a license from the United States authorities at Savannah to pilot their vessels up and down the Savannah River over and from the bar to the city; that said pilot was duly commissioned by the commissioners of pilotage for the Savannah River and Tybee Bar, and was also duly commis- SPRAIGUE v. THOMPSON. 93 Opinion of the Court. sioned by the IT. S. inspectors to conduct steam vessels over Tybee Bar and up Savannah River and within that limit; that Thompson went out to meet the ‘ Saxon,’ being advised of her departure from Philadelphia, and his services were refused; that the defendant had procured the services of Walter W. Smith, a pilot who was duly licensed for the Savannah River and Tybee Bar by the commissioners of pilotage, and who was also duly licensed by the IT. S. to conduct steam vessels over Tybee Bar and up Savannah River, and had notified the captain of said steamship ‘ Saxon ’ to stop at the Martin’s Industry lightship and take said Walter W. Smith on board to pilot said steamship over Tybee Bar and up Savannah River; that said Walter W. Smith was employed as the regular pilot of steamer ‘ Saxon,’ and was under pay from [the] time said vessel left Philadelphia; that said pilot was taken on board said steamship on [the] tenth day of August off the Martin’s Industry lightship, and he piloted the said vessel to the city of Savannah and has continued in the employ of said vessel from that time until the present time as pilot. That Cape Romain is on the South Carolina coast north of Charleston, and that Martin’s Industry lightship is north of Tybee Bar and off the South Carolina coast. That Walter W. Smith was in Savannah when the ‘ Saxon ’ left Philadelphia, and was not piloting the ‘ Saxon ’ when she was spoken by the plaintiff, but met her afterwards and was taken. That said steamship ‘ Saxon ’ drew seventeen feet six inches of water, and that according to rates of pilotage for Tybee Bar and river of Savannah $93.17 was a proper charge for piloting a vessel of such draft up to Savannah City.” The claim of the defendant in error for pilotage, arising upon the foregoing case, is based on § 1512 of the Code of Georgia, which is as follows: “Any person, master, or commander of a ship or vessel bearing toward any of the ports or harbors of this State, except coasters in this State, and between the ports of this State and those of South Carolina, and between the ports of this State and those of Florida, who refuses to receive a pilot on board, shall be liable, on his arrival in such port in this 94 OCTOBER TERM, 1885. Opinion of the Court. State, to pay the first pilot who may have offered his services outside the bar, and exhibited his license as a pilot, if demanded by the master, the full rates of pilotage established by law for such vessel.” And the claim is undoubtedly well founded, if this provision of the State law is enforceable consistently with the Constitution of the United States and the acts of Congress on the same subject, passed in pursuance thereof. It is, therefore, contended by the plaintiffs in error, that this provision of the Georgia Code is invalid, on the ground that it is inconsistent with the laws of the United States regulating the same subject. Section 4235 Rev. Stat, enacts, that, “ Until further provision is made by Congress, all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively enact for the purpose.” But it is also enacted by § 4237 Rev. Stat, that “No regulations or provisions shall be adopted by any State which shall make any discrimination in the rate of pilotage or half pilotage between vessels sailing between the ports of one State and vessels sailing between the ports of different States, or any discrimination against vessels propelled in whole or in part by steam, or against national vessels of the United States; and all existing regulations or provisions making any such discrimination are annulled and abrogated.” The section of the Georgia Code, above quoted, does contain such discriminations as are prohibited by § 4237 Rev. Stat. It excepts from its operation “coasters in this State,” and “ between the ports of this State and those of South Carolina,” and “ between the ports of this State and those of Florida.” It was held, however, by the Supreme Court of Georgia, in the case now before us, that so much of the section as makes these illegal exceptions may be disregarded, so that the rest of the section as thus read may stand, upon the principle that a separable part of a statute, which is unconstitutional, may be rejected, and the remainder preserved and enforced. But the SPRAIGUE v. THOMPSON. 95 Opinion of the Court. insuperable difficulty with the application of that principle of construction to the present instance is, that by rejecting the exceptions intended by the legislature of Georgia the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what any one can say it would have enacted in view of the illegality of the exceptions. We are, therefore, constrained to hold that the provisions of § 1512 of the Code of Georgia cannot be separated so as to reject the unconstitutional exceptions merely, and that the whole section must be treated as annulled and, abrogated by § 4237 of the Revised Statutes. We are also of opinion that the claim for pilotage in the present case is defeated by other provisions of the Revised Statutes. Section 4401 provides that “ All coastwise sea-going vessels, and vessels navigating the great lakes, shall be subject to the navigation laws of the United States, when navigating within the jurisdiction thereof; and all vessels, propelled in whole or in part by steam, and navigating as aforesaid, shall be subject to all rules and regulations established in pursuance of law for the government of steam vessels in passing, as provided by this Title ; and every coastwise sea-going steam vessel subject to the navigation laws of the United States and to the rules and regulations aforesaid, not sailing under register, shall, when under way, except on the high seas, be under the control and direction of pilots licensed by the inspectors , of steamboats.” And § 4444 is as follows : “ No State or municipal government shall impose upon pilots of steam vessels any obligation to procure a State or other license in addition to that issued by the United States, or any other regulation which will impede such pilots in the performance of the duties required by this Title ; nor shall any pilotcharges be levied by any such authority upon any steamer piloted as provided by this Title ; and in no case shall the fees charged for the pilotage of any steam vessel exceed the customary or legally established rates in the State where the same is performed. Nothing in this Title shall be construed to annul or affect any regulation established by the laws of any State 96 OCTOBER TERM, 1885. Opinion of the Court. requiring vessels entering or leaving a port in any such State, other than coastwise steam vessels, to take a pilot duly licensed or authorized by the laws of such State, or of a State situate upon the waters of such State.” According to the agreed case the Saxon was a coastwise sear going steam vessel, was not sailing under register, and, at the time when the defendant in error tendered his services, and, subsequently, when she passed up the river into Savannah, was under the control and direction of a pilot licensed by the United States inspectors of steamboats. She was, therefore, at the time, piloted as provided by that title of the statute, so that she was lawfully exempt from any pilot charges levied by any State or municipal government. The section expressly excepts coastwise steam vessels from the regulations established by the laws of any State requiring vessels entering or leaving a port, in any such State, to take a pilot duly licensed or authorized by the laws of any such State, or of a State situate upon the waters of such State. The owners of the Saxon were, therefore, at liberty to employ any pilot, licensed under the authority of the United States for the particular service in which he was engaged, without regard to the provisions of the Georgia Code requiring it to accept the services of the pilot first tendered, or, in case of refusal, to pay pilotage therefor. The engagement of the services of the pilot actually taken, by previous contract, was equivalent to keeping him on board for that purpose during the whole voyage, as he was, in fact, under pay from its commencement ; and had he been actually on board at the time the defendant in error tendered himself as pilot, we think the right of the vessel to reject the offer could not have been reasonably questioned. For these reasons the judgment of the Supreme Court of Georgia is Reversed, and the cause is remanded with instructions to take further proceedings therein according to law and in conformity with this opinion. CLAY v. FREEMAN. 97 Syllabus. CLAY & Another v. FREEMAN & Another. APPFAT, from the district court of the united states for THE NORTHERN DISTRICT OF MISSISSIPPI. Submitted January 12,1886.—Decided April 26,1886. The surviving partner of a partnership after payment of the partnership debts, may retain the partnership property until the indebtedness of the firm to him is paid, if no proceedings are taken against him to enforce a.settlement: in such case if the statute of limitations runs against anybody, it is against the representatives of the deceased partner. A and B became partners in 1855 for the purpose of carrying on a plantation in Mississippi owned by them jointly as partners. B furnished the larger part of the capital, and received the firm’s notes for the amount advanced by him in excess of A’s advances. A died in 1859, and his administrator and B carried on the partnership business until the outbreak of the war, without a settlement. In July, 1867, B died, having been for some time administrator of A (but without receiving any property or filing any account), and leaving surviving his sole heir and daughter P, who became of age in November, 1869. On the death of B, C was appointed administrator of each estate, and obtained a decree of court for sale of the real estate. It was struck off at the sale to P in December, 1869; the amount of the purchase money was credited on the partnership notes ; and P entered into possession; but the whole proceeding subsequently proved to be illegal and invalid, and the supposed sale and transfer to be void. In 1876 dower in the estate was allotted to the widow of A in a proceeding in which P contested her right to it. In 1880 the widow began suit, which is still pending, to recover damages for dower, and about the same time the heir at law of A, having come of age, sued to recover an undivided half interest in the real estate, claiming that the partnership debts were outlawed. P then brought this bill in equity to settle the partnership business, and to charge all the real estate, including the undivided interest of the heir at law of A therein, and the interest of the widow, with the partnership debts. Held: That the statute of limitations could not be set up by the heir at law of A or by the widow against P; that P was the proper party to bring the suit; that the cancellation of the sale restored P to her rights as partnership creditor; and that while the court would not set aside the assignment of dower, no further exaction for detention would be enforced. In equity. The case is stated in the opinion of the court. JUr. William L. Nugent for appellants. vol. cxvni—7 98 OCTOBER TERM, 1885. Opinion of the Court. JZ?. Frank Johnston and JZr. J. E. M.cKelghan for appeL lees. Mr. Justice Bradley delivered the opinion of the court. This case was commenced by bill in equity filed in the court below in July, 1882, by Pattie A. Clay and Brutus J. Clay, her husband, citizens of the State of Kentucky, against Lucy C. Freeman and C. L. Freeman, her husband, and David I. Field, citizens of the State of Missouri. As the bill was dismissed on demurrer, and the appeal is from the decree of dismissal, it is necessary to state its principal allegations. The facts alleged are substantially as follows : In 1855 Christopher I. Field, (of whom the complainant, Pattie A. Clay, is only child and heir-at-law,) and his brother, David I. Field, (of whom the defendant, Lucy C. Freeman, is the widow, and the defendant, David I. Field, is only child and heir-at-law,) jointly purchased a plantation in Bolivar County, Mississippi, called the Content place, for the purpose of carrying it on in partnership, under an agreement by which said David was to possess, manage, and control the partnership property for the firm, and the partners were to be equally interested in the property and business. They were also equally to bear losses and expenses, and to share equally the profits realized; but Christopher, being a man of large wealth, did not have the same necessity for calling upon the firm profits as David did. The style of the partnership, as advertised by the partners, was David I. Field & Co., or D. I. Field & Co. The plantation and its equipment of slaves and implements cost from $60,000 to $70,000, the lands alone costing about $54,000. Of this capital Christopher advanced $15,541.26 more than David, which advance was made in the years 1856, 1857, 1858, and 1859, and four partnership notes were executed by David and delivered to Christopher as evidence of these advances, which notes were as follows, namely: 1. “ $7385^. On or before the first day of January, 1858, the concern of David I. Field & Co. will be owing C. I. Field the sum of seven thousand three hundred and eighty five TVo CLAY v. FREEMAN. 99 Opinion of the Court. dollars for money advanced the concern for payment for the Leach land and cash advanced for the purchase of negroes in K’y in the summer of 1856, and to bear six per cent, interest from maturity, or when due. This 23d Dec’r., 1856. “D. I. Field & Co. [seal.]” 2. “ The concern of David I. Field & Co. is owing to C. I. Field the sum of five thousand six hundred and sixty-six and two-thirds dollars (it being that amount advanced by him of payment to Kirk, balance on concern note due him 1st day of January last); he is to be paid six per cent, for said amount from date until paid. This 20th March, 1857. “ David I. Field & Co.” [On this note is endorsed a credit as follows: “ $243.50. Rec’d on the within note the sum of two hundred and forty-three T%°o dollars on settlement of articles purchased at D. I. Field’s sale of personal property by C. I. Field and D. I. Field & Co., this 1st day January 1861. “ C. I. Field.”] 3. “ Due C. I. Field, or order, the sum of eleven hundred dollars ($1100), it being money this day advanced by paying to Wm. Kirk, through his draft on Hewitt, Norton & Co., of New Orleans, this fifth day of June, 1858. “D. I. Field & Co. [seal.] ” 4. “ Bolivar, June 1859. “ Due C. I. Field, or order, one thousand three hundred and eighty-nine dollars for value rec’d, on settlement to this date (to this date). “ D. I. Field & Co.” David I. Field (whom for the sake of brevity we will call D. I. Field) conducted the plantation, and lived on it until his death, which took place on the 11th of September, 1859 ; and from that time until the commencement of the late war, it was 100 OCTOBER TERM, 1885. Opinion of the Court. conducted be. his ac^h^iistrator, one E. H. Field. His widow, Lucy, the nOw defendant, soon after his death, removed to Lexington,^^tuckjy with her infant son, David I. Field, junior, one d^fejidants in this suit; and after her marriage with her^esent hlisbaiid, C. S. Freeman, shie removed to Missouri fireside Svith hi^fand neither she, nor her son, has ever lived in Mississippi ,^Be. At the time of his death, D. I. Field owed ind^pually (fiicluding his half of the firm debt due to his W^ier, C. I. Field), $11,000 or $12,000, all of which debts, and ail the firm debts except the debt due to C. I. Field, were paid. On the 12th of December, 1859, C. I. Field probated and registered his claim against the estate of D. I. Field, and to the proof thereof annexed the following memorandum, to wit: “ David I. Field & Co. is a firm consisting of the estate of David I. Field and C. I. Field, partners in the Kirk plantation, known as the Content place. All the within notes are joint notes of the firm to C. I. Field, consequently one-half of the within claim is chargeable to the estate of D. I. Field. This the 10th Dec’r, 1859. (Signed) C. I. Field.” Nothing was realized from the plantation during the years 1859, 1860, and 1861, more than sufficient to keep it up. In 1859 there was a bad overflow of the river; in 1860 there was barely sufficient for expenses, and the crop of 1861 was destroyed by the Confederate soldiers under military orders. Christopher I. Field then took the slaves (about thirty in number) to Texas to prevent their being dispersed, and after the war was ended, brought them back, and endeavored to work the plantation again ; but as few of the slaves, after obtaining their freedom, were willing to remain on it, very little could be done, and the place was worked at a loss. Christopher I. Field died on the 18th of July, 186T, leaving his daughter Pattie, the complainant, his sole heir-at-law, who came of full age on the 22d of November, 1869. A few months before his death he was appointed administrator de l)onis non of his brother David, but nothing came to his hands as such administrator, and he filed no account. After his death, Brutus J. Clay, senior, (father of Brutus, one of the complainants.) was appointed administrator, both of the estate of Christopher and CLAY v. FREEMAN. 101 Opinion of the Court. of his brother David, and assumed the management of the plantation; but by reason of dilapidation, growth of brush, and overflows of the river, realized nothing beyond taxes and expenses as long as he had the charge. On the 2d of November, 1868, Brutus J. Clay, senior, as administrator of David I. Field, presented a petition to the probate court of Bolivar County, Mississippi, representing the estate of said David to be insolvent, and praying for an order to sell his property, real and personal, for the payment of his debts. Schedules were annexed to the petition, showing that there was no personal property, that the only real estate was the said David’s half interest in the plantation of Content, and that his debts consisted of one-half of the notes given to Christopher as before mentioned. The petition stated that David’s widow, Lucy, and his only child and heir, David, jr., and his guardian, one Scott, resided in Lexington, Kentucky, and prayed an order of publication citing all parties interested to appear, &c. Upon this petition and the proceedings had in pursuance thereof, a decree was made by the probate court in March, 1869, declaring that the estate was insolvent, and authorizing and directing the administrator to sell the lands described in the petition. In pursuance of this decree and advertisement, duly published, D. I. Field’s one-half interest in the plantation was sold at public auction on the 20th day of December, 1869, and struck off to the complainant, then Pattie A. Field, by her attorney, for the sum of $6000. The complainant gave her a receipt for the amount of purchase money, less the costs, which was credited on the notes by the administrator, and she received a deed for the property purchased, and went into possession, and has remained in possession, by herself and her husband, or her tenants, ever since that time, except as to the dower of the defendant, Lucy C. Freeman, hereafter mentioned. The sale was made in good faith and in the belief that it was valid. On the 1st day of December, 1869, shortly before the sale took place, a new constitution of Mississippi went into operation, which abolished the probate court and established a chancery court for each county, having, amongst other things, the former jurisdiction of the probate court; and, by a law passed the 4th 102 OCTOBER TERM, 1885. Opinion of the Court. of May, 1870, it was enacted that all causes and proceedings remaining undisposed of in the court of probate of each county should be transferred to the chancery court. The proceedings in this case were not formally transferred, but are actually on file in the clerk’s office of the chancery court for Bolivar County aforesaid. The bill then states the results of the working of the plantation from 1870 to the time of the filing of the bill, showing that no profits were realized, but that the complainant incurred a loss of from $2500 to $3000, in consequence of the dilapidations consequent upon the war, severe overflowing of the river, and other causes for which the complainant was not responsible. Vouchers are exhibited with the bill for taxes, expenses, and repairs by her paid and incurred. In 1873 Lucy C. Freeman (then Lucy C. Field) filed a petition in the chancery court of Bolivar County for her dower in one undivided half of the Content plantation, and in 1875, a decree for allotment of dower was made, which decree was affirmed by the Supreme Court of the State in 1876, so far as said Lucy’s legal right to dower was concerned. The complainant and Brutus J. Clay, senior, by way of defence to the suit, set up the partnership, the indebtedness to Christopher I. Field, the fact that the plantation was partnership property, and liable for the partnership debts before any dower could be had therein, and also set up the sale of David I. Field’s interest by order of the orphans’ court. But this defence was overruled as not a good defence at law. The Supreme Court in affirming the decree, however, declared that the right of C. I. Field’s estate arising out of the partnership and the partnership debts was not affected by the proceedings in dower, and that the defendants, or tenants, in that suit, were left free to litigate the same with the said Lucy. Her dower was thereupon set off to her in November, 1879, and complainants hoped she would be therewith content, and did not further resist her taking possession of her dower. But in September, 1880, she filed a bill for damages in dower, which is now pending in the Circuit Court of the United States for the Northern District of Mississippi. CLAY v. FREEMAN. 103 Opinion of the Court. On the 27th of November, 1880, David I. Field, junior, who had then come of age, commenced an action of ejectment in the said Circuit Court for an undivided half of said plantation as heir of his father, David I. Field, senior, and demanded $20,000 for mesne profits. The complainant filed a plea, and the suit was still pending at the time of filing the bill in this case. The bill states that shortly after the sale made on the 20th of December, 1869, Brutus J. Clay, senior, made his final settlement as administrator of the estates of David I. Field and Christopher I. Field, in the chancery court of Bolivar County aforesaid, and was discharged ; and that there has since been no administrator of either of said estates: E. H. Field also settled his accounts as administrator of David I. Field’s estate and was discharged: All of the personal property of the partnership of David I. Field & Co. was lost or destroyed without any negligence of Christopher I. Field, surviving partner, as the result of the war, at the end of which the only property of the partnership left was the Content plantation : That no part of the partnership notes given to Christopher as aforesaid has ever been paid: The complainant insists that this debt is a charge on the property prior to any claim of the widow, Lucy, or of the heir David I. Field, junior: D. I. Field’s estate is insolvent, the one-half of said lands being now insufficient to pay said notes and the interest thereon: C. I. Field, at the time of his death, owed nothing, or if anything, all his debts are paid off and discharged: All the partnership debts, except the said debt due to the estate of C. I. Field, have been paid off and discharged: The complainant, Pattie A. Clay, now holds said debt as his sole heir-at-law and distributee. The prayer is, that an account of the partnership may be taken, and that the assets may be marshalled, and the said debt paid out of the assets of the partnership, including said plantation—the complainant proffering an account of all moneys received therefrom, and claiming credit for all taxes, expenses and repairs. The prayer then proceeds as follows: “ or if this lonorable court should adjudge and determine that the said proceedings in the probate court of said county of Bolivar con- 104 OCTOBER TERM, 1885. Opinion of the Court. stitute an election binding upon her, and that they estop her from proceeding otherwise than as against the undivided half interest of said David I. Field, deceased, in said plantation for the half of said partnership debts due to her ancestor, your orators in that event pray that after the amount due her as such heir-at-law and distributee upon such accounting shall be ascertained and fixed, the said undivided half interest of said David I. Field in said plantation shall be sold under the proper decree of this court, thus carrying into execution the decree of said probate court of Bolivar County, rendered in the matter of the administration of the estate of said David I. Field, deceased; but if this honorable court should adjudge and determine that your orators are not entitled to either of the special reliefs hereinbefore prayed, they then pray that this honorable court may decree that your orators have a lien upon the said undivided half interest of said David I. Field, deceased, in said plantation for the said sum of six thousand dollars, and the interest thereon from the 20th day of December, 1869, lessened by any balance that may be found due by her upon such accounting to be had in the cause as may be adjudged to be fair and equitable; and if it be determined that your oratrix has lost her right to proceed against said plantation, as assets of said partnership for the payment of said partnership debts to her said ancestor, they pray that an accounting may be had between them and the said Lucy C. Freeman, in connection with her claim as propounded in and by her bill of complaint, upon such principles and in such manner as this honorable court shall adjudge to be fair and equitable ; or, if mistaken in the relief sought, then for such other, further and general relief and decree as to equity belongs and your orators can require. In the meantime your orators, hereby confessing they are without valid title to the undivided half interest of said David I. Field in said plantation, but claiming and insisting that in no event can they be held to account to said defendants in two separate proceedings concerning the rents of said plantation, and that the whole controversy between them and said defendants, their agents and attorneys, be enjoined, inhibited, and restrained from further prosecuting their said CLAY v. FREEMAN. 105 Opinion of the Court. suits in this honorable court against your orators, and on final hearing that said injunction be perpetuated.” This bill was dismissed by the court below as upon demurrer. Other proceedings were had; but, in view of the course which was finally taken in the cause, it is not necessary to notice them. The ground on which the bill was dismissed was lapse of time. The sale of David I. Field’s interest by order of the Probate Court in 1869 was held to be void. This was also so held in the action of ejectment brought by David I. Field, junior, the reason assigned being that the Probate Court had no jurisdiction of accounts between partners, and that the administrator gave no bond as required by law. On writ of error from this court in that case the judgment of the Circuit Court was affirmed. See Clay & Wife v. Field, 115 IT. S. 260. But that action affected only the legal title; and the question still remains, unless precluded by lapse of time, whether in equity, the lands, being partnership property, are not liable to the debts of the partnership prior to any claim of the widow and heir of D. I. Field. As before said, the court below placed its decree upon the lapse of time, holding that, as the partnership was dissolved by the death of David I. Field, senior, in September, 1859, a suit for an account of the partnership transactions could not be brought in 1882, after a lapse of twenty-three years; or, deducting five years for the continuance of the war, after a lapse of eighteen years. If this were simply a bill to enforce the settlement of an account this reasoning would be very apposite. But it is not. It is a bill to prevent a dispossession of property until the equitable charges against that property are adjusted and settled. Of course the adjustment and settlement of those charges involves an account of the partnership transactions. But that account was no less claimable, at any time, by the estate of D. I. Field than it was by that of C. I. Field. The primary object of the present bill, though it involves a taking of the account, is to prevent the complainants from being dispossessed of the property until their claim against it has been discharged. 106 OCTOBER TERM, 1885. Opinion of the Court. If a pledgee holds property as security for a debt, the statute of limitations does not affect his right to hold the pledge until the debt is paid ; it does not authorize the debtor to claim the pledge without paying the debt. The creditor is in possession. If the statute runs against any one, (so far as relates to the pledge,) it runs against the pledgor. The creditor, by operation of the statute, may lose his right of action for a personal judgment against the debtor ; but he has a right to hold on to the pledge until the debt is paid. It is the debtor’s concern to see that he does not lose his right to redeem the pledge. So, a mortgagee in possession, if satisfied With the mortgage security, need have no anxiety about the statute of limitations. That is the concern of the mortgagor. Unless he redeems in proper time, he will lose his equity of redemption. The same rule applies in the case of partnership property in the possession of the surviving partner ; he has a right to hold it until the debts of the firm are paid, and if the firm is indebted to him, he has a right to hold it until he is paid. It is true, it is his duty to dispose of the partnership property, and settle the partnership debts. But that is a duty to which he may, at any time, be compelled by the representatives of the deceased partner ; and although his neglect or delay in winding up the concern may expose him to the animadversion of the court, and to the vigorous exercise of its power to compel him to do his duty, it will not relieve the partnership assets in his hands from the lien of the partnership debts. Being in possession of those assets, he is not affected by the statute of limitations. If the statute runs against anybody, it runs against the representatives of the deceased partner in relation to their right to call him to account. The proposition that the partnership property can be taken out of the surviving partner’s hands, and distributed among the several partners and their representatives without a settlement and payment of the partnership debts, including any balance due the surviving partner himself, is a proposition that equity will not for a moment entertain. The other side, it is true, have prevailed at law; but they cannot prevail in equity. It would be strange, indeed, CLAY v. FREEMAN. 107 Opinion of the Court. if the principal capitalist of the firm, who advanced much the largest amount of money in the concern, should be brought in debt to his co-partner. The thing is unreasonable on its face; and it cannot stand the test of a juridical examination. The reason why the matter lay so long without any movement being made on either side, (except that of Lucy C. Freeman for her dower,) is probably this: On the side of C. I. Field and his representatives it was supposed that the decree of the Probate Court declaring the insolvency of D. I. Field and ordering a sale of his property to pay his debts, and the sale made in pursuance thereof, ended all further inquiry or controversy. On the side of D. I. Field’s family, it is probable that the same idea prevailed; or, if not, that the land was not supposed equal in value to the lien upon it. The infancy of D. I. Field, jr., would hardly have deterred his mother and guardian from prosecuting his interest if they had thought it worth prosecuting. The idea that David junior could get the land without paying the debt on account of lapse of time is probably of recent growth. But whatever the reasons for inaction may have been, C. I. Field and his representatives and heir-at-law have always, since the war, remained in possession, and the heir cannot, in equity, be ousted of that possession without a settlement of the accounts. It is very doubtful, indeed, whether without this possession, even a technical plea of the statute of limitations, or lapse of time analogous thereto, could be sustained. After the death of D. I. Field, his administrator, E. H. Field, and C. I. Field, by mutual consent, continued the partnership until the breaking out of the war. Of course, neither party could have claimed that the statute was running during that period, under those circumstances. It did not run during the war. It did not commence to run, therefore, until April, 1866. C. I. Field died fifteen months afterwards, (in July, 1867,) and for several of those months he had been administrator of his brother’s estate, no one being such for the remainder of the time. Of course, he could not sue himself. Then Brutus J. Clay, senior, was appointed administrator of both estates, and so far as appears, continued such, (except as discharged from active trust 108 OCTOBER TERM, 1885. Opinion of the Court. on settlement of his accounts,) down to the period of his death, which occurred, as stated in the bill, in October, 1878, since which time there has been no personal representative of either estate. We do not see, therefore, how the statute of limitations, or lapse of time, can be set up against the complainant, Pattie A. Clay, the heir-at-law of C. I. Field. That she is a proper party to bring this suit we think is very clear. She is the only person in the world interested in C. I. Field’s real or personal estate. In the realty she is legally interested as heir-at-law; in the personalty she is the only beneficiary. If new letters of administration were to be taken out it would be for her benefit. There are no creditors; there are no debts due the estate except the one debt due from the partnership. The plantation is partnership property, standing in the joint names of the partners, but liable for the partnership debts. C. I. Field and his administrator held it in possession subject to the lien of those debts. She, as their successor, and the only person beneficially interested, still holds that possession. We think it would be highly inequitable to deprive her of that possession at the suit of the heir of D. I. Field, the debtor, without payment of . the debt under the lien of which she holds it, or, at least, without bringing the debt into account against the property itself and any rents and profits which she and her predecessors in interest may have realized therefrom. Her position is really one of defence. She has possession, and an attempt is made, under a technically legal title, to deprive her of that possession; whilst that legal title is a merely formal one, since, as before said, the lands are partnership property, and assets, in equity, subject to the partnership debts; and her possession as sole successor in interest to her father cannot be disturbed without doing equity to her, by allowing her to bring the notes, with interest, (now belonging to her,) into account against those assets. The sale made by order of the probate court having been adjudged void, its incidents and consequences are void—such as the receipt given for the balance of the $6000 purchase money, and the endorsement thereof on the notes. The latter will stand for their full amount, with interest, less the endorsement of $243.50 made by C. I. Field. SOUTHERN PACIFIC R. R. CO. v. CALIFORNIA. 109 Syllabus. It results from these views that the lien for partnership debts takes precedence, not only of the interest of David I. Field, junior, as heir-at-law of D. I. Field, but of Lucy C. Freeman’s right of dower. As, however, dower was actually assigned to her nearly three years before the filing of the present bill, such assignment should not now be disturbed; but no further exaction for detention of dower should be enforced. We think, therefore, that, upon the allegations of the bill, the complainants are entitled to relief, and that the demurrers should have been overruled. The decree of the Circuit Court is Reversed, and the cause remanded, with instructions to overrule the demurrers, and to proceed in the cause accordi/ng to law and the principles announced in this opinion. SOUTHERN PACIFIC RAILROAD COMPANY v. CALIFORNIA. ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA. Submitted December 11,1885.—Decided April 26, 1886. The question whether a State has power to tax franchises of a corporation derived from acts of Congress, and property used in connection therewith: and the question whether a statute of California under the operation of which the railroad of the Southern Pacific Railroad Company is subjected to taxation in California without deduction of -its mortgage encumbrances, while in the valuation of the property of other corporations not railroad corporations, and of individuals for taxation in the State, the mortgage encumbrances are deducted is repugnant to the XIVth Amendment of the Constitution—are questions arising under the Constitution and laws of the United States, which, when properly raised in a suit at law or in equity of a civil nature pending in a State court, authorize its removal into a Circuit Court of the United States; and this, although other issues, not Federal, are raised by the pleadings in the case. A suit brought by the State of California in one of its own courts against the Southern Pacific Railroad Company to recover an amount claimed to be due for taxes, is a suit at law, of a civil nature, within the meaning of the removal clauses in the act of March 3, 1875. Railroad Co. n. Mississippi, 102 U. S. 135, affirmed and applied. Starin v. Ne-w York, 115 U. S. 248, affirmed and applied. 110 OCTOBER TERM, 1885. Opinion of the Court. The case is stated in the opinion of the court. J/r. George H. Smith, and J/r. S. W. Sanderson for plaintiff in error. J/r. R. 2f. Widney for defendant in error. Me. Chief Justice Waite delivered the opinion of the court. This is a suit brought by the State of California, in one of its own courts, against the Southern Pacific Railroad Company to recover $31,470.58 claimed to be due for taxes. The railroad company answered the complaint, setting up, among others, the following defences: 1. That under and by virtue of the acts of Congress of July 27,1866,14 Stat. 292, ch. 278 ; March 3,1871,16 Stat. 573, ch. 122 ; and May 2,1872,17 Stat. 59, ch. 132, the defendant “ became, and ever since has been, a Federal corporation, and has held its franchises and exercised all its corporate powers under the government of the United States;” or “ if, by virtue of the several acts of Congress . . . referred to, it did not become a Federal corporation, yet it holds under the government of the United States all the corporate powers and franchises granted to it by the said several acts of Congress as the trustee for the government, and for the governmental uses and purposes specified in said acts; ” “ that the government of the United States has never given to the State of California the right to lay any tax upon the franchise, existence, or operations of defendant; ” that the “ value of all the franchises held and corporate powers exercised by defendant under said acts of Congress ” were included in the valuation of the property of the company upon which the taxes sued for were assessed, and that by reason of the premises the taxes are illegal and void. 2. That the property of the company for which the taxes sued for were levied was, and is, encumbered by a mortgage securing an indebtedness of the railroad company exceeding $3000 a mile, and that it was valued for taxation without deduction on account of such encumbrance, because such was the requirement of the statute with respect to railroad corpora- SOUTHERN PACIFIC R. R. CO. v. CALIFORNIA. Ill Opinion of the Court. tions owning railroads within the State, and operated in more than one county, and this corporation was, and is, of that class. 3. That the statute under which the taxes were levied is repugnant to Art. XIV. of the Amendments of the Constitution of the United States, inasmuch as it deprives railroad corporations of the State operated in more than one county of the equal protection of the laws, 1, by providing that the property of such corporations shall be valued for taxation to them without deduction on account of mortgage encumbrances, while the mortgaged property of other corporations and of natural persons is taxed to its owner only on its value after the value of the mortgage has been deducted ; and, 2, by failing to provide a tribunal for the correction of errors in the valuation of the property of such railroad corporations for taxation, when such a tribunal is provided for all other corporations and for natural persons. 4. That the statute is still further repugnant to the same amendment, because it deprives such corporations of their property without due process of law, there being no provision for notice to them of a time, place, or tribunal for a hearing in defence of their rights in the valuation of their property for taxation. Upon the filing of this answer, the railroad company presented its petition, accompanied with the necessary security, for the removal of the suit to the Circuit Court of the United States for the District of California, under the act of March 3, 1875, 18 Stat. 470, ch. 137, on the ground that the action “ is a suit at law of a civil nature and arising under the Constitution and laws of the United States.” This petition was filed in time. The State court proceeded with the suit notwithstanding the petition, and gave judgment against the railroad company for the full amount of the tax and the statutory penalty. From this judgment the corporation appealed to the Supreme Court, where the only question presented for decision was “ whether the Federal Constitution and the act of Congress authorized a removal of an action from a State to a Federal court brought by a State to recover taxes levied under its laws 112 OCTOBER TERM, 1885. Opinion of the Court. on the property of a being created by its power in one of its own courts.” This question was decided against the corpora? tion, and the judgment of the court below affirmed. To this judgment of affirmance the present writ of error was brought on the allowance of the Chief Justice of the Supreme Court of the State. In Railroad Co. v. Mississippi., 102 U. S. 135,141, it was decided that a suit brought by a State in one of its own courts against a corporation of its own creation can be removed to the Circuit Court of the United States, under the act of March 3, 1875, if it is a suit arising under the Constitution or laws of the United States, although it may involve questions other than those which depend on the Constitution and laws. The case of Ames v. Kansas, 111 U. S. 449, is to the same effect; and in Starin v. New York, 115 U. S. 248, 257, it was stated, as the effect of all the authorities on the subject, that if, from the questions involved in a suit, “ it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term as used in the act of 1875 ; otherwise not.” Applying these rules, which must now be considered as settled, to the present case, it is apparent that the court below erred in deciding that the suit was not removable; for it distinctly appears that the right of the State to recover was made by the pleadings to depend, 1, on the power of the State to tax the franchises of the corporation derived from the acts of Congress, which were specially referred to, as well as the property used in connection therewith, and, 2, on the effect of Art. XIV. of the Amendments of the Constitution on the validity of the statutes under which the taxes sued for were levied. The first depended on the construction of the acts of Congress, and the second on the construction of the constitutional amendment. If decided in one way the State might recover, if in another it would be defeated, at least in part. The right of removal does not depend upon the validity of the claim set up under the Con- EX PARTE LOTHROP. 113 Syllabus. stitution or laws. It is enough if the claim involves a real and substantial dispute or controversy in the suit. In this case there can be no doubt about that. The Circuit Court of the United States for the District of California has already decided more than once, in other cases involving precisely the same questions, that the statute on which the recovery depends was unconstitutional and void, and some of these cases are now pending here on writs of error. Already much time has been devoted in this court to their argument under special assignments. The judgment of the Supreme Court is reversed and the cause remanded, with directions that it be sent back to the Superior Court of Los Angeles County for removal to the Circuit Court of the United States, in accordance with the prayer of the petition filed for that purpose. Judgment reversed. EX PARTE LOTHROP. ORIGINAL. a Argued April 12,1886.—Decided April 26,1886. The County Court in the County of Cochise, created and established by the Legislature of Arizona by the act of March 12, 1885, is an inferior court within the meaning of Bev. Stat. § 1908, which provides that: “ The judicial power of Arizona shall be vested in a Supreme Court and such inferior courts as the legislative council may by .law prescribe;” and the act of March 12, 1885, is valid. This was a petition to this court for a writ of habeas corpus. The case is stated in the opinion of the court. Mr. A. X. Parker, (with whom was Mr. W. II. Ililwell on the brief) for petitioner. Mr. Thomas Mitchell for the sheriff, opposing. vol. cxviii—8 114 OCTOBER TERM, 1885. Opinion of the Court. Mr. A. T. Britton and Mr. A. B. Browne, for interveners, by leave of court filed a brief opposing. Mr. Chief Justice Waite delivered the opinion of the court. The petitioner is detained in the territorial prison of Arizona upon a warrant of commitment issued by the County Court of Cochise County, under a sentence of imprisonment on a conviction of the crime of grand larceny, and the only question presented by his petition is whether the territorial legislature of Arizona had authority to create and establish that court. There is no question of the jurisdiction of the court to try the petitioner for the offence of which he was convicted if the court itself was rightfully created. The provisions of the Revised Statutes on which the question depends are these: “ § 1846. The legislative power in each Territory shall be vested in the governor and a legislative assembly. The legislative assembly shall consist of a council and house of representatives. 1851. The legislative power of every Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States. “ § 1864. The Supreme Court of every Territory shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum. . . . They shall hold a term annually at the seat of government of the Territory for which they are respectively appointed. “ § 1865. Every Territory shall be divided into three judicial districts; and a District Court shall be held in each district of the Territory by one of the justices of the Supreme Court, at such time and place as may be prescribed by law; and each judge, after assignment, shall reside in the district to which he is assigned. “ § 1868. The supreme court and the district courts, respectively, in every Territory, shall possess chancery as well as common law jurisdiction. “ § 1869. Writs of error, bills of exceptions, and appeals shall be allowed, in all cases, from the final decisions of the EX PARTE LOTHROP. 115 Opinion of the Court. district courts to the supreme court of all the Territories, respectively, under such regulations as may be prescribed by law. “ § 1907. The judicial power in New Mexico, Utah, Washington, Colorado, Dakota, Idaho, Montana, and Wyoming, shall be vested in a supreme court, district courts, probate courts, and in justices of-the peace. “ § 1908. The judicial power of Arizona shall be vested in a supreme court and such inferior courts as the legislative council may by law prescribe. “ § 1866. The jurisdiction, both appellate and original, of the courts provided for in sections nineteen hundred and seven and nineteen hundred and eight shall be limited by law.” Such was the organic law of Arizona, as shown by the Revised Statutes, on the 12th of March, 1885, when the act was passed by the legislative assembly of the Territory and approved by the governor, “to create and establish a County Court in the County of Cochise.” Section 4 of this act is as follows: “ Sec. 4. Said county court shall be a court of record, having a seal with the coat-of-arms of the Territory and ‘ County Court, Cochise County, Arizona,’ sunk or engraved thereon, and said county court shall have original, general, criminal, and civil jurisdiction, except as hereafter limited, and shall have equal concurrent common law, equitable and statutory jurisdiction with the District Courts in all cases. The county court of said Cochise County shall have original concurrent jurisdiction with the District Courts in all cases of equity and in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand or the value of the property in controversy amounts to one hundred dollars or more, and in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for, of all actions of forcible entry and detainer, of proceedings in insolvency, of actions to prevent or abate a nuisance, of all matters of probate, of divorce and for annulment of marriage, and all matters incidental thereto or connected therewith, and of all such special cases and proceedings as are not other- 116 OCTOBER TERM, 1885. Opinion of the Court. wise provided for. And said court shall have the power of naturalization, and to issue papers therefor. Said county courts shall have appellate jurisdiction in all cases arising in justices and other inferior courts in said Cochise County in the same manner and to the same extent as is now allowed by law on appeals from such courts to the District Courts. The said County Court of Cochise County shall be always open, legal holidays and non-judicial days excepted, and its process shall extend to all parts of the Territory: Provided, that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions, is situated. Said county court and the judge thereof shall have power to issue writs of mandamus, certiorari, injunction, prohibition, quo warranto and habeas corpus on petition, by or on behalf of any person in actual custody in said Cochise County. Injunctions, writs of prohibition, and habeas corpus may be issued and served on legal holidays and non-judicial days, and all acts and part of acts granting and conferring jurisdiction to and upon the District Courts and describing their civil and criminal procedure shall be and are hereby made applicable to the County Court of Cochise County. Appeals shall be taken from the County Court to the Supreme Court of this Territory in the same manner and in the same cases as are now allowed by law in appeals from the District and Probate Courts to the Supreme Courts.” The judge of the court was to be elected by the qualified electors of the county, and to hold his office for four years. He was to reside at the county seat, and could not be absent from the county more than thirty days in each calendar year. The precise question for determination is whether such a court with such a jurisdiction is an “inferior court” within the meaning of § 1908. It has “ equal concurrent common law, equitable and statutory jurisdiction with the District Courts in all cases,” and “ original concurrent jurisdiction with the District Courts ... in all criminal cases amounting to felony, and cases of misdemeanor, not otherwise provided for.” It is, EX PARTE LOTHROP. 117 Opinion of the Court. therefore, a court of substantially equal dignity and importance with the District Court, so far as Cochise County is concerned, but it is “inferior” to the Supreme Court, because that court has power to review its judgments and decrees on appeal. As every Territory is by the Revised Statutes to be divided into districts, and a District Court is to be held in each district, § 1908 must be so construed as not to exclude District Courts in Arizona Territory. Still, as District Courts are neither named nor specifically referred to in the section, it does not necessarily follow that the “ inf erior courts ” provided for must be courts inferior to them. For some reason Congress saw fit in establishing the territorial government of Arizona to depart from its usual habit of specifying the courts in which the judicial power should be vested, and to provide that it should be vested there “ in a Supreme Court to consist of three judges, and such inferior courts as the legislative council may prescribe.” Ch. 56, § 2,12 Stat. 665. In all the other Territories then existing it had been vested “ in a Supreme Court, District Courts, Probate Courts, and in justices of the peace.” This practice began with the act establishing the territorial government of Wisconsin, April 20, 1836, 5 Stat. 10, ch. 54, § 9, and it was followed in all the territorial organic acts passed afterwards, except in those for Arizona and Alaska. In Arizona the provision as to the vesting of judicial power was more like that in the organic act of Florida, March 30, 1822, 3 Stat. 654, ch. 13, § 6, where it was placed “ in two Superior Courts, and in such inferior courts and justices of the peace as the legislative council of the territory may from time to time establish.” This, it was held in American Ins. Co. v. Canter, 1 Pet. 511, gave the legislative council authority to establish courts of concurrent jurisdiction with the superior courts, except in respect to capital offences, as to which, by the organic act, the jurisdiction of the superior courts had been made exclusive. The language of Chief Justice Marshall is, p. 544: “ This general grant is common to the superior and inferior courts, and their jurisdiction is concurrent, except so far as it may be made exclusive in either, by other provisions of the statute. The jurisdiction of the superior courts is declared to be exclusive over capital of- 118 OCTOBER TERM, 1885. Opinion of the Court. fences; on every other question over which those courts may take cognizance by virtue of this section, concurrent jurisdiction may be given to the inferior courts.” This is, as it seems to us, equally applicable to the present case. The legislative power of the Territory extends to “ all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States.” This includes the establishment of “inferior courts; ” that is to say, courts inferior to the Supreme Court. District Courts have been established by Congress, but Congress has not defined their jurisdiction, further than to provide generally that they shall have chancery as well as common law jurisdiction. According to § 1886 the jurisdiction of all the courts is to be such as shall be limited by law. There is no restraint on the legislative power of this Territory as to the grant of jurisdiction to the inferior courts, except by implication, that it shall be such as properly belongs to a court inferior to the Supreme Court. In Ferris v. Higley, 20 Wall. 375, 383, it was held in respect to a Territory where the judicial power was vested in a Supreme Court, District Courts, Probate Courts, and justices of the peace, that the Probate Courts could not be vested by the territorial legislature with the powers of courts of general jurisdiction, both civil and criminal, because that would be inconsistent with the nature and purpose of a Probate Court as authorized by that act, and inconsistent with the clause which conferred on the Supreme Court and District Courts general jurisdiction in chancery as well as at law. But here there is nothing of the kind. All that is required, according to the doctrine of American Ins. Co. v. Canter, is that the court shall be inferior to the Supreme Court. Its jurisdiction may be made concurrent with that of every other court which is alike inferior to the Supreme Court. Section 1869 provides for appeals and writs of error from the District Courts to the Supreme Court, but this is not at all inconsistent with authority in the legislature of Arizona to allow like appeals and writs of error from any other inferior court it may establish. District Courts are now established in all the Territories, but it is, to say the least, doubtful whether that was done by Congress in Arizona prior to the adoption of the Revised Statutes. As has already been seen the orig- EX PARTE LOTHROP. 119 Opinion of the Court. inal organic act contained no such provision in express terms, and it is not necessary now to decide what effect the extension to that Territory of the legislative enactments, &c., of New Mexico may have had on this subject. At the first session of the territorial legislature of Arizona in 1864 such courts were established and their jurisdiction defined. Howell Code, ch. 45, pt. 3. At the same time the Territory was divided into three judicial districts, the judges of the Supreme Court assigned for District Court purposes, and the times and places for holding such courts fixed. From that time until now District Courts have actually existed in the Territory, and it is not now important to inquire by what particular authority. The territorial legislature had power before the adoption of the Revised Statutes to create courts of concurrent jurisdiction with the District Courts, and this power was not taken away by the revision. Something was said in argument about the use of the word “ prescribe ” in the organic act of Arizona, and “ establish ” in that of Florida, but we attach no importance to this. The words are often used to express the same thing, and Webster classes them as synonyms. We are, ‘therefore, of opinion that the act establishing the County Court is valid and that the writ should be denied. Congress has power under § 1856 of the Revised Statutes to disapprove the act and thus render it inoperative thereafter, and it is to be presumed that this will be done if in its practical operation the court shall be found to be no longer desirable. There may be now no good reason for keeping up the distinction between the power of the Territory of Arizona over its courts and that of the other Territories, but this is a subject for congressional legislation and not for judicial restraint. The rule is discharged and the Writ of habeas corpus denied. 120 OCTOBER TERM, 1885. Statement of Facts. UNITED STATES u NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOE THE MIDDLE DISTRICT OF TENNESSEE. Argued April 15, 1886.—Decided April 26,1886. The statute of limitations of a State does not run against the right of action of the United States upon negotiable bonds and coupons of a railroad corporation, purchased by the United States before maturity as an investment of money received from the sale of lands ceded by an Indian tribe, and held in trust for the tribe, under a treaty. This action was brought July 6, 1880, in the Circuit Court of the United States for the Middle District of Tennessee upon coupons, owned and held by the United States, for interest payable at different dates from July 1, 1861, to January 1, 1866, on bonds made and delivered by the defendant to the State of Tennessee on July 1, 1851, and July 1, 1852, and payable to bearer in thirty years after date. The defendant filed two pleas: First. That the United States held the coupons, not in its own right as the Government of the United States, but as trustee for certain beneficiaries, namely, the Chickasaw Indians, a nation of people, and that the cause of action accrued to the United States more than six years before this suit was brought. Second, That the United States was the holder of the coupons, not in its own right, but as such trustee, from January 10,1866, until January 20,1878, at which last date it ceased to hold them as trustee, and became the owner thereof in its own right; and that the cause of action accrued more than six years before that date. To each of these pleas the United States filed a demurrer, which was overruled by the court, and issue was joined on the pleas. By the treaty of October 20,1832, between the United States and the Chickasaw Nation of Indians, which provided for the removal of the Chickasaws to the west of the Mississippi, they UNITED STATES v. NASHVILLE, &c., R’Y CO. 121 Statement of Facts. ceded to the United States all their lands east of the Mississippi ; and the United States agreed that those lands should be surveyed and sold, like other public lands, and the proceeds, deducting expenses, paid over to the Chickasaw Nation. The eleventh article of that treaty contains the following provisions : “ The Chickasaw Nation have determined to create a perpetual fund, for the use of the nation forever, out of the proceeds of the country now ceded away. And for that purpose they propose to invest a large proportion of the money arising from the sale of the land in some safe and valuable stocks, which will bring them in an annual interest or dividend, to be used for all national purposes, leaving the principal untouched, intending to use the interest alone. It is therefore proposed by the Chickasaws, and agreed to, that the sum to be laid out in stocks as above mentioned shall be left with the Government of the United States, until it can be laid out under the direction of the President of the United States, by and with the advice and consent of the Senate, in such safe and valuable stock as he may approve of, for the use and benefit of the Chickasaw Nation. The sum thus to be invested shall be equal to at least three fourths of the whole net proceeds of the sales of the lands; and as much more as the nation may determine, if there shall be a surplus after supplying all the national wants?’ “ At the expiration of fifty years from this date, if the Chickasaw Nation shall have improved in education and civilization, and become so enlightened as to be capable of managing so large a sum of money to advantage, and with safety, for the benefit of the nation, and the President of the United States, with the Senate, shall be satisfied thereof, at that time, and shall give their consent thereto, the Chickasaw Nation may then withdraw the whole or any part of the fund now set apart to be laid out in stocks or at interest, and dispose of the same in any manner that they may think proper at that time, for the use and benefit of the whole nation; but no part of said fund shall ever be used for any other purpose than the benefit of the whole Chickasaw Nation.” 7 Stat. 381, 382, 385. 122 OCTOBER TERM, 1885. Statement of Facts. In the treaty between the United States and the Chickasaw Indians of May 24, 1834, article 11, “ it is stipulated that the Government of the United States, within six months after any public sale takes place, shall advise them of the receipts and expenditures, and of balances in their favor; and also, at regular intervals of six months after the first report is made, will afford them information of the proceeds of all entries and sales. The funds thence resulting, after the necessary expenses of surveying and selling and other advances which may be made are repaid to the United States, shall from time to time be invested in some secure stocks, redeemable within a period of not more than twenty years; and the United States will cause the interest arising therefrom annually to be paid to the Chickasaws.” 7 Stat. 454. By the treaty of June 22, 1852, article 2, “it is agreed that the remnant of the lands so ceded and yet unsold shall be disposed of as soon as practicable, under the direction of the President of the United States, in such manner and in such quantities as, in his judgment, shall be least expensive to the Chickasaws and most conducive to their benefit.” The fifth article of this treaty is as follows: “ The Chickasaws are desirous that the whole amount of their national fund shall remain with the Uuited States, in trust for the benefit of their people, and that the same shall on no account be diminished. It is, therefore, agreed that the United States shall continue to hold said fund, in trust as aforesaid, and shall constantly keep the same invested in safe and profitable stocks, the interest upon which shall be annually paid to the Chickasaw Nation: Provided, that so much of said fund, as the Chickasaws may require for the purpose of enabling them to effect the permanent settlement of their tribe as contemplated by the treaty of 1834, shall be subject to the control of their General Council.” 10 Stat. 974, 975. At the trial the following facts were proved and admitted: The bonds with the coupons annexed, mentioned in the declaration, were purchased in 1852 by the United States, acting as trustee for the Chickasaw Indians, under and pursuant to the treaties aforesaid, with the trust fund therein mentioned, and UNITED STATES v. NASHVILLE, &c., R’Y CO. 123 Argument for Defendant in Error. were thenceforth held by the United States for the purposes of that trust until on or after July 20, 1878, when the United States, by virtue of the act of July 20, 1878, ch. 359, 20 Stat. 233, accounted with the Chickasaw Indians for the coupons sued on and interest thereon, and the United States have since claimed title to the same in their own right. The bonds and coupons were at first in the care and custody of the Secretary of the Treasury under authority of law, and afterwards of the Secretary of the Interior under the act of July 27, 1868, ch. 248, 15 Stat. 222, until after June 10, 1876, when, pursuant to the act of June 10,1876, ch. 122,19 Stat. 58, they were turned over to the Treasurer of the United States, and have ever since been in his custody. The coupons sued on were clipped from these bonds, and have never been paid. The bonds, as well as the coupons payable at later dates, were paid by the defendant as they became payable. Upon these facts, the Circuit Court instructed the jury that the plaintiff’s right of action was barred by the statute of limitations of Tennessee, (Code of 1858, § 2775,) the jury returned a verdict for the defendant, and the plaintiff excepted to the instruction and sued out this writ of error. Mr. Assistant Attorney-General Maury for plaintiff in error. Mr. Edward H. East for defendant in error. If the United States should buy or otherwise become the owner or holder of commercial or negotiable paper already barred by the statute of limitations, as between the original parties, its title being derivative, it would get no better right of action than the assignor could give, and it would take the paper subject to all legal defences existing at the time of the transfer. United States v. Buford, 3 Pet. 30; Lambert v. Taylor, 4 B. & C. 138; & C. 10 Eng. C. L. 293. It is admitted that the United States’ right of action cannot be barred by any statute of limitations passed by any State, though it be named therein. United States v. Thompson, 98 U. S. 486. The distinction we make is this, that in all cases in which the United States brings an action in its own name, and solely in 124 OCTOBER TERM, 1885. Argument for Defendant in Error. its own. interest, the maxim nullum tempus applies. And in all cases in which it brings an action in its own name, nominally as trustee, and it is not the real and sole owner or beneficiary—■ then the maxim does not apply. Killer v. State, 38 Ala. 600. The same rule prevails in the case of a mandamus to enforce a private right. Moody v. Fleming, 4 Geo. 115. The maxim nullum tempus does not apply in a case in which the sovereign or State has some pecuniary interest, and not the entire interest. In illustration of this, we have the cases in which the United States or a State was a joint or sole owner of stock in a bank, and was either owner in part or the sole party in interest. Bank of United States v. McKenzie, 2 Brock. 393; Bank of Tennessee n. Dibrell, 3 Sneed, 379. But in this case the interest of the United States was only as trustee for the Chickasaw Indians. They had no interest affecting the Sovereign power, and the maxim of nullum tempus only applies in favor of sovereign power. Cincinnati v. Evans, 5 Ohio St. 594. See also United States v. Hoar, 2 Mason, 311. The statute of limitations is entitled to the same respect as any other statute, and should not be evaded or explained away. Clementson v. Williams, 8 Cranch, 72; Roberts v. Pillow, 8 Humph. 624; Bell v. Morrison, 1 Pet. 360; Elder v. Bradley, 2 Sneed, 247. It cannot be said that the Indians were the grantees of the government in any such manner as to bring the case within the principles announced in England, extending the maxim to the grantees of the crown, as in Doe v. Roberts, 13 M. & W. 520, and Lee n. Norris, Cro. Eliz, 331. The government did not own the lands, which constituted the consideration of the trust; they belonged to the Indians. It did not grant the bonds but bought them as trustee with the surplus funds of the Indians arising from the sale of the lands, and which remained after deducting expenses, and its relation to the fund was that of a pure and simple trustee, and no other. When a trustee has the legal title and right of action, it is well settled that if the trustee is barred by the statute of limitations the cestui gue trust is also barred, though an infant. Wooldridge v. Planters' Bank, 1 Sneed, 297; Belote v. White, UNITED STATES v. NASHVILLE, &c., R’Y CO. 125 Opinion of the Court. 2 Head, 703 ; Goss v. Singleton, 2 Head, 67; Williams v. Otey, 8 Humph. 563. The statute of limitations begins to run against coupons or interest warrants from the time they respectively mature, and this is so, especially, where they have been detached from the bond. Amy v. Dubuque, 98 U. S. 470; Clark v. Iowa City, 20 Wall. 583; Warner v: Dising Fawn Iron Co., 3 Woods, 514; Erertson v. Bank of Newport, 66 N. Y. 14 ; Cooper v. Thompson, 13 Blatchford, 434; House v. Tennessee Female College, 7 Heiskell, 128; Nashville v. First National Ba/nk, 1 Baxter, 402. Me. Justice Gteay, after stating the case as above reported, delivered the opinion of the court. It is settled beyond doubt or controversy—upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided—that the United States, asserting rights vested in them as a sovereign government, are not bound by any statute of limitations, unless Congress has clearly manifested its intention that they should be so bound. Lindsey v. Hiller, 6 Pet. 666 ; United States v. Knight, 14 Pet. 301,315 ; Gibsonv. Chouteau, 13 Wall. 92 ; United States v. Thompson, 98 U. S. 486; Fink v. O'Neil, 106 U. S. 272, 281. The nature and legal effect of any contract, indeed, are not changed by its transfer to the United States. When the United States, through their lawfully authorized agents, become the owners of negotiable paper, they are obliged to give the same notice to charge an endorser as would be required of a private holder. United States v. Barker, 4 Wash. C. C. 464, and 12 Wheat. 559 ; United States v. Ba/nk of Metropolis, 15 Pet. 377, 392, 393; Cooker. United States, 91 U. S. 389, 396, 398. They take such paper subject to all the equities existing against the person from whom they purchase at the time when they acquire their title; and cannot therefore maintain an action upon it, if at that time all right of action of that person was extinguished, or was barred by the statute of limitations. United States n. Buford, 3 Pet. 12, 30 ; The KingN. Morrall, 6 Price, 24. 126 OCTOBER TERM, 1885. Opinion of the Court. But if the bar of the statute is not complete when the United States become the owners and holders of the paper, it appears to us, notwithstanding the dictum of Cowen, J., in United States v. White, 2 Hill (N. Y.) 59, 61, impossible to hold that the.statute could afterwards run against the United States. Lambert n. Taylor, 4 B. & C. 138; S. C., 6 D. & R. 188. In the present case, the United States bought the coupons sued on, and the bonds to which they were annexed, long before any of them became payable, or the statute of limitations had begun to run against the right of any holder to sue th-ereon. The money with which they were bought was money received by the United States from the sale of lands ceded to them by the Chickasaw Nation of Indians. Those lands, the money received from their sale, and the securities in which that money was invested, were held by the United States, in trust, to be applied for the benefit of those Indians, in performance of the obligation assumed by the United States by treaties with them. The securities were thus held by the United States for a public use in the highest sense, the performance of a quasi international obligation ; and they continued to be so held until that obligation had been performed and discharged, after which they were held by the United States, like all other property of the government, for the ordinary public uses. Van Brocklin v. Tennessee, 111 U. S. 151, 158. The necessary conclusion is that the statute of limitations of Tennessee never ran against the right of action of the United States upon these coupons, either while the United States held them in trust for the Indians, or since they have held them for other public uses; and that the decision of the Circuit Court was erroneous. This case does not present the question what effect the statute of limitations may have in an action on a contract in which the United States have nothing but the formal title, and the whole interest belongs to others. See Maryland v. Bald-win, 112 U. S. 490; Miller v. State, 38 Ala. 600. Judgment reversed, and case rem,a/nded, with directions to set aside the verdict, a/nd for further proceedi/ngs in conformity with law and with this opinion. CONLEY v. NAILOR. 127 Opinion of the Court. CONLEY v. NAILOR & Others. APPKAT. FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Argued April 12, 13, 1886.—Decided April 26, 1886. In equity, each case to set aside a deed for incapacity of the grantor, or intoxication at the time of execution amounting to incapacity, must he decided on its own merits, without regard to previous decisions in cases differing in the facts. When the complainant in a bill in equity neither demands nor waives an answer under oath, and the respondent answers under oath, the answer is evidence on behalf of the respondent, conclusive if not contradicted. A deed by a father for the benefit of his illegitimate child is upon a good and sufficient consideration; and if it contains a remainder to the mother of the child, and the child dies in the lifetime of the father, the conveyance is good as against the legitimate children of the grantor. In order to cause a will or deed to be set aside on the ground of fraud and undue influence, it must be established to the satisfaction of the court that the party making it had no freewill, but stood in vinculis. When a married man, with a wife living, and a family of legitimate children, lives apart from them in illegal intercourse with another woman by whom he has an illegitimate child, and makes a conveyance of real estate for the benefit of that child with remainder to the mother and another conveyance to the mother for her own benefit, and the child dies, and it is not shown that the grantor was incapable of making the deeds, either by reason of the weak state of his intellect, or by reason of intoxication at the time of execution, or that there was fraud or undue influence, a court of equity will, after the death of the grantor, sustain the conveyances in favor of the mother as against the legitimate children. This was a bill in equity to set aside four deeds under which the appellant, who was defendant below, claimed. The case is stated in the opinion of the court. Mr. W. D. Davidge {Mr. Irving Williamson was with him on the brief) for appellant. Mr. W. A. Cook and Mr. C. C. Cole for appellees. Mr. Justice Woods delivered the opinion of the court. This was an appeal from a decree of the Supreme Court of the District of Columbia, by which certain deeds executed by 128 OCTOBER TERM, 1885. Opinion of the Court. one Allison Nailor to Catharine Conley, the defendant and appellant, were declared null and void. The deeds were four in number, and under them the defendant claimed title to certain real estate, some of which was situate in the city of Washington, and the rest in Montgomery County, in the State of Maryland. The bill was filed by the widow and three of the four heirs of Nailor. The interest of the widow in the lands was as doweress, and her rights were conceded by the answer. Allison Nailor, Jr., the remaining heir, was made a defendant, and answered that he had received his share of his father’s estate by advancement, and disclaimed any interest in the property in controversy. The litigation was, therefore, virtually between the appellant and Washington T. Nailor, son, and Lizzie Trimble and Frances Clarke, married daughters of Allison Nailor, whose husbands, Matthew Trimble and James W. Clarke, were joined as plaintiffs. The pleadings and evidence showed the following facts: In the latter part of the year 1869 Allison Nailor, who was then about fifty-eight or fifty-nine years of age, was the owner of real estate in the City of Washington and in Montgomery County, Maryland, worth about $150,000, and was possessed of considerable personal estate. He had resided in the city of Washington for about fifty years. He had for many years been engaged in buying and selling real estate, in keeping a livery stable, and in farming. He was shrewd and active in business, and had the capacity for making money and accumulating property. Much of the real estate which he owned in the city of Washington he let to be used for houses of ill-fame, and for sale by retail of spirituous liquors. For many years prior to 1869, and at least as early as the year 1854, he had led a dissolute and intemperate life. In 1869 he made the acquaintance of the defendant, who was then about twenty-one years of age. There is no averment or proof that prior to that time she was not a virtuous woman. In November or December of that year Nailor left his family and took up his residence with the defendant, and lived with her in concubinage until his death. The deeds referred to in the bill were the following: The CONLEY v. NAILOR. 129 Opinion of the Court. first was a trust deed, dated and executed November 27, 1872, more than six years before the death of Nailor, and recorded May 27,1873, which conveyed to the defendant, Catharine Conley, a lot on South 14th street, in the city of Washington, to hold in trust for the sole and separate use of Willie Earnest Nailor, who is described in the deed as the infant son of the grantor and the grantee. By the terms of the trust the grantee was to receive the rents and profits of the lot and apply the same to the education and support of the beneficiary. When the latter became twenty-one years of age the trust was to cease, and the title in fee simple was to vest in him. But the deed provided that, should “ said Willie Earnest die before he arrives at the age of twenty-one years,” “or without having disposed of the said piece or parcel of ground,” then the title in fee simple should vest absolutely in the defendant. The three other deeds were all dated and executed March 29th, and recorded early in April, 1878. One of these three deeds conveyed to the defendant certain other real estate in the city of Washington in trust for the sole and separate use of Mary Edna Nailor, who is described as the infant daughter of the grantor and grantee, upon trusts and uses similar to those contained in the first deed, and with a similar remainder to the defendant. The second of the three deeds conveyed to the defendant about one hundred and thirty acres of land in Montgomery County, Maryland, in trust for the benefit of the said Willie Earnest Nailor, upon trusts and uses similar to those contained in the deed of November 27, 1872, and with a similar remainder to the defendant. The last deed conveyed to the defendant, in fee simple, for her own use, about one hundred acres of land in Montgomery County, Maryland. The property conveyed by these four deeds was worth about $25,000. Willie Earnest Nailor died August 6, 1878, being nearly six years of age, and Mary Edna Nailor died August 8,1878, being nearly two years of age. Catharine Conley, therefore, claimed title in fee simple to all the property conveyed by the four deeds above mentioned. Allison Nailor died January 6, 1879. The bill alleged three grounds for setting the deeds aside. The. first was that the grantor was “ demented and insane,” vol. cxvin—9 130 OCTOBER TERM, 1885. Opinion of the Court. and mentally incapable of making the deeds; the second, that the only consideration for said deeds, “ and each of them, was the illegal and criminal intercourse between said Allison Nailor, senior, and the said Catharine Conley, and that such consideration was illegal, alike contrary to public policy and common decency;” and the third,that the deeds had been procured by fraud and the undue influence of the defendant over the grantor. The bill neither required nor waived an answer under oath, but the defendant answered under oath, traversing all the averments of the bill upon which the prayer for relief was based. We shall notice the grounds upon which the cancellation of the deeds is demanded in the order in which we have stated them. There is a large mass of evidence in the record introduced to prove that, from a long course of dissolute and intemperate habits, Nailor had become insane and incapable of transacting business. On the other hand there is, in our judgment, a great preponderance of evidence to show that when he executed the deeds, though in feeble health, he was of sound mind and capable of intelligently executing and making the conveyances. It would serve no useful purpose to discuss the evidence in detail. But there are some striking facts which should be stated. Of the forty-three witnesses for the plaintiffs who testify in regard to the mental capacity of Nailor, thirty-three give their opinion from having seen him when drunk. Of these thirty-three eighteen swear that they never saw him sober, three that they never saw him sober but once, and twelve that they seldom saw him when not intoxicated. Six other of the forty-three witnesses speak of him as incompetent to transact business when he had been drinking. Only four witnesses testify that he was incapable of doing business when sober. Three of these are plaintiffs in this case, namely W. T. Nailor, Matthew Trimble, and James W. Clarke. W. T. Nailor testifies generally that for the last eight or ten years of his life, Allison Nailor, his father, was incapable of transacting business, and that neither on November 27, 1872, when the first deed was executed, nor on March 29, 1878, when the other three were executed, was he mentally competent to make a valid CONLEY v. NAILOR. 131 .Opinion of the Court. conveyance. But the same witness testifies that during the last year of his father’s life he took from him a thirty years’ lease for certain stables in the city of Washington, at a rent of $50 per month and the taxes on the property. Matthew Trimble and James W. Clarke both swear generally, the first that for the last three years, and the other that for the last six or seven years of his life, Allison Nailor was not competent to transact such business as the disposition and conveyance of valuable property. Fairly construed the testimony of these three plaintiffs may be considered to mean that, whether inebriated or not, Nailor was mentally incompetent during the latter years of his life to attend to business of moment. After Nailor left his family and went to live with the defendant, it does not appear that these witnessess had any better opportunities for observing his mental condition than many others. There is but one witness, not a plaintiff in the case, who testifies that during the time covered by the transactions set out in the bill, Nailor, if sober, was not mentally capable of making the conveyances which the bill seeks to set aside. The question to be decided is not whether Nailor had the mental capacity to make the conveyances when he was intoxicated, but whether he was competent when sober, and wThether he was sober when he executed them. On these questions the evidence does not leave us in doubt. There is abundant testimony to show that during the last six or seven years of his life, Nailor, though habitually intemperate, was often sober and free from the influence of intoxicating liquors. This fact is shown by the testimony of fourteen witnesses who swear that they had interviews with him, many of them frequently, during the time above mentioned, and found him entirely sober. Every one of these fourteen witnesses testifies to the sanity and capacity of Nailor for the transaction of business. These witnesses, a number of whom had dealings with him, assert his mental capacity in the strongest terms. Other witnesses, who did not state distinctly whether they had met him when not under the influence of drink, spoke of the soundness of his mind in the same way. Three witnesses testify that they had known Nailor, one for thirty, and the other two for 132 OCTOBER TERM, 1885. Opinion of the Court. forty years, and had seen and talked with him while sober during the last year of his life, and they concurred in the opinion that he was at that time of sound and capable mind. The proof of Nailor’s mental capacity extended to a period after the execution of the last three deeds. The physician who was attending his two children during their last illness, and who had frequent occasion to observe him when not at all under the influence of drink, testified to the soundness of his mind. The apparent discrepancy between the witnesses for the plaintiffs and the witnesses for the defendant on the question of Nailor’s mental condition is, therefore, in a large degree reconciled by the fact that the former give their opinions of Nailor’s capacity when drunk and the latter when sober. In view of all the testimony on this branch of the case, it appears that Nailor, for many years before his death, had been dissolute and intemperate, and that during the last seven or eight years of his life his health had gradually failed. Much of the time he was more or less inebriated, but he was frequently entirely sober. When drunk he was, like most other men, incompetent to transact business. When sober he was, down to his last illness, entirely capable of doing the acts which are assailed in this case. He was competent to make deeds, to understand their effect, and to know whether or not their execution would accomplish his wishes. In all conditions, he was perverse, wilful, obstinate, and defiant of public opinion. The next inquiry relates to Nailor’s mental condition and capacity on the two occasions when he executed the deeds whose validity is questioned by the bill. The averment of the bill was that the deeds were made when he was intoxicated and mentally incapable. The charge that Nailor was intoxicated when the deeds were executed is without support in the evidence. So far, therefore, as it concerns the deed executed on November 27, 1872, the case must fail for want of proof, for if Nailor was then competent to make a deed when sober, ’ the plaintiffs to succeed in overthrowing that conveyance must show that when he executed it he was not sober, and this they have not attempted to do. In respect to the three deeds of CONLEY v. NAILOR. 133 Opinion of the Court. March 29, 1878, the proof of sobriety and mental capacity of Nailor when he executed them is positive and satisfactory. The deeds were signed and acknowledged by Nailor before Nicholas Callan, a notary public of Washington city. Callan testifies that he had known Nailor for more than forty years; that he had during that time done much conveyancing for him; that he had taken his acknowledgment to more than a hundred deeds; that Nailor came to his office alone on March 29, 1878, for the purpose of signing and acknowledging the last three deeds in question; that he conversed with him ; that his mental condition was good on that day; and that he was sober. The deeds were all prepared beforehand, and were brought by Nailor, who acknowledged them in the presence of the witness. This evidence is unimpeached and uncontradicted, and is conclusive. Upon the whole record, therefore, in our judgment it plainly appears that Nailor was not intoxicated, and was mentally competent, when he executed the deeds which are the subject of this litigation. The cases of Harding v. Handy, 11 Wheat. 103, and Allore v. Jewell, 94 U. S. 506, are cited by the plaintiffs’ counsel as authorities in law against this conclusion. These cases establish the proposition that extreme weakness of intellect, even when not amounting to insanity, in the person executing a conveyance, may be sufficient ground for setting it aside when made upon a nominal or grossly inadequate consideration. Conceding the correctness of this legal proposition, it can have no application to the present case, unless the facts are substantially the same. A cursory reading of the cases will show such a palpable difference in the facts, as to make it clear that they cannot be taken as controlling authority in this. Cases like the present must each stand upon its own facts, and, when the testimony shows that the grantor was sober and capable and well knew what he was doing when he executed the deed, no other case materially differing in its facts can furnish a reason for setting aside the deed thus executed. The next ground alleged in the bill for annulling the deeds was, that the only consideration for their execution was the 134 OCTOBER TERM, 1885. Opinion of the Court. illegal and criminal intercourse between Nailor and the defendant. There is no averment that the deeds were given in consideration of future criminal intercourse. The criminal intercourse averred must, therefore, be construed to mean past intercourse. Without pausing to consider whether or not past criminal intercourse is a sufficient consideration to support a deed, it is enough, upon this branch of the case, to say that the averment is without support by any testimony in the record. On the contrary, the deeds recite a valuable consideration, and the averment of the bill is flatly denied by the answer of the defendant made under oath. The answer, though not called for under oath, is evidence in behalf of the defendant. For, if a plaintiff in equity is unwilling that the answer should be evidence against him, he must expressly waive the oath of the defendant in his bill. See amendment to 41st Equity Rule. If he fails to do this the answer must be given under oath, and is evidence. This branch, therefore, of the plaintiffs’ case breaks down, because all the testimony in the record upon the question of consideration is against the averment of the bill. But it should be noted here that three of the four deeds assailed by the bill were made by Nailor mainly for the benefit of the two children whose father he declared himself to be. The interest of the defendant in the property conveyed was remote and contingent. If the deeds were valid when executed, the subsequent death of the children could not avoid them. It is not now open to question that a deed made by a father for the benefit of his illegitimate child, is upon good consideration, which will support the conveyance. Gay v. Parpart, 106 IT. S. 619; Bunn v. Winthrop, 1 Johns. Ch. 329; Hook v. Pratt, 78 N. Y. 311; Marchioness of Annandale v. Harris, 2 P. Wms. 432; Jennings v. Brown, 9 M. & W. 496. The next and last ground alleged for annulling the deeds is that Nailor was induced to make them by the fraud and undue influence of the defendant. The ground upon which courts of equity grant relief in such cases is, that one party by improper means and practices has gained an unconscionable advantage over another. The undue influence for which a will or deed will be annulled must be such as, that the party making it has CONLEY v. NAILOR. 135 Opinion of the Court. no free will, but stands im vinculis. “ It must amount to force or coercion, destroying free agency.” Stulze v. Schaeffle, 16 Jurist, 909. See also Williams v. Coude, 1 Hagg. Eccl. 577; Armstrong v. Huddleston, 1 Moore, P. C. 478. In Eckert v. Flowry, 43 Penn. St. 46, it was said by Strong, J.: “ Now, that is undue influence which amounts to constraint, which substitutes the will of another for that of the testator. It may be either through threats or fraud, but, however exercised, it must, in order to avoid a will, destroy the free agency of the testator at the time when the instrument is made.” The rule upon this subject was thus stated in Davis n. Calvert, 5 Gill & J. 269, 302 : “ A testator shall enjoy full liberty and freedom in the making of his will and possess the power to withstand all contradiction and control. That degree, therefore, of importunity or undue influence which deprives a testator of his free agency, which is such as he is too weak to resist and will render the instrument not his free and unconstrained act, is sufficient to invalidate it.” Tested by these rules, the charge that the deeds in question were procured by the fraud and undue influence of the defendant is without support. On this branch of the case the plaintiffs have taken pains to prove that the defendant treated Nailor with great kindness and with unremitting attention to his wants and comforts, but they have shown nothing else. There is an absence of proof that the defendant used either threats, stratagem, importunity, or persuasion to induce Nailor to execute the deeds. In fact there is no evidence that the defendant even requested him to make them. On the other hand, the proof is abundant that the making of a provision for the children whom the defendant had borne him had long been his cherished purpose. As early as 1872, soon after the birth of his son Willie, he executed the first deed. In December, 1877, he executed a will for the sole purpose of providing for the two children then living borne him by the defendant, and for the defendant. Afterwards, conceiving that a provision by will was not as secure as one by deed, he executed the deeds in question, in which he made precisely the same disposition of the property that he had previously made by the will. The 136 OCTOBER TERM, 1885. Syllabus. proof shows that he took great pleasure in what he had done or what he proposed to do for these children. It was a matter of which he often boasted to his friends and acquaintances. In short, the evidence that the making of the deeds was his own act, and not the act of another, is clear, and is uncontradicted. Conceding, therefore, as it is contended by plaintiffs’ counsel, that when a will or deed is made while the parties are living in illegal sexual relations, it is open to suspicion of fraud and undue influence, the plaintiffs have failed by any testimony whatever to show that the deeds in question were procured by either. On the contrary, it is shown that the making of the deeds was the result of Nailor’s free volition. As none of the grounds alleged for annulling the deeds have been maintained, the decree of the Supreme Court of the District of Columbia must be Reversed, and the cause remanded, with directions to dismiss the bill. NEW ORLEANS BOARD OF LIQUIDATION v. HART. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA. Submitted January 4,1886.—Decided April 19, 1886. The provision in the Louisiana Constitution of 1879, that the general assembly of the State should enact appropriate legislation to liquidate the indebtedness of the city of New Orleans and apply its assets to the satisfaction thereof, contemplated that provision should be made for the payment of the entire debt, whether bonded or floating, and was in harmony with the previously settled law of the State. The holders of the floating debt of the city of New Orleans, existing at the time of the passage of the Act of the Legislature of Louisiana of April 10, 1880, known as'No. 133 of that year, who have established the validity of their claims by judicial proceedings, are protected by the provisions of the Constitution of Louisiana adopted in 1879 from being excluded from shar- N. O. BOARD OF LIQUIDATION v. HART. 137 Opinion of the Court. ing in the proceeds of the property and fund which, by that act, were in terms appropriated to purchase and retire the bonds of the city. The legislation of the State of Louisiana respecting the indebtedness of the city of New Orleans reviewed. This was a petition for a mandamus. The case is stated in the opinion of the court. Hr. Henry C. Hiller for Board of Liquidation, plaintiff in error. Hr. H. J. Leovy, Hr. G. J. Leovy, Hr. E. D. White and Hr. J. P. Blair for Sun Mutual Insurance Company, intervenor, plaintiff in error. Hr. E. H. Fa/rrar for defendant in error. Mr. Justice Field delivered the opinion of the court. This was a petition in the name of the United States, on the relation of Judah Hart, a citizen of New York, for a mandamus to the Board of Liquidation of the city of New Orleans —a corporation organized under the laws of the State and having charge of the financial affairs of the city—to prepare and issue to him bonds of the city for the amount of his demand. The facts, as stated in the petition and found by the court, are briefly as follows: On the 3d of March, 1882, the relator recovered judgment in the Circuit Court of the United States against the city for $121,697.18, which drew interest from its date at the rate of five per cent, per annum. This judgment was founded on contracts for municipal purposes made from 1871 to 1877, inclusive. To review it the city sued out a writ of error from * this court, but, as it did not operate as a supersedeas, the relator caused a writ of fieri facias to be issued, and levied upon certain moneys due and to become due to the city by the Canal and Claiborne Street Railroad Company and by the Orleans Railroad Company, and also upon the interest of the city in the New Orleans Sugar Shed Company and in the Orleans Sugar Sheds. Proceedings were taken to contest these seizures, but judgment was rendered in his favor, to review which the city sued out a writ of error together with a supersedeas. 138 OCTOBER TERM, 1885. Opinion of the Court. While these cases were pending in this court, the relator and the city entered into a compromise, by which it was agreed, among other things, that she should dismiss the writs of error, and that he should renounce his seizure of the sugar sheds, apply the bonus due and to become due by the railway companies to the payment of his judgment, and fund the balance under the provisions of the act known as No. 67 of the legislature of the State of 1884. Under the writ various sums were collected, which, on the 8th of July, 1885, had reduced the judgment to $76,194.62. The relator complied with the terms of the compromise on his part, and called upon the board to prepare and deliver to him bonds, under the provisions of act No. 67 of 1884, for the balance due on his judgment; but the board refused to comply with the demand. The petition alleged that the city made no objection to the performance of this duty by the board, but that the board refused on its own account. The relator, therefore, prayed for an alternative writ of mandamus commanding the board to prepare and issue the bonds of the city, pursuant to act 67 of 1884, to the amount and value of the balance due on his judgment, and deliver them to him, and that the board be cited to answer his demand, and that upon the hearing the writ be made peremptory. The board appeared and answered the petition, setting up that all the property of the city not dedicated to public use, and also the surplus of what was known as the Premium Bond Tax, were pledged, under act No. 58 of 1882, and by previous legislation, to the payment of other bonds of the city which were outstanding, and that the act of 1884, in so far as it directs a diversion of that property and fund, impairs the contract with the holders of those bonds, and is, therefore, unconstitutional and void. By consent of parties, the Sun Mutual Insurance Company, as the holder of such outstanding bonds, intervened and joined with the Board in asserting the unconstitutionality of act 67 of 1884. The court granted a peremptory mandamus as prayed, and to review that judgment the case was brought here. N. O. BOARD OF LIQUIDATION v. HART. 139 Opinion of the Court. To understand clearly the position of the Board of Liquidation, and appreciate the ground of its refusal to issue the bonds, under act No. 67 of 1884, pursuant to the terms of the compromise, it will be necessary to refer briefly to the act of March 6, 1876, known as the Premium Bond Act, out of which the surplus of the premium bond tax arises, and to the act of April 10,1880, to liquidate the indebtedness of the city and create the Board of Liquidation, as well as to the acts of 1882 and 1884. The Premium Bond Act was an attempt to coerce creditors of the city to accept the plan proposed by her counsel for the payment of her indebtedness, by withholding from them all others means of payment of their demands. The city was at the time almost in a bankrupt condition, and the sums required to meet the interest on her admitted indebtedness rendered taxation not only burdensome but oppressive. The plan was to exchange all recognized and valid bonds of the city and of Jefferson and Carrolton, which had become incorporated with her, for premium bonds to be issued under the act. The latter were to be of the denomination of twenty dollars each, to be dated September 1, 1875, and to bear interest at the rate of five per cent, per annum from July 15, 1875, but not payable at any designated period. That, both as to principal and interest, was to be determined by a lottery. They were to be divided into series of one hundred each. A certain number of the series was to be drawn according to a prescribed schedule; and it would depend upon the number drawn whether a bond would be paid in one year or in fifty years. The act forbade the levy of a tax for the payment of the principal or interest of any other bonds, repealed all laws requiring or authorizing the city to lay any such tax, and declared that it should be incompetent for any court to issue a mandamus to the officers of the city to levy and collect a tax for interest on other bonds. To meet the interest on the premium bonds and provide for other municipal wants, it further declared that a tax of only one and one-half per cent, per annum on the assessed value of property in the city should be levied, and that this limitation of her taxing power was a contract, 140 OCTOBER TERM, 1885. Opinion of the Court. not only with the holder of them, but also with every resident * and tax-payer, so as to authorize him to legally object to any higher rate of taxation. Under this plan premium bonds to the amount of $20,000,000 were prepared, of which a number equal to $13,263,300 was issued for other bonds. The remainder were not issued, because creditors refused to accept them. Holders of other bonds brought suits to compel the levy of a greater tax to pay them, pursuant to stipulations made, or implied at the time of their issue, that sufficient sums should be raised to meet the principal and interest on them. In those suits this court declared that the limitation upon the taxing power which the city possessed at the time the bonds were issued, and upon the faith of which they were taken, was invalid as impairing the obligation of her contract with the holders. Wolff v. New Orleans, 103 U. S. 358, and Louisiana v. Pilsbury, 105 U. S. 218. Subsequently the city purchased with the proceeds of certain railroad franchises premium bonds to the value of $3,567,360, and under the operation of the plan a large number was extinguished, so that when the petition of the relator was presented there remained outstanding of those bonds only $7,918,-280. But, notwithstanding the reduction made at different times, the tax was levied annually for interest on the whole number prepared, thus creating an excess beyond the amount required. The Constitution of Louisiana, adopted in 1879, ordained that the general assembly, at its next session, should enact such legislation as might be proper to liquidate the indebtedness of the city, and to apply its assets to the satisfaction thereof. Article 254. Under this requirement, and in supposed compliance with it, the general assembly, on the 10th of April, 1880, passed the act known as No. 133 of that year, creating a Board of Liquidation, investing it with exclusive control of all matters relating to the bonded debt, directing it to prepare bonds to be issued for negotiation or exchange, and with them or their proceeds to retire and cancel the entire valid debt of the city, except the floating debt previously created, and requiring the city authorities to transfer to it, as soon as possible N. 0. BOARD OF LIQUIDATION v. HART. 141 Opinion of the Court. after its organization, all the property of the city, real and personal, not dedicated to public use. The Board was empowered to dispose of the property and deposit the proceeds with its fiscal agent to the credit of the “ city debt fund.” Nothing in the act was to be construed as affecting or in any manner impairing the premium bond act, but the city authorities were to transfer to the board all moneys collected on account of the tax levied in accordance with the provisions of that act, and the board was to apportion the proceeds and apply the same pro rata, and in the proportion which each form of bonded debt should bear to the entire amount of the city debt. Such portions as should not properly belong to the outstanding premium bonds were to be applied to pay interest on the bonds to be issued. The surplus from the collection of the debt and interest tax, or that arising from the sale of assets in the hands of the board, after paying such interest, was to be used to purchase and retire valid bonds of the city. This act of 1880 did not cause the intended retirement and cancellation of the debt of the city. No bonds were issued under its provisions, and the general assembly on the 30th of June, 1882, passed Act No. 58 of that year. It recited that litigation had hitherto resulted disastrously for the tax-payer; that the creditors of the city had indicated a desire to settle their claims equitably, and to postpone the payment of certain bonds in order to lighten the burden of taxation: and that the constitution contemplated a definite termination of her embarrassment by special legislative enactments. It authorized her, through the board, to extend for the period of forty years payment of all outstanding bonds other than premium bonds, at a rate of interest not exceeding six per cent., and to issue certificates drawing like interest for the unpaid coupons on outstanding bonds prior to the first of January, 1883, for which no judgment tax was levied, and to levy and collect a special tax to pay the interest on all bonds other than premium bonds and on the certificates for matured coupons. The sixth section declared that all funds then, or that under existing laws might be, in the hands of the board should be deposited with its fiscal agent and credited to the City Debt Fund, 142 OCTOBER TERM, 1885. Opinion of the Court. and that such fund should be applied exclusively to the purchase of outstanding bonds or coupons and the certificates therefor, which were extended to be retired under the act, except that the fund should first be used to pay the interest on the bonds and the certificates. The seventh section provided that the surplus, if any, of the premium bond tax of each year, or on hand at the passage of the act, after all the drawn series, interest and premiums thereon, exigible or due to the holders thereof had been provided for or fully paid, should also be deposited with the fiscal agent of the board on account of the City Debt Fund, and applied exclusively in payment of the interest on the outstanding bonds and certificates. The tenth section declared that the act in all its parts was to be deemed and to constitute a valid and binding contract between the State, the city, its residents, citizens and taxpayers, and the holders of the bonds extended, and that the judicial process of the State, authorized by law or in force at the creation of the bonded debt, might be resorted to, and should be recognized and applied for the enforcement of its provisions in favor of any party showing just cause of complaint for their violation. Under the act the board issued bonds exceeding $4,000,000, on which the interest has been paid, in part by the tax provided and in part out of the premium bond tax, there being a surplus of moneys collected by that tax beyond what was required for the interest on the premium bonds outstanding. The act of July 9, 1884, known as Act No. 67 of that year, amends several sections of Act No. 133 of 1880. It extends the authority of the board, and gives it exclusive control and direction over all matters relating not only to the bonded debt, but also to the judgment debt of the city. Section three of the act of 1880, as amended, provides for retiring and cancelling the entire debt of the city then in the form of executory judgments, or which might thereafter become merged into them, except the floating debt or claims’ created for 1879, and subsequent years; and also for the preparation of bonds similar in their general character to those mentioned in the act of 1880, N. O. BOARD OF LIQUIDATION v. HART. 143 Opinion of the Court. to be exchanged for the judgments or sold, and the proceeds applied to their payment. The fifth section, as amended, provides, with greater particularity than the original section, for transferring to the board the property of the city not dedicated to public use, and its assets, realized and to be realized, except such assets and revenues as pertain to the administration of the city and are necessary for its support; and it authorizes and requires the board to dispose of the same, other than stock held in corporations, on such terms and conditions as it may deem best for the interests of the city, and to apply the proceeds, first, to the payment of the interest on the bonds authorized by the act, and, second, to their redemption and cancellation. There is no doubt of the right of the relator under the act of 1884 to the bonds promised in the compromise with the city. His judgment is of the class of debts which it is made the duty of the board to retire and cancel by the exchange of the bonds provided, or by the sale of them and the application of their proceeds. The board refuses to issue them solely on the ground that the acts of 1882 and 1884 conflict as to the application of the property and funds of the city ; the first act applying them to the payment of the bonded debt and certificates for matured coupons specified therein, and the second to the payment of bonds issued in cancellation of executory judgments against the city. As seen by the preceding statement, all the property and funds of the city, and the excess of the proceeds derived from the tax for the interest on premium bonds beyond what was needed, were, by the act of 1880, pledged to pay her entire debt, except the floating debt previously created. This floating debt may have been as meritorious as the funded debt, and the duty to make provision for its payment equally binding. Why all the property and funds of the city should be appropriated to pay the latter debt to the exclusion of the former does not appear. The Constitution of 1879 contemplates that provision shall be made for the payment of the entire debt. It declares that the general assembly, at its next session, “shall enact such legislation as may be proper to liquidate the indebtedness of the city of New Orleans, and to apply its assets to 144 OCTOBER TERM, 1885. Opinion of the Court. the satisfaction thereof ; ” and this means obviously the entire indebtedness in whatever form it exists, whether bonded or floating, and not merely a part of it. And the application of the assets of the city is to be in satisfaction of all the debts alike, and if not sufficient to extinguish them it is to be made in some ratable proportion. Such is, we think, the clear import of the constitutional mandate, and its. purpose is in harmony with the settled law of the State, which has always recognized as sound and just the rule, that the property of the debtor should, as far as practicable, be appropriated to. the payment of all his debts. The civil code, in force since 1825, declares that “ whoever has bound himself personally is obliged to fulfil his engagement out of all his property, movable and immovable, present and future.” Art. 3149. Although this provision does not in terms designate artificial persons, it embraces them within its scope. Whenever corporations, private or municipal, are permitted by the legislature to contract debts, they are brought equally with natural persons under the dominion of this law and are alike bound by it. The code also declares that “ the property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them ratably, unless there exist among the creditors some lawful causes of preference.” Art. 3150. The Supreme Court of the State, in the case of the Succession of Taylor, 10 La. Ann. 509, 510, in speaking of this last article, said : “ We do not think this article of the code a .mere idle recognition of an equitable principle, not intended to give the creditor any positive right to the property of his debtor. On the contrary, we think the whole of our legislation recognizes such an interest of the creditor in the property of the debtor as to give to the creditor the right to watch over this common pledge, and prevent the debtor himself from fraudulently parting with it.” This language was used in a case where a widow with minor children, left in necessitous circumstances, and not possessing in their own right property to thè amount of $1000, undertook as administratrix to distribute that sum to herself and children, under a statute of the State, which allows a widow, in those circumstances, to receive from the succession of her deceased N. O. BOARD OF LIQUIDATION v. HART. 145 Opinion of the Court. father or husband that sum, or sufficient when added to their property to make that sum, and requires it to be paid in preference to all other debts, except those for the vendor’s privilege, and .the expenses in selling property. The court held that the statute did not protect the property of the succession from creditors whose claims existed prior to its passage. The principle here asserted would undoubtedly cover the case at bar if the appropriation of the property and funds of the city to the payment of certain claims, to the exclusion of others equally valid, had been made by her voluntary act; but being made by direction of the statute, it may be questioned whether its validity, independently of the constitutional provision, could be successfully assailed. The rule declared, however just in itself, can hardly be regarded as anything more than indicating the spirit which should control legislation in providing for the application of the property of a debtor to the discharge of his debts; although Mr. Justice Bullard of the Supreme Court of the State, in Atchafalaya Railroad de Banking Company v. Bean, 3 Rob. La. 414, thought “ it clear that the legislature cannot constitutionally, by any act subsequent to the creation of a debt, interfere to change or disturb the relation between debtor and creditor, or the relative rank of creditors inter se ’ and that two creditors who stood equal originally in the eyes of the law, and had an equal right to be paid, neither having any special lien or privilege over the other, must forever remain equal, notwithstanding any act of the legislature apparently sanctioning a different doctrine.” Property undoubtedly may be appropriated and special taxes pledged to meet future debts created for public purposes, but legislation would conflict with the spirit as well as the express letter of the code, if it authorized a municipal body to appropriate its entire property and revenues, except what might be required for the support of its government, to a class of existing demands over others equally entitled to payment. So far as the indebtedness of the city, existing at the adoption of the Constitution of 1879, is concerned, we think the clause mentioned prohibits any such preference and appropriation. We are, therefore, of opinion that holders of her floating debt existing vol. cxvin—10 146 OCTOBER TERM, 1885. Opinion of the Court. at the passage of the act of 1880, who had established its validity by judicial proceedings—and such is the position of the relator with his claim—cannot, under the Constitution of 1879, be excluded from sharing in the proceeds of property and funds which, by that act, are in terms appropriated to purchase and retire her bonds. The code recognizes, as we have seen, the justice of an appropriation of the property of the debtor for the payment of all his debts ratably. In the spirit of this equitable principle the Constitution of 1879 required that all the debts of the city existing at that time should be provided for, and any pledge of he rentire property and revenues to the payment of one class of her debts to the exclusion of others is repugnant to that instrument. The act of 1882 did not change the position of the relator. It authorized the renewal and extension of outstanding bonds of the city other than premium bonds, and the issue of interestbearing certificates for matured coupons, but the provision of the act of 1880 for transferring all the property of the city not dedicated to public use to the Board, creating a fund to purchase and retire her bonds, continued in force. It changed the application of the fund to the payment of the renewed and extended bonds and certificates for matured coupons, but it made no provision for the floating debt created previously to the act of 1880. The act of 1884 amends several sections of the act of 1880, and as amended they are to be read from their passage as parts of that act. They provide that the property and funds of the city shall be appropriated to pay, first, interest on bonds issued to retire and cancel the debts of the city in the form of executory judgments, or which might become merged into such judgments, except the floating debt created after 1878; and, second, to redeem and cancel the bonds. It does not refer to the act of 1882; and we infer that the legislature intended, not to supersede all the provisions of that act for the payment of other bonds of the city, but to place on the same footing with them bonds issued for executory judgments. We must, therefore, construe it as extending the appropriation made by the act of 1882 to the payment of bonds issued for such judg- N. O. BOARD OF LIQUIDATION v. HART. 147 Opinion of the Court. ments, in addition to the payment of the bonds provided for by that act, and not as merely limiting it to the payment of such judgments. The objectionable feature in all the previous acts is their attempt to do partial justice, by discriminating between creditors equally meritorious, and applying the property and funds of the city to the payment of some of them in preference to others. In our opinion this cannot be done. All creditors at the time the property and funds were appropriated were entitled, for the payment of their respective claims, when legally established, to share ratably in the proceeds of the property and funds. The relator, with his judgment against the city, has a right to stand, with reference to those proceeds, on an equal footing with her other creditors, notwithstanding that by the terms of the act of 1882 he is excluded from all participation in them; and, to enable him to do so, he can demand the bonds of the city for the balance due him, pursuant to the compromise with the municipality. With the bonds he will not have any preference over other bondholders, but will be entitled to share ratably with them in the proceeds of the property appropriated for the payment of their bonds. The judgment ordering a mandamus is therefore, Affirmed, but with instructions to the court below to modify its directions, as to the payment of the bonds issued, in accordance with this opinion. Sun Mutual Insurance Company v. United States ex rel. Judah Hart. The same judgment and for like reasons will be entered on the intervention of the Sun Mutual Insurance Company as in the case between the original parties. Affirmed. 148 OCTOBER TERM, 1885. Statement of Facts. HOPPER u COVINGTON. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. Argued April 21, 1886.—Decided May 10, 1886. In an action upon a negotiable bond issued by a town authorized by the public laws of the State to issue such bonds for certain purposes only, a declaration alleging that the defendant is a municipal corporation, existing under the laws of the State, with full power and authority pursuant to those laws to execute negotiable commercial paper, and that pursuant to those laws it executed the bond sued on—without showing for what purpose the bond was made—is bad on demurrer. This was an action by a citizen of New York against a town in Indiana upon certain bonds and coupons. The complaint alleged “ that said defendant is a municipal corporation, organized and existing under and by virtue of the laws of the State of Indiana, with full power and authority, pursuant to the laws of said State, to execute negotiable commercial paper; that, pursuant to the laws of said State regulating the execution of such negotiable commercial obligations, said defendant, on the first day of October, 1878, by its proper officers and agents, executed its negotiable commercial bond payable to bearer ten years after date at the Farmers’ Bank in Covington, Indiana, which bank then was a bank of deposit and discount at said town of Covington, Indiana ; that thereafter and before the maturity of said bond plaintiff purchased the same for a valuable consideration, and is still the owner thereof; a copy of said bond is filed herewith and hereby made part of this complaint, marked Exhibit A,” to wit: “ No. 21. United States of America. $500. “ The town of Covington, State of Indiana, will pay ten years after date to the bearer five hundred dollars, with interest at eight per cent, per annum, the interest payable as designated by coupons hereto attached, and the principal upon presentation of the bond when the same shall have become due. This HOPPER v. COVINGTON. 149 Statement of Facts. bond shall be payable after five years from the date hereof, at the option of the town of Covington. Payable at the Farmers’ Bank in Covington, Indiana. Each coupon attached shall be prima facie evidence of payment of the accrued interest. “ In witness whereof, the corporation seal of said town is hereto affixed, and this bond is signed by the president of this board of trustees and attested by the clerk thereof, this first day of October, A.D. 1870. [seal.] . A. Gish, President. “Attest: Frank M. Hicks, Clerk.” The complaint then alleged that the plaintiff was the owner of thirty-nine other bonds of precisely like tenor and effect, except that they were differently numbered, and that twenty of them were for one hundred dollars each, (stating the numbers and amounts of each,) and that he purchased each before maturity and for a valuable consideration. “ Plaintiff says that said bond, Exhibit A, and each of said other bonds, is past due and wholly unpaid; wherefore plaintiff prays judgment for twenty thousand dollars against said defendant, and for all proper relief.” The complaint also contained a count, with similar allegations, upon coupons for interest, attached to such bonds at the time of their execution, and in this form : “ $40. Covington, Ind., October 1st, 1879. “ One year after date the Town of Covington, Ind., will pay to the bearer in the city of New York forty dollars, being one year’s interest on bond No. 21. A. Gish, Pres’t. “Attest: Frank M. Hicks, Clerk.” The defendant demurred to the complaint, because it stated no cause of action against the defendant; because it did not allege under what law or for what purpose the bonds and coupons sued on were issued; because it contained no allegation showing authority in the defendant to make the bonds and coupons sued on ; and because the allegation in the complaint 150 OCTOBER TERM, 1885. Opinion of the Court of power and authority in the defendant to make the bonds and coupons in suit was an averment of a legal conclusion. The court sustained the demurrer, and rendered judgment for the defendant; and the plaintiff sued out this writ of error. J/?. J. E. McDonald for plaintiff in error. J/?. John EL. Butler was with him on the brief. ELr. Thomas F. Davidson for defendant in error. Mr. Justice Gray, after stating the case as above reported, delivered the opinion of the court. The town of Covington had no general power to issue negotiable bonds. If the general statute of Indiana of June 11, 1852, under which it was incorporated, conferred any power upon towns to issue bonds, it was only for certain municipal purposes therein specified; and the general statute of May 15, 1869, authorized towns to issue bonds for the purchase and erection of lands and buildings for school purposes only. 1 Gavin & Hord’s Stat. 623-626; Davis’s Suppit. 116. The bonds in suit containing no statement of the purpose for which they were issued, and no recital which can bind the town by way of estoppel, any one suing upon the bonds is bound to allege and prove the authority of the town to issue them. The plaintiff relies on the statement of Mr. Justice Swayne in Gelpcke n. Dulnuque, 1 Wall. 175, 203, repeated by him and by Mr. Justice Clifford in later cases, that “ when a corporation has power, under any circumstances, to issue negotiable securities, the ~bona fide holder has a right to presume they were issued under the circumstances which give the requisite authority, and they are no more liable to be impeached for any infirmity in the hands of such a holder than any other commercial paper,” Supervisors v. Schenck, 5 Wall. 772, 784; Lexington v. Butler, 14 Wall. 282, 296 ; San Antonio v. ELehaffy, 96 U. S. 312, 314; ELacon County v. Shores, 97 IT. S. 272, 279. But the circumstances thus spoken of were the preliminary facts requisite to the exercise of the power, not the limits, fixed HOPPER v. COVINGTON. 151 Opinion of the Court. by law, of the objects and purposes for which the power could be exercised at all. In each of the cases cited, the defects suggested were in the requisite preliminary proceedings, and the bonds sued on appeared by recitals on their face to have been issued according to law. When the law confers no authority to issue the bonds in question, the mere fact of their issue cannot bind the town to pay them, even to a purchaser before maturity and for value. Marsh v. Fulton County, 10 Wall. 676; Fast Oakland v. Skinner, 94 IT. S. 255; Buchanan n. Litchfield, 102 IT. S. 278; Dixon County v. Field, 111 IT. S. 83; Hayes v. Holly Springs, 114 IT. S. 120; Daviess County v. Dickinson, 117 IT. S. 657. A demurrer admits only facts, and facts well pleaded. The town having but a limited authority to issue bonds for certain purposes, it is not enough for the plaintiff to aver in general terms that the town was authorized to issue the bonds in suit; but he must state the facts which bring the case within the special authority. There is nothing in this declaration, or in the copies of instruments annexed to and made part of it, which shows, or has any tendency to show, for what purpose the bonds were made. The averment, that the defendant is a municipal corporation under the laws of Indiana, “ with full power and authority, pursuant to the laws of said State, to execute negotiable commercial paper,” if understood as alleging a general power to execute negotiable commercial paper, is inconsistent with the public laws of the State, of which the courts of the United States take judicial notice. The averment, that the bonds held by the plaintiff were executed pursuant to the laws of the State, is but a statement of a conclusion of law, which is not admitted by demurrer. The declaration is fatally defective for not stating the facts necessary to enable the court to judge for itself whether that conclusion of law has any foundation in fact. Purnpelly v. Green Bay Co., 13 Wall. 166, 175; Cragin v. Lovell, 109 U. S. 194; Kennard n. Cass County, 3 Dillon, 147; Broome v. Taylor, 76 N. Y. 564; Cotton v. New Providence, 18 Vroom, 401.’ Judgment affirmed. 152 OCTOBER TERM, 1885. Statement of Facts. PAINE v. CENTRAL VERMONT RAILROAD COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF VERMONT. Argued April 8,1886.—Decided May 10,1886. In an action in the Circuit Court of the United States, submitted by stipulation of the parties, in accordance with the practice prevailing in the State where the court is held, to the decision of the judge “ as referee,” the only matter reviewable by this court is error of law in the judgment of the court upon the facts found by the referee. A promissory note payable on demand, with interest, was made by a railroad corporation to a stockholder for money lent, and with the understanding that assessments to be laid on his shares should, when payable, be considered as payments upon the note. Assessments to a greater amount than the note afterwards became payable, and the difference only was paid by him. Held, That the note was paid as between the corporation and the payee, and as against a subsequent endorsee taking the note when overdue. By the statutes of Massachusetts and of Vermont, promissory notes payable on demand are overdue in sixty days after date. This was an action of assumpsit, brought October 1,1878, in the Circuit Court of the United States for the District of Vermont, by a citizen of New York as endorsee, against a Vermont corporation as maker, of the following promissory note: .“$5000. Boston, July 10th, 1873. “ On demand after date, with interest, we promise to pay to the order of H. B. Wilbur, Treasurer, five thousand dollars. “Central Vermont R. R. Co., “As Receivers and Managers Vermont Central, and Vermont and Canada R. R. “By H. B. Wilbur, Treasurer. “No. 8. Value received. Approved. “ J. Gregory Smith, President. “H. B. Wilbur, Treasurer.” On August 28,1879, the defendant pleaded the general issue, PAINE v. CENTRAL VERMONT RAILROAD CO, 153 Statement of Facts. with a specification of defence, in accordance with the statutes of Vermont, (Gen. Stat. 1862, ch. 30, 15, 32; Rev. Laws 1880, §§ 908, 909,) that the defendant was organized as a corporation on May 27, 1873; that on July 10, 1873, it delivered the note in suit to John Q. Hoyt, an original subscriber to the defendant’s capital stock, and then holding shares of that stock of the par value of $50,000, only partially paid for; that on that day the defendant being in urgent need of money and not having time to regularly lay and collect an assessment on its capital stock, Hoyt advanced to the defendant $5000, and the defendant gave him this note, under an agreement that he should hold it until an assessment covering that amount should be made on his stock, and it was understood and agreed by and between him and the defendant that, when such assessment should be made, the $5000 so advanced should be applied in payment thereof, and the note should be thereby paid and extinguished, and should be surrendered; that on August 10, 1873, such an assessment was made by the defendant upon its capital stock, including Hoyt’s shares; that on October 28,1873, the $5000 advanced as aforesaid was duly applied in payment of that assessment, whereby the note was paid and extinguished, and the note was suffered to remain in his hands through inadvertence ; and that the plaintiff received the note from Hoyt long after its payment and extinguishment as above stated, as security for a pre-existing debt from Hoyt to the plaintiff, and with full knowledge of such satisfaction and payment, and after the note had ceased to be current. On May 16, 1882, the counsel of the parties signed and filed an agreement in writing, by which it was “ stipulated and agreed to refer this case to Hon. Hoyt H. Wheeler to try and decide this case as referee.” On September 6,1882, the referee filed his report, the material parts of which were as follows : “ On the hearing, it appeared from the evidence that in 1872 several persons were in possession of and operating the Vermont Central and Vermont and Canada Railroads as receivers and managers of the Court of Chancery of the State, in Franklin County, and had prepared to issue a series of long-time 154 OCTOBER TERM, 1885, Statement of Facts. bonds, called income and extension bonds, a part of which had not been negotiated. The defendant was chartered with power to temporarily operate those roads, subject to the order of that court, and to assume the contracts of the receivers and managers. Subscriptions to the capital stock of the defendant were opened, and two millions in amount subscribed for April 30, 1873, of which John Q. Hoyt, of the city of New York, subscribed for $50,000, and it was expected by the subscribers that when the company should be organized it would be appointed receiver of those roads, and assume the obligations of the other receivers. Five per cent, of the subscriptions was required by the commissioners of subscription to be paid down. The receivers were in need of funds, and by arrangement with them one of the subscribers advanced $200,000, ten per cent, of the subscriptions, in behalf of all the subscribers, as a temporary loan to the receivers pending the organization of the company and proceedings to carry out the expectations of the subscribers, and a note of that amount was made, and, with $400,000 in amount of the income and extension bonds as collateral security for its payment, delivered to the subscriber making the advance, upon the understanding that the note should be paid if the defendant company did not come into possession of the roads and assume the obligations of the receivers, and stand against the subscriptions for stock if it did. “ The defendant company was organized May 27, 1873; was appointed receiver and manager of the roads June 21, 1873; and went into possession of the roads, assuming the obligations of the former receivers and managers, July 1, 1873. An assessment of thirty per cent on the subscriptions for stock was laid June 24, another of ten per cent August 13, and another of ten per cent October 28,1873, the last payable on or before December 1, 1873. The assessment of June 24 was paid by the subscribers respectively, including Hoyt. After the arrangement for making the defendant receiver of the roads was consummated, the note of $200,000 was given up, and new notes of the defendant were given, running to the subscribers separately, each in proportion to the amount of his subscription. The other subscribers paid to the one who made the advance PAINE v. CENTRAL VERMONT RAILROAD CO. 155 Statement of Facts. each his proportion of it, and received the notes and a proportionate amount of the collateral bonds. Hoyt paid $5000, and received the note in suit and $10,000 of the bonds. Hoyt paid the assessment of August 13 and one half the assessment of October 28; the other half of the latter was rescinded; and stock issued for one half the amount subscribed. The assessments paid amounted to fifty per cent, of the subscription. Hoyt. paid, as stated, fifty per cent., and no more, of his subscription. There was no other consideration for this note; and by the understanding of the parties it was to be delivered up, -with the collateral bonds, on delivery to him of stock certificates for his stock. “About November 1, 1873, Hoyt became indebted to the plaintiff, at New York, for $7000 lent, with the understanding that the loan should be increased to $10,000, and delivered this note and these bonds to him as security for the payment of the loan. The plaintiff at that time knew from previous conversations with Hoyt generally about the subscription for stock and the situation and circumstances of the roads; but he did not know before, and was not then informed, that the note was to stand against the subscription for the stock, nor that the bonds, which then had a long time to run, were collateral to the note, but took all of them supposing that they were valid securities for what they purported to be.” “ Certificates of stock were issued for all the subscribers in 1874, and delivered to them, and all but Hoyt delivered up the notes and bonds. He endeavored to procure the note and bonds of the plaintiff to deliver up to the defendant, but was unable to do so.” “ In April, 1876, the plaintiff called on the president of the defendant for payment of the note in suit, who told him the circumstances under which the note was given, but did not state that they would be relied on as a defence to the note, or that any question would be made about its validity, and requested him to wait and endeavor to get payment from Hoyt, and encouraged him that he would succeed in doing so. He had a similar interview with a like result afterwards, the president adding that if Hoyt did not pay the plaintiff’s note the defendant would not 156 OCTOBER TERM, 1885. Argument for Plaintiff in Error. ask him to wait again, but would provide for the payment of this one. Just before this suit was brought, a similar interview was had, during which the president told him that he thought and had been advised that the circumstances under which the note was given would constitute a good defence to the note, and did not pay it. . “ The income and extension bonds were sold in the market, March 24, 1881, for $5000, less $12.50 commission, without notice to Hoyt or the defendant. They had been worth more while the plaintiff held them, but this was their then market value. “ The note is made a part of this report. It was executed as to time and place according to its purport.” “ All the evidence showing the circumstances under which the note was given, and the proceedings in relation to it, were seasonably objected to, and admitted against the objections. “ The respective rights of the parties to recover in this action are, upon these facts, submitted to the court. “ Hoyt H. Wheeler, Referee.” The record stated that afterwards “ said cause came on for trial, upon the report of the referee, before the Honorable Hoyt H. Wheeler, District Judge of the United States, within and for the District of Vermont, and, after hearing the arguments of counsel for the plaintiff and defendant, the court, on November T, 1882, filed its decision in said cause, rendering judgment for the defendant,” being the opinion reported in 14 Fed. Rep. 269. On the same day, judgment for the defendant was entered upon the docket, and four days afterwards the following order was filed: “ Upon the report of the referee the court rendered judgment for the defendant, to which decision and judgment the plaintiff excepted. Exceptions allowed and ordered to be placed on record. “Hoyt H. Wheeler.” J/r. John F. Dillon for plaintiff in error. The note in suit was not overdue when transferred to plain- PAINE v. CENTRAL VERMONT RAILROAD CO. 157 Argument for Plaintiff in Error. tiff. Instances may be readily cited where the courts, applying the doctrine of reasonable time to demand notes, have held that the presumption of dishonor was not justified upon the lapse of periods ranging from three months to a year and a half, or more. Freeland v. Hyde,, 2 Hall, N. Y. 429 (19 months); Ilendricks v. Judah, 1 Johns. 319 (1 year); Sanford v. Mickles, 4 Johns. 224 (5 months); Chartered Mercantile Bank v. Dickson, L. R., 3 P. C. 574 (10 months); Merritt v. Todd, 23 N. Y. 28 (3 years). There can be, in the nature of things, no arbitrary limit of reasonable time applied to demand notes. Each case stands upon its own peculiar circumstances. This court has thus presented the rule in Morgan n. United States, 113 IT. S. 476, 501. Mr. Justice Matthews, delivering the opinion of the court, arguendo, says: “ The rule, as to ordinary negotiable paper, payable on demand, is that it is not due, without demand, until after the lapse of a reasonable time within which to make demand; and what the length of that reasonable time is may vary according to the circumstances of particular cases, and must be governed very largely by the intentions of the parties, as manifested in the character of the paper itself, and the purposes for which it is known to have been created and put in circulation.” See also Daniel, Neg. Inst. 451; Leith Banking Co. v. Walker, 14 Shaw, Dunlop & Bell, 332; Rhodes v. Seymour, 36 Conn. 1, 6. In New York it is “settled law that a note payable on demand with interest is a continuing security against an endorser until actual demand.” Shutts v. Fingar (N. Y. Court of Appeals, Nov. 24, 1885), 100 N. Y. 539; Parker n. Stroud, 98 N. Y. 379; Merritt v. Todd, 23 N. Y. 29; Pardee v. Fish, 60 N. Y. 265. In England a promissory note on demand with interest is regarded as a continuing security. Brooks v. Mitchell, 9 M. & W. 15; Gascoyne v. Smith, M’Clel. & Yo. 338; Bar-ough v. White, 6 D. & R. 379. As to the effect of the provision for interest as bearing on the question of apparent intention, see Wethey v. Andrews, 3 Hill, 582; Lockwood v. Crawford, 18 Conn. 311. It appears by the record that the $5000 loaned on the note in suit was a part of sums borrowed by the company for the 158 OCTOBER TERM, 1885. Opinion of the Court. purpose of enabling it to carry on its operations pending the coming in of instalments on subscriptions to its capital stock. The case was one of loan to a debtor presently unable to repay, but assured of large resources in the future. It was transferred long before the time of its stipulated return (as alleged) and while it was still a subsisting obligation unpaid and undischarged. It was transferred at a time when the company intended that it should be outstanding, and hence transferable. Under the evidence offered by the company, it is hard to conceive how it can avail itself of a presumption which is not only in conflict with the generallv known circumstances of the case, and with the character of the note itself, but in direct conflict with the facts relied on by the defence. The presumption of dishonor is not available to one who affirmatively shows that his obligation was to remain outstanding for a much longer time than the time at which, as he asserts, the presumption should arise. JZ>. Dillon argued other points which were not considered by the court in its opinion. George F. Edmunds and Mr. Guy C. Noble for defendant in error. J/?. Daniel Roberts and J/?. E. C. Smith were with them on the brief. Me. Justice Geay, after stating the case as above reported, delivered the opinion of the court. This case was not submitted to the decision of the court without a jury, pursuant to the Revised Statutes of the United States, §§ 649, 700; but to the decision of the judge as referee, in accordance with the statutes and practice of Vermont. Gen. Stat. 1862, ch. 30, § 52; Rev. Laws 1880, § 985; White n. White, 21 Vt. 250; Melendy v. Spaulding, 54 Vt. 517. The only question presented by the writ of error, therefore, is whether there is any error of law in the judgment rendered by the court upon the facts found by the referee. See Bond v. Dustin, 112 U. S. 604, 606, 607, and cases there cited. The report of the referee, although a little obscure in parts, sufficiently shows that the material facts were as follows: Sub- PAINE v. CENTRAL VERMONT RAILROAD CO. 159 Opinion of the Court. scriptions were made to the capital stock of the defendant corporation to the amount of two millions of dollars (of which Hoyt subscribed $50,000), with the expectation that the defendant, when organized as a corporation, should be appointed, pursuant to its charter, receiver of two other railroad corporations, and should assume the obligations of the former receivers. Those receivers were short of money, and by arrangement with them one of the subscribers, in behalf of all, advanced as a temporary loan to the receivers $200,000 (ten per cent, of the whole subscription), and a note for that amount was made to him, with the understanding that the note should be paid if the defendant did not come into possession of the roads and assume the obligations of the receivers, and should “stand against the subscriptions for stock if it did.” After the defendant had been organized and been appointed receiver, and had assumed the obligations of the former receivers, the note of $200,000 was given up, and instead thereof the defendant gave new notes to each subscriber separately for ten per cent, of the amount of his subscription, and each of the other subscribers paid his proportion of the sum of $200,000 to the one who had advanced that sum. Hoyt paid him $5000, and received the note in suit, which was made and dated at Boston, July 10, 1873, and was payable on demand, with interest. The assessments laid on the subscriptions for stock amounted to fifty per cent., of which five per cent, was paid at the time of subscribing; thirty per cent, was laid June 24, which is stated to have been “paid by the subscribers respectively, including Hoyt; ” ten per cent, was laid August 13, and five per cent, laid October 24 and payable December 1, 1873, both of which Hoyt paid. This part of the report of the referee, after statinfr the above facts, concludes thus: “ The assessments paid amounted to fifty per cent of the subscriptions. Hoyt paid, as stated, fifty per cent., and no more, of his subscription. There was no other consideration for this note; and by the understanding of the parties it was to be delivered up, with the collateral bonds, on delivery to him of stock certificates for his stock.” It is evident that the ten per cent, on Hoyt’s stock, which had been included in the sum of $200,000 stated to have been 160 OCTOBER TERM, 1885. Opinion of the Court. originally advanced by the lender “ in behalf of all the subscribers,” and which was repaid to him by Hoyt when the notes to the several subscribers were substituted for the single note for the whole original advance, is to be considered as part of the fifty per cent, paid by Hoyt towards his subscription, and that he paid directly to the defendant only forty per cent. The difference in form of the statements, that “ the assessment of June 24 was paid by the subscribers respectively, including Hoyt,” but that “ Hoyt paid ” the two later assessments, is, to say the least, quite consistent with this view. And any other is wholly inconsistent with the ultimate facts expressly found, that “ Hoyt paid, as stated, fifty per cent., and no more, of his subscription,” and that “ there was no other consideration for this note.” The effect of the agreement between the defendant corporation and Hoyt was that the assessments to be laid upon his stock in the corporation should, when payable, be not only set off against, but considered as payments upon, the note for $5000 from the corporation to him, now in suit. When Hoyt delivered this note to the plaintiff, on November 1,1873, the assessments already due and payable upon his stock amounted to much more. As between the defendant and Hoyt, therefore, as well as against any one who took this note from Hoyt, when overdue, the note had been paid. American Bank v. Jenness, 2 Met. 288; Gilson v. Gilson, 16 Vt. 464. In this country, a promissory note payable on demand has always been held to be overdue, so as to subject any one taking it to all defences to which it would be open in the hands of the payee, unless transferred within a reasonable time after its date; and what is reasonable time is a question of law, depending upon all the circumstances of the particular case. Morgan v. United States, 113 U. S. 476, 501; Losee v. Dunkin, \ Johns. 70; Sylvester v. Crapo, 15 Pick. 92; Dennett v. Leland, 13 Vt. 485; Camp v. Clark, 14 Vt. 387. See also Chartered Mercantile Bank v. Dickson, L. R. 3 P. C. 574, 579. The difficulties of applying this test, and the convenience of a more definite rule, have led the legislatures of many States to regulate the matter by statute; and before the mak- GRAHAM v. BOSTON, HARTFORD & ERIE RR. CO. 161 Syllabus. in£ of the note in suit the statutes both of Massachusetts and of Vermont had defined reasonable time for this purpose to be sixty days from the date of the note. Mass. Gen. Stat. 1860, ch. 53, §§ 8, 10; Pub. Stat. 1882, ch. 77, §§ 12, 14; Vermont Stat. 1870, ch. 70; Rev. Laws 1880, § 2013. The power of the State legislatures to establish such a rule prospectively, with regard to promissory notes made and payable within their respective jurisdictions, has not been and cannot be doubted. The note in suit was endorsed to the plaintiff more than sixty days after its date. It was made in Massachusetts, and, if not payable there, was payable in Vermont, where the defendant was incorporated. The construction and effect of the contract must be governed by the law of the one or the other of those States; and it is superfluous to consider by which, because by the law of either the note was overdue when the plaintiff took it, and therefore he cannot recover upon it. As to the evidence, stated in the report of the referee, upon which the plaintiff relies as tending to prove a promise to himself by the defendant to pay the note, it is sufficient to say that, it not being shown that the plaintiff, in consideration of or reliance upon such a promise, either agreed to forbear or actually forbore to sue, there was no consideration for the promise, and no ground for giving it effect as an estoppel. Judgment affirmed. GRAHAM'& Another v. BOSTON, HARTFORD & ERIE RAILROAD COMPANY & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. Argued April 15, 16, 19,1886.—Decided May 10, 1886. The Boston, Hartford & Erie Railroad Company became a corporation of the State of New York, by virtue of the act of the legislature of that State, passed April 25, 1864, Laws of New York, 1864, ch. 385, p. 884, it being already a corporation of Connecticut, Massachusetts and Rhode Island. A meeting in one of several States of the stockholders of a corporation char-vol. cxvni—11 162 OCTOBER TERM, 1885. Syllabus. tered by all those States is valid in respect to the property of the corporation in all of them, without the necessity of the repetition of the meeting in any other of those States. A railroad corporation, which, though made up of distinct corporations, chartered by the legislatures of different States, has a capital stock which is a unit, and only one set of shareholders, who have an interest, by virtue of their ownership of shares of the stock, in all of its property everywhere, has a domicil in each State, and the corporation or shareholders can, in the absence of any statutory provision to the contrary, hold meetings and transact corporate business in any one State, so as to bind the corporation as to its property everywhere. The Berdell mortgage, executed by the Boston, Hartford & Erie Railroad Company, March 19, 1866, was valid originally, and the proceedings of the company whereby the mortgage was made were ratified by the legislatures of the four States above named, which included the holding in the city of New York of the meeting of the shareholders which authorized the making of the mortgage. The invalidity of some of the bonds secured by the mortgage cannot affect the validity of the mortgage or the validity of proceedings for its foreclosure. The mortgage having been duly foreclosed under proceedings in a suit to which the corporation was a party, and the suit being still pending, a shareholder in the corporation cannot, by a bill in equity in another court, attack the foreclosure proceedings for fraud in conducting them. His remedy is by an application in the foreclosure suit. Such shareholder is a party to proceedings in involuntary bankruptcy against the corporation, and, therefore, cannot collaterally impeach the proceedings. His remedy is to apply to the bankruptcy court, or to seek a review in the Circuit Court. The bill being filed fourteen years after the making of the mortgage, ten years after the commencement of the bankruptcy proceedings, nine years after the entry of the decree of foreclosure, and seven years after the foreclosure became absolute and the road was conveyed to a new corporation formed by the holders of bonds secured by the mortgage, a demurrer to the bill for laches was sustained. Bill in equity. The case is stated in the opinion of the court. J/?. Eugene M. Johnson and J/?. Benjamin F. Butler (Mr. B. A. Pryor and Mr. C. F. Beach, Jr., were with them), for appellants. Mr. Charles M. Peed for Healey appellee. Mr. C. S. Bradley and Mr. J. C. Gray for appellees Bradley, Chapman and Barnard. GRAHAM v. BOSTON, HARTFORD & ERIE R.R. CO. 163 Opinion of the Court. Jfr. William G. Lussell and Jlfr. William Caleb Loring for the New York & New England Railroad Company, and Hart and Clark appellees. Mr. Justice Blatchford delivered the opinion of the court. This is a bill inequity, filed in the Circuit Court of the United States for the District of Massachusetts, on the 8th of July, 1880, by William F. Graham, an alien, the owner of 500 shares of the capital stock of the Boston, Hartford and Erie Railroad Company, on behalf not only of himself, but of every stockholder and creditor of the company who may join in the suit and contribute to its expense, to set aside as invalid a mortgage given by the company, dated March 19, 1866, covering its railroad, franchises and property, existing and future, to Robert H. Berdell, Dudley S. Gregory, and John C. Bancroft Davis, as trustees, to secure the payment of an issue of bonds of the company to the amount of $20,000,000. The defendants are that company and its assignees in bankruptcy; the New York and New England Railroad Company, which is in possession of and operating the railroad; certain persons now living, and the personal representatives of others now deceased, who have, at different times, acted as trustees under the mortgage ; the treasurer and receiver general of the Commonwealth of Massachusetts ; George Ellis, Frederick A. Lane, and William C. Eayrs. Afterwards Amelia T. Raymond, a holder of 100 shares, and two other shareholders, were admitted as co-plaintiffs. Four separate demurrers to the bill were filed, one of them being by the assignees in bankruptcy, and another by the New York and New England Railroad Company. They set forth, as grounds of demurrer, among other things, want of equity and laches. The case was heard on the demurrers, and in January, 1883, a. decision was rendered, 14 Fed. Rep., 753, dismissing the bill, on which a decree to that effect was entered, from which Graham and Raymond have appealed. The mortgage covered all the property of the company in Massachusetts, Rhode Island, Connecticut, and New York. In December, 1865, there remained to be built, of the projected 164 OCTOBER TERM, 1885. Opinion of the Court. line of the road, 74 miles between Waterbury, Connecticut, and Fishkill, New York, and 26 miles in Connecticut, between Willimantic and Mechanicsville. The aggregate amount of liens, at that time, on the property and franchises owned or leased by the company, and which were prior liens to the $20,000,000 mortgage, (which will be called the Berdell mortgage,) was $9,904,650. The object of making the Berdell mortgage was to retire this prior lien debt and complete and equip the road, from Boston to Fishkill. In January, 1870, default was made in paying the six months’ interest which then fell due on the mortgage. Soon thereafter, the company’s property was taken on legal process in several suits. In July, 1870, George Ellis and two other persons filed a bill in equity, in the Supreme Judicial Court of Massachusetts, to foreclose the mortgage. Receivers were appointed, who took possession of the road August 2, 1870. In October, 1870, an involuntary petition in bankruptcy was filed against the company, in the District Court of the United States for the District of Massachusetts, on which an adjudication was made March 2, 1871. Assignees were appointed, who, after the foreclosure was perfected, released to the trustees under the mortgage all the rights of the company in the mortgaged property. On the 9th of May, 1871, a decree was made in the Ellis suit, providing for the delivery of the mortgaged property by the receivers to the trustees; for the filing by the latter, in the office of the Secretaries of State of Massachusetts, Rhode Island, Connecticut, and New York, of a notice that they had taken possession of the property for default in the payment of interest on the bonds, “ and with their purpose ” to foreclose the mortgage for such default; and for the vesting of the property absolutely and in fee in the trustees, if default in the performance of the condition of the mortgage should continue for eighteen months after the notice should be filed, in which case all equity of redemption of the mortgagor should be barred. In September, 1871, the trustees entered and took possession for foreclosure and filed the notices so provided for. The no- GRAHAM v. BOSTON, HARTFORD & ERIE R.R. CO. 165 Opinion of the Court. tices were of the character mentioned in the mortgage, which provided that, if a default in paying principal or interest should continue for eighteen months after the filing of the notices, the property should vest in fee in the trustees, without further process of law, and all equity of redemption of the mortgagor should be barred. The forclosure having been perfected, the trustees, pursuant to a decree made in June, 1875, in the Ellis suit, conveyed the mortgaged premises and franchises to the New York and New England Railroad Company, a corporation organized by the former bondholders, and delivered to it the property. The first ground alleged in the bill for declaring the mortgage invalid is, that it was authorized and made at a meeting of the shareholders of the company held in the city of New York ; that it was not a corporation of New York, but was a corporation of Connecticut, Massachusetts, and Rhode Island; and that, therefore, the meeting was illegal and the mortgage void. The Circuit Court held that the corporation was a New York corporation; that the meeting was lawfully held; and that its proceedings were valid and binding on the company. In the mortgage the company is described as “ a corporation existing under the laws of the States of New York, Connecticut, Rhode Island, and Massachusetts.” The mortgage recites that “ the shareholders of the Boston, Hartford and Erie railroad Company, at a meeting duly and lawfully called and held at the city of New York, on the fourteenth day of March, a.d. 1866, voted to authorize the directors to make application to the several legislatures of the States in which the chartered rights of the road exist, for authority to make a mortgage upon the whole or any portion of the line of the road, and to create, issue, and dispose of, at the best rates that can be obtained, their convertible bonds, payable in the city of New York, on the first day of July, a.d. 1900, for one thousand dollars each, not to exceed the amount of twenty millions of dollars in all,” with authority to the directors to make a portion of the bonds payable in London, “ interest payable semi-annually on the first days of January and July in each year, at the rate of seven per cent, per annum, interest and principal to be 166 OCTOBER TERM, 1885. Opinion of the Court. payable at such places in the city of New York or in London as the directors may authorize; and the particular form of bonds, interest warrants thereon, and mortgage, to be left entirely at the discretion of the board of directors; the said bonds to be issued for the purpose of providing for and retiring all the existing mortgage debt and prior liens upon the line of the road of the party of the first part, and for the purpose of completing and equipping their road; ” that “ the said board of directors, at a meeting duly convened and held in the city of New York, on the nineteenth day of March, 1866, voted to authorize the creation and issue of the first-mortgage bonds of said company, in the following form ” (a form of a bond is here inserted) ; and that “ the said directors, at their said meeting, further voted to empower bonds of said form . . . hereafter to be issued, and to be secured under the mortgage, . . . but not in a greater principal sum than twenty millions of dollars in all; . . . and further, at the same time, voted to secure the entire issue of said bonds by the execution of a mortgage in the form of these presents.” It then conveys to the trustees named the railroad of the company, commencing at the foot of Summer street, in Boston, and thence extending through the States of Massachusetts, Connecticut, Rhode Island, and New York, to the western terminus of its location on the east bank of the Hudson River, at Fishkill, together with all the privileges, franchises, and property then owned or thereafter to be acquired by the company. On the 25th of April, 1864, an act had been passed by the Legislature of New York, Laws of New York, 1864, ch. 385, p. 884, entitled “An Act to consolidate the Boston, Hartford and Erie, the Boston, Hartford and Erie Extension, and the Boston, Hartford and Erie Ferry Extension Railroad Companies.” It provided as follows : “ The Boston, Hartford and Erie Extension Railroad Company, and the Boston, Hartford and Erie Ferry Extension Railroad Company, may both, or either, sell and convey to the Boston, Hartford and Erie Railroad Company the franchise and property of said several corporations, upon such terms as may be mutually agreed upon; and whenever certificates, under oath, of said Boston, Hartford and Erie GRAHAM v. BOSTON, HARTFORD & ERIE R.R. CO. 167 Opinion of the Court. Railroad Company, and a like certificate, under oath, of the other contracting corporation, shall be lodged in the office of the Secretary of State, showing such sale and conveyance, and containing a full description of the rights and property conveyed, then, and in such case, such sale and conveyance shall be effectual in law to pass title to the franchise and property sold, conveyed, and described in such certificate, without other or further registry of the instrument of conveyance. And on the leaving of such certificate as above provided, the Secretary of State shall file and record the same, and said Boston, Hartford and Erie Railroad Company shall become possessed of the rights of charter and property sold, conveyed, and described in. said certificates, and may have, hold, and use the same in their own name and right, as a portion of their railway line and property, and have all the rights the corporation making sale and conveyance had at the time of such conveyance, to construct and operate a railway within the terminal points designated in the charter of the company making the conveyance, and subject to the laws of this State, passed, or that may be passed, concerning railroad corporations.” This act professes, in its title, to be an act to consolidate the three companies. It authorizes the sale to the Boston, Hartford and Erie Company of the franchises and property of the other two corporations, (which were New York corporations,) and provides that such sale shall pass the title to such franchises and property, and that the purchasing company shall thereby “ become possessed of the rights of charter and property sold,” and thereafter have, hold, and use the same in. its “ own name and right.” As a purchaser of what this act authorized to be sold to it, the company purchasing became a New York corporation, by its then existing name. The case is directly within the ruling of this court in Clark v. Barnard, 108 U. 8. 436, 448. There this same company had, as a Connecticut corporation, purchased the franchises and railroad of the Hartford, Providence and Fishkill Railroad Company, a consolidated corporation under the laws of Connecticut and Rhode Island. Afterwards the Legislature of Rhode Island ratified the sale, so far as the rail- 168 OCTOBER TERM, 1885. Opinion of the Court. road was situated in Rhode Island, by an act which proceeded to declare that the “said Boston, Hartford and Erie Railroad Company, by that name, shall and may have, use, exercise, and enjoy all the rights, privileges, and powers heretofore granted and belonging to said Hartford, Providence and Fishkill Railroad Company, and be subject to all the duties and liabilities imposed upon the same by its charter and the general laws of this State.” On this state of facts, this court said: “ The Hartford, Providence and Fishkill Railroad Company was, without question, so far as it owned and operated a railroad within the State of Rhode Island, a corporation in and of that State; and the Boston, Hartford and Erie Railroad Company became its legal successor in that State, as owner of its property, and exercising its franchises therein, and became, therefore, in respect to its railroad in Rhode Island, a corporation in and of that State; ” and the case of Railroad Co. v. Harris, 12 Wall. 65, 82, and other cases in this court, were cited to the effect that one State may make a corporation of another State, as there organized and conducted, a corporation of its own, quoad any property within its territorial jurisdiction. That this statute of New York was acted upon and availed of by the Boston, Hartford and Erie Company sufficiently appears from the bill. It is not pretended there was any other charter to the company from the State of New York, when the mortgage was made. The ratification of the mortgage by the Legislature of New York, hereafter mentioned; the recording of the mortgage and of the resignations and appointments of trustees, in counties in New York; and the recognition, by a statute of New York, passed May 21, 1873, Laws of New York, 1873, ch. 550, p. 861, of the New York and New England Company as the successor, as a corporation, through the mortgage, of the mortgagor company, sufficiently show that the New York interest came through the New York act of April 25, 1864. See, also, In re Boston, Hartford and Erie R. R. Co., 9 Blatchford, 409, 415. That a meeting in one of several States of the stockholders of a corporation chartered by all those States is valid in re- GRAHAM v. BOSTON, HARTFORD & ERIE R.R. CO. 169 Opinion of the Court. spect to the property of the corporation in all of them, without the necessity of a repetition of the meeting in any other of those States, is, we think, a sound proposition. Whether it be or be not true that proceedings of persons professing to act as corporators, when assembled without the bounds of the sovereignty granting the charter, are void, Hiller v. Ewer, 27 Maine, 509, there is no principle which requires that the corporators of this consolidated corporation should meet in more than one of the States in which it has a domicil, in order to the validity of a corporate act. It appears by the bill that the mortgagor corporation was chartered by its name, by the Legislature of Connecticut, at its May session, 1863 ; that thereafter acts were passed by the Legislatures of Massachusetts and Rhode Island, making it a corporation of those States; that, in August, 1863, the Southern Midland Railroad Company, having previously acquired all the franchises and property of the Boston and New York Central Railroad Company, a corporation chartered under the laws of Massachusetts, Connecticut, and New York, conveyed all its franchises and property to the Boston, Hartford and Erie Company ; and that, in November, 1863, the latter company, under authority contained in acts of the legislatures of all four of the States, acquired the franchises and property of the Hartford, Providence and Fishkill Railroad Company, a corporation created under the laws of New York, Rhode Island, and Connecticut. The Boston, Hartford and Erie Company, therefore, though made up of distinct corporations, chartered by the legislatures of different States, had a capital stock which was a unit, and only one set of shareholders, who had an interest, by virtue of their ownership of shares of such stock, in all of its property everywhere. In its organization and action, and the practical management of its property, it was one corporation, having one board of directors, though, in its relations to any State, it was a separate corporation, governed by the laws of that State as to its property therein. It, therefore, had a domicil in each State, and the corporators or shareholders could, in the absence of any statutory provision to the contrary, hold meet- 170 OCTOBER TERM, 1885. Opinion of the Court. ings and transact corporate business in any one State, so as to bind the corporation in respect to its property everywhere. Bridge Co. v. Mayer, 31 Ohio St. 317 ; Pierce on Railroads, 20. In addition to this, the Legislatures of Rhode Island, New York, Massachusetts and Connecticut, by acts passed after the mortgage was made, expressly ratified and confirmed the proceedings of the company in. making it, each act being substantially in these words: “ The proceedings of the Boston, Hartford and Erie Railroad Company, whereby, by indenture dated March nineteenth, eighteen hundred and sixty-six, they conveyed their railroad and property in mortgage to Robert H. Berdell, Dudley S. Gregory, and John C. Bancroft Davis, trustees of the bondholders in said mortgage mentioned, to secure the holders of said bonds the payment of the same, are hereby ratified and confirmed.” Private Acts of Rhode Island, January Session, 1866, p. 294; Laws of New York, 1866, ch. 789 ; Laws of Massachusetts, 1866, ch. 142 ; Private Acts of Connecticut, May Session, 1866, p. 169. These acts ratified “ the proceedings ” of the company whereby the mortgage was made. As the mortgage states, on its face, that the meeting of the shareholders at which they voted to authorize the directors to apply for legislative authority to make the mortgage was “ duly and lawfully called and held at the city of New York,” the holding of the meeting there was ratified as a part of the proceedings. The irregularity, if any, was one which the legislatures of the four States could rectify, as they did, because all of them, acting together for the one purpose, could have authorized in advance the holding of the meeting at New York. Grenada Co. v. Brogden, 112 U. S. 261; Anderson n. Santa Anna, 116 IT. S. 356 ; Shaw v. Norfolk R. R. Co., 5 Gray, 162; Howe v. Freeman, 14 Gray, 566. It is urged by the appellants, that it appears from the mortgage, that the vote at the meeting was merely one to authorize the directors to apply to the several legislatures for authority to make a mortgage; that five days after the vote the mortgage was executed; that the shareholders never voted to authorize the making of a mortgage; and that, therefore, GRAHAM v. BOSTON, HARTFORD & ERIE R.R. CO. 171 Opinion of the Court. the mortgage was invalid. The sufficient answer to this contention is, that the terms of the vote, as recited in the mortgage, are adequate to confer authority on the directors, acting for the company, to make the mortgage, after the legislatures should have granted authority to make it; and that the subsequent ratification by the legislatures is equivalent to previous authority. The terms of the mortgage are specified in detail in the vote, the mortgage conforms to them, and the vote is to be construed as covering authority from the shareholders to make the mortgage, if legislative authority should be given. It sufficiently appears that the four confirmatory acts were passed before the mortgage was recorded anywhere, and before any bonds secured by it were issued. Moreover, the mortgage has been ratified by acts of the legislatures of the four States confirming the organization of the New York and New England Railroad Company, as successor, through the mortgage, of the Boston, Hartford and Erie Company. The acts of Massachusetts and Connecticut are substantially in these terms: “ The proceedings of the holders of the bonds secured by mortgage, dated March nineteen, eighteen hundred and sixty-six, from the Boston, Hartford and Erie Railroad Company to Robert H. Berdell and others, whereby they have formed a corporation under the name of the New York and New England Railroad Company, are ratified and confirmed.” Laws of Massachusetts, 1873, ch. 289; Special Acts of Connecticut, May Session, 1873, p. 8. The act of Rhode Island is in these terms: “ The New York and New England Railroad Company, being a corporation formed under the provisions of a mortgage made by the Boston, Hartford and Erie Railroad Company to Robert H. Berdell and others, trustees, and ratified and confirmed by the General Assembly at the January session, 1866, is hereby recognized and declared to be a corporation invested with all the powers, privileges and franchises, and subject to all the duties, liabilities and restrictions of said Boston, Hartford and Erie Railroad Company, as is provided in said mortgage, and the proceedings of the holders of the bonds secured by said mortgage, whereby they have formed said corporation, are hereby ratified and confirmed.” Private 172 OCTOBER TERM, 1885. Opinion of the Court Acts of Rhode Island, May Session 1873, p. 13. The act of New York extends for two years the time for the completion of the Boston, Hartford and Erie Railroad, and then says: “ The benefit of this extension of time shall vest in the New York and New England Railroad Company, a corporation formed under the provisions of the mortgage ratified and confirmed by chapter seven hundred and eighty-nine of the laws of eighteen hundred and sixty-six.” Laws of New York, 1873, ch, 550. It is also contended by the appellants, that the mortgage was void for fraud. The bill contains these allegations: “ And your orator is informed and believes, and therefore avers, that said meeting was held in the State of New York, beyond the States in which said corporation was created, so that as few stockholders as possible, because of the distance from their homes, might attend said meeting, in order that the stockholders present, representing or acting in the interest of the Erie Railway, might, by authorizing a mortgage of its franchises, raise a large sum of money, a portion of which should afterwards be diverted to the use of said Erie Railway; which was done, as is hereinafter fully set forth, to the extent of five millions of dollars. And your orator claims that by reason of the meeting being so held for the purposes aforesaid, and in the place aforesaid, said meeting was illegal, and all its acts and doings were null and void.” “ And your orator, upon information and belief, further avers, that on or about October in the year 1867, said Eldridge, then being the president of the Boston, Hartford and Erie Railroad, and also president of the Erie Railway, and while said Davis and Gregory were trustees as aforesaid, and said Davis being the legal counsel and adviser of said Erie Railway, said parties colluded and agreed together as such trustees, and the president of said Boston, Hartford and Erie Railroad, and as well of the Erie Railway, of which the majority of said trustees were counsel and president, and sold five millions of said bonds at a discount of twenty per cent., receiving therefor the promises to pay at future dates, the exact dates of which your orator is ignorant, but which will appear upon the books of said railroad, which were afterwards discounted at great loss GRAHAM v. BOSTON, HARTFORD & ERIE R.R. CO. 173 Opinion of the Court. and cost to said Boston, Hartford and Erie Railroad, in order to convert the same into cash, and the money obtained thereon was not used in equipping and finishing said road, nor in taking up the underlying liens on said road, but was used in paying the losses that said officers of said Boston, Hartford and Erie Railroad had made in speculations in stocks in the name of said road. And your orator, upon information and belief, further avers, that said Erie Railway guaranteed the payment of the interest on the $5,000,000 of Berdell bonds, and sold and disposed of the same in buying certain property for said Erie Railway at ninety cents on the dollar for said bonds; and that this whole transaction was made for the benefit of said Erie Railway, in accordance with a contract made between the officers of the two roads, the said officers that made and concluded said transactions and contract being substantially one and the same persons.” The substance of these allegations is, that the persons who acted in the interest of the Erie Railway Company intended, by means of the mortgage, to raise money which should be diverted to the use of that company. But it is not alleged that the price of 80 per cent, was not the full value of the $5,000,000 of bonds; and the guarantee by the Erie Railway Company of the payment of the interest on those bonds, may very well have enhanced their value by 10 per cent. The diversion of the proceeds of the 80 per cent, by the officers of the Boston, Hartford and Erie Company, to pay for losses by them in speculations in stocks, is something which, as regards that company,, and its rights, which alone the appellants are seeking to enforce, cannot affect the rights of the ultimate purchasers of the $5,000,000 of bonds, represented now by the New York and New England Company. Of the $20,000,000 of bonds, the $7,404,650 used in retiring underlying mortgage bonds, and the $275,350 used in completing or equipping the road, being, in all, $7,680,000, were clearly valid. As to the $2,500,000 of bonds, which were, by the terms of the mortgage, to be applied to the retirement of underlying liens, and were apparently issued to the State of Massachusetts in exchange for a loan of its scrip, that State, taking the bonds 174 OCTOBER TERM, 1885. Opinion of the Court. with notice of the diversion, might have been liable, as a constructive trustee, to the holders of such underlying liens, for the proper application of the bonds, but certainly owned them as against all the world but such cestuis que trust; and it would seem that the proceeds of the bonds were used in completing and equipping the road. As to the $4,819,000 alleged to have been stolen by Eldridge, there is nothing to show that they had not come to be held by bona fide holders. Some of the bonds being valid, the mortgage was valid as to them, though there may have been some invalid bonds. In the Ellis foreclosure suit, the fact that some of the bonds may have been invalid, was of no importance unless and until the mortgagor offered to redeem the valid bonds. The holders of the invalid bonds could not share in the benefits of the foreclosure, and the holders of the valid bonds would see that that rule was observed in the foreclosure suit. The agreement of facts on which the Ellis suit was heard states that all of the 20,000 bonds but one were issued, and that the same were, at that time, “ wholly or in great part owned by bona fide holders thereof.” It is contended by the appellants, that they were not parties to the Ellis foreclosure suit; that it was a collusive suit, without any real controversy; that it is still pending; and that the proceedings and decree in it are not binding on the appellants. There are provisions in the Berdell mortgage, that, in case of default by the company in the payment of either principal or interest of the bonds, the company shall deliver possession of the mortgaged premises to the trustees; that, on taking possession, the trustees shall file in the office of the Secretaries of State of the States of Massachusetts, Rhode Island, Connecticut, and New York, a written notice that they have taken possession of the mortgaged property, franchises, and estate, for default in the payment of principal or interest, or both, as the same may he, and of their purpose to foreclose the mortgage for the default; that, if the default shall continue for eighteen months after such notice shall be filed, the whole of the mortgaged premises and franchises shall vest absolutely and in fee in the trustees, and all the right or equity of redemp- GB,AHAM v. BOSTON, HARTFORD & ERIE R.R. CO. 175 Opinion of the Court. tion of the company therein shall be forever barred and foreclosed ; that, in case of an absolute foreclosure, it shall be the duty of the trustees to call a meeting of the bondholders, by an advertisement of the time and place and object thereof, in newspapers published in Boston, Providence, Hartford, New York City, and London, at which meeting the bondholders may organize themselves into a corporation, with a corporate name to be selected by them, and a capital stock equal to such outstanding mortgage debt, which new corporation shall have all the powers, privileges, and franchises, and be subject to all the duties, liabilities, and restrictions of the old company, and shall consist of the holders of the mortgage bonds, at a prescribed rate; and that the trustees shall convey to the new corporation all the mortgaged property and franchises. The mortgage also contains provisions for the filling of vacancies in case of the death, resignation, or removal of any of the trustees, and for the vesting of all the mortgaged property in the persons so appointed. The following facts appear from the bill in this suit, and from a copy of proceedings in the Ellis suit, made a part of it: On the 15th of July, 1870, George Ellis and others filed their bill of complaint in the Supreme Judicial Court of Massachusetts,’sitting in equity, in behalf of themselves and all other holders of the mortgage bonds, representing that they were the owners of forty-seven of the bonds, and of the interest warrants thereon which had matured on the first days of January and July of that year and were unpaid, and praying for the appointment of a receiver and for the foreclosure of the mortgage. On the 2d of August, 1870, an order was entered in the cause appointing receivers and directing them to take possession of the road and property. On the 9th of May, 1871, a decree was entered in the cause, in which, after reciting that the court, on the 24th of April, 1871, had decided and decreed that Moses Kimball, Thomas Talbot, and Avery Plumer were, in law, the present trustees under the mortgage, it was adjudged and decreed by the court, that the receivers deliver into the possession and control of these trustees, or their successors in office, all the roads, railways, property, and fran- 176 OCTOBER TERM, 1885. Opinion of the Court. chises which, they had in their hands and possession, or under their management and control, as such receivers ; that the trustees, or their successors in office, upon taking possession of the property, should file in the office of the Secretaries of State of the four States the notice authorized by the mortgage ; and that, if default in the performance of the condition of the mortgage should continue for the space of eighteen months after the filing of such notice, the mortgaged premises and franchises should vest absolutely and in fee in the trustees and their successors, and all right or equity of redemption of the company therein should be forever barred and foreclosed. By a decree entered July 28, 1871, William T. Hart, George T. Oliphant, and Charles P. Clark were declared by the court to be, by valid succession and appointment, trustees in place of Kimball, Talbot, and Plumer, who had resigned, and their successors in the trusts. Under these decrees the trustees entered into possession of the mortgaged property, and on the 16th of September, 1871, filed in the offices of the Secretaries of State of the four States the notices of foreclosure, and, the default still continuing, maintained their possession for a period of more than eighteen months thereafter. On the 18th of March, 1873, they called a meeting of the bondholders, as authorized in the mortgage, for the purpose of organizing themselves into a corporation. At this meeting, held in Boston, on the 17th of April, 1873, a corporation was formed, under the name of the New York and New England Railroad Company. By the before-mentioned acts of the legislatures of the several States, the proceedings of the meeting were ratified and confirmed ; and the new corporation has since been in possession of the road and franchises, under a conveyance from the trustees, so authorized. The bill contains an averment that the Ellis suit has never proceeded to a final determination and decree, and is still pending in court. There is, in the bill, an alternative prayer, that, if the court shall not decree the mortgage to be invalid, it will establish and confirm the trusts under it, and remove the persons now administering the trusts, and appoint new trustees to take possession of the mortgaged property, and hold it, under the direc- GRAHAM v. BOSTON, HARTFORD & ERIE R.R. CO. 177 Opinion of the Court. tion of the court, for the benefit of the creditors and stockholders ; and that an account be taken of the earnings of the road. On the foregoing statement of the case the Circuit Court said, in its decision: “ The case thus presented shows that prior to the filing of this bill, under a decree of a court of equity having jurisdiction of the parties and of the subjectmatter, the mortgage had been completely foreclosed. To avoid the effect of the foreclosure, the bill charges that the Ellis suit was the result of a fraudulent conspiracy on the part of Ellis, the plaintiff, Lane, the president of the company, who represented it in its defence, and the receivers and trustees appointed by the court, entered into for the purpose of embarrassing the company and depriving it of its road and property; and,that this fraud was perpetrated by submitting to the court false statements of facts for its decision, and thus obtaining a decree against the company. The bill does not allege in what particulars the statements of fact were false; nor does it allege that there was not a breach of the condition of the mortgage, nor that the plaintiffs were not the actual holders • of the bonds and unpaid interest warrants, nor that any part of the interest which has accrued since 1869 has ever been paid; nor is there any offer or suggestion for redeeming the mortgage. There is no allegation that the new corporation, or any considerable number of the bondholders, had any knowledge of the alleged fraud. The obvious inquiry arises, at this stage of the case, why the plaintiff has not brought to the attention of the State Court the fraud alleged to have been practiced upon it, and there sought to have the foreclosure decree revoked.” “ In Nougue, v. Clapp, 101 U. S. 551, it was held that a Circuit Court of the United States cannot revise or set aside a final decree rendered by a State Court,- which had complete jurisdiction of the parties and subject-matter, upon the ground that the decree was obtained by fraud, where the injured party has had an opportunity to apply to the State Court to reverse the decree. The plaintiff is a party to the foreclosure suit, as a shareholder in the old corporation. The State Court is still open to listen to the complaint of the corporation VOL. CXVIII—12 178 OCTOBER TERM, 1885. Opinion of the Court. and its shareholders. The decree of foreclosure, though final in one sense, as determining the respective rights of the parties to the property in question, is still in its nature interlocutory, and is open to review by the court, upon petition or motion in the cause, or by bill of review for good cause shown. Story Eq. Pl., § 421, and note; Evans v. Bacon, 99 Mass. 213; Mass. P. S., ch. 151, § 12. The plaintiff has, therefore, an ample and complete remedy, for all his alleged grievances, in the State Court, and there is no occasion for his application to this court for relief by bill in equity. The decree of foreclosure, therefore, now in full force and unrevoked, is a bar to this suit.” These views, so well expressed, are conclusive of this branch of the case, and require nothing more to be said. The mortgage being a valid mortgage, even if some of the bonds issued under it were invalid, and the right of redemption having passed to the assignees in bankruptcy, and been released by them to the New York and New England Company, and a demurrer having pointed that out, the bill was amended so as to allege that the bankruptcy proceedings were void for fraud. It is claimed that those proceedings were a part of the conspiracy of Ellis and Lane and others, to which Adams, the petitioning creditor in bankruptcy, became a party, to wreck the road; and that the petitioning creditor’s debt was insufficient to give the bankruptcy court jurisdiction. The Circuit Court, as to these matters, correctly held these propositions : An adjudication of bankruptcy, made by a District Court having jurisdiction of the bankrupt, cannot be impeached collaterally by any person who was a party to the bankruptcy proceedings. Until vacated in the manner prescribed by the bankruptcy act, it is binding upon all the parties to it. The District Court is always open for a re-examination of its decrees in -an appropriate form. Any order made in the case may be set aside and vacated on proper showing made, due regard being had to rights which have become vested under it and will be disturbed by its revocation. The only remedy provided for the correction of errors made by the District Court is to be found in the supervisory jurisdiction of the Circuit Court, under the statute, which is exclusive, and not GRAHAM v. BOSTON, HARTFORD & ERIE R.R. CO. 179 Opinion of the Court. reviewable in. this court. In Lamp Chimney Co. N. Brass <& Copper Co., 91 U. S. 656, it was held, that a decree adjudging a corporation bankrupt is in the nature of a decree in rem, as respects the status of the corporation ; and that, if the court rendering it has jurisdiction, it can only be assailed by a direct proceeding in a competent court, unless it appears that the decree is void in form, or that due notice of the petition was never given. No such defect appears in these proceedings. Thé District Court had jurisdiction to make the decree, and it has never been vacated. The plaintiff, and all the shareholders whom he represents, form an integral part of the corporation, and as such were parties to the bankruptcy proceedings. He is, therefore, bound by the decree, and cannot impeach it collaterally in this suit. On the subject -of laches, the Circuit Court said : “ This bill was filed fourteen years after the making of the mortgage, ten years after the commencement of the bankruptcy proceedings, nine years after the entry of the foreclosure decree in the Ellis suit, and seven years after the foreclosure became absolute and the road was conveyed to the new corporation by the trustees. During all this time the records of the courts upon which appear all the proceedings by which the alleged fraud is claimed to have been consummated have been open to inspection and examination, and what has been done under them might have been known to the plaintiff, if he had seen fit to make inquiry. In the meantime, it is apparent that many persons must have acquired rights in the stock of the new corporation, who were ignorant of the alleged frauds. Under such circumstances, to set aside this mortgage, to disregard the decree of foreclosure and the adjudication in bankruptcy, and to take the road out of the hands of the bondholders, who have received no interest on their bonds since 1869, and to place it in the hands of receivers for the benefit of the shareholders in the old corporation, is a proposition so wild and preposterous as hardly to merit serious consideration.” We concur fully in these views. The grounds for dismissing the bill being adequate, we do not deem it necessary to say anything as to the frame of the bill, within the settled rules of equity jurisprudence, in a case 180 OCTOBER TERM, 1885. Syllabus. where a stockholder in a corporation seeks to enforce, in equity, a right of the corporation. Much might be said as to the defects of this bill, and we only allude to the point, lest it might be inferred we regard the bill as properly framed, under those rules. , Decree affirmed. Mr. Justice Gray took no part in the decision of this case. GARDNER & Others v. HERZ & Another. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Argued April 19,1886.—Decided May 10,1886. Claim 2 of reissued letters patent No. 9094, granted to William Gardner, Oliver L. Gardner and Jane E. Gardner, February 24, 1880, for an improvement in chair-seats, (the original patent, No. 127,045, having been granted to George Gardner and Gardner & Gardner, as assignees of George Gardner, as inventor, May 21, 1872, and having been reissued as No.* 7203, to George Gardner, William Gardner and Jane E. Gardner, July 4,1876,) namely, “2. A chair-seat made of laminas of wood glued together, with the- grains in one layer crossing those of the next, concave on the upper surface, convex on the lower surface, and perforated, as a new article of manufacture, substantially as set forth,” does not claim any patentable invention. A patent cannot be taken out for an article, old in purpose and shape and mode of use, when made for the first time out of an existing material, and with accompaniments before applied to such an article, merely because the idea has occurred that it would be a good thing to make the article out of that particular old material. The suggestion in the second reissue, that “the seat is adapted to be secured to any chair-frame, as it is easily cut and fitted to the same,” is not found in the original patent, or in the first reissue, and is new matter, so far as anything in it can be invoked to confer patentability on the article. The question as to whether the thing patented amounts to a patentable invention, may be raised by a defendant in a suit for infringement, independently of any statutory permission so to do. Under the Constitution and the statute, a thing to be patentable, must not only be new and useful, but it must amount to an invention or discovery. GARDNER v. HERZ. 181 Opinion of the Court. In equity. The case is stated in the opinion of the court. Mr. Edward N. Dickerson for appellants. Mr. James P. Foster for appellees. Mr. Justice Blatchford delivered the opinion of the court. This is a suit in equity, brought in the Circuit Court of the United States for the Southern District of New York, by William Gardner, Oliver L. Gardner and Jane E. Gardner against Martin Herz and John K. Mayo, for the infringement of reissued letters patent No. 9094, granted to the plaintiffs, February 24, 1880, for an improvement in chair-seats, (the original patent, No. 127,045, having been granted to George Gardner and Gardner & Gardner, as assignees of George Gardner, as inventor, May 21, 1872, and having been reissued as No. 7203, to George Gardner, William Gardner and Jane E. Gardner, July 4, 1876). The application for the first reissue was filed April 8, 1876, and that for the second October 31, 1879. The drawings annexed to the original patent and each of the reissues were substantially the same. Those of the second reissue were as follows: 182 OCTOBER TERM, 1885. Opinion of the Court. The specification and claim of the original patent were in these words: “ Figure one is a plan view, partly in section, the section showing the middle layer of veneer. Fig. 2 is a longitudinal section, taken on the line x x of Fig. 1. Similar letters of reference refer to like parts in both of the figures. “ This invention relates to chair-seats; and it consists in constructing a seat out of veneers of wood, with the grain running across each other and glued together. “ I have shown, in the drawing accompanying this specification, three layers of veneers, they being represented by the letters ABC. The grain of veneer A crosses that of veneer B, as shown in section in Fig. 1, and the grain of veneer B crosses that of veneer C, as seen in Fig. 2. Veneers when thus ar- GARDNER v. HERZ. 183 Opinion of the Court. ranged, that is to say, with the grain running in diverse directions, will make a seat which, for economy and durability, will be found to be a very useful improvement. The seats may be left solid, or perforated after some design agreeable to the fancy of the one having them made. A slightly concave configuration may be given to the seat, as shown in Fig. 2. “ Seats thus made do not cost as much as those that are made of cane, and are better by far in point of durability. “The veneers rest upon a shoulder,^, of a frame, Fy which surrounds them. “ Having thus described my invention, what I claim and desire to secure by letters-patent is— “As a new article of manufacture, a chair-seat constructed of veneers of wood with the grain running crosswise of each other and glued together, all substantially as set forth, and for the purpose specified.” The specification and claims of the first reissue were in these words: “ Figure 1 is a plan view, partly in section, of my improved seat, the section showing the middle layer of veneer. Fig. 2 is a view of my improved seat for chairs, settees, &c., this figure showing a longitudinal section of the seat, taken on the line x of Fig. 1. Similar letters of reference refer to like parts in both of the figures. “ This invention relates to bottoms for seats, and consists in constructing the said seats of two or more veneers of wood, with the grains crossing each other, the said veneers of wood being glued together by an adhesive substance. “ I have shown in the drawing accompanying this specification three layers of veneer, applied to the construction of and forming a seat for chairs. These layers of veneer are represented by the letters A, B and C. The grain of veneer A crosses that of veneer B, as shown in section in Fig. 1, and the grain of veneer B crosses that of veneer C, as seen in Fig. 2. Veneers, when thus arranged, that is to say, with the grains crossing each other, or diversified, will make a seat which, for durability and economy, will be found to be a very useful improvement. I make the seat either solid, or perforated as shown 184 OCTOBER TERM, 1885. Opinion of the Court. in Fig. 1. A slight concave configuration may be given to the seat. “ The perforated seats are made by boring a round hole of any design desired; and they may be bored either by hand or by machinery adapted for the purpose. The perforated seats are desirable, as they are ventilated and ornamental. “ I have especially shown and described my improved seat for chairs. The veneers of which this seat is constructed rest upon a shoulder,/", of a frame, F, which surrounds them, as shown in Fig. 2 of the drawing. The veneers, with the grains crossed or diversified and glued together, become homogeneous, thus making a solid piece of wood, from which I make the bottom of the seat, which, when perforated and varnished, is ready for the market. “ Veneers, when thus arranged, that is to say, with the grain running crosswise or in diverse directions, will make a bottom for a seat which, for economy and durability, will be found to be a very useful improvement. The bottoms thus made may be left solid, or perforated after some design agreeable to the fancy of the one having them made. A slightly concave configuration may be given to the bottom, as shown in Fig. 2, which greatly adds to the comfort of the party using it. The bottom thus made is secured to a frame, F, which surrounds it, and through the latter is secured to the seat-frame, K. “ Having thus described my invention, what I claim is— “ 1. As a new article of manufacture, a bottom for a seat, constructed of two or more veneers or thin layers of wood, with the grain of the one layer crossing that of the other, and the whole secured together with an adhesive substance, substantially as set forth. “ 2. As a new article of manufacture, a bottom for a seatframe, constructed of two or more veneers or thin layers of wood, with the grain of the one layer crossing that of the other, said layers being secured together by an adhesive substance, and having perforations formed therein for the purpose of ventilation or ornamentation, substantially as set forth. “ 3. The combination of a seat-bottom, constructed of two or GARDNER v. HERZ. 185 Opinion of the Court. more veneers or thin layers of wood, with the grain of the one layer crossing that of the other, and the whole secured together by an adhesive substance, with the frame of the seat, substantially as set forth. “ 4. The combination of a seat-bottom, constructed of two or more veneers or thin layers of wood, the grain of the one layer crossing that of the other, and the whole secured together by an adhesive substance, and provided with perforations for the purpose of ventilation or ornamentation, with the frame of a seat, substantially as set forth. “ 5. As a new article of manufacture, a wooden bottom for seats, provided with perforations for the purpose of ventilation or ornamentation. “ 6. As a new article of manufacture, a seat-bottom constructed of two or more veneers or thin layers of wood, the grain of the one layer crossing that of the other, and secured together by an adhesive substance, said bottom thus formed having a curved or concave configuration on its upper side, substantially as set forth.” The specification and claims of the second reissue were in these words: “ The state of the art in relation to devices having a similarity to my invention may be set forth as follows: In letterspatent No. 15,552, granted ” to John H. Belter, “ August 19, 1856, a bedstead is described made of veneers glued together, with the grains crossing, and in such patent there is a statement that veneers crossing and glued together had been used for combining strength and lightness. In letters-patent No. 19,405,” granted to John H. Belter, “February 23,1858, chairs and other articles of furniture are described as made of layers of wood or veneers crossing each other, glued together, and pressed to shape. In letters-patent No. 40,509, granted November 3, 1863, boxes are described as made of veneers or layers of wood crossing each other and glued together. In letters-patent No. 23,225, granted” to Zebulon B. Bellows, “ March 15, 1859, a chair-bottom is described as made of a piece of board softened by steam and pressed up to shape in moulds. In letters-patent No. 110,096, December 13,1870, 186 OCTOBER TERM, 1885. Opinion of the Court. a barrel is described of laminae of wood with the grain crossing and glued together. Sheet metal perforated to form chair-bottoms is set forth in A. S. Smith’s patent, reissued” to Isaac P. Tice, “ June 27, 1865. Chair-seats of enamelled hard rubber and gutta-percha perforated are set forth in letters-patent No. 54,863,” granted to J. W. Cochran, “ May 7, 1866. Letters-patent No. 51,735, granted December 26,1865, to J. K. Mayo, set forth numerous articles made of laminae of wood; and in a subsequent reissue, dated August 18, 1868, mention is made of a chair-seat, but the same was neither concave nor perforated. “ My invention, as distinguished from the foregoing, relates to a new article of manufacture, consisting of a chair-seat made of veneers of wood, with the grains of one veneer crossing the other and glued together, and having a concave or dishing form, and perforated. “ From the foregoing it will be apparent that I do not lay any claim to the veneers crossing each other and glued together, as these have been used for various purposes, and even for furniture, and have become public property. Neither do I claim the pressing of a chair-seat into a concave form by dies. Neither do I claim a perforated seat, as sheet metal has been employed ; but it is cold to the person, and liable to break and to catch the clothing. Neither do I claim a single layer of such material as hard rubber or gutta-percha perforated. This is so expensive as not to be adapted to general use. “ My chair-seat is a new article, possessing great strength and durability. It is very light and cheap. It forms an agreeable seat. It is not hot in summer or cold in winter. The perforations give the wood a handsome appearance and afford the required ventilation, and the seat is adapted to be secured to any chair-frame, as it is easily cut and fitted to the same, and the cost of these seats is less than those made of cane, and they are much more durable. “ In the drawings, Figure 1 is a plan, with the upper layer of veneer partially removed. Fig. 2 is a vertical section of the chair and seat. “ I have shown three layers of veneers, ABC. The grain of the veneer A crosses that of the veneer B, and the grain of the GARDNER v. HERZ. 187 Opinion, of the Court. veneer B crosses that of the veneer C, and these are cemented together by suitable adhesive substance, such as glue. “ The seat is of a concave or dishing form, so as to be better adapted to the shape of the person, and the under side of the seat is convex. “ The perforations through the seat are to be arranged to produce any design that may be agreeable to the fancy of the person making or using the chair. These perforations make the seat light, and also ventilate the same. “ The edges of the seat rest upon and are secured to the chairframe ; and in Fig. 2 the frame is rabbeted to form shoulders, upon which the edges of the seat rest. “• I claim as my invention— “ 1. As a new article of manufacture, a chair-seat formed of laminae of wood with the grain crossed, glued together, and concave on the upper surface and convex on the lower surface, adapted to a chair-frame, substantially as set forth. “ 2. A chair-seat made of laminae of wood glued together, with the grains in one layer crossing those of the next, concave on the upper surface, convex on the lower surface, and perforated, as a new article of manufacture, substantially as set forth.” While the first reissue was in life the owners of it brought a suit in equity against the present defendants, in the same court, alleging infringement of the first five claims of the first reissue. An application being made for a preliminary injunction it was denied, in May, 1879. 16 Blatchford, 303. The patent of December, 1865, to the defendant Mayo, and division E of its reissue of August 18, 1868, (both of them mentioned in/Gardner’s second reissue,) being put in evidence, it was held that what was claimed in the first claim of Gardner’s first reissue was described in the two Mayo patents, both of which were issued prior to Gardner’s original patent. This related to the veneers, with crossing grains, glued together, of the first four claims of Gardner’s first reissue. As to the perforations of the second, fourth and fifth claims of that reissue, the Tice reissue of June 27, 1865, and the Cochran patent of May 22, 1866, (both of them mentioned in Gardner’s second 188 OCTOBER TERM, 1885. Opinion of the Court. reissue,) were put in evidence, and it was held, that they showed a chair-seat of perforated sheet metal, and one of perforated enamelled india-rubber or gutta-percha, containing every feature of ventilation and ornamentation, resulting from perforations, which Gardner’s perforated chair-seat exhibited; and that, in view of those prior perforated seats, there was no patentable novelty in perforating a wooden bottom. The conclusion of the court was, that there was nothing new or patentable in the first five claims of Gardner’s first reissue, in view of the patents referred to. It was not claimed that the sixth claim of that reissue had been infringed. The defendants’ seat bottom involved in that case was made of two or more veneers or thin layers of wood, with the grain of the one layer crossing that of the other, and the whole secured together with an adhesive substance; and there were slots or slits cut through the seat, as long as the length of the seat bottom from front to rear, leaving longitudinal holes of that length, and thus forming ribs or slats, the effect of which was to make the seat bottom yielding and elastic. A little over five months after this decision was made, the second reissue was applied for, and about four months after it was granted this suit was brought. The answer attacks the novelty and patentability of the invention and the validity of both reissues. After issue, proofs were taken, and in June, 1882, the Circuit Court rendered a decision, dismissing the bill, 20 Blatchford, 538, and from the decree to that effect the plaintiffs have appealed. The second claim is the only one in question. It will be well here to repeat it: “ 2. A chair-seat made of laminae of wood glued together, with the grains in one layer crossing thoseₜof the next, concave on the upper surface, convex on the lower surface, and perforated, as a new article of manufacture, substantially as set forth.” The defendants made and sold such chair-seats. Referring to the decision as to the first reissue, to the effect that veneers, with the grains of the successive layers crossed and cemented together, adapted for the construction of chairs and settees, were shown in the two Mayo patents, and that the GARDNER v. HERZ. 189 Opinion of the Court. Mayo reissue, division E, described the shaping of the material, when made pliable, by compression in a matrix or on formers, and that the Tice and Cochran patents showed perforated chair-seats of metal and gutta-percha, the Circuit Court held, in this case, that- the only question open, as to the second reissue, was, whether the concavity of form, made an element of the second claim of that reissue, would support the patent. Concurring, as we do, in the views and conclusions of the court, and finding them well expressed in its opinion, we repeat them here : “ Chair bottoms made of board and softened by steam and pressed to a concave shape in a mould, so that the form of the seat will conform to the shape of the person who may occupy it, are shown in the letters-patent issued to Z. B. Bellows, bearing date March 15,1859. So, also, the concave or dishing form of chair-seats had been adopted long before Gardner’s patent, in ordinary chair-seats. In the specification of the present reissue the inventor states that he does not lay any claim to the veneers crossing each other and glued together, as these have been used for various purposes and have become public property, and that he does not claim the pressing of a chair-seat into the concave form by dies. “ If there was no patentable novelty in using the perforations of the metal or gutta-percha chair-seats in the veneer seat by Gardner, neither can there seem to be any in employing a well-known form of chair-seat in his veneer seat. As it had been pointed out by Mayo that the material used is pliable and can be pressed into any desired form, and as the reissue disclaims the pressing of a chair-seat into a concave form, and as chairseats had been so formed, it is difficult to see how there was any invention in Gardner’s chair-seat. Gardner merely applied a process that was old to a material that was old, to obtain an old form. Considered as a combination, it is hardly possible to believe that the perforations or the concavity performed any new functions in the Gardner seat. An ingenious feature has been presented, to the effect that the perforations and concavity co-operate, in Gardner’s seat, to prevent warping and curling of the material used. If this is true, the same elements were 190 OCTOBER TERM, 1885. Opinion of the Court. combined in the Baillie chair-back and performed there the same functions they performed in the Gardner seat. It may be that the Gardner seat is mechanically a better seat than any which preceded it, but his improvement is not a patentable one. “ It is strenuously insisted, that the popularity and success achieved by the Gardner seat beyond those of his predecessors, affords cogent evidence both of the utility and patentable novelty of his invention. The answer to this argument is, that the success of his seat is probably due to a feature which is not suggested in the original patent, that is, its adaptability for use by unskilled workmen. His seats, as now made, can be fitted without mechanical skill to a bottomless chair, and are largely used to repair chairs in which the original seats have been worn out, and can be so used without any special skill. They are, also, largely sold to chair manufacturers, because they can be easily adapted to chairs of different sizes and seats of different forms. But, the chair-seat described in Gardner’s original patent, and shown in the drawings, did not practically possess this characteristic of adaptability, but was a frame seat, which could only be fitted to a chair by a skilled laborer. Such a chair-seat would fail to meet the peculiar want which the present chairseat supplies. Considered as a new article of manufacture, if the complainant’s chair-seat has no frame, and its novelty and utility consist in its adaptability to be sold separate from the frame, and to be readily applied by any person to any chair, then the reissue is for a different invention from that disclosed in the original patent. “ In conclusion, in view of the former decision of this court, the complainant can only succeed upon the theory that, by imparting a concave form to his chair-seat, he has imparted sufficient patentable novelty to his article to sustain a patent; and this when such a form of chair-seat was old, the material used was old, and the method of imparting the form to the material was old. This theory cannot stand.” On the argument of the appeal the following considerations were strongly urged, as grounds for reversing the decree: An article of manufacture is patentable, under section 4886 of the Re- GARDNER v. HERZ. 191 Opinion of the Court. vised Statutes, if it is new and useful. This chair-seat was new and useful. There did not exist before, as an article of manufacture, a chair-seat composed of laminæ of wood, with the grains crossed, and glued together, moulded to be concave, and perforated. The statute makes novelty and utility the only test of patentability. In a suit for infringement, the decision of the Commissioner of Patents is final, as to the matters involved in granting a patent, except as to the questions specifically enumerated as defences, in the five subdivisions of section 4920 of the Revised Statutes. Unless substantially the same thing existed before, the article, if useful, is new and patentable. The decision of the Commissioner of Patents to that effect is not reviewable in a suit on the patent. It is a sufficient answer to these suggestions to say, that the questions presented are not open ones in this court. In Ifahn v. Harwood, 112 U. S. 354, 358, it was said : “ The statutory defences are not the only defences which may be made against a patent. Where it is evident that the Commissioner, under a misconception of the law, has exceeded his authority in granting or reissuing a patent, there is no sound principle to prevent a party sued for its infringement from availing himself of the illegality, independent of any statutory permission so to do. . . . In cases of patents for inventions, a valid defence not given by the statute often arises where the question is, whether the thing patented amounts to a patentable invention. This being a question of law, the Courts are not bound by the decision of the Commissioner, although he must necessarily pass upon it.” Several cases in this court were there cited to this effect. On the other point presented it was said, in Thompson v. Boissdier, 114 U. S. 1, 11, that, under art. 1, sec. 8, subdivision 8 of the Constitution, a patentee “ must be an inventor and he must have made a discovery ; ” that “ the statute has always carried out this idea,” referring to § 6 of the act of July 4,1836, 5 Stat. 119, and § 24 of the act of July 8, 1870, 16 Stat. 201, and § 4886 of the Revised Statutes ; that “it is not enough that a thing shall be new, in the sense that, in the shape or form in which it is produced, it shall not have been before known, and 192 OCTOBER TERM, 1885. Opinion of the Court. that it shall be useful, but it must, under the Constitution and the statute, amount to an invention or discovery.” A large number of cases in this court were there referred to, and one especially, where the thing claimed was new, “ in the sense that it had not been anticipated by any previous invention, and it was shown to have superior utility, yet it was held not to be such an improvement as was entitled to be regarded in the patent law as an invention.” A case to the same effect at this term is Yale Lock Mfcj. Co. v. Greenleaf, 117 IT. S. 554. It is strongly urged that Gardner’s seat is cheap, strong, durable, can be applied to different chair-seat frames, can be sold separate from chair-seat frames, and can be applied to chair-seat frames by unskilled labor; and that, therefore, it was patentable. But these views are fully met by the observations of the court below, above set forth. The fabric being old, the suggestion to construct chair-seats out of it being old, the shaping of it in a former being old, the perforation of a seat for ventilation and ornamentation being old, and the giving of a concave shape to a wooden seat by pressure being old, there cannot, in view of the disclaimers in the second reissue, be anything patentable in the structure. It was convenient to sell and convenient to buy, and commercially a good article. But a patent cannot be taken out for an article, old in purpose and shape and mode of use, when made for the first time out of an existing material, and with accompaniments before applied to such an article, merely because the idea has occurred that it would be a good thing to make the article out of that particular old material. Beyond that, the suggestion in the second reissue, that “ the seat is adapted to be secured to any chair-frame, as it is easily cut and fitted to the same,” is not found in the original patent, or in the first reissue; and is new matter, so far as anything in it can be invoked to confer patentability on the article. The second reissue appears, by the decision of the examiners-in-chief of the Patent Office, on appeal, found in the record, to have been granted on the sole ground that Gardner’s chair-seat was an independent article, formed and shaped as described, to be put on the market by itself, and ready to be attached to a GARDNER v. HERZ. 193 Opinion of the Court. chair-frame, and not to be marketed as a component part of a chair, but as a seat ready to be fitted and affixed to a chair. Nothing to this purport being found in the original patent, or in the first reissue, and the first reissue having been applied for more than 3 years and 10 months, and the second reissue more than 7 years and 5 months, after the original patent was granted, no ground for patentability can be derived from the insertion of such suggestions in the second reissue. oo There was a recent instructive case in England, in the Court of Appeal, before Lord Coleridge and Justices Field and Bowen, Saxby v. Gloucester Waggon Co., 7 Q. B. D. 305, where the question was, whether “ the invention specified was such a substantial improvement on what had already been known and published as to render it the proper subject of a patent.” The specified patented combination did not before exist, but it existed with the exception of two pieces of mechanism, and their use for the purpose of doing what they did in the combination was well known. But it was held that the combination mig-ht have been made “ by any intelligent mechanical workman,” with no other instructions than those contained in a prior patent to the same inventor; and that there was no novelty in the combination sufficient to constitute a patent. In regard to another branch of the case, it appeared, that, taking two prior separate inventions together, every element of the patent in question was to be found in one or the other of those inventions, and it was held that the combination of the two prior inventions did not require “ an exercise of such an amount of skill and ingenuity as to entitle it to the protection of an exclusive grant.” This case is referred to for the purpose of showing that the question of patentability, as depending on the quantum of inventive skill in a given case, is one which the courts of England consider in a suit for infringement. See, also, Penn. Railroad Co. n. Locomotive Truck Co., 110 U. 8. 490, and the cases there collected. The decree of the Circuit Court is Affirmed. vol. cxvni—13 194 OCTOBER TERM, 1885. Opinion of the Court. ARROWSMITH v. HARMOKING, Administratrix & Others. ERROR TO THE SUPREME COURT OF THE STATE OF OHIO. Submitted April 26,1886.—Decided May 10,1886. This court has jurisdiction, in error, over a judgment of the Supreme Court of a State when it necessarily involves the decision of the question, raised in that appellate court for the first time, and not noticed in its opinion, whether a statute of the State conflicts with the Constitution of the United States. When the legislature of a State enacts laws for the government of its courts while exercising their respective jurisdictions, which, if followed, will furnish parties the necessary constitutional protection of life, liberty and property, it has performed its constitutional duty: and if one of its courts, acting within its jurisdiction, makes an erroneous decision in this respect, the State cannot be deemed guilty of violating the Constitutional provision that no State shall deprive a person of life, liberty or property without due process of law. This was a motion to dismiss, united with a motion to affirm. The case is stated in the opinion of the court. J/r. William C. Cochran and Jfr. Henry B. Ha/rris for the motions. Mr. Henry Newbegin and Mr. B. B. Kingsbury opposing. Mr. Chief Justice Waite delivered the opinion of the court. This was a suit brought in the Court of Common Pleas of Defiance County, Ohio, by Dick E. Arrowsmith to recover the possession of the principal part of a certain 640 acres of land, and the judgment turned on the validity of a sale of the land by the guardian of Arrowsmith under an order of a probate court for that purpose. The case was tried without a jury, and from the finding of facts it appears that all the proceedings for the sale of the land were regular and in proper form, save only that the court dispensed with the giving of a bond by the guardian, under a certain requirement of the statute, “ for the ARROWSMITH v. HARMONING. 195 Opinion of the Court. faithful discharge of his duties, and the faithful payment and accounting for of all moneys arising from such sale according to law.” The single question for determination was whether the failure to furnish this bond rendered the sale void. The Court of Common Pleas decided that it did not, and gave judgment accordingly. This judgment was afterwards affirmed by the District Court on petition in error. The case was then taken to the Supreme Court on another petition in error, where, among others, the following error was assigned : “ 3d. That by affirming the judgment of the Court of Common Pleas . . . by said District Court, this plaintiff in error was deprived of his right of trial by jury, contrary to the provisions of the Constitution of this State, and deprived of his property without due process of law, contrary to the provisions of the Constitution of the United States.” This is the first time, so far as the record discloses, that even the semblance of a Federal right was set up in the case, and even here it is not easy to see on what ground it could be claimed that Arrowsmith had been deprived of his property in violation of the Constitution of the United States. It was for this reason, perhaps, that the Supreme Court, while affirming the judgment of the District Court, took no notice of this assignment of error in its opinion. The decision, however, necessarily involved a denial of the right which was claimed in this way, and thus we probably have technical jurisdiction. For this reason the . motion to dismiss must be denied, but the question on which our jurisdiction depends was so manifestly decided right, that the case ought not to be held for further argument. It is not denied- that the Probate Court had full and complete jurisdiction of the proceeding to sell the land. The statute under which the court acted, would, if, followed, have furnished Arrowsmith all the protection which had been guaranteed to him by the Constitution of the United States. The bond in question was matter of procedure only, and if it ought to have been required the court erred in ordering the sale without having first caused it to be filed and approved. At most, this was an error of judgment in the court. The constitutional provision is, “ nor shall any State deprive any person of life, liberty, or property with- 196 OCTOBER TERM, 1885. Statement of Facts. out due process of law.” Certainly a State cannot be deemed guilty of a violation of this constitutional obligation simply because one of its courts, while acting within its jurisdiction, has made an erroneous decision. The legislature of a State performs its whole duty under the Constitution in this particular when it provides a law for the government of its courts while exercising their respective jurisdictions, which, if followed, will furnish the parties the necessary constitutional protection. All after that pertains to the courts, and the parties are left to the appropriate remedies for the correction of errors in judicial proceedings. The motion to dismiss is denied, and that to affirm is granted. Affirmed. IRON SILVER MINING COMPANY v. ELGIN MINING & SMELTING COMPANY & Others. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. Argued March 26, 29, 1886.—Decided April 26,1886. Under sections 2320, 2322, and 2324 of the Revised Statutes, the surface side lines of a mining location on a mineral vein, lode, or ledge, extended downward vertically, determine the extent of the claim, except when, in its descent, the vein passes outside of such surface side lines, and then the outside portions of the vein must lie between vertical planes drawn downward through the end lines of the surface location and continued in their own direction; and the parallelism of such end lines is essential to the existence of any right in the locator to follow the vein outside of vertical planes drawn through the side lines. This was an action to recover possession of certain mining ground in Lake County, Colorado. The plaintiffs in the court below, the defendants in error here, asserted title to the premises under a patent of the United States for what was known as the “ Gilt Edge Claim,” of which they were a part. In the original complaint they asserted title by conveyance from the IRON SILVER MINING CO. v. ELGIN MINING CO. 197 Statement of Facts. original locators. A patent to them having been subsequently granted, they filed an amended complaint setting up its issue, and that it conveyed to them a fee simple title. The complaint averred that the defendant, the Iron Silver Mining Company, on the 25th of June, 1882, by means of drifts inclines and tunnels, entered without right upon a portion of the Gilt Edge claim, which it had since wrongfully withheld from the plaintiffs to their damage of $50,000; and that it had excavated, carried away, and converted to its own use, since such entry, gold, silver, and lead ores belonging to them, of the value of $50,000. They, therefore, prayed judgment for the premises and damages for their wrongful detention, and for the ores taken. The defendant in its answer denied the several allegations of the complaint, and set up as an affirmative defence that, under a patent of the United States, bearing date May 24,1877, it was the owner in fee, and entitled to the possession of a surface lode mining claim also situated in Lake County, Colorado, called the “ Stone Claim,” containing nine acres and of an acre of land, more or less, and of a vein, lode, or ledge therein, extending the length of the claim from north to south 1500 feet throughout its entire depth, although it entered adjoining lands; that the vein, lode, or ledge contained iron, lead, and silver in large quantities ; that the top apex and outcrop of it were found in the surface claim throughout its entire extent ; that its true strike was north and south, with a dip to the east at an angle of fifteen degrees below the plane of the horizon ; that the vein, lode, or ledge on its dip, within vertical planes drawn downward, with its end lines continued in their own direction, that is, in the direction of the dip, passed through and beyond theeeast vertical side line of the surface claim and location into and under the Gilt Edge surface claim. And the defendant admitted that underneath the surface of the Gilt Edge claim it had followed and mined upon the Stone vein, lode, or ledge, and averred that, by reason of the facts above set forth, it had the right so to do, and denied that it had otherwise interfered with the Gilt Edge claim or any part of it. 198 OCTOBER TERM, 1885. Statement of Facts. The plaintiffs in their reply denied the material allegations of the answer. By stipulation the case was tried by the court without the intervention of a jury. On the trial the plaintiffs produced in evidence a patent of the United States to them for the Gilt Edge claim, in the usual form of patents for lode mining claims, and the defendant admitted that they were invested with the title to the property which the patent conveyed ; that it had entered underneath the surface of that claim at a point east of the Stone surface claim ; and was engaged in mining and in carrying away lead and silver ores when the action was commenced. It was agreed that plat “A ” [see page 199] correctly represented the shape and relative positions of the Gilt Edge mining claim and of the Stone mining claim, and that the lines on the figures of the Stone claim, from No. 5 to 6 and from 1 to 14, were the two end lines of the surface claim, so called by the locator thereof, and in the plat accompanying the application for the patent. It was also agreed that plat “ B ” [see page 200] was a correct copy of the plat of the Gilt Edge claim contained in the patent thereof, which also showed its relative position to the Stone claim, the latter being marked Sur. No. 217. And thereupon the plaintiffs rested. The defendant then introduced in evidence a patent for the Stone claim, bearing date May 24,1877, issued to one Alvinus B. Wood; and it was admitted that, by divers mesne conveyances, the defendant held title in fee to the premises described in it. The patent gave a full and minute description by metes and bounds of the surface claim, containing nine acres and of an acre of land, more or less, and embracing 1500 linear feet of the Stone lode along the course thereof. Its granting clause was as follows: “ Now, know ye that the United States of America, in consideration of the premises and in conformity with the said Revised Statutes of the United States, have given and granted, and by these presents do give and grant, unto the said Alvinus B. Wood, and to his heirs and assigns, the said mining premises hereinbefore described as lot No. 217, embracing a portion IRON SILVER MINING CO. v. ELGIN MINING CO. 199 Statement of Facts. 200 OCTOBER TERM, 1885. Statement of Facts. of the unsurveyed public domain, with the exclusive right of possession and enjoyment of all the land included within the exterior lines of said survey not herein expressly excepted from these presents, and of fifteen hundred (1500) linear feet of the said Stone vein, lode, ledge, or deposit, for the length hereinbefore described, throughout its entire depth, although it may enter the land adjoining, and also of all other veins, lodes, ledges, or deposits, throughout their entire depth, the tops or apexes IRON SILVER MINING CO. v. ELGIN MINING CO. 201 Statement of Facts. of which lie inside the exterior lines of said survey at the surface extended downward vertically, although such veins, lodes, ledges, or deposits, in their downward 'course, may so far depart from a perpendicular as to extend outside the vertical side lines of said survey : Provided, That the right of possession hereby granted to such outside parts of said veins, lodes, ledges, or deposits, shall be confined to such portions thereof as lie between vertical planes drawn downward through the end lines of said survey at the surface, so continued in their own direction that such vertical planes will intersect such exterior parts of said veins, lodes, ledges, or deposits: And provided further, That nothing in this conveyance shall authorize the grantee herein, his heirs or assigns, to enter upon the surface of a mining claim owned or possessed by another : To have and to hold said mining premises, together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto the said Alvinus B. Wood, and to his heirs and assigns, forever, subject, nevertheless, to the following conditions and stipulations : “ First. That the grant hereby made is restricted to the land hereinbefore described as lot No. 217, with fifteen hundred (1500) linear feet of the Stone vein, lode, ledge, or deposit for the length aforesaid, throughout its entire depth as aforesaid, together with all other veins, lodes, ledges, or deposits, throughout their entire depths as aforesaid, the tops or apexes of which lie inside the exterior lines of said survey. “ Second. That the premises hereby conveyed, with the exception of the surface, may be entered by the proprietor of any other vein, lode, ledge, or deposit, the top or apex of which lies outside the exterior limits of said survey, should the same in its downward course be found to penetrate, intersect, extend into, or underlie the premises hereby granted, for the purpose of extracting and removing the ore from such other vein, lode, ledge, or deposit. “ Third. That the premises hereby conveyed shall be held subject to any vested and accrued water-rights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water- 202 OCTOBER TERM, 1885. Statement of Facts. rights as may be recognized and acknowledged by the local laws, customs, and decisions of courts. “ Fourth. That in the absence of necessary legislation by Congress the legislature of Colorado may provide rules for working the mining claim or premises hereby granted, involving easements, drainage, and other necessary means to its complete development.” The defendant then offered to prove— (1) That the Stone vein, lode, or ledge mentioned in the patent was a vein, lode, or ledge of rock in place bearing iron, lead, and silver in large quantities, and was valuable on account thereof. (2) That the top, apex, and outcrop of the vein, lode, or ledge existed, and were found in the Stone surface claim through its entire extent from north to south, between walls of rock in place, a limestone foot wall, and a porphyry hanging wall. (3) That the true strike of the vein, lode, or ledge was north and south, and had a dip to the east at an angle of 15° below the plane of the horizon. (4) That the vein, lode, or ledge, on its dip within vertical planes drawn downward through the end lines of the vein, lode, or ledge, so existing and found within the Stone surface mining claim, and continued in their own direction, viz., in the direction of the dip of the vein, lode, or ledge, passed through, out of, and beyond the east vertical side line of the Stone surface claim and location into lands adjoining, to wit, into and under the said Gilt Edge surface claim. (5) That while the defendant admitted that underneath the surface of the Gilt Edge surface claim it had followed and mined in and upon the Stone vein, lode, or ledge, by reason of the facts and premises above set forth, it had a. right so to do, and that it had not otherwise in any way interfered with said Gilt Edge claim, or any part thereof. To which plaintiffs objected, on the ground that the proffered proof would not be a defence to the action nor tend to establish a defence thereto, and that by reason of the surface form or shape of the Stone claim its owners had no right under the laws of the United States or otherwise to follow the lode IRON SILVER MINING CO. v. ELGIN MINING CO. 203 Statement of Facts. alleged to exist therein in its downward course beyond the hues of the claim and into plaintiffs’ claim; and that no part of the Gilt Edge claim or the mineral or lode within it was within vertical planes drawn downward through the end lines of the Stone claim and continued indefinitely in their own direction. The court sustained the objection and excluded the evidence offered, to which ruling the defendant excepted. The following diagram, showing the shape of the Stone claim, its exterior lines, its center line, and the line of the apex of the vein, as alleged by the defendant, was also put in evidence: 204 OCTOBER TERM, 1885. Opinion of the Court. Another diagram of the Stone claim was introduced in evidence, but as it was similar to the one above, with the exception of the lines showing the course of the apex, the direction of the strike and the dip of the vein, it is not important to exhibit it in this statement. No other evidence was offered. The court found the issues for the plaintiffs, and judgment was entered in their favor, to review which the case was brought here. JZr. Walter H. Smith and JWr. G. G. Symes for plaintiff in error. JZ?. T. JW. Patterson, with whom was J/r. C. S. Thomas on the brief, for defendants in error. Mk. Justice Field, after stating the case as above reported, delivered the opinion of the court: The question presented for our decision is one of great interest to miners on the public lands, and with respect to it much difference of opinion exists. This difference has arisen from a consideration, on the one hand, of what would properly be called the true end lines of a claim upon a lode of a specified length and width, after it has been opened by explorations, and its general course and direction are seen; and a consideration, on the other hand, of the statute requiring the location of a claim to be distinctly marked on the ground, so that its boundaries may be readily traced. Such location often precedes any extended explorations, and is, therefore, made without accurate knowledge of the course and direction of the vein. When a vein has been discovered the rules of miners, and the legislative regulations of mining States and Territories, generally allow some specified time for explorations before the location is definitely marked. But miners discovering a lode are sometimes in such haste to locate their claim, and mark its extent and boundaries on the surface, that they omit to make sufficient explorations to guide them aright in measuring the ground and fixing its end lines. Hence efforts are not infrequently made to change those lines when the true course and IRON SILVER MINING CO. v. ELGIN MINING CO. 205 Opinion of the Court. direction of the vein are ascertained by subsequent developments. The framers of the statute of 1872 evidently proceeded upon the theory that a claim on a lode, following its outcroppings on the surface for the distance allowed, with a definite extension on each side of the middle of the vein, would generally take the form of a parallelogram. It provided that the length of a claim, subsequently located, whether by one or more persons, should not exceed fifteen hundred feet; that its extension on each side of the middle of the vein at the surface should not exceed three hundred feet; and that its end lines should be parallel to each other. Rev. Stat. § 2320. A section of the lode within vertical planes drawn downward through the lines marked on the surface was designed as the grant to the original locator; but, as the vein in its downward course might deviate from a perpendicular and pass out of the side lines, the right was conferred to follow it outside of them, but within planes through the end lines drawn vertically downward, and continued in their own direction. The language of that statute, as carried into the Revised Statutes, is as follows: “ The locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges, throughout the‘entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward, as above described, through the end 206 OCTOBER TERM, 1885. Opinion of the Court. lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another.” Rev. Stat. § 2322. This section appears sufficiently clear on its face. There is no patent or latent ambiguity in it. The locators have the exclusive right of possession and enjoyment of “ all the surface included within the lines of their locations,” and the location, by another section, must be distinctly marked on the ground so that its boundaries can be readily traced. Rev. Stat. § 2324. They have also the exclusive right of possession and enjoyment “ of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such'veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of said surface locations.” The surface side lines extended downward vertically determine the extent of the claim, except when in its descent the vein passes outside of them, and the outside portions are to lie between vertical planes drawn downward through the end lines. This means the end lines of the surface location, for all locations are measured on the surface. The difficulty arising from the section grows out of its application to claims where the course of the vein is so variant from a straight line that the end lines of the surface location are not parallel, or, if so, are not at a right-angle to the course of the vein. This difficulty must often occur where the lines of the surface location are made to control the direction of the vertical planes. The remedy must be found, until the statute is changed, in carefully making the location, and in postponing the marking of its boundaries until explorations can be made to ascertain, as near as possible, the course and direction of the vein. In Colorado the statute allows for this purpose sixty days after notice of the discovery of the lode. Then the location must be distinctly marked on the ground, and thirty days IRON SILVER MINING CO. v. ELGIN MINING CO. 207 Opinion of the Court. thereafter are given for the preparation of the proper certificate of location to be recorded. Erhardt v. Boaro, 113 U. S. 527, 533. Even then, with all the care possible, the end lines marked on the surface will often vary greatly from a right-angle to the true course of the vein. But whatever inconvenience or hardship may thus happen, it is better that the boundary planes should be definitely determined by the lines of the surface location, than that they should be subject to perpetual readjustment according to subterranean developments made by mine workings. Such readjustment at every discovery of a change in the course of the vein would create great uncertainty in titles to mining claims. The rule, whatever hardship it may work in particular cases, should be settled, and thus prevent, as far as practicable, such uncertainty. If the first locator will not or cannot make the explorations necessary to ascertain the true course of the vein, and draws his end lines ignorantly, he must bear the consequences. He can only assert a lateral right to so much of his vein as lies between vertical planes drawn through those lines. Junior locators will not be prejudiced thereby, though subsequent explorations may show that he erred in his location. The provision of the statute, that the locator is entitled throughout their entire depth to all the veins, lodes, or ledges, the top or apex of which lies* inside of the surface lines of his location, tends strongly to show that the end lines marked on the ground must control. It often happens that the top or apex of more that one vein lies within such surface lines, and the veins may have different courses and dips, yet his right to follow them outside of the side lines of the location must be bounded by planes drawn vertically through the same end lines. The planes of the end lines cannot be drawn at a right angle to the courses of all the veins if they are not identical. It is also a fact of importance, that the Land Department has,- since the act of 1872, followed the end lines as marked on the surface, and has limited the extra lateral right of patentees by vertical planes drawn down through such end lines ; as in the patent to Wood in this case. Any decision that the de- 208 OCTOBER TERM, 1885. Opinion of the Court. partment erred in that respect, and that the rights of the patentees were different, would disturb titles derived from such patents, and lead to great confusion and litigation. If it is expedient to change the rule, legislative action should be invoked, as it would operate only in the future; and not judicial decision which would affect past cases as well. This view of the controlling effect of the end lines of the surface location is also sustained by the decision of this court in the Flagstaff case. Mining Co. v. Tarbet, 98 U. S., 463,470. There the court said that “ the most practicable rule is to regard the course of the vein as that which is indicated by surface outcrop, or surface explorations and workings,” and that “ it is on this line that claims will naturally be laid, whatever be the character of the surface, whether level or inclined,” and that the end lines of the claim, properly so called, “are those which are crosswise of the general course of the vein on the surface? The court suggested that the law might be im-perfect in this respect, and that perhaps the true course of the vein should correspond with its strike or the line of a level run through it; but it added that this “ can rarely be ascertained until considerable work has been done, and after claims and locations have become fixed.” Under the act of 1866, 14 Stat., 251, parallelism in the end lines of a surface location was not required, but where a location has been made since the act of 1872, such parallelism is essential to the existence of any right in the locator or patentee to follow his vein outside of the vertical planes drawn through the side lines. His lateral right by the statute is confined to such portion of the vein as lies between such planes drawn through the end lines and extended in their own direction, that is, between parallel vertical planes. It can embrace no other portion. The exterior lines of the Stone claim form a curved figure somewhat in the shape of a horseshoe, and its end lines are not and cannot be made parallel. What are marked on the plat as end lines are not such. The one between numbers 5 and 6 is a side line. The draughtsman or surveyor seems to have hit upon two parallel lines of his nine-sided figure, and ap- IRON SILVER MINING CO. v. ELGIN MINING CO. 209 Dissenting Opinion: Waite, C. J., Bradley, J parently for no other reason than their parallelism called them end lines. We are, therefore, of opinion that the objection that, by reason of the surface form of the Stone claim, the defendant could not follow the lode existing therein in its downward course beyond the lines of the claim, was well taken to the offered proof. Besides, if the lines marked as end lines on the plat of that claim can be regarded as such lines of the location, no part of the Gilt Edge claim falls within vertical planes drawn down through those lines continued in their own direction. In either view of the location of the Stone claim, the rejected proof would have established no defence. The premises in controversy are admitted to be under the surface lines of the Gilt Edge claim eastward from the defendant’s claim, and the plaintiffs were therefore entitled to recover them. Judgment affirmed. Mr. Chief Justice Waite, with whom concurred Mr. Justice Bradley, dissenting. I cannot agree to this judgment. In my opinion the end lines of a mining location are to be projected parallel to each other and crosswise of the general course of the vein within the surface limits of the location, and whenever the top or apex of the vein is found within the surface lines extended vertically downwards, the vein may be followed outside of the vertical side lines. The end lines are not necessarily those which are marked on the map as such, but they may be projected at the extreme points where the apex leaves the location as marked on the surface. Mr. Justice Gray did not hear the argument nor take any part in the decision of this case. VOL. cxvm—14 210 OCTOBER TERM, 1885. Dissenting Opinion : Bradley, J. PHOENIX INSURANCE COMPANY v. ERIE AND WESTERN TRANSPORTATION COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WISCONSIN. Argued January 19, 20,1886.—Decided March 1,1886. This case is reported in Vol. 117, U. S., pages 312 to 327. Mr. Justice Bradley delivered an oral dissent, which is noted on page 327. An imperfect copy of this having found its way into print, he prepared and filed the following: Mr. Justice Bradley dissenting. The insurer of goods which are lost while in custody of a carrier, upon paying the loss, is subrogated to the claim of the insured against the carrier. Hall & Long v. Railroad Com-panies^ 13 Wall., 367. This being so, I think that the insured cannot, by separate agreement with the carrier, deprive the insurer of this right. Such agreement would be res inter alios acta and void as against the insurer. It would be a fraud upon him. The carrier would thereby protect himself against the consequences of his own negligence, and compel the insurer to indemnify him without paying any premium. The owner of the goods gives up no right himself against the carrier; but they two agree, behind the insurer’s back, that he shall have no right of subrogation against the carrier, but that the carrier shall have such a right against him,—thus changing the law by their private agreement! It seems to me that this is contrary both to law and justice. HUNT v. OLIVER. 211 Opinion of the Court. HUNT & Another v. OLIVER. APPF.AT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EA.STERN DISTRICT OF MICHIGAN. Argued April 5, 6, 7,1886.—Decided May 10, 1886. On the voluminous facts in this case, which are referred to at length in the opinion of the court, it was held that the complainant had failed to establish that he was entitled to the relief against the appellants which was prayed for in his bill, and was granted by the court below. The case is stated in the opinion of the court. Hr. Henry H Duffield and J/r. George F. Edmunds for appellants. Hr. C. F. Burton and Hr. Alfred Russell for appellee. Mr. Justice Woods delivered the opinion of the court. The bill was filed by David D. Oliver, the appellee, against Henry S. Cunningham, Garrett B. Hunt, Jacob Eschleman, Philip M. Ranney, Calvin Haines, George J. Robinson, and Henry M. Robinson. The following facts are shown by the pleadings and evidence. In the summer of 1868, Oliver, the plaintiff, was the owner of about twelve thousand five hundred acres of pine lands, and held a contract for the purchase of six thousand five hundred acres more from one David Preston. These lands were in the State of Michigan, mainly in Alpena and Alcona Counties. Six thousand acres of these lands Oliver had purchased in 1866 from the defendants Hunt, Eschleman, and Cunningham, for $35,000. He paid nothing on the purchase money, but secured its payment by a mortgage on the lands purchased and other lands owned by him. In 1867 he put up a steam saw-mill and made other improvements on the mortgaged lands, and carried on the business of manufacturing pine lumber cut from the lands, first with one George W. Hawkins as a partner, and afterwards with the defendant George J. Robinson, to whom he conveyed an undivided one- 212 OCTOBER TERM, 1885. Opinion of the Court. fourth in all his lands. In the summer of 1868 the plaintiff was in arrears for interest past due on the mortgage above mentioned, and on a mortgage for $16,000 to the defendants Haines and Ranney, and also on one to E. & G. R. Haines, for $10,000, covering part of the lands included in the Hunt, Eschleman, and Cunningham mortgage. His property was also encumbered by other mortgages to the amount of $13,000; he owed on the Preston contract for the purchase of lands $12,000; he owed an unsecured indebtedness of $6000, and the firm of Oliver & Robinson was indebted in the sum of $25,000, making in all $117,0.00, without including interest. He had not the ready means to meet his pressing demands. He was, therefore, financially embarrassed, and was, moreover, involved in difficulty with his partner, George J. Robinson, whom he accused of trying to dispossess and defraud him. Thereupon, on June 9, 1868, he wrote to Hunt and Cunningham for help, stating his situation, and asking them to take from him a quitclaim deed of all his property, and to purchase the Haines and Ranney mortgage, the E. & G. R. Haines mortgage, and other indebtedness outstanding against him, to take possession of and manage his property, and, when they had paid all his debts and the property was clear, to reconvey the same to him by quit-claim deed, and for all their trouble and services he offered to pay a reasonable compensation. They did not accede to Oliver’s proposition, and matters remained in statu quo until September. In the meantime, Oliver went to Buffalo, and there saw Hunt, Eschleman, and Cunningham, and urged them to help him out of his troubles with his partner and his creditors. But they did not yield to his importunities. Of these three persons Cunningham alone had any experience in commercial affairs. Hunt and Eschleman were farmers living in Erie County, New York, and Hunt was Cunningham’s father-in-law. Oliver had given his creditors Haines and Ranney an option to buy his property, but they had declined to purchase. Finally, on September 2, 1868, Cunningham, being urgently entreated by Oliver, left Buffalo and went to Ossineke, in Michigan, Oliver’s place of residence, and had an interview with him. Be- HUNT v. OLIVER. 213 Opinion of the Court. fore leaving, he assigned his interest in the Hunt, Eschleman, and Cunningham mortgage to Hunt and Eschleman, and, as it appears, without consideration paid at the time. Cunningham, while at Ossineke, accepted, at Oliver’s own solicitation, quit-claim deeds from him of all the latter’s real estate and bills of sale of all his personal property, including his interest in the firm of Oliver & Robinson. The conveyances were upon their face without condition or trust. Cunningham refused before the deeds were made to give Oliver any writing showing the terms on which he accepted them. Oliver, in his testimony in this case, states that at the time the conveyances were made he understood that “ the object of the transfer was a trust ; that he,” Cunningham, “ was to use the property to pay off the debts, and when the debts wTere paid to deed it back.” In the bill he alleges that “ said transfers were made for the purpose of enabling the mortgagees to sell said property in such a way as to pay their own debt, and to pay the other debts of complainant and leave him a surplus.” Cunningham testifies that the purpose of Oliver in making the transfer to him was to enable him to hold the title for Oliver, so that the property should not be seized in suits then pending or about to be brought against Oliver, and to enable Oliver to make a sale thereof. No consideration for the transfers passed at the time of their execution. The deeds were dated September 3,1868, but were not in fact executed until September 8th, following. Oliver endeavored during the thirty days that followed the date of the deeds to make a sale of his property, but failed. About the first of October, 1868, he was in Buffalo, and, with Cunningham, entered upon a treaty with the defendants Calvin Haines and Philip M. Ranney, who were partners under the name of C. Haines & Co., and with the defendant George J. Robinson, for the sale of the property to them. A contract was agreed on, and, as the appellants insist, was as agreed on, reduced to writing, and dated and executed on October 3,1868. It was signed by Cunningham, C. Haines & Co., and George J. Robinson, and, for the sake of brevity, is called in the record the Buffalo agreement. It provided, among other things, that 214 OCTOBER TERM, 1885. Opinion of the Court. on the expiration of thirty days Cunningham, party of the first part, should convey to C. Haines & Co. and Robinson, party of the second part, all the real estate situated in townships 28 and 29 north, range 8 east, in the counties of Alpena and Alcona, Michigan, which was conveyed to him by Oliver and wife by deed, bearing date on or about the fifth day of September, 1868, and also all the personal property conveyed to him by Oliver by bill of sale executed on the same day, the sale and conveyance to be subject to the following claims: 1st. The Cunningham, Hunt, and Eschleman mortgage upon a part of said real estate, on which mortgage there was unpaid $30,000 and interest. 2d. A mortgage to C. Haines & Co. for about $19,000. 3d. A mortgage to J. B. Wayne for about $12,000, on a portion of said real estate. 4th. A claim of James H. Hill for about $3000. 5th. The copartnership indebtedness of the firm of Oliver & Robinson. The party of the second part agreed to take the property subject to the above claims, and to assume and pay, at the time of the conveyance by Cunningham, one-half of a debt for about $10,500 due to E. & G. R. Haines, secured by a mortgage executed by Oliver on his lands. The party of the second part further agreed that they would, at the time of the conveyance by Cunningham, release and discharge all mortgages given by George W. Hawkins to Calvin Haines or E. & G. R. Haines, and covering lands in the counties of Erie and Niagara, in the State of New York, or either of said counties, and would protect and save Hawkins harmless therefrom, and from the debt thereby secured. The contract further provided that the party of the second part, in lieu of paying the one-half part of the mortgage held by E. & G. R. Haines, and of discharging the Hawkins mort-gage, should have the option to assign to Garrett B. Hunt the mortgage of C. Haines & Co. against the said real estate of George W. Hawkins, and the debt secured thereby, and in addition to pay or secure the payment to Hunt of the sum of $4000 within one year from the 3d day of November, 1868. HUNT v. OLIVER. 215 Opinion of the Court. The contract also provided that Cunningham should assign a certain agreement made between Oliver and David Preston for the purchase of about 6500 acres of land in Alpena and Alcona Counties, Michigan, subject to the aforesaid claims, and subject to the contract price of said last-mentioned lands, and the party of the second part agreed that, upon such assignment, they would' pay to Preston the contract price, and convey to such persons as Oliver should direct, free of charge, all of said 6500 acres which lay outside of townships 28 and 29 north, range 8 east. The delay of thirty days provided by the contract was to give Oliver the chance of selling the property within that time if he could. He was not able to sell. On November 13,1868, Cunningham conveyed to George J. Robinson, Calvin Haines, and Philip M. Ranney, in pursuance of the Buffalo agreement, the lands and personal property therein mentioned. The grantees then formed a partnership under the name of Robinson, Haines & Ranney, for the manufacture and sale of lumber from timber to be cut from the lands and sawed at the mill conveyed to them by Cunningham. On the 9th of January, 1869, a new partnership for the same purpose was formed, under the name of Cunningham, Robinson, Haines & Co., by taking into the firm Henry S. Cunningham. This firm continued in business until its dissolution in January, 1875. It was an unsuccessful venture. It never made or divided any profits. When it ceased business it had not assets sufficient to pay its debts. Three of its members, Cunningham, Haines, and Robinson were adjudicated bankrupts, and Ranney, the fourth partner, was insolvent. The bill in this case was filed March 12, 1873. It charged a conspiracy between Cunningham, Hunt, Eschleman, Robinson, Haines, and Ranney to defraud Oliver of his property. It averred that, before the Buffalo agreement was reduced to writing and signed, Oliver was compelled to leave, and did leave, Buffalo and was not present at its execution; that the agreement which, before leaving, he consented that Cunningham might make with C. Haines & Co. and Robinson was, that they should pay the Hunt and Eschleman, the James 21fi OCTOBER TERM, 1885. Opinion of the Court. B. Wayne and the C. Haines & Co. mortgages, and half of the E. & G. R. Haines mortgage, and pay the Hill claim of $3000, and release and discharge Hawkins from all his liabilities growing out of his business with Oliver, and pay all the debts of the firm of Oliver & Robinson, whereupon Cunningham should convey to them all the lands conveyed to him by Oliver and David Preston in townships 28 and 29 north, range 8 east. Having done this, Cunningham was to deed to Oliver all the lands outside of said towns. It was averred that, instead of making the contract to which he had assented, Cunningham made the Buffalo agreement, as hereinbefore set forth, by which Haines, Ranney, and Robinson agreed, not to pay off Oliver’s debts, but to receive a conveyance of the lands subject to said mortgages, and bound themselves only to pay off one-half of the mortgage to E. & G. R. Haines. The bill then charged that Hunt and Eschleman were in fact members of the firm of Cunningham, Robinson, Haines & Co.; that Cunningham put no capital into the firm, and that all the defendants to the bill had carried on the lumber business under said firm-name upon the lands and with the mill of the plaintiff, and had stripped the lands of their best pine timber; that Cunningham had in the manner above set forth secretly and fraudulently effected a sale of said lands to himself and his co-mortgagees; that the Buffalo agreement was a fraud on the plaintiff; that Cunningham’s deed to Robinson, Haines, and Ranney was procured by fraud and in furtherance of a conspiracy between all the defendants to obtain the plaintiff’s property without consideration, and was made and delivered without payment dr discharge by the vendees of the debts of the plaintiff and said Hawkins, and was without consideration and void; and that the mortgage to Hunt, Eschleman, and Cunningham had been paid, and should be charged with the receipts of the mortgagees from the property, to wit, the profits of the said partnership. The bill prayed that the deed and all the transfers made by Oliver to Cunningham, the Buffalo agreement, and the deed of Cunningham to Robinson, Haines, and Ranney, might be can- HUNT v. OLIVER. 217 Opinion of the Court. celed as fraudulent and void; that an account might be taken of the issues and profits of said lands received by Cunningham for the benefit of himself and Hunt and Eschleman, and the mortgage held by them be charged with the amount thereof; that the plaintiff might be at liberty to redeem; and that all the defendants might be required to deliver up possession of the mortgaged premises to the plaintiff, free and clear of all incumbrance put thereon by them. Before the filing of the bill in the present case, to wit, on April 8, 1869, Hunt and Eschleman had filed their bill in the Circuit Court of the United States for the Eastern District of Michigan, to foreclose the mortgage executed to them and Cunningham by Oliver, to which Oliver and wife, George J. Robinson,. Calvin Haines, Ranney, and Cunningham were made defendants. Oliver filed an answer and cross-bill, in which he set up by way of defence substantially the same facts as are relied on for relief in the present case. After the taking of a large mass of evidence in that case the court dismissed the cross-bill without prejudice, and rendered a decree in favor of Hunt and Eschleman, on their note and mortgage, for $47,495, and directed a sale of the mortgaged premises to pay the same. Upon this decree a sale was made on August 28, 1873, to Garrett B. Hunt, for $50,699.44, which was confirmed on May 8, 1874. The premises brought sufficient to pay the debt secured by the mortgage. The defendants Hunt and Eschleman filed a joint answer, in which they traversed all the material facts averred in the bill on which the plaintiff’s prayer for relief was based, and set up the decree made in the suit for the foreclosure of their mortgage in bar of the present suit. Separate answers were also filed by the other defendants. After the taking of testimony and a reference to and report by a master, the Circuit Court, on final hearing, rendered a decree in favor of the plaintiff, against all the defendants, for $41,418.87, and that the defendants surrender to the plaintiff all the lands conveyed by him to Cunningham by deeds dated September 3, 1868. From this decree Hunt and Eschleman alone have appealed. The appeal brings up the question how far the evidence jus- 218 OCTOBER TERM, 1885. Opinion of the Court. tifies the decree against Hunt and Eschleman. The gravamen of the bill is that the defendants, including the appellants, conspired with each other to secure for themselves without consideration the property of the appellee, and in pursuance of this purpose induced the plaintiff to execute deeds and transfers of all his property to Cunningham; that, having thus divested the title of the plaintiff and vested it in one of their own number, they caused the execution of the Buffalo agreement, which was greatly to the disadvantage of the plaintiff, and was different from the verbal agreement between him and Cunningham and the other defendants; that the Buffalo agreement as reduced to writing was never performed; but that the defendants, having organized the partnership of Cunningham, Robinson, Haines & Co., appropriated and used the property of the plaintiff without compensation or consideration passing to him, and by these means the large and valuable property of which the plaintiff was the owner before his conveyance thereof to Cunningham was wrested from him and used and consumed by the defendants. We are of opinion, after a careful consideration of the record, that the decree of the Circuit Court, so far as it concerns the appellants, is not supported by the evidence. The deeds and transfers of his property by the plaintiff were not made to the appellants, but to Cunningham, and there is no proof that they had any part in persuading Oliver to make them. On the contrary, Oliver himself testifies that the transfer of his property was suggested by himself for his own advantage ; that he offered by letter to convey his real and personal estate to Hunt and Cunningham, jointly; and that they declined to accept his conveyance. He went from Ossineke, in Michigan, to Buffalo to try if he could not, by a personal interview, induce Hunt, Eschleman, and Cunningham to accede to his wishes, but they refused to become his grantees. After much personal importunity he finally persuaded Cunningham to accept a transfer of his property for the purpose, as it seems to us, of delaying his creditors until he could make a favorable sale, and thus save something for himself after paying his debts. Cunningham went from Buffalo to Ossineke for the purpose of HUNT v. OLIVER. 219 Opinion of the Court. receiving the deeds and transfer, but there is no proof that either Hunt or Eschleman solicited or advised Oliver to make the conveyances to him. It was the latter’s own scheme, conceived and carried out by himself, and in his own interest. Nor is there any evidence that either Hunt or Eschleman took any part in the making of the Buffalo agreement. Oliver himself fails to connect them with it. He merely says that Hunt and ktechleman, Haines, Ranney, George J. Robinson, and Henry M. Robinson were present at the discussion prior to the making of the Buffalo agreement. There is no proof that either Hunt or Eschleman urged or even advised the making of that agreement, or any agreement whatever, for the sale by Oliver and the conveyance by Cunningham of the lands and property transferred by Oliver to Cunningham. There is no proof that either of them was present when the Buffalo agreement was signed. The charge that the agreement was not the contract to which Oliver had assented is supported by only one witness, and that is Oliver himself. On the other hand, there is much direct evidence to show that the agreement was just what he had consented it should be. Besides, Oliver’s own conduct shows beyond controversy his assent to the agreement. He knew as early as the 10th of October what the written agreement was, for on that day, according to his’ own testimony, he went to the office of Williams, the lawyer who wrote the agreement, and with whom it was left, and saw and read it. He says that after reading it, he complained to Cunningham that the agreement was not the contract to which he had verbally assented. In this he is contradicted by Cunningham, and both Hunt and Eschleman swear that, after Oliver had read the agreement, he said to them that he was well satisfied with it. But Oliver does not swear, nor is there any proof, that he expressed any dissatisfaction with the agreement to Haines, Ranney, or Robinson, the other parties to the contract, and who by its terms were to become the vendees of the property. He took no steps whatever to prevent the execution of the agreement. On the contrary, on November 13th, more than a month after he had seen and read it, he allows Cunningham, without objection 220 OCTOBER TERM, 1885. Opinion of the Court. from him, to make deeds for the property to Haines, Ranney, and Robinson, in accordance with its stipulations. The record shows other pregnant facts. On October 2,1868, the day before the execution of the Buffalo agreement, Oliver signed a contract in writing, in which, in consideration of the execution of that agreement, he covenanted to convey to Robinson, Haines, and Ranney certain lands not included therein, and, on November 12, 1868, a month after he had seen and read the Buffalo agreement, he executed to Robinson, Haines, and Ranney a deed for said lands, “together with the right to run logs through Devil River over and through any lands owned by said David D. Oliver on the second day of October, 1868, and for that purpose to dam said river, and to flood any lands that may be necessary for the purpose of running logs,” etc’; and afterwards, on January 12, 1869, he procured the acknowledgment of his wife to the deed, which was delivered, of course, after that date. This was equivalent to a ratification under his own hand and seal of the Buffalo agreement. Both the agreement by which he contracted to convey the lands and his deed of conveyance are in the record. If Oliver was not satisfied with that agreement, as reduced to writing, he should have assailed it at once. As soon as he learned of the fraud which he alleged had been practiced he should have repudiated the contract, and informed Robinson, Haines, and Ranney thereof. But he did nothing of the kind. He allowed the contract to be carried out by Cunningham without objection. He himself made a deed in pursuance of the contract, and he permitted the vendees to expend large sums of money in establishing and carrying on the business for which they purchased the property. These facts prove beyond question, either that the Buffalo agreement was made upon the terms to which he had given his assent in advance, or if not, that he was satisfied with it as it was written, and ratified and performed it. All the complaints of Oliver, therefore, in reference to the execution of the Buffalo agreement, are shown to be groundless. But the case stated in the bill fails for want of proof of the necessary and vital averment, that these appellants were part- HUNT v. OLIVER. 221 Opinion of the Court. ners in the firm of Cunningham, Robinson, Haines & Co., and, as such, appropriated and converted to their own use the property of the plaintiff. The partnership just named was formed under written articles, under which Henry S. Cunningham, George J. Robinson, Calvin Haines, and Philip M. Ranney, and no others, became partners. With the exception of George J. Robinson, every member of the firm named in the articles of partnership testifies that neither Hunt nor Eschleman was in fact a partner. Hunt and Eschleman testify to the same effect. The testimony of George J. Robinson may be laid out of consideration. He is not only contradicted on this point by every other witness who testifies on the subject, but is flatly contradicted by his own deposition and answer in the foreclosure suit brought by Hunt and Eschleman against Oliver. Without going into details, it is sufficient to say that this witness is so thoroughly discredited that his deposition, uncorroborated, is not worthy of attention in settling the facts of the case. It is shown beyond question that neither Hunt nor Eschleman ever agreed to become partners in the firm of Cunningham, Robinson, Haines & Co.; and that they never held themselves out as partners, or contributed anything to the capital of the firm, or derived any profit whatever from its business. They were, therefore, not partners in any sense. Berthold v. Goldsmith, 24 How. 536; Febichy v. Hamilton, 1 Wash. C. C. 491. The only facts upon which the contention of the plaintiff is based that Hunt and Eschleman were partners in the firm are, first, that Cunningham appeared as a partner under circumstances which indicated, as the plaintiff claims, that his contribution to the capital of the firm was the money due on the mortgage to Hunt and Eschleman. This position, it may be observed, is at variance with the bill, which avers that Cunningham did not contribute any capital to the firm. The second fact relied on to show that Hunt was a member of the firm is, that he lent it his credit by endorsing its paper. But these facts are inconclusive. Hunt could aid Cunningham, his son-in-law, by advancing him means and by endorsing 222 OCTOBER TERM, 1885. Opinion of the Court. paper of the firm of which Cunningham was a member, without himself becoming a partner in the firm. These acts of Hunt were perfectly consistent with his testimony, and that of all the other witnesses, that he was in no sense a member of the firm. Conceding, therefore, that Hunt and Eschleman allowed Cunningham to get a foothold in the firm by authorizing him to promise that the property of the firm should be protected from the Hunt and Eschleman mortgage, and the testimony shows nothing more, this does not prove or tend to prove that they were partners. If they had given Cunningham outright their whole interest in. the mortgage, that fact would not have invested them with any rights in the property of the firm, or subjected them to its liabilities. The contention that they were partners in the firm of Cunningham, Robinson, Haines & Co. is based on vague conjectures built on the sayings and doings of others, which neither Hunt nor Eschleman is shown to have authorized or ratified. Much stress is laid by Oliver’s counsel upon the alleged fact that the assignment by Cunningham to Hunt and Eschleman, of his- interest in Oliver’s mortgage to Hunt, Eschleman, and Cunningham, was without consideration and simulated. We regard this assignment as a fact of no weight in this controversy. As Hunt and Eschleman are shown not to have been partners in the firm of Cunningham, Robinson, Haines & Co., the assignment did not injuriously affect Oliver’s rights as against them. Whether it was made with or without consideration was a matter of no concern to Oliver. The fact is, and so the record shows, that it was made upon the advice of counsel, and Oliver was told of it by Cunningham early in November, 1868. Its purpose evidently was to avoid any embarrassment to Hunt and Eschleman in case Cunningham became Oliver’s vendee of the mortgaged lands, and not to gain any unfair advantage over him. Finally, the evidence shows that all the stipulations in the Buffalo agreement for the benefit of Oliver have been performed by the parties, except when his own conduct has prevented performance; the $4000 has been paid to Hunt on Oliver’s account, and Hunt has acknowledged its receipt, and HARTRANFT v. DU PONT. Syllabus. 223 the Hawkins mortgage has been assigned to Hunt according to the contract; all of the lands conveyed by him to Cunningham, and all of the Preston lands, not in townships 28 and 29, have either been conveyed to him by Cunningham or will be upon his demand. There are over 6000 acres of these lands to which he now has a clear legal or equitable title, and which are valued by an uncontradicted witness at $40,000. In short, the Buffalo agreement, which the bill assails, appears to have been made with Oliver’s assent, to have been to his advantage, and to have been fairly performed. On every ground for relief alleged in the bill there is a failure of proof. This view renders it unnecessary to consider the effect, as a bar to the relief sought in this case, of the decree in the suit for foreclosure brought bv Hunt and Eschleman against Oliver. The decree of the Circuit Court against the appellants Hunt and Eschleman must, therefore, he reversed and the cause remanded, with directions to dismiss the hill as to them. HARTRANFT v. DU PONT. ERROR TO THE CIRCUIT COURT OK THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. Submitted April 19,1886.—Decided May 10, 1886. The Repauno was a wooden vessel 37 feet in length at the water line, 8 feet beam, 3 feet 9 inches depth of hold, 2 feet 1 inch draught, with a small engine and boiler; could carry 25 persons in smooth water, and was used to transport her owner and superintendent, and occasionally some workmen across the Delaware, between Thompson’s Point and Chester: Held, That, although it is sometimes difficult to draw the line between vessels so small and insignificant that they do not come within the inspection laws, and larger vessels which do come within them, the Repauno was liable to inspection under the statutes of the United States. The case is stated in the opinion of the court. 224 OCTOBER TERM, 1885. Opinion of the Court. J/r. Assistant Attorney General ALaury for plaintiff in error. No appearance for defendant in error. Mr. Justice Woods delivered the opinion of the court. This was an action at law brought by Du Pont, the defendant in error, against Hartranft, collector of customs, to recover $500, that sum being the amount of a penalty unlawfully exacted by Hartranft, as collector, from Du Pont, as the latter alleged. The facts were as follows: The plaintiff resided in Wilmington, Delaware. He was the proprietor of certain powder works at Thompson’s Point, upon the Delaware River, across from Chester, Pennsylvania, and distant about two miles. He owned a wooden boat called the Repauno, open except her forward part, which was boarded over. Her dimensions were as follows: Length of water line, 37 feet; length of keel, 34 feet; width of beam, 8 feet; depth of hold, *3 feet 9 inches; draught of water, 2 feet 1 inch. She had a small engine and boiler, and was used by the plaintiff to transport himself and his superintendent across the Delaware River, between Thompson’s Point and Chester. Occasionally the plaintiff used the boat to carry over his workmen, sometimes as many as nine or ten. When the water was smooth the boat could carry twenty-five persons. She never carried freight or passengers for hire. She had been inspected, but her papers had expired. When she was seized she was sailing without inspection papers. The plaintiff to get possession of her again, paid to the defendant, under protest, a penalty of $500, and brought this suit to recover it back. The jury returned a verdict for the plaintiff for $500, based upon a finding of the foregoing facts, with point of law reserved, which was stated as follows: “ If the court should be of the opinion that a vessel of the size and description, and used as found by the jury, is liable to inspection under the statutes of the United States, the verdict and judgment to be entered for the defendant non obstante veredicto ; and if the court should .be of the opinion that such a vessel is not liable to such inspection, then the judgment to be HARTRANFT v. DU PONT. 225 Opinion of the Court. entered for the plaintiff on the verdict.” Upon this verdict the court rendered judgment for the plaintiff, whereupon the defendant sued out this writ of error. The defendant relies on the following provisions of Title 52 of the Revised Statutes, “Regulation of Steam Vessels,” to justify the exaction of the penalty: “ Sec. 4399. Every vessel propelled in whole or in part by steam shall be deemed a steam vessel within the meaning of this title. “ Sec. 4400. All steam vessels navigating any waters of the United States which are common highways of commerce, or open to general or competitive navigation, excepting public vessels of the United States, vessels of other countries, and boats propelled in whole or in part by steam for navigating canals, shall be subject to the provisions of this Title.” Sec. 4418, which provides, among other things, that “ the local inspectors shall also inspect the boilers of all steam vessels before the same shall be used, and once at least in every year thereafter.” Sec. 4421, which provides, in substance, that when the inspection of a steam vessel is completed, and she and her equipment are approved, a certificate of inspection, verified by the oaths of the inspectors, shall be issued. “ Sec. 4426. The hull and boilers of every ferry-boat, canalboat, yacht, or other small craft of like character, propelled by steam, shall be inspected under the provisions of this Title. Such other provisions of law for the better security of life, as may be applicable to such vessels, shall, by the regulations of the board of supervising inspectors, also be required to be complied with, before a certificate of inspection shall be granted; and no such vessel shall be navigated without a licensed engineer and a licensed pilot.” The seizure in the present case was made under § 4499, which provides: “ If any vessel propelled in whole or in part by steam be navigated without complying with the terms of this Title, the owner shall be liable to the United States in a penalty of five hundred dollars for each offence, one-half for the use of the informer, for which sum the vessel so navigated 226 OCTOBER TERM, 1885. . Opinion of the Court. shall be liable, and may be seized and proceeded against by way of libel in any District Court of the United States having jurisdiction of the offence.” The Repauno was a vessel propelled by steam and navigating the Delaware River, which is a water of the United States, and a common highway of commerce. She was, therefore, by the terms of § 4400 of the Revised Statutes, made subject to the provisions of Title 52. But, if there were any doubt about the application of the inspection laws to the Repauno, it would be removed by § 4426. It seems to us clear that the Repauno comes within the class of boats described in this section. Of course, she bears no resemblance to a canal-boat, but she only differs from a ferry-boat, as it is generally understood, in not conveying passengers for hire; and she differs from a yacht in not being sea-going, if, in fact, she is not sea-going, and in not being designed and used for pleasure merely. But, if neither a ferry-boat nor a yacht, she clearly falls within the meaning of the phrase “ other small craft of like character.” If such a boat, so constructed and used, is not included in that phrase, it would be difficult to name any that would be. If it is argued that the Repauno is not such a craft as Congress would require to carry a licensed engineer and a licensed pilot, the reply is, that, as § 4426 makes this requirement of a canal-boat propelled by steam, and subjects it to the other provisions of law for the better security of life, there is no reason why the same exactions should not be made of the boat in question. The reason of the law applies to the Repauno. The purpose of Title 52 is primarily the protection of the passengers and crew and property on vessels propelled by steam. The law was passed also to protect the lives and property of persons on other boats and at the wharves. The Repauno was of sufficient size to cause peril to life and property by an explosion of her boiler, She was not a skiff. She was not a mere toy incapable of doing harm. The plaintiff’s superintendent, who daily, and his workmen, who occasionally were carried back and forth upon her, and the pilot and engineer, who were required for her navigation, and the people in other boats who passed her on the water, or those who stood on the HARTRANFT v. DU PONT. 227 Dissenting Opinion : Bradley, J. docks where she landed, were entitled to the same protection which the law provided against the explosion of the boilers of larger craft. A boat propelled by steam, which habitually carries four persons and sometimes more, and is capable of carrying twenty-five, ought to be subject to inspection. The fact that, if her boiler should explode or her hull spring a leak, probably only four lives would be imperilled, does not occur to us as ground why she should be exempted from the provisions of the law requiring inspection of vessels propelled by steam. In reaching this conclusion we have not overlooked the case of United States n. The Mollie, 2 Woods, 318. In that case the craft in question was of smaller dimensions than the Repauno, and was occasionally run by her owners for amusement on the Buffalo Bayou below Houston, Texas. She was held not to be within the inspection laws. It may be difficult to draw the line between vessels propelled by steam which are so small and insignificant that they do not come within the inspection laws, and larger boats which do. But we are clearly of opinion that the Repaurto belongs to the latter class, and that the penalty sued for in this case was lawfully enforced. The judgment of the Circuit Court must, therefore, be Reversed, and the cause remanded, with directions to grant a new trial. Mr. Justice Bradley dissenting. I cannot agree to the judgment in this case. It seems to me that it carries the application of the statute to an unreasonable length. The boat in question was a mere skiff, not larger than a ship’s yawl, with a capacity not exceeding that of a good-sized canoe, without deck, with a boiler not much larger than a tea-kettle, and a cylinder of seven inches stroke, and not much larger than a pop-gun. I think we are in danger of sticking in the bark by construing the statute as requiring such a vessel to be inspected. Indeed, it seems to me, that the terms of the law do not apply to such a boat. Its language is, “ every ferry-boat, canal boat, yacht, or other small craft of Wee characterT Section 4426. The same section declares that 228 OCTOBER TERM, 1885. Statement of Facts. “ no such vessel shall be navigated without a licensed engineer —and a licensed pilot.” The boat in question is not of “ like character,” within the meaning of the statute. It seems absurd to require a man to have an inspection made of a mere skiff which he has rigged up to take him across the river to his shops, and to have a licensed engineer and licensed pilot to navigate it. With all due respect, I think it is running the application of the statute into the ground. JOHNSON & Another v. WILKINS. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF FLORIDA. Submitted April 26,1886.—Decided May 10,1886. The cause was submitted, under Rule 20, January 7,1886. The court finding nothing from which it could be inferred that the value of the matter in dispute exceeded $5000, dismissed the case for'want of jurisdiction January 19, 1886. On the 26th April, 1886, the plaintiffs in error moved to reinstate the cause, accompanying the motion with affidavits in its support. Held, That the motion was too late. These were motions, supported by affidavits, to reinstate a case dismissed because the amount in dispute did not appear by the record to be sufficient to give the court jurisdiction— see Johnson v. Wilkins, 116 U. S. 392—and to recall the mandate. The following were the grounds of the motion : “ First. That the subject-matter in.dispute is of such value as to give this honorable court jurisdiction, and that the plaintiffs in error were taken by surprise in not having notice of any intention on the part of defendant in error to deny the jurisdiction. “ Second. The defendant in error having by this agreement submitted the case upon its merits, he is now estopped from raising any question of jurisdiction.” JOHNSON v. WILKINS. 229 Opinion of the Court. JTr. Alexander Porter Morse for the motion. No one opposing. Mr. Chief Justice Waite delivered the opinion of the court. This case was submitted, under Rule 20, on the 7th of January last, but, on looking into the record, we. found nothing from which it could fairly be inferred that the value of the matter in dispute exceeded $5000, and, consequently, on the 19th of January, entered an order of dismissal, on our own motion, as it rested “ on the plaintiffs in error to show our jurisdiction, either from the record or by affidavits,” and this had not been done. The present motion was not filed until April 26th, and we are not willing at this late day to receive and consider affidavits to supply a defect in the record which has existed since the case was docketed on the 11th of August, 1883, and of which the appellants have neglected to take any notice until the expiration of more than three months from the time the court acted upon it and entered an order of dismissal on that account. This is one of the class of cases in which the parties are required to act promptly, after they have actual notice of what is required of them, or they will not be heard. The motion to reinstate is denied. 230 OCTOBER TERM, 1885. Statement of Facts. WELLS & Others v. WILKINS. GOLDSTUCKER & Another v. SAME. WELLS & Others v. SAME. WELLS & Others v. SAME. WELLS & Others v. SAME. WELLS & Another v. SAME. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF FLORIDA. Submitted April 19, 1886.—Decided May 10,1886. The court does not find in the affidavits submitted, with the motions to reinstate, proof that the value of the property in dispute is sufficient to give it jurisdiction of the causes. These were motions to reinstate six causes dismissed January 11, 1886. See 116 U. S. 393, 394. The grounds for the motion were stated as follows: “ First. The affidavit taken by the defendant in error denying that the subject-matter in dispute was within the jurisdiction of this Honorable Court were taken ex parte and without any notice to the plaintiffs in error or their counsel of record. “ Second. That the subject-matter in dispute is of such value as to give this Honorable Court jurisdiction, and that the plaintiffs in error were taken by surprise in not having notice of any intention on the part of defendant in error to deny the jurisdiction. “ Third. The defendant in error having by his agreement submitted the case upon its merits, he is now estopped from raising any question of jurisdiction.” The second ground for dismissal was supported by affidavits as to the value of the property in dispute. BOHANAN v. NEBRASKA. 231 Statement of Facts. Mr. Alexander Porter Morse for the motion. Mr. C. C. Yonge, Sr., opposing. Mr. Chief Justice Waite delivered the opinion of the court. These motions are denied. The additional affidavits which have been filed failed to satisfy us that the value of the matter in dispute is sufficient to give us jurisdiction. While the aggregate of the values in all the suits may exceed $5000, it is clear to our minds that the value of the property involved in no one of the suits reaches that sum, or anything like it. Denied. BOHANAN v. NEBRASKA. ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA. Submitted April 12, 1886.—Decided April 19, 1886. This court has jurisdiction to review a judgment of a State court convicting a person of a criminal offence, when the defendant sets up at the trial, specially, an immunity from a second trial for the same offence by reason of the Vth Amendment to the Constitution of the United States. The court will not consider the merits of the question involved in a case, on a motion to dismiss unaccompanied by a motion to affirm. This was a motion to dismiss. The motion was as follows: “And now comes the defendant in error, and moves the court to dismiss the writ of error in this case for the reasons following, to wit: “ First. The court is without jurisdiction to review the judgment contained in the record, brought up in this cause, there being no Federal question therein presented. “Wm. Leese, Att’y-Gen’l of Nebraska, for Defenda/nt in Error?' The grounds for the denial of jurisdiction were stated by the Attorney-General of Nebraska in the following language : 232 OCTOBER TERM, 1885. Statement of Facts. In February, 1882, Bohanan was indicted by the Grand Jury of Lancaster County, Nebraska, for killing one Cook, in said county. To the indictment Bohanan interposed a plea in abatement, asserting the illegality of the grand jury, presenting an issue of fact. The judge of the District Court denied the accused the right to try the issue raised. On the trial of the cause in the District Court, Bohanan was convicted of murder in the second degree and sentenced to imprisonment for life, a motion for a new trial being filed and overruled. Bohanan filed his petition in error in the Supreme Court of the State, praying that said judgment and sentence might be set aside and a new trial granted. And the Supreme Court says: “ For the error in denying the prisoner a trial of the issue, taken on his plea in abatement the judgment must be reversed. The verdict set aside.” Bohanan n. The State, 15th Nebraska, 215. The venue was changed at Bohanan’s request from Lancaster to Otoe County, in the same district, and on a second trial on the indictment (the plea in abatement being waived), the jury of Otoe County found him guilty of murder in the first degree, and be was by the court sentenced to death. It nowhere appears from the record in this case, either in the application for a change of venue, or in the objections to the admissibility of evidence, to the charge of the court as given, or to the refusal to charge as requested, or in the motion for a new trial, the assignment of errors in the Supreme Court of the State, or, in the opinion filed in that court, that any Federal question was presented for consideration, or in any way relied on before the final judgment from which the writ of error has been taken. Such being the case, this tribunal cannot take jurisdiction. After the petition of error was filed in the Supreme Court of the State, the plaintiff in error obtained leave to file the following additional assignment of error: “That the said court erred in putting the said defendant twice in jeopardy for the same offence, in violation of, and in disregard of Article V. of the Amendments to the Constitution of the U. S.,” which provides : UNITED STATES v. HAILEY. 233 Statement of Facts. “Nor shall any person be subject for the same offence, to be twice put in jeopardy of life or limb.” J/r. William Leese, Attorney-General of Nebraska, for the motion. Mr. J. B. Strode, Mr. J. C. Watson, and Mr. W. B. Kelley were with him on the brief. Mr. Charles 0. Whedon, opposing. Mr. Charles E. Magoon and Mr. 0. P. Mason were with him on the brief. Mr. Chief Justice Waite delivered the opinion of the court. This motion is denied. Bohanan set up specially an immunity from a second trial for the same offence, by reason of Article V. of the amendments of fhe Constitution of the United States. This was denied him by the judgment of the Supreme Court of the State, and we have jurisdiction to review that decision. Upon a motion to dismiss we cannot consider the merits of the question on which our jurisdiction depends, and no motion has been made to affirm. Motion denied. UNITED STATES v. HAILEY, Administrator. FROM THE SUPREME COURT OF THE TERRITORY OF T DATTO, Submitted April 7,1883.—Decided May 10, 1886. The proper way to bring up for review a cause tried before a jury in a Territory is by writ of error. This court has no jurisdiction over a case brought from the Supreme Court of a Territory without a writ of error, appeal, or citation, or appearance by defendant or respondent. This was an action against a bondsman of a defaulting paymaster. After commencement of the suit defendant died, and his administrator was substituted. The case was tried before a jury, which, under direction of the court, found a verdict for defendant. The United States appealed to the Supreme 234 OCTOBER TERM, 1885. Statement of Facts. Court of the Territory, having duly excepted to the ruling of the court. The following are the entire contents of the record relating to the proceedings in the Supreme Court: “At the September term of the said Supreme Court of Idaho T’y, on the seventh day of Sept., a.d. 1882, being a day of said Supreme Court. Present, H. E. Prickett and J. T. Morgan, a quorum of said Supreme Court, and the United States as appellant, by W. R. White, U. S. att’y, and the defendant and respondent by Messrs. Richard Z. Johnson and Houston & Gray, his counsel and att’ys of record ; the said appealed case was argued before said Supreme Court by W. R. White, U. S. att’y for Idaho T’y, on the part of the appellant, and R. Z. Johnson, att’y for the respondent. “On the 13th day of’Sept., 1882, being a day of said court, the judgment of the court below was affirmed, on the ground that sec. 140 of the Probate Practice Act of the Revised Laws of Idaho T’y, 1874-’5, required that a claim in suit against a defendant who dies while such suit is pending shall be presented to such adm’r, for his allowance or rejection, and that no recovery shall be had in the action unless proof be made of the presentations required by law. “This statute the court held was binding on claims in favor of the United States, in the same manner as the claims of other parties. “ To which decision and judgment the United States, by their att’y, W. R. White, in open court duly excepted, and that the ruling of said court and other proceedings connected therewith may appear on record, this bill of exceptions is hereby settled, and allowed according to law by the said Supreme Court, this nineteenth day of Sept., 1882. (S.) John T. Morgan, Chief Justice of the Supreme Court, “ (Endorsed :) Idaho Territory. “ Service of the within draft of bill of exceptions acknowledged, and we have no amendments to offer. Huston & Gray, and Richard Z. Johnson, Atty for def'tT UNITED STATES v. CENTRAL PACIFIC R. R. CO. 235 Syllabus. “ In the Supreme of Idaho T’y, Sept, term, 1882. United States, pl. &. ap., vs. John Hailey, adm’r, defendant and respondent. Exceptions to decision of Supreme Court, Idaho T’y. Filed Dec. 16th, 1882. A. L. Richardson, clerk.” Jfr. Solicitor General for appellant. No appearance for appellee. Mr. Chief Justice Waite delivered the opinion of the court. This case has been docketed here as an appeal from the Supreme Court of the Territory of Idaho, but, on looking into the transcript, we find that the suit was at law and the trial by a jury. Under such circumstances the only proper way of bringing it here for review would have been by writ of error. Stringfellow v. Cain, 99 U. S. 610 ; United States v. Railroad Co. 105 U. S. 263; Hecht v. Boughton, 105 U. S. 235; Woolf v. Hamilton, 108 U. S. 15. In point of fact, however, there has been neither a writ of error, nor an appeal, nor a citation, nor an appearance by the defendant or respondent. It is clear, therefore, we have no jurisdiction, and the case is Dismissed. UNITED STATES v. CENTRAL PACIFIC RAILROAD COMPANY. APPEAL FROM THE COURT OF CLAIMS. Argued April 29, 1886.—Decided May 10, 1886. The act of July, 1, 1862, “to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean,” 12 Stat. 489, and the act of July 2, 1864, 13 Stat. 356, amending the same, and the act of May 7, 1878, 20 Stat. 56, commonly called the Thurman act, are in pari materia and to be construed together ; and so construed the act of May 7, 1868, restores provisions of the act of 1862 respecting retention of compensation for services performed by the railroads for the United States 236 OCTOBER TERM, 1885. Opinion of the Court. which had been changed by the amendment of 1864, and requires the Treasury to withhold all payment for services performed on the roads constructed by the aid of government grants, but not on roads owned or operated by the same companies which were not constructed with such aid. When a contract is open to two constructions, the one lawful and the other unlawful, the former must be adopted. Hobbs v. McLean, 117 U. S. 567, affirmed. Mr. Solicitor General for appellant. Mr. John F. Dillon and Mr. Joseph F. MacDonald for appellee. Mr. Justice Woods delivered the opinion of the court. The appellee, the Central Pacific Railroad Company, brought this suit, in the Court of Claims, against the United States, to recover compensation for services rendered the United States in transporting persons and freight over those parts of its railroad in the building of which it had not been aided by the government. The United States demurred to the petition on the ground that it did not allege facts sufficient to constitute a cause of action. The demurrer was overruled and judgment rendered in favor of the claimant for the sum demanded. From that judgment the United States have brought this appeal. The appellee alleges in its petition that it was originally incorporated on June 28, 1861, under the laws of the State of California; that, with»the aid of the grant of lands in alternate sections, and of bonds of the United States issued to it under the acts of Congress approved July 1, 1862, and July 2, 1864, it built, either directly or indirectly, and became the owner of, eight hundred and sixty-five miles and sixty-six hundredths of a mile of railroad. In addition to this line of road, the construction of which was so aided by the United States, the appellee, during the period covered by the petition, controlled and used 383.67 miles of railroad, acquired by consolidation with other companies, and 1791.35 miles of railroad leased by it from other companies, making 2175.02 miles, all of which had been constructed without any aid from the United UNITED STATES v. CENTRAL PACIFIC R. R. CO. 237 Opinion of the Court. States under the said acts of Congress. The petition demanded pay for service of transportation rendered the United States over the 2175.02 miles of railroad which had been so constructed without their aid. The contention of the United States was that they were justified in withholding the compensation sued for, by virtue of the provisions of § 2 of the act of May 7,1878, ch. 96, 20 Stat. 56, commonly known as the Thurman act. We do not think this contention is well founded. The act of July 1, 1862, ch. 120, 12 Stat. 489, was passed “ to aid,” so the title declared, “ in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the government the use of the same for postal, military, and other purposes.” The act of July 2, 1864, ch. 216,13 Stat. 356, was an amendment to the act of July 1, 1862. By these acts certain railroad companies were aided in the construction of their roads. Among them was the appellee, which built the 865.’66 miles above mentioned. It was aided in the construction of this part of its roads by an issue of bonds made to it by authority of the acts of July 1, 1862, and July 2, 1864. The act of July 1,1862, made the following provisions to secure the payment of the principal and interest of the bonds so issued: “ Sec. 5. . . . The issue of said bonds and delivery to the company shall ipso facto constitute a first mortgage on the whole line of the railroad and telegraph,” etc. “ Sec. 6. The grants aforesaid are made upon condition that said company shall pay said bonds at maturity, and shall keep said railroad and telegraph line in repair and use, and shall at all times transmit despatches over said telegraph line, and transport mails, troops, and munitions of war, supplies and public stores upon said railroad, for the government, whenever required to do so by any department thereof, and the government shall at all times have the preference in the use of the same for all the purposes aforesaid ; . . . and all compensation for services rendered for the government shall be applied to the payment of said bonds and interest, until the whole amount is fully paid; . . . and after said road is com- 238 OCTOBER TERM, 1885. Opinion of the Court. pleted, until said bonds and interest are paid, at least five per centum of the net earnings of said road shall also be annually applied to the payment thereof.” By the act of July 2, 1864, it was provided as follows : “ Sec. 5. ... Only one-half of the compensation for services rendered for the government by said companies shall be required to be applied to the payment of the bonds issued by the government in aid of the construction of said roads.” These sections, taken together, constitute the contract between the United States and the appellee. United States v. Union Pacific Pailroad Co., 91 U. S. 72 ; Sinking Fund Cases, 99 U. S. 700, 718 ; Union Pacific Railroad Co. v. United States, 104 U. S. 662. This contract is binding on the United States, and they cannot, without the consent of the company, change its terms by any subsequent legislation. Sinking Fund Cases, ubi supra. These provisions of the statute law of the United States being still in force, Congress passed the act of May 7,1878, being the Thurman act, above referred to. The preamble of this act mentions by name the. companies which had been aided by bonds of the United States under the acts of July 1, 1862, and July 2, 1864. The first section declares how the net earnings referred to in those acts shall be ascertained, and the second section provides as follows : “ That the whole amount of compensation which may, from time to time, be due to said several railroad companies respectively for services rendered for the government, shall be retained by the United States, one-half thereof to be presently applied to the liquidation of the interest paid and to be paid by the United States upon the bonds so issued by it as aforesaid, to each of said corporations severally, and the other half thereof to be turned into the sinking fund hereinafter provided, for the uses therein mentioned.” The case turns on the true interpretation of this section, the appellants contending that it authorized them to retain compensation earned for transportation over all the roads owned or leased by the appellee, whether the construction of such roads had been aided by the issue of government bonds or not, UNITED STATES v. CENTRAL PACIFIC R. R. CO. 239 Opinion of the Court. and the appellee contending that the compensation referred to was that earned by transportation over that part only of its lines which had been assisted by the government subsidy. The acts of July 1, 1862, July 2, 1864, and May 7, 1878, all relate to the same subject. The latter act is declared by its title to be amendatory of the first two, and its last section provides that each and every of its provisions shall be “ held as in alteration and amendment ” of the two acts first mentioned. The three acts are, therefore, to be construed together as one act, and one part to be interpreted by another. United States v. Freeman, 3 How. 556, 564; Crespigny v. 'Wittenoom, 4 T. R. 790, 793; Comrn.on'wealth v. Slack, 19 Pick. 304. One of the provisions of the act of July 1,1862, closely allied to the one under consideration, was construed by this court in the case of United States v. Kansas Pacific Hallway Co., 99 U. S. 455. . The Kansas Pacific Railway Company was one of the companies to which the United States issued bonds in aid of the construction of its road under the act just mentioned. Assisted by this issue of bonds, it had built 393miles of road. It afterwards built 245 miles without aid from the government. The United States brought suit against the company to recover the five per cent, of net earnings, to be applied to the payment of the bonds and interest, as provided by § 6 of the act of 1862. One of the controversies in the case was whether the government was entitled to the five per cent, net earnings on that part of the road which had been built without government aid. This court decided that it was not. Speaking by Mr. Justice Bradley it said : “We are of opinion . . . that the subsidy bonds granted to the company, being granted only in respect of the original road, . . . * are a lien on that portion only, and that the five per cent, of the net earnings is only demandable on the net earnings of said portion.” With this decision in view, it would be impossible to hold with any show of reason that the compensation for services rendered the United States, which by the same section was required to be applied to the payment of the same bonds, included compensation for services rendered by a road the construction of which had not been aided by the issue to the company of government bonds. 240 OCTOBER TERM, 1885. Opinion of the Court. In. the case of United States v. Denver Pacific Pailway Co., 99 IT. S. 460, decided at the same term, and in which the judgment was delivered by the same justice, it was held that the United States had no right, under the sixth section of the act of 1862, to retain compensation for services rendered upon a road, the construction of which it had not aided by its bonds. The ground upon which the court placed its decision was that the government had no lien except upon a road which it had so aided, and could retain neither the five per cent, of the earnings of a road to which it had issued no bonds, nor compensation for transportation services thereon. This court having thus interpreted the act of July 1, 1862, we cannot, consistently with the established rules of construction, give a different meaning to substantially the same words in the act of May 7, 1878. Reiche v. Smythe, 13 Wall. 162. In the act of July 1, 1862, the provision is, that “all compensation for services rendered for the government shall be applied to the payment of said bonds.” In the act of May 7, 1878, the words are, that “the whole amount of compensation . . . for services rendered for the government shall be retained by the United States,” one half to pay interest and the other half to be turned into the sinking fund. If the two acts are to be construed together and as one act, we must give the same meaning to like expressions in both. We cannot say in one case that the compensation mentioned means compensation only for services on aided roads, and in the other that it includes compensation for services on roads not aided. There is another view of this controversy which seems to us conclusive. As the contract between the United States and the railroad company contained in the acts of July 1,1862, and of July 2, 1864, has been interpreted by this court to authorize the retention by the government of compensation for services only on those roads which the United States aided in building, the construction which the appellants seek to put on the second section of the act of May 8, 1878, would not only render that section a breach of faith on the part of the United States, but an invasion of the constitutional rights of the appellee. We are bound, if possible, so to construe the law as to lay it EVANS V. PIKE. 241 Syllabus. open to neither of these objections. Broughton v. Pensacola, 93 U. S. 266 ; Bed Bock n. Henry, 106 U. S. 596 ; Hobbs v. McLean, 117 U. S. 567, decided at the present term, and cases there cited; United States v. Coombs, 12 Pet. 72. The construction contended for by the appellee preserves the good faith-of the government, and frees the act from the imputation of impairing rights secured by the Constitution of the United States. In our view the construction of the second section of the act of May 7, 1878, is plain, and not fairly open to controversy. By the act of July 1, 1862, “all compensation for services rendered for the government ” was to be applied to the payment of the bonds issued by the United States to aid in building the road. By the act of July 2, 1864, only “ one-half of the compensation for services rendered for the government ” by said company was required to be applied to the payment of the bonds. The act of May 7,1878, merely restored the provisions of the act of July 1,1862, and again required all compensation for services rendered the government to be applied to the payment of the bonds. This compensation, as we have seen, has been limited by the decisions of this court to compensation for services rendered by the aided roads. The construction of the second section of the act of May 7, 1878, contended for by the appellee, is, therefore, right. Judgment affirmed.. EVANS & Another r. PIKE. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE' EASTERN DISTRICT OF LOUISIANA. Argued April 22, 1886.—Decided May 10,1886. In Louisiana a gratuitous donee of land bought by the donor on credit at a. sheriff’s sale on execution, and still subject to the judgment and liable to-an execution either on that judgment or on the bond given for the purchase' money, who is liable for the charges on the land but is not in possession, is not entitled to the delay and formalities of the hypothecary action. vol. cxvni—16 242 OCTOBER TERM, 1885. Argument for Defendant in Error. In Louisiana, as in the States where the common law prevails, a person hav-• ing an interest in mortgaged premises sold under a foreclosure who was not made a party to the proceedings, cannot obtain a judgment dispossessing the purchaser without redeeming or offering to redeem the property by paying the mortgage debt ; and the proper remedy in such case, for such person suing in the courts of the United States in that District, is by bill in equity to redeem the property, and not by an action at law. A charge to the j ury which, though incorrect, does no injury to the excepting party, is not sufficient ground for setting aside the judgment. This was a petitory action in the nature of an action of ejectment at common law. The case is stated in the opinion of the court. A former hearing of the cause is reported in Pike n. Evans, 94 U. S. 6. Mr. William Grant, for plaintiffs in error, submitted on his brief, in which were cited : Robert v. Brown, 14 La. Ann. 597 ; Battio v. Poisset, 8 Martin N. S. 337 ; Smith v. McMicken, 3 La. Ann. 319 ; Ford v. Douglas, 5 How. 143 ; Jackson v. Lude-ling, 21 Wall. 616. Mr. John A. Campbell, for defendant in error, cited : Stock-ton n. Downey, 6 La. Ann. 581 ; McEnery n. Pargoud, 10 La. Ann. 497 ; Dufour v. Camfranc, 11 Martin La. 607, 610 ; Donaldson v. Rouzair, 8 Martin La. N. S. 162 ; Dearmond v. Courtney, 12 La. Ann. 251 ; Taylor v. Huey, 11 La. Ann. 614 ; Seawett v. Payne, 5 La. Ann. 255 ; Coiron v. Mittaudon, 3 La. Ann. 664 ; Mullen v. Follain, 12 La. Ann. 838 ; Fulton v. Fulton, 7 Rob. La. 73; Wright v. Bank of the United States, 7 La. Ann. 123 ; Fougue v. Clapp, 101 U. S. 551 ; Griffith v. Bogert, 18 How. 158 ; Harding v. Harding, 4 Myl. & Cr. 514 ; Requa v. Rea, 2 Paige, 339; Wood v. Mann, 3 Sumner, 318; Miller v. Sherry, 2 Wall. 237 ; Clarkson v. Read, 15 Gratt. 288 ; Drouèt v. Rice, 2 Rob. La. 374 ; Holroyd v. Wyatt, 2 Collyer, 327 ; Proctor v. Farnam, 5 Paige, 614 ; Campbell v. Iloly-land, 7 Ch. D. 166 ; Barlow v. Osborne, 6H. L. Cas. 556; Jeter v. Hewitt, 22 How. 352; Johnson v. Waters, 111 U. S. 640; Gillespie v. Cam,mack, 3 La. Ann. 248 ; Williams v. Close, 12 La. Ann. 873 ; Conrad v. Patzelt, 29 La. Ann. 465 ; Rowly n. Kemp, 2 La. Ann. 360 ; Washburn v. Green, 13 La. Ann. 332. EVANS V. PIKE. 243 Opinion of the Court. Mr. Justice Bradley delivered the opinion of the court. This is a petitory suit brought by Marie P. Evans and her husband, the plaintiffs in error, to recover a plantation of 1911 acres, called the Richland plantation, situated in the parish of West Feliciana, near Baton Rouge, in the State of Louisiana. The action was originally commenced against William S. Pike, and is continued against his widow and heirs, the defendants in error. The plaintiffs claim the property under a gratuitous donation made by Ackley Perkins to his niece, the said Marie P. Evans (then Marie Linton), by act of donation dated September 5, 1861. The title of the defendants is based on a judgment of the second district court of West Feliciana, rendered 18th February, 1859, for the sum of $16,890.25, with interest, in favor of one Eliza C. Johnson, against J. & H. Perkins, upon mortgage notes given by them for the purchase of the plantation. An execution was issued on this judgment, and the property failing to bring two-thirds of its appraised value, it was sold on the 3d of August, 1861, on twelve months’ credit, pursuant to the Code of Practice of Louisiana; and the said Ackley Perkins, a brother of the mortgagors, became the purchaser, and to secure the payment of the purchase money he gave a twelve months’ bond for $30,695.80, with interest at ten per cent, per annum, with two sureties. This bond contained a declaration of mortgage on the property sold, and an acknowledgment that it was to have the force of a final judgment, but it was not recorded. This was about one month prior to the donation made by Ackley Perkins to the plaintiff. The twelve months’ bond not being paid, an execution was issued upon it on the 10th of October, 1865, and under this execution the property was sold on the 6th of January, 1866, and William S. Pike, one of the sureties of Perkins on the bond, to protect himself, became the purchaser for the sum of $46,725, received a deed from the sheriff, and took immediate possession of the premises, and continued in possession until the commencement of this suit in October, 1871, a period of five years and nine months; and he and his heirs have been in possession ever since. The defendant, William S. Pike, amongst other things, 244 OCTOBER TERM, 1885. Opinion of the Court. interposed the plea of prescription of five years, under article 3543 of the Revised Civil Code, being a re-enactment of the statute passed March 10, 1834, which declares that “all informalities connected with, or growing out of, any public sale made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sale, after the lapse of five years from the time of making it, whether against minors, married women, or interdicted persons.” At the first trial of the cause, the plaintiffs undertook to rebut this plea by showing that the sheriff did not actually seize the property, and the Circuit Court held that this defect was not one of the informalities cured by the prescription. On writ of error from this court we held otherwise, and reversed the judgment. Pike v. Evans, 94 TJ. S. 6. Of course, we must have held that the sheriff was authorized to sell the property at public auction, for that is necessary in order to maintain the plea of prescription in such a case. A second trial has since taken place, and it does not appear by the record that any attempt was made to show a want of seizure by the sheriff. His return to the writ of execution shows that he did seize the property. The plea of prescription, however, was not withdrawn by the defendants, but was still relied on; and the judge, besides charging the jury that if Pike was in possession of the plantation for a period of five years, and purchased the same from a person authorized to sell at public auction, any informality connected with, or growing out of, the sale was prescribed, went on to charge further, that, under the terms of the decision of the Supreme Court in this case, the prescription of five years, if proved, was decisive of the controversy; operated as a bar to the plaintiffs’ action, and gave to the defendants a title by prescription against the plaintiffs. To this instruction the plaintiffs excepted, and the substantial ground of their exception was, that the prescription of five years only cures defects and informalities in a sale, and not defects in the title itself, which, according to the laws of Louisiana, can only be cured by a prescription of ten years of possession in good faith and under a just title. But even if this objection were well founded, a question EVANS v. PIKE. 245 Opinion of the Court. would still arise whether by the sheriff’s sale William S. Pike did not acquire a good title as against the plaintiffs ? For, if he did, prescription, except in reference to informalities of the sale, was not necessary to his defence, and the charge could not injure the plaintiffs. It is necessary, therefore, to examine this question. The objection made by the plaintiffs to the title conferred by the sheriff’s sale is, that the plaintiff, Marie P. Evans, was not made a party to the proceedings and not served with notice, though donee of the property, and a third possessor. The situation of the property at the time of the sale was as follows : On the 18th of February, 1859, it became subject to Eliza C. Johnson’s judgment for purchase money. On the 3d of August, 1861, by virtue of an execution on this judgment, it was sold to Ackley Perkins on a credit of twelve months, and Perkins gave a twelve months’ bond for the purchase money. This sale was made in pursuance of a law of Louisiana which authorizes a sheriff to sell property on execution at twelve months’ credit if unable to sell it for cash at two-thirds of its appraised value. La. Code Practice, Art. 680, 681. At such sale on credit, the purchaser is required to furnish good and sufficient joint security and special mortgage on the property sold, bearing interest at the same rate as the judgment. Art. 681. The Code further provides that if the bond is not paid at maturity, “ the clerk who first issued the order of seizure shall, on the demand of the judgment- creditor, or any other person interested, and on the bond being delivered to him, issue an execution for the amount, both against the purchaser and his surety, in the same manner as on a final judgment; and this execution shall be directed to the sheriff, to be carried into effect.” Art. 719. “ If the amount of the bond, with interest and costs, be not paid to him on demand, it is the duty of the sheriff, under this execution, to seize immediately the property of the purchaser, or of the surety, or both, to the amount of the debt and costs, and to sell it for ready money.” Art. 720. The course thus prescribed was followed in the present case. But the sale thus made on credit was not a satisfaction of the judgment, which still remained in full force: for, if the 246 OCTOBER TERM, 1885. Opinion of the Court. bond was not paid at maturity (as it was not), execution might be issued either on the judgment, or on the bond, at the option of the judgment creditor. The land still remained subject to the judgment. The execution on the bond had merely this advantage, that it could be levied on the property of the sureties as well as on that of the principal; but the property for which the bond was given remained subject to the debt and to the lien of the judgment. A sale of the land under an execution issued on the judgment, or on the bond, would relate back to the judgment for its force and effect. Trescott v. Lewis, 11 La. Ann. 184; Bahain v. Langfield, 16 La. Ann. 156,157 ; Union Bank v. Stafford, 12 How. 327, 339, 340. As Ackley Perkins paid nothing on his purchase, but merely gave the twelve months’ bond, he could do nothing to defeat the continued lien of the judgment. Though a purchaser from him in possession might be entitled to be proceeded against by a hypothecary action, a mere gratuitous donee would take the property subject to all charges in the same manner as the donor held it. Article 1551 of the Civil Code declares: “ The property given passes to the donee with all its charges, even those which the donor has imposed between the time of the donation and that of the acceptance ” ; in other words, the donee takes cum onere, and undoubtedly with implied notice. This was manifested in the present case by the conduct of the parties at the time of passing the act of donation, which declares that they “ dispensed with the production» of a certificate from the recorder of the parish as is required by article 3328 of the Civil Code.” This means that the donee accepted the property at her own risk, subject to all charges thereon, and amounted to a voluntary assumption by her of those charges, so far as they were specific and not general liens. It is the general law, it is true, that a third possessor of hypothecated property must be proceeded against by the hypothecary action, which requires thirty days’ demand of the principal debtor, and ten days’ subsequent notice to the third possessor to pay the debt or give up the property. Article 68 of the Code of Practice declares that “if the hypothecated property be neither in the possession of his debtor nor of his EVANS V. PIKE. 247 Opinion of the Court. heirs, but in that of a third person, the creditor has his action against that person, in order to compel him either to give up the property or to pay the amount for which it stands hypothecated.” And this is the ordinary rule as to third possessors, whether the hypothecation be by act of mortgage or in any other form. A judgment creditor, whose claim bears against a piece of property transferred to a third party who does not assume to pay the judgment, must proceed by hypothecary action. Massey n. Ferich^ 24 La. Ann. 28. But where the vendee assumes the payment of a mortgage as a part of the purchase price, the mortgagee may proceed against the mortgagor without reference to the sale made by him. P&re v. Goldman, on appeal by Sell, the third possessor, Louque’s Dig. 442, pl. 9. A purchaser of property subject to a mortgage debt, who promises, or is personally liable, to pay the debt, is held not to be a third possessor, entitled to the demand and notice requisite in a hypothecary action. Duncan n. Elam, 1 Rob. La. 135; Boissac v. Downs, 16 La. Ann. 187. From these authorities we infer the rule to be, that a erra-tuitous donee, even when in possession, being liable for the charges on the land, is not entitled to the delay and formalities of the hypothecary action. But, if this be not true in all cases, we think it must be true in a case like the present, where the party is not in possession,- and has accepted a donation of land from a person who bought it on credit, the land being still subject to the judgment under which it was sold, and liable to an execution either on such judgment or on the bond given for purchase money. In this case the plaintiffs were not in possession. As we understand the record, no change of possession took place at the time of the donation; but the plaintiff Marie, the donee, went immediately abroad, out of the country, and Ackley Perkins remained in possession until the sale to William S. Pike, in January, 1866, under the execution on the twelve months’ bond. Mrs. Johnson, the judgment creditor, not receiving any fruit of her judgment, finds herself, at the close of the war, obliged to resell the property. She finds no one in possession but Ackley Perkins. She follows the directions of 248 OCTOBER TERM, 1885. Opinion of the Court the Code, and an execution is issued on the twelve months’ bond. William S. Pike is obliged to purchase the property to protect himself as surety on the bond. Under these circumstances, there is certainly no strong equity in favor of the plaintiff’s claim. She never paid a cent for the property; her donor never paid a cent for it; the judgment remains unpaid; the surety is obliged to buy to save himself; and now the plaintiff, after nearly six years have passed away, seeks to deprive Pike of possession, without offering to reimburse him for what he has paid (or bound himself to pay) to relieve the property from the incumbrance resting upon it, and to satisfy the debts of the plaintiff’s donor, and of the parties against whom the judgment was originally rendered. There could not well be a case more destitute of equity. Suppose the plaintiffs were entitled to notice of the application for executory process, or to some formality in lieu of notice, does that make the sale so absolutely void, that she can recover the property without restoring, or offering to restore, to Pike or his heirs, what he has paid ? In the English system^ followed in most of the States, a person having an interest in mortgaged premises sold under a foreclosure, and not made a party to the proceedings, merely retains his equity of redemption, that is, a right to redeem the property by paying the amount due on the mortgage. He cannot turn the purchaser out of possession, without redeeming, or offering to redeem, the property by paying the mortgage debt. This rule is founded in such manifest justice that we should be surprised not to find it in some form in a system of law drawn from the same source as that of English equity. An examination of the Louisiana decisions shows that we are not mistaken in our anticipations. In Dufour v. Camfranc^ 11 Martin, 607, 615, the plaintiff claimed title to certain slaves; the defendant pleaded that he had purchased them at sheriff’s sale upon an execution issued on a judgment against the heirs of one Dufour, and that plaintiff was one of those heirs. It was replied, amongst other things, that the judgment was null, because plaintiff was not cited. The court said : “ Another question still presents itself. EVANS v. PIKE. 249 Opinion of the Court. It has been proved that the proceeds arising from the sale of the slaves were applied to the discharge of the judgment debts of the plaintiff, and the court is of opinion that he cannot recover in this suit until he repay the money.” “ Nothing could be more unjust than to permit a debtor to recover back his property, because the sale was irregular, and yet allow him to profit by that irregular sale to discharge his debts.” In Donaldson v. Douzan, 8 Martin, N. S. 162, the court said: “ The judge below thought the sheriff’s deed, without a judgment, did not pass the right of the defendant in execution to the purchaser, and in that opinion we concur. But he thought that, as the purchase money had been applied to the benefit of the estate of the plaintiff’s testator, she ought not to recover the lot, without returning the price paid for it. In the view taken by the judge below we also concur; ” and the judgment was affirmed. In Stockton v. Downey, 6 La. Ann. 581, which was a suit to recover property sold under executory process, the court say : “We do not think that judicial sales ought to be disturbed, unless at the instance of a party who has a right to sue for their rescission or nullity, and who can show an injury resulting to him from the sale, as well as an interest in the result of the suit, and without a previous proffer of full indemnity to the bona fide parties, whose interests are to be affected by the judgment.” The sale was sustained. In Taylor v. Huey, 11 La. Ann. 614, which was a petitory action for a tract of land, the plaintiff claimed under a deed from one Fountain, dated in August, 1846, but not recorded until May, 1847; the defendant claimed under a sheriff’s sale made in January, 1847, and deed recorded in February, 1847; the sale being made by virtue of executory process issued upon an act of mortgage executed by Fountain in December, 1845, and recorded November, 1846, after the execution of the deed from Fountain to Taylor. The court concludes its judgment as follows: “ But conceding that Taylor could be heard to impeach the title of Huey thus acquired, he has not laid a foundation for doing so by the allegations of his petition. He has made no tender to the defendant of the mortgage debt which 250 OCTOBER TERM, 1885. Counsel for Parties. burdened the land, and was only discharged by the sale he seeks to treat as a nullity.” Judgment for defendant affirmed. We think that these decisions are applicable to the present case, and govern it, and that the remedy of the plaintiffs, in the United States Court, if they have one, is a bill in equity to redeem the property, and not an action at law. Under the law of Louisiana, as we understand it, the possessory title of the defendants cannot be disturbed, without returning to them the amount paid by their ancestor in exoneration of the property and in satisfaction of the original judgment of Mrs. Johnson. For the purposes of the present action, their title is good and valid, and they were entitled to a verdict, irrespective of the question whether they and their predecessor, William S. Pike, could maintain title by prescription or not. The charge of the judge, therefore, even if incorrect, did no injury to the plaintiffs. The judgment of the Circuit Court is • Affirmed. LIBBY v. CLARK. ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS. Submitted April 19, 1'886.—Decided May 10, 1886. The provisions in article VII. of the Treaty of June 24, 1862, with the Ottawa Indians of Blanchard’s Fork and Roche de Boeuf, 12 Stat. 1237, limiting the power of alienating granted lands, apply to the grants authorized by Article III. of the Treaty to be made to chiefs, councilmen, and headmen of the Tribe; and deeds made in violation of that limitation (as it was incorporated by the Land Office into patents for lands allotted to chiefs, councilmen, or headmen), are void. This was an action in the nature of ejectment. The case is stated in the opinion of the court. Air. George R. Peck, Air. A. T. Britton, and Air. A. B. Browne for plaintiff in error. Air. William II. Clark defendant in error in person. LIBBY v. CLARK. 251 Opinion of the Court. Mr. Justice Miller delivered the opinion of the court. This is a writ of error to the Supreme Court of the State of Kansas. It is an action in the nature of ejectment brought by Libby against Clark. Both parties assert title through William Hurr, who is by birth and descent an Indian of the Ottawa tribe, and was one of the chiefs and headmen of the tribe. On the trial the plaintiff read ’in evidence a patent from the United States to Hurr for the land in controversy, and offered a deed from said Hurr to J. S. Kallock, which, on objection of the defendant, the court refused to receive, and the exception to this ruling, which was affirmed by the Supreme Court, presents the question of Federal law which gives jurisdiction to this court. The patent to Hurr reads as follows: “ The United States of America to all to whom these presents shall come, Greeting: “Whereas there has been deposited in the‘General Land Office a return, dated 17th March, 1864, from the Office of Indian Affairs, containing certain lists showing the selections of allotments made for the use of certain Ottawa Indians under the treaty concluded on the 24th day of June, 1862, between the United States and the Ottawa Indians of Blanchard’s Fork and Roche de Boeuf, in the State of Kansas, as ratified on the 28th day of July, 1862, which lists were duly approved by the Secretary of the Interior under date of March 9th, 1864 ; and whereas it appears from one of the lists aforesaid that the east half of the northwest quarter of section seven, in township seventeen, the east half of the west half of section thirty, and the east half of the northwest quarter of section thirty-one, in township sixteen, south of range twenty, east of the 6th principal meridian in Kansas, containing 320 acres, has been designated as the allotment of William Hurr : Now, know ye that the United States of America, in consideration of the premises, and pursuant to the 3d and 7th articles of the treaty aforesaid, have given and granted, and by these presents do give and grant unto the said William Hurr and to his heirs the tract of 252 OCTOBER TERM, 1885. Opinion of the Court. land above described: Provided, however, and these presents are upon the express condition, and with the limitation, as required by the treaty aforesaid, that the said William Hurr shall not alienate or encumber the aforesaid tracts of land until he shall become, by the terms of said treaty, a citizen of the United States; and any conveyance or encumbrance of said lands, done or suffered by said William Hurr, made before he shall become a citizen, shall be null and void; to have and to hold the said tracts of land with the appurtenances, unto ‘the said William Hurr, and to his heirs and assigns forever, subject to the limitation and condition aforesaid. “ In testimony whereof I, Andrew Johnson, President of the United States, have caused these letters to be made patent, and the seal of the Genera] Land Office to be hereunto affixed. “ Given under my hand at the city of Washington, this first day of December, in the year of our Lord one thousand eight hundred and sixty-five, and of the Independence of the United States the ninetieth. [Seal of the U. S. General Land Office.] “By the President: Andrew Johnson, By Edw D. Neill, Secretary. S. Granger, Recorder of the General Land Office.” The deed from Hurr to Kallock is dated December 1, 1865, and was unaccompanied by any consent of the Secretary of the Interior, or any evidence that Hurr had become a citizen of the United States, and it was for that reason rejected. Whether Hurr could make a valid conveyance of the land at the time he made the deed to Kallock depends upon the construction to be given to the treaty mentioned in the patent to Hurr, the third and seventh Articles of which are as follows: “ Article III. It being the wish of said tribe of Ottawas to remunerate several of the chiefs, councilmen, and headmen of the tribe for their services to them many years without pay, it is hereby stipulated that five sections of land is [are] reserved and set apart for that purpose, to be apportioned among the said chiefs, councilmen, and headmen as the members of the LIBBY v. CLARK. 253 Opinion of the Court. tribes shall in full council determine; and it shall be the duty of the Secretary of the Interior to issue patents, in fee simple, of said land, when located and apportioned, to said Indians. In addition thereto, said last-named persons, and each and every head of a family in said tribe, shall receive 160 acres of land, which shall include his or her house and all improvements, so far as practicable; and all other members of the tribe shall receive 80 acres of land each, and all the locations for the heads of families, made in accordance with this treaty, shall be made adjoining, and in as regular and compact form as possible, and with due regard to the rights of each individual and of the whole tribe.” 12 Stat., 1238. “ Article VII. There shall be set apart ten acres of land for the benefit of the Ottawa Baptist Church, and said land shall include the church buildings, mission-house, and graveyard, and the title to said property shall be vested in a board of five trustees, to be appointed by said church in accordance with the laws of the State of Kansas. “ And in respect for the memory of Rev. J. Meeker, deceased, who labored with unselfish zeal for nearly twenty years among said Ottawas, greatly to their spiritual and temporal welfare, it is stipulated that 80 acres of good land shall be, and hereby is, given, in fee simple, to each of the two children of said Meeker, viz., Emmeline and Eliza; their lands to be selected and located as the other allotments herein provided are to be selected and located, which lands shall be inalienable the same as the lands allotted to the Ottawas. “ And all the above-mentioned selections of lands shall be made by the agent of the tribe under the direction of the Secretary of the Interior. And plats and records of all the selections and locations shall be made, and, upon their completion and approval, proper patents by the United States shall be issued to each individual member of the tribe and person entitled for the lands selected and allotted to them, in which it shall be stipulated that no Indian, except as herein provided, to whom the same may be issued, shall alienate or encumber the land allotted to him or her in any manner, until they shall, by the terms of this treaty, become a citizen of the United 254 OCTOBER TERM, 1885. Opinion of the Court. States ; and any conveyance or encumbrance of said lands, done or suffered, except as aforesaid, by any Ottawa Indian, of the lands allotted to him or her, made before they shall become a citizen, shall be null and void. “ And forty acres, including the houses and improvements of the allottee, shall be inalienable during the natural lifetime of the party receiving the title : Provided, That such of said Indians as are not under legal disabilities by the local laws may sell to each other such portions of the lands as are subject to sale, with the consent of the Secretary of the Interior, at any time.” Ib., 1239-40. By the first Article of the Treaty, it was declared that this branch of the Ottawa tribe of Indians, and each one of them, should become citizens of the United States, and their tribal relations be dissolved, at the end of five years from the ratification of the treaty, which was July 18, 1862. Hurr, therefore, lacked nearly two years of being a citizen when he attempted to convey to Kallock. It is to be added that the records of the land office show that the land named in that deed was part of the allotment to Hurr as one of the chiefs and headmen of the tribe, under Article three of the Treaty, and not lands certified to him in common with all others of the tribe under Article seven. The question thus presented is whether Hurr held this land after the patent was delivered to him, subject to the stipulations found in it and prescribed by the seventh Article, namely : “ And plats and records of all the selections and locations shall be made, and, upon their completion and approval, proper patents by the United States shall be issued to each individual member of the tribe and person entitled for the lands selected and allotted to them, in which it shall be stipulated that no Indian, except as herein provided, to whom the same may be issued, shall alienate or encumber the land allotted to him or her in any manner, until they shall, by the terms of this treaty, become a citizen of the United States ; and any conveyance or encumbrance of said lands, done or suffered, except as aforesaid, by any Ottawa Indian, of the lands allotted to him or her, made before they shall become a citizen, shall be null and void.” LIBBY v. CLARK. 255 Opinion of the Court. The Supreme Court of Kansas held that his title was subject to this provision, and, as Hurr had not become a citizen when the deed to Kallock was made, it was void. Counsel for Libby say this was error, because the special allotments to the chiefs and headmen of the tribe, authorized by the third Article of the Treaty, were not subject to this rule, which applied only to the ordinary Indian who was not supposed to be capable of taking care of himself in such a contract of sale. In support of this view much stress is laid upon the use of the words “fee simplein describing the estate conferred upon these headmen by the third Article, which is not used in that conferring title on the others in Article seven. The title conveyed to Hurr by the patent was a fee simple ; that is, it was all the title or interest in the land. No one shared this title, or had any interest in it, and it descended, or would have descended, to his heirs. The restriction on his right to convey did not deprive the title of the character of a fee simple estate. “ An estate in fee simple is where a man has an estate in lands or tenements to him and his heirs forever.” 4 Com. Dig., Estates, 1. The limitation of the power of sale for five years is not inconsistent with a fee simple estate. Such, also, seems to have been the practice of the government in other treaties referred to by counsel in their brief. 7 Stat. 348 et seq. The embodiment of the stipulation required by the seventh Article of the Treaty in the patent to Hurr, shows the construction of the executive department of the government, that it was applicable to the land granted by the third section, as Hurr’s acceptance of it seems to imply his acquiescence in it. Two decisions of the Supreme Court of Kansas on the same subject give this construction to the treaty. The opinion of that court in the present case, Libbey v. Clark, 14 Kansas, 435, is an able examination of the question, and we concur in the views there stated. The judgment of that court is Affirmed. 256 OCTOBER TERM, 1885. Opinion of the Court. SALT LAKE CITY v. HOLLISTER, Collector. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH. Argued April 19, 22, 1886.—Decided May 10,1886. A municipal corporation engaged in the business of distilling spirits is subject to internal revenue taxation under the laws of the United States, whether its acts in that respect are or are not ultra vires. A corporation is responsible for acts done by its agent, whether in contractu or in delicto, in the course of its business and of their employment, as an individual is responsible under similar circumstances. Philadelphia, Wilmington & Baltimore Railroad Co. v. Quigley, 21 How. 202, affirmed. The distinction pointed out between actions arising on contracts made by a corporation in excess of its corporate powers, and actions against corporations for injuries caused by tortious acts done by its agents in the course of its business and of their employment, in excess of its powers. J/r. Franklin S. Richards for plaintiff in error. J/r. Ben-ja/min Sheeks and J/r. J. L. Rawlins were with him on the brief. J/?. Solicitor General for defendant in error. Mr. Justice Miller delivered the opinion of the court. This suit was instituted by the city of Salt Lake to recover of Hollister the sum of $12,057.75 illegally exacted by him as collector of internal revenue for the district of Utah from the city for a special tax upon spirits alleged to have been distilled by said city, and not deposited in the bonded warehouse of the United States by plaintiff as required by law. Plaintiff alleges that, under threat of selling sufficient property of the city to pay said tax, it paid the sum demanded under protest, appealed to the Commissioner of Internal Revenue, who failed and neglected to make any decision or to refund the money, and after six months’ waiting this suit was brought. To the petition the defendant made the following answer: “ Now comes the defendant in the above-entitled cause, 0. J. Hollister, and for answer to the plaintiff’s complaint admits that the plaintiff is a public municipal corporation created and SALT LAKE CITY v. HOLLISTER. 257 Opinion of the Court. organized under and by virtue of the laws of the Territory of Utah, and that it has continued to be such a corporation since its organization in February, 1850, and that the defendant was at the time mentioned, and as alleged in plaintiff’s complaint, and still is, the acting United States collector of internal revenue for the district of Utah. “Defendant admits that in June, a.d. 1876, the United States Commissioner of Internal Revenue set down to and assessed against the plaintiff a gallon tax of ten thousand seven hundred and sixty dollars upon spirits distilled by said plaintiff at various times between the 2d day of March, a.d. 1867, and the 26th day of August, a.d. 1868, and not deposited in the bonded warehouse of the United States by the plaintiff, as required by law, but denies that said gallon tax was illegally or erroneously set down to or assessed against the plaintiff by said Commissioner of Internal Revenue, and avers that the plaintiff, during all the time for which said assessment was made, was actually engaged in distilling, producing, and dealing in, as distiller, said spirits so assessed, and said assessment of said gallon tax was made upon distilled spirits actually produced by the plaintiff, and upon which plaintiff had not paid the gallon tax required by law, said spirits not having been deposited in the bonded warehouse of the United States by the-plaintiff, as required by law, but taken from said distillery by the plaintiff, after having been produced and distilled as aforesaid, and sold by said plaintiff, and the proceeds of said sale; turned into the treasury of the plaintiff. “ Said plaintiff, during all the time it operated said distillery,„ and especially from said 2d day of March, 1867, to said 26th day of August, 1868, was distilling and producing spirits as. aforesaid, and receiving and appropriating the benefit arising therefrom. “Defendant further alleges that the plaintiff, during the> time mentioned in plaintiff’s complaint, regularly reported and. paid to the collector of internal revenue of the United States-the gallon tax due upon a quantity of spirits distilled and produced by plaintiff, but that plaintiff neglected to report all of the spirits it actually produced and distilled, and for and upon¹ vol. cxvni—17 258 OCTOBER TERM, 1885. Opinion of the Court. which the said gallon tax was due and owing to the United States, and that the tax so assessed as aforesaid is the tax due upon the spirits produced and distilled in excess of the amount so reported by said plaintiff, and upon which no tax was ever assessed and collected up to the time of the payment mentioned in plaintiff’s complaint, and hereinafter stated. “ Defendant, answering, admits that the list containing the said gallon tax assessed by the Commissioner of Internal Revenue of the United States was placed in the hands of this defendant as collector of internal revenue. “ And defendant alleges that said plaintiff having engaged in the business of distilling and producing spirits as aforesaid, and said tax having been assessed by the Commissioner of Internal Revenue as aforesaid and placed in the hands of the defendant, as collector of internal revenue, for collection, it became and was his duty as such collector to collect said tax. . “Defendant denies that he knew that said gallon tax, so assessed as aforesaid, was erroneous and illegal, and avers that said tax was legal and correct, and was assessed and collected because plaintiff was liable to said tax. “ Defendant admits that he did threaten to seize and sell the property of plaintiff to pay said tax, as alleged by plaintiff, and that the plaintiff on the 14th day of August, 1877, paid the defendant the amount of the gallon tax, with interest which had accrued thereon from the date of said assessment, but for what reason plaintiff paid defendant said gallon tax defendant is not advised, and upon that subject has no knowledge, information, or belief, and therefore cannot answer.” A demurrer to the answer was overruled, and the plaintiff refusing to plead further, a judgment was rendered for the defendant, which was affirmed on appeal to the Supreme Court of the Territory. It will be perceived that this demurrer admitted that the plaintiff, The City of Salt Lake, had been for a period of about eighteen months engaged in the business of distilling and producing spirits and selling the same, and placing the proceeds of the sale in its treasury. That during this time the plaintiff made regular reports as to the quantity produced and paid the SALT LAKE CITY v. HOLLISTER. 259 Opinion of the Court. tax on the amounts so reported. But that while it thus operated said distillery, it failed and neglected to report all the spirits which it produced, and the tax assessed and collected, and which the present suit is brought to recover back, was for the spirits of which no report was made. The Commissioner of Internal Revenue having assessed plaintiff for these distilled spirits and placed the assessment in the hands of defendant, he, as a means of collecting the tax, did threaten to seize and sell property of plaintiff, whereupon plaintiff paid the sum mentioned. It would seem that this unqualified admission that the city was actually engaged in the business of distilling spirits liable to taxation, and replenishing her treasury with the profits arising from the operation, ought to be a justification of the officer who collected the tax due for the spirits so distilled. And this argument is all the stronger, since the city acknowledged its liability as a distiller by paying voluntarily the tax due on the larger part of the spirits produced. But while the city does not deny the actual fact of distillation, and of fraudulent returns by it, it denies the whole affair by argument. It says, that, though it is very true the city did distil spirits, did sell them, and did receive the money into its treasury, it cannot be held liable for this because it had no legal power to do so. Its want of corporate authority to engage in distilling is to be received as conclusive evidence that it did not do so, while by the pleading it is admitted that it did. Because there was no statute which authorized it as a city of Utah to distil spirits, it could engage in this profitable business to any extent, without paying the taxes w’hich the laws of the United States require of every one else who did the same thing. If the Territory of Utah had added to its other corporate powers that of making and selling distilled spirits, then the city would be liable to the tax, but, because it had no such power by law, it could do it without any liability for the tax to the United States or to any one .else. It would be a fine thing, if this argument is good, for all distillers to organize into milling corporations to make flour, and proceed to the more profitable business of distilling spirits, 260 OCTOBER TERM, 1885. Opinion of the Court. which would be unauthorized by their charters or articles of incorporation ; for they would thus escape taxation and ruin all competitors. It is said that the acts done are not the acts of the city, but of its officers or agents who undertook to do them in its name. This would be a pleasant farce to be enacted by irresponsible parties, who give no bond, who have no property to respond to civil or criminal suits, who make no profit out of it, while the city grows rich in the performance. It is to be taken as a fair inference on this demurrer that all that the city might have done was done in establishing this business. The officers who, it is said, did this thing, must be supposed to have been properly appointed or elected. Resolutions or ordinances of the governing body of the city directing the establishment of the distillery and furnishing money to buy the plant, must be supposed to have been passed in the usual mode. Everything must have been done under the same rules and by the same men as if it were a hospital or a town hall. If the demurrer had riot admitted this, it could no doubt have been proved on an issue denying it. But the argument is unsound that whatever is done by a corporation in excess of the corporate powers, as defined by its charter, is as though it was not done at all. A railroad company authorized to acquire a right of way by such exercise of the right of eminent domain as the law prescribes, which undertakes to and does seize upon and invade, by its officers and servants, the land of a citizen, makes no compensation, and takes no steps for the appropriation of it, is a naked trespasser, and can be made responsible for the tort. It had no authority to take the man’s land or to invade his premises. But if the governing board had directed the act, the corporation could be sued for the tort, in an action of ejectment, or in trespass, or on an implied assumpsit for the value of the land. A plea of ultra vires, in this case, would be no defence. The truth is, that, with the great increase in corporations in very recent times, and in their extension to nearly all the business transactions of life, it has been found necessary to hold them responsible for acts not strictly within their corporate SALT LAKE CITY v. HOLLISTER. 261 Opinion of the Court. powers, but done m their corporate name, and by corporation, officers who were competent to exercise all the corporate powers. When such acts are not founded on contract, but are arbitrary exercises of power in the nature of torts, or are quasicriminal, the corporation may be held to a pecuniary responsibility for them to the party injured. This doctrine was announced by this court nearly thirty years ago in a carefully prepared opinion by Mr. Justice Campbell in the case of Philadelphia, Wilmington and Baltimore Bailroad Co. v. Quigley, 21 How. 202. That was an action for libel by Quigley against the company for the publication of a letter addressed to the company in the course of an investigation by its directors in regard to the conduct of some of its subordinates. This letter contained statements in regard to plaintiff’s skill and capacity as a mechanic very disparaging in that respect. This, with much other testimony, was printed and published by the board of directors, and the court decided that the corporation could be held liable for the publication. The argument that only the individuals who ordered the publication could be made responsible was urged then as here, but the court held that if it was a libel the corporation was responsible for it in damages. It was also insisted that the existence of malice was a necessary element in the action for libel, and that the abstract entity.which constituted a corporation was incapable of malice, which could only be predicated of the officers who ordered the publication. This was likewise overruled, and it was held that if the act implied malice, the corporation was liable for it. The whole question was very fully considered. We can here do no more than make a single extract from the able opinion. After examining the authorities, it was said: “ With much wariness, and after close and exact scrutiny into the nature of their constitution, have the judicial tribunals determined the legal relations which are established for the corporation by their governing body and their agents, with the natural persons with whom they are brought into contact or collision. The result of the cases is that for acts done by the agents of a corporation, either in contracts or in delicto, in the course of 262 OCTOBER TERM, 1885. Opinion of the Court. its business and of their employment, the corporation is responsible as an individual is responsible under similar circumstances. At a very early period it was decided in Great Britain, as well as in the United States, that actions might be maintained against corporations for torts; and instances may be found in the judicial annals of both countries of suits for torts arising from the acts of their agents, of nearly every variety.” In the case of Reed v. Home Savings Bank, 130 Mass. 443, 445, the bank was held liable to an action for malicious prosecution. The court said: “ It is too late to discuss the question, once much debated, whether a corporation can commit.a trespass, or is liable in an action on the case, or subject generally to actions for torts as individuals are. The books of reports for a quarter of a century show that a very large proportion of actions of this nature, both for nonfeasance and for misfeasance, are against corporations. . . . And, by the great weight of modern authority, a corporation may be liable, even where a fraudulent or malicious intent in fact is necessary to be proved, the fraud or malice of its authorized agents being imputable to the corporation; as in actions for fraudulent representations, for libel or for malicious prosecution.” Many authorities are cited in support of this proposition, which may be found on page 445 of the report of the case. Another well considered case in which a corporation is held liable for malicious prosecution is that of Copley v. Grover and Baker Sewing Machine Co., 2 Woods, 494. It is said that Salt Lake City, being a municipal corporation, is not liable for tortious actions of its officers. While it may be true that the rule we have been discussing may require a more careful scrutiny in its application to this class of corporations than to corporations for pecuniary profit, we do not agree that they are wholly exempt from liability for wrongful acts done, with all the evidences of their being acts of the corporation, to the injury of others, or in evasion of legal obligations to the State or the public. A municipal corporation cannot, any more than any other corporation or private person, escape the taxes due on its property, whether acquired legally or illegally, and it cannot make its want of legal author- SALT LAKE CITY v. HOLLISTER. 263 Opinion of the Court. ity to engage in a particular transaction or business a shelter from the taxation imposed by the Government on such business or transaction by whomsoever conducted. See McCready vl Guardians of the Poor of Philadelphia, 9 S. & R. 94. It remains to be observed, that the question of the liability of corporations on contracts which the law does not authorize them to make, and which are wholly beyond the scope of their powers, is governed by a different principle. Here the party dealing with the corporation is under no obligation to enter into the contract. No force, or restraint, or fraud is practised on him. The powers of these corporations are matters of public law open to his examination, and he may and must judge for himself as to the power of the corporation to bind itself by the proposed agreement. It is to this class of cases that most of the authorities cited by appellants belong—cases where corporations have been sued on contracts which they have successfully resisted because they were ultra vires. But, even in this class of cases, the courts have gone a long way to enable parties who had parted with property or money on the faith of such contracts, to obtain justice by recovery of the property or the money specifically, or as money had and received to plaintiff’s use. Thomas v. Railroad Co., 101 U. S. 71 ; Louisiana v. Wood, 102 U. S. 294 ; Chapman v. Douglass County, 107 IT. S. 348, 355. The judgment of the Supreme Court of Utah Territory is Affirmed. 264 OCTOBER TERM, 1885. Syllabus. PLYMOUTH GOLD MINING COMPANY v. AMADOR & SACRAMENTO CANAL COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. SAME v. SAME. ERROR TO THE SAME COURT. Submitted April 26,1886.—Decided May 10, 1886. When the same cause is brought to this court by appeal and by writ of error, on the same record, it is not necessary to docket it twice. A complaint or declaration charging a corporation, and individuals who are its agents and servants, with polluting a stream of water belonging to the plaintiff and rendering it unfit for use, and seeking a remedy against the defendants jointly, does not present a controversy separable for the purposes of removal from a State court, although the defendants answer separately setting up separate defences. Pirie v. Tvedt, 115 U. S. 41, and Sloane v. Anderson, 117 U. S. 278, affirmed and applied. When a complaint or declaration in an action in a State court sets up a joint cause of action in tort against several defendants for injuries done jointly to plaintiff, separate answers of the defendants setting up that the acts complained of were committed under direction of one of them and were justified by a contract between plaintiff and that particular defendant, and that the acts complained of as done by the other defendants were done by them as his servants and under his directions, do not necessarily change the controversy between the plaintiff and that defendant into a separate controversy, removable to the courts of the United States under the removal acts: and allegations in the petition for removal that the agents were joined as defendants in order to prevent the removal of the cause to the Circuit Court of the United States are of no avail, if not proved. This was a motion to dismiss, to which was added a motion to affirm. The case is stated in the opinion of the court. J/?. J. H. McKune for the motions. J/?. John II. Bodlt opposing. PLYMOUTH MINING CO. v. AMADOR CANAL CO. 265 Opinion of the Court. Mr. Chief Justice Waite delivered the opinion of the court. The Ainador and Sacramento Canal Company, a California corporation, brought suit in the Superior Court of Sacramento County, California, against the Plymouth Consolidated Gold Mining Company, a New York corporation, and Alvinza Hayward, E. L. Montgomery, and Walter S. Hobart, citizens of California, to enjoin them from polluting the waters running into the canal of the Amador Company, and to recover $25,000 damages for what had already been done in that way. The material averments in the complaint, as to the alleged wrongful acts of the defendants, are as follows : “ III. That the plaintiff is, and for more than ten years last past has been, the owner in fee and in possession of a certain canal, about 26 miles long, situate partly in the county of Amador, in said State, and partly in said county of Sacramento, called the Amador and Sacramento Canal, extending from a dam across the Cosumnes River, near the southeast corner of section twenty, in township eight north, range nine east, Mount Diablo base and meridian, in said county of Amador, to Sebastopol, in said county of Sacramento, in section sixteen, township seven north, range seven east, Mount Diablo base and meridian ; and is also the owner of the water usually flowing through said canal, and has used the said canal and water during all of said period of ten years for mining and agricultural purposes, and selling water for such purposes. “ IV. That the defendant, the Plymouth Consolidated Gold Mining Company, is the owner of two certain mills, situate at Plymouth, in said county of Amador, constructed and used for crushing gold-bearing quartz, and since the 2d day of January, 1882, has been such owner, and the defendants for three years next before the commencement of this action have, at said mills, carried on and conducted the business of crushing gold-bearing quartz rock, and extracting and collecting gold therefrom, and have used large quantities of water in and about their business taken from the Moquelumne River. “V. That from the said mills, the corporation defendant, extending in a direction a little north of west, has a valley 266 OCTOBER TERM, 1885. Opinion of the Court. through which runs Little Indian Creek until it intersects the said canal of plaintiff near the southeast corner of section four, in township seven north, range nine east, Mount Diablo base and meridian, and the defendants, since the first day of December, 1881, have used the said creek at their said mills as a dumping place for the tailings, sand, sediment, silt, and other debris flowing to and formed by the working of said mills. “ VI. That in and about the working and management of said mills the defendants use large quantities of water taken from the Moquelumne River and other streams by them, and which water, mixed, defiled, and polluted with said tailings, sand, quartz-sand, sediment, silt, and other débris, has been, during the three years next before the commencement of this action, poured into said creek and carried by said water in said creek to and into the said canal of plaintiff. “ VII. That the said water so mixed, polluted, and defiled by the defendants, and discharged by them into the plaintiff’s canal as aforesaid, has, during all of said three years, mingled with the pure water flowing in the said canal, and has deposited therein all the said tailings, sand, quartz-sand, sediment, silt, and other débris as aforesaid, and the same has been swept along the said canal of plaintiff by the force of the water flowing therein, and has been distributed and deposited therein, and thereby the bed of the said canal became and was raised, and the canal obstructed and damaged, and filled up and rendered unfit for use, and the water in said canal became loaded with said débris, and thereby rendered less useful.” The Plymouth Company answered separately, setting forth that it was a New York corporation whose powers were by law vested in seven trustees, of whom the defendants Haywood and Hobart were two, and that Montgomery was the superintendent of its mines and mills in California. The answer then admitted that the corporation was the owner of the mills mentioned in the complaint, and that “ it has at said mills carried on and conducted the business of crushing gold-bearing quartz rock and extracting and collecting gold therefrom, and used large quantities of water in and about said business, and that PLYMOUTH MINING CO. v. AMADOR CANAL CO. 267 Opinion of the Court. some of said water was taken from the Moquelumne River, but it denies that all of said water was taken therefrom, and it denies that it has during the time alleged in the complaint, or at any other time, or at all, carried on or conducted at said mills, or either of them, or elsewhere, the said business, or any business, or has used large quantities of water, or any water, in or about said business or otherwise, in connection with the other defendants mentioned in the complaint, or either of them, but, on the contrary, this defendant avers that said business has been carried on and conducted and said water has been used by this defendant exclusively and for its sole use and benefit and without any connection or combination with the other defendants in this action, or either of them, and that this defendant has not had, during any of the times mentioned in the complaint, and does not now have, any connection or relation with the said Hayward or Hobart or Montgomery other than such official relation aforesaid.” After this the separate defence of the corporation to the action was set forth, to the effect that the company was operating its mills under a license from the Amador Company, which justified all that had been done for which the suit had been brought. Hayward, Montgomery, and Hutchinson filed their separate answer, in which they denied each and every allegation in the complaint against them in connection with the Plymouth Company or otherwise. After the filing of their answer, the Plymouth Company presented to the court a petition for the removal of the suit to the Circuit Court of the United States for the District of California, the material parts of which, aside from a statement of the citizenship of the parties, according to the facts, are as follows : “ But your petitioner avers and shows to the court that in the said suit above mentioned there is a controversy which is wholly between citizens of different States, and which can be fully determined as between them, to wit, a controversy between your petitioner and said Amador and Sacramento Canal Company, and that said two corporations are the sole and only parties interested in said controversy. “ That said defendants Alvinza Hayward, E. L. Montgomery, 268 OCTOBER TERM, 1885. Opinion of the Court. and Walter S. Hobart, are not, nor is either of them, a necessary or proper party defendant in said action. “ That said defendants Alvinza Hayward, E. L. Montgomery, and Walter S. Hobart, and each of them, are nominal and formal parties defendant to said suit, and they, nor either of them, have any interest in the said controversy, and they nor either of them are actual, real, or necessary parties defendant, but are sham defendants sued in said action with your petitioner, as it avers on information and belief, with the object, purpose, intent, and design of endeavoring thereby to prevent the removal of said cause into the Circuit Court of the United States for the District of California by your petitioner, who is the real defendant therein. “ That said Alvinza Hayward and Walter S. Hobart are stockholders and officers of your petitioner, to wit, two of the members of its board of seven trustees, and they have not, nor has either of them, any interest in the said controversy other than as such officers or stockholders. “ The said defendant E. L. Montgomery is the superintendent of the mines and mills of your petitioner, and has no interest whatever in said controversy. “ That all the acts and grievances complained of and alleged to have been done by said defendants, if any such were done, were the sole acts of your petitioner. “ And your petitioner avers and shows that the real litigation herein is between said plaintiff and your petitioner, citizens of different States, as aforesaid. “ And your petitioner further shows that it has not carried on or conducted any mining or milling business in connection with said defendants or with either of them. “And your petitioner further shows that the matter and amount in dispute in the above-entitled suit exceeds, exclusive of costs, the sum or value of five hundred dollars.” On the presentation of this petition the State court directed the removal of the suit, and proceeded no further. The case was docketed in the Circuit Court on the 19th of May, and on the 17th of June the Amador Company moved to remand, among others, on the following grounds: PLYMOUTH MINING CO. v. AMADOR CANAL CO. 269 Opinion of the Court. “ I. That the said suit does not really or substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court.” “ III. Because the defendants did not all join in said petition for removal. “ IV. Because the defendants are not all residents or citizens of States other than California, and it does not appear that the parties defendants to said suit were or have been wrongfully joined as such. “ V. It does not appear from the record and papers on file in said Circuit Court that there is a controversy which is wholly between citizens of different States, which can be tried and which can be fully determined between them without involving necessarily a trial of the whole case as to all of the defendants.” In the notice which was given of this motion the following appears: “ On the hearing of said motion we will rely on and read in evidence— “ 1. The transcript and record on file in said Circuit Court in said cause. “ 2. Answer of the plaintiff to the petition of the corporation defendant for a removal, herewith served. “ 3. Affidavits of J. H. McKune, W. F. George, and Jennie B. Ritter, herewith served; and “ 4. Also offer oral evidence.” None of the affidavits here referred to are found in the transcript, and there is no statement of any oral evidence that was produced. The court heard the motion on the 27th of July and remanded the suit. From this order an appeal was taken and writ of error brought, and these have been docketed here as separate causes. It was not necessary to docket the cause twice because it was brought here both by appeal and writ of error. Hurst n. Hollingsworth, 94 U. S. 111. There was but one action in the court below, and there is but one record. The appeal and writ of error bring up but one order or judgment for review, and there is, therefore, but one case here. 270 OCTOBER TERM, 1885. Opinion of the Court. Upon the face of the complaint there is in the suit but a single cause of action, and that is the wrongful pollution of the water of the plaintiff’s canal by the united action of all the defendants working together. Such being the case, the controversy was not separable for the purposes of a removal, even though the defendants answered separately, setting up separate defences. Pzrie v. Tvedt, 115 U. S. 41; Sloane v. Anderson, 117 U. S. 275, 278. It is claimed, however, that, as the answers show that the Plymouth Company is the real defendant, and the petition alleges that the others are nominal parties only, and joined with that company as “ sham defendants ” to prevent a removal, the suit must be treated as in legal effect against the New York corporation alone, and, therefore, removable. So far as the complaint goes, all the defendants are necessary and proper parties. A judgment is asked against them all, both for an injunction and for money. Hayward and Hudson are admitted by the answer to be officers of the corporation, and Montgomery its superintendent. These persons are all citizens of California, and amenable to process in that State. It is not denied that they are all actively engaged in the operations of the company; and Montgomery, as the superintendent of its mines and mills, must necessarily be himself personally connected with the alleged wrongful acts for which the suit was brought. It is undoubtedly true that if the company has a good defence to the action, that defence will inure to the benefit of all the other defendants; but it by no means follows that, if the company is liable, the other defendants may not be equally so, and jointly with the company. It is possible, also, that the company may be guilty and the other defendants not guilty, but the plaintiff in its complaint says they are all guilty, and that presents the cause of action to be tried. Each party defends for himself, but until his defence is made out the case stands against him, and the rights of all must be governed accordingly. Under these circumstances, the averments in the petition, that the defendants were wrongfully made to avoid a removal can be of no avail in the Circuit Court upon a motion to remand, until they are proven, and that, so far as the pres- MULLAN v. UNITED STATES. 271 Statement of Facts. ent record discloses, was not attempted. The affirmative of this issue was on thé petitioning defendant. That corporation was the moving party, and was bound to make out its case. The order remanding the cause is Affirmed. MULLAN & Another v. UNITED STATES. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. Argued April 1,1886.—Decided May 10,1886. When the authority of the Attorney-General of the United States to commence proceedings to vacate a patent for public lands does not appear on thé face of the bill, it may be shown in this court if the bill is objected to here for want of it. Coal lands are mineral lands within the meaning of that term as used in the statutes regulating the disposition of the public domain. As coal lands were excepted from the grants to California of Sections 16 and 36 in § 6 of the act of March 3, 1853, 10 Stat. 244, 246, the State could not under the provisions contained in § 7 of that act, lb. 247, select coal lands in lieu of such Sections 16 and 37 as might be occupied before survey, or reserved for public uses, or taken by private claims. The United States can maintain a suit in equity in its own name to vacate the selection and listing of coal lands to the State of California by the proper authority of the government under the act of March 3, 1853, 10 Stat. 244 : and, upon its appearing that the lands so listed were coal lands and were known to be such at the time of the listing and selection by the State officers and by those for whose benefit the listing was made, a decree should be entered vacating the title of the State and of those claiming under it. This was a bill in equity to annul and set aside a listing of coal lands to the State of California, and patents of the same granted by the State. The case is stated in the opinion of the court. J/r. Assistant Attorney General Maury on behalf of the United States stated that this suit, although prosecuted in the 272 OCTOBER TERM, 1885. Opinion of the Court. name of the United States, was prosecuted by private parties and at private cost. Jfr. Maury filed a brief on behalf of appellee ; and also showed to the court the authority of the Attorney General for the commencement of the proceedings. Mr. 'Walter H. Smith for appellants. Mr. W. W. Morrow for appellee. Mr. Chief Justice Waite delivered the opinion of the court. This was a suit brought by the United States to vacate and annul the title of John Mullan and Francis Avery to the N. |, sec. 8 T. 1 N., R. 1 E., Mount Diablo meridian, listed by the Secretary of the Interior on the 3d of January, 1871, to the State of California as a school indemnity selection, on the ground that when the selection was made and when it was listed the land was coal land, and so known to be, both by the officers of the State who made the selection, and by Mullan and Avery when they afterwards acquired title from the State. The facts are these: The land in question lay in the midst of a coal-bearing district, and had upon it a valuable coal bed. It was rugged and broken, and of very little if any value for agricultural purposes. As early as 1861 the Black Diamond Coal Mining Company took possession of it and opened a coal mine. The company erected at great expense, upon this and adjoining land, all the necessary works for mining, hoisting, and shipping the coal, and continued its operations on the property extensively from the time it entered into possession until evicted in 1877, at the suit of Avery. Its possession was open and notorious, and the principal market for its coal was in San Francisco, or with persons trading there. There was also located on this and adjoining property quite a large mining town, which sometimes had more than one thousand inhabitants. The lands in the township were surveyed and divided into sections in March, 1864, under the direction of the United States surveyor-general. In the progress of these surveys the mines were found, and to some extent indicated on the plats, which contained abundant evidence of the coal-bearing character of this particular tract. MULLAN v. UNITED STATES. 273 Opinion of the Court. On the 13th of May, 1865, Frank Barnard, an officer or agent of the Black Diamond Coal Mining Company, applied to the locating agent of the State of California, under the provisions of a statute of the State entitled “ An act to provide for the sale of certain lands belonging to the State,” approved April 27, 1863, to purchase these lands and to have them located under the authority of an act of Congress of March 3, 1853, ch. 145, § 7,10 Stat. 247, in lieu of an equal quantity of school lands which had in some way been lost to the State. In accordance with this application the location was made for the use of Barnard on the 30th of June, 1865, and approved by the State surveyor-general on the 11th of August. Barnard, however, did not pay for the land, and consequently his title under the location was never perfected. On the 23d of August, 1868, while the Black Diamond Company was in possession and actually working its mine, Mullan applied to the surveyor-general of California to purchase the land from the State, as land which had before been selected as school section indemnity. The surveyor-general at first objected because the land was coal land. After some conversation on the subject, in which Mullan was told that the lands, were in the neighborhood of the Mount Diablo coal mine and were probably coal lands, his application for the purchase was. accepted, he insisting that the lands were State lands, and that the register of the land office had acknowledged the right of ‘ the State to make the selection. This acceptance was on the* 25th of August, 1868, and afterwards, on the 27th of April,, 1869, the surveyor-general made a formal certificate, of whichi the following is a copy: “ State of California, “ Office of Surveyor-General, “ Sacramento, 27/A April 1869. “ I hereby certify that, in accordance with the provisions of' an act entitled ‘ An act to provide for the management and sale of the lands belonging to the State,’ approved March 28th, 1868,1 have located, as a portion of the school lands, 320 acres, of public land in the county of Contra Costa, at the request. VOL. CXVIII—18 274 OCTOBER TERM, 1885. Opinion of the Court. and for the use of John Mullan. Said land is described as follows: “ N. | of sec. 8, T. 1 N., R. 1 E., Mount Diablo meridian. “ Taken in lieu of E. | of sec. 16, T. 2 N., R. 8 W., Mount Diablo meridian. “ This location has been made by me in the name and for the benefit of the State of California, at the U. S. land office for the San Francisco district, in the city of San Francisco, and with the consent of John F. Swift, register of said district, bearing date the 28th day of May, a.d. 1865, and the same is entered and numbered upon my register of locations. The said location is hereby approved, and the treasurer of Contra Costa county shall receive in payment therefor, from John Mullan, one hundred and one ffc (101.65) dollars, within fifty days from the date of the surveyor-general’s approval, being twenty per cent, of the purchase money, and interest on the balance in advance, at the rate of ten per cent, per annum from the date of the approval of the location in the surveyorgeneral’s office. “John W. Bost, Surveyor-General” Afterwards, on the 21st of May, Mullan having made the advance payment, a certificate of purchase was executed and delivered to him. The selection was at some time reported to the General Land Office, and on the 3d of January, 1871, listed, with other tracts, by the Secretary of the Interior to the State, “ subject to any interfering rights that may exist in them.” On the 28th of March, 1871, Mullan got from Avery $1000 and assigned the certificate of purchase to him as collateral security, at the same time agreeing that on the sale of the land Avery might retain one-sixth of the purchase money, and also the $1000 and interest. At the same time he also executed to Avery a formal assignment of all and every his right or cause of action against the Black Diamond Coal Company for taking coal from the premises. Afterwards Avery paid the State the balance due on the purchase money and received a State patent for the land on the 5th of April, 1871. Mullan MULLAN v. UNITED STATES. 275 Opinion of the Court. had resided in San Francisco for at least a year before he made his application for the purchase, and was engaged in real estate business. Avery had also resided there from December 3, 1868, and from his testimony appears to have been familiar with operations of the character of those in which Mullan was engaged. Not long after Avery got his patent he brought suit against the Black Diamond Company to recover possession of the property and $1,350,000 for the value of coal taken from it. This suit resulted in a judgment in his favor, on the 6th of June, 1877, for the land and $1500 damages. He then brought another suit to recover the value of coal taken from the land during the pendency of the former one, in which he claimed damages to the amount of $3,000,000. After the first suit was begun the coal company applied to the General Land Office for a recall of the listing of the land to the State, but on an examination of the matter this was refused on the 14th of March, 1872. After the second suit was brought, the Attorney-General, on the application of the company, authorized a bill to be filed in the name of the United States to set aside the title of the State, “ upon the understanding that any and all costs and expenses in the matter shall be defrayed by the applicants, and that the proceeding shall be subject to the direction and control of the Attorney-General, in order that the interests of the government may be fully protected and justice done to any and all parties interested.” Under this authority the present bill was filed by the United States attorney for the District of California, and signed: “Charles Devens, Attorney-General. By Philip Teare, United States Attorney for the District of California. “ Hoyt & M’Kee, Special Attorneys and Counsel” Upon these facts the Circuit Court entered a decree vacating the title of the State and of Mullan and Avery, and from that decree this appeal was taken. It is first objected that the bill should be dismissed, because 276 OCTOBER TERM, 1885. Opinion of the Court. it does not show on its face that it was filed by the Attorney-General. On the argument, however, the Assistant Attorney-General produced from the Department of Justice a certified copy of an order of the Attorney-General directing the United States attorney for the District of California to proceed in the matter, and this it was held in Western Pacific Railroad Co. v. United States, 108 U. S. 512, was enough to overcome such an objection. There is no doubt that the bill was filed on the request of the coal company, and that it is expected some advantage will accrue indirectly to that company from a decree vacating the title under the State selection; but, if the title is vacated the lands will be restored to the public domain, and be subject to sale by the United States as coal lands. The United States have, therefore, a direct pecuniary interest in the suit, and this being the case, it is a matter of no importance that others may possibly be benefited by the decree which may be obtained. The acts of July 1, 1864, 13 Stat. 343, ch. 205, and March 3,1865,13 Stat. 529, ch. 107, make ample provisions for the sale of such lands at a price not less than twenty dollars an acre. The important question in the case is whether the land, being coal land, was open to selection by the State as lieu school land. This was most elaborately considered by the circuit judge, and his opinion, reported in United States v. Mullan, 7 Sawyer, 466, leaves little to be said on the subject. In Mining Co. v. Consolidated Mining Co., 102 U. S. 167, this court decided that “ the grant of the sixteenth and thirty-sixth sections of public land to the State of California for school purposes, made by the act of March 3,1853, was not intended to cover mineral lands. Such lands were by the settled policy of the general government excluded from all grants” at that time, and we quite agree with the circuit judge that “ if sections 16 and 36, being mineral lands, do not pass by the terms of the statute, there certainly is no good reason for permitting the same kind of lands to be selected under § 7, in lieu of sections 16 and 36.” The confirmatory act of July 23, 1866, 14 Stat. 218, ch. 219, expressly excludes from its operation all selections of mineral land. The case, therefore, turns on the question whether coal MULLAN v. UNITED STATES. 277 Opinion of the Court. lands are mineral lands within the meaning of that term as used in the statutes regulating the disposition of the public domain. The first statute which made any reference to minerals on the public lands was that of September 4, 1841, 5 Stat. 453, 455, ch. 16, § 10, which provided that no pre-emption entry should be made on “ lands on which are situated any known salines or mines; ” and by the act of July 1,1864,13 Stat. 343, ch. 205, § 1, it was provided that “ any tracts embracing coal beds or coal fields, constituting portions of the public domain, and which as ‘ mines ’ are excluded from the pre-emption act of 1841, and which under past legislation are not liable to ordinary private entry,” might be disposed of at a price not less than twenty dollars an acre. This is clearly a legislative declaration that “ known ” coal lands were mineral lands within the meaning of that term as used in statutes regulating the public lands, unless a contrary intention of Congress was clearly manifested. Whatever doubt there may be as to the effect of this declaration on past transactions, it is clear that after it was made, coal lands were to be treated as mineral lands. That the land now in dispute was “ known ” coal land at the time it was selected no one can doubt. It had been worked as a mine for many years before, and it had upon its surface all the appliances necessary for reaching, taking out, and delivering the coal. That Barnard knew what it was when he asked for its location for his use is absolutely certain, because he was one of the agents of the coal company at the time, and undoubtedly acted on its behalf in all that he did. If Mullan and Avery were ignorant of the fact when they acquired their respective interests in the property, it was because they wilfully shut their eyes to what was going on around them, and purposely kept themselves in ignorance of notorious facts. But the evidence satisfies us entirely that they were not ignorant. The assignment of Mullan to Avery of his claim against the company for coal taken out, made at the same time that he transferred the certificate of purchase, shows the knowledge of all the facts by both when Avery acquired his interest, and Mullan’s information on the subject is shown by what took place between him 278 OCTOBER TERM, 1885. Opinion of the Court. and the surveyor-general of California when he made his purchase. At the time the selection was actually made, therefore, it cannot be doubted that the land was mineral land, both in law and in fact, within the meaning of the act under which the State and those who purchased from the State undertook to acquire title, and we agree with the Circuit Court in opinion that the rights of the parties are to be determined by the law as it stood then. Such being the case, we have no hesitation in deciding that the land was not open to the State for selection. It remains to consider whether, since the land was in fact listed to the State by the proper officers of the government, the selection can be vacated and the titles under it annulled in a suit in equity brought by the United States directly for that purpose ; and about this we have no more doubt than the Circuit Court seems to have had. The lands were, as we have seen, known coal lands. No one seriously disputes that now; and, in our opinion, upon the well-established facts, Mullan and Avery occupy no better position than the State would if no patent had been issued to Avery. They are in every sense of that term purchasers with notice. The case is, therefore, directly within the decisions of this court in Mclaughlin v. United States, 107 U. S. 526, and Western Pacific Railroad Co. n. United States, 108 U. S. 510, where it was distinctly held that patents to the Western Pacific Railroad Company for known mineral lands could be cancelled on a bill in equity filed by the United States for that purpose. It is no doubt true that the actual character of the lands was as well known at the Department of the Interior as it was anywhere else, and that the Secretary approved the lists, not because he was mistaken about the facts, but because he was of opinion that coal lands were not mineral lands within the meaning of the act of 1853, and that they were open to selection by the State; but this does not alter the case. The list was certified without authority of law, and, therefore, by a mistake against which relief in equity may be afforded. As was said in United States n. Stone, 2 Wall. 525, 535 : “ The patent is but evidence of a CARSON v. HYATT. 279 Syllabus. grant, and the officer who issues it acts ministerially and not judicially. If he issues, a patent for land reserved from sale by law, such patent is void for want of authority. But one officer of the land office is not competent to cancel or annul the act of his predecessor. That is a judicial act, and requires the judgment of a court.” This language is equally applicable to the present case, and its correctness has been often recognized. Moore v. Robbins, 96 U. S. 530, 533 ; United States v. Schurz, 102 U. S. 378, 396; Steel v. Smelti/ng Company, 106 U. S. 447, 454; Moffat n. United States, 112 U. S. 24. The decree of the Circuit Court is Affirmed. CARSON v. HYATT & Another. ERROR TO THE SUPREME COURT OF THE STATE OF SOUTH CAROLINA. SAME v. SAME. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA. Argued April 20, 21, 1886.—Decided May 10,1886. An action was commenced in a court of the State of South Carolina against plaintiff in error and other defendants. Plaintiff in error, after an answer prepared and signed by counsel had been filed, in which it was stated that she was a citizen of New York, petitioned for its removal to the Circuit Court of the United States on the ground of a separable controversy, alleging that she was a citizen of Massachusetts, that plaintiffs below were citizens of New York, except one, a citizen or subject of Spain,'and that the other defendants below were citizens of different States named other than Massachusetts. The State court disallowed the petition for removal on the ground that it appeared from the answer that plaintiff in error was a citizen of New York : Held, That this question was one of fact to be determined by the Circuit Court of the United States, and not by the State court; that plaintiff in error was not estopped by the answer from setting up that she was a citizen of New York; and that, as a case for removal was made out on the face of the petition, the petition was improperly denied. Stone v. South Ca/rolina, 117 U. S. 430 affirmed. 280 OCTOBER TERM, 1885. Opinion of the Court. On the proof the court is satisfied that plaintiff in error was, when the suit was commenced, and continued to be, a citizen of Massachusetts; and that on her petition the cause should have been removed to the Circuit Court of the United States. The court also holds, on an examination of the record and the proof and the Code of South Carolina, that the petition for the removal in this case was made “ at the term at which the cause could first be tried ” according to the meaning of that phrase as construed in Babbit v. Clark, 103 U. S. 606; and Pullman Palace Car Co. v. Speck, 113 U. S. 84. The case is stated in the opinion of the court. Jfr. II. 8. Young and J/r. James Lowndes for plaintiff in error and appellant. Hr. Edward McCrady, Jr., for defendants in error and appellees. Mr. Chief Justice Waite delivered the opinion of the court. The records in these cases show that William A. Carson, a citizen of South Carolina, died on the 17th of August, 1856, leaving a will by which he devised the bulk of his property, real and personal, to his executors, Alexander Robertson and John F. Blacklock, substantially in trust for his widow, Caroline Carson, and his sons, William Carson and James P. Carson, but with a power of sale in the executors. Under these circumstances the executors sold a plantation known as “ Dean Hall ” to Elias N. Ball, and for the unpaid purchase money he, on the 2d of March, 1857, executed his bonds conditioned for the payment in all of the sum of $31,000, in five equal annual instalments from January 14, 1857, with interest from March 2, payable annually, and secured by mortgage on the property. The debts of the estate were all paid in June, 1857, and from that time the executors held the bonds and mortgage of Ball in trust for Mrs. Carson and her two sons. The sons afterwards assigned their interest in the bonds to their mother. Mrs. Carson left South Carolina early in 1861 and went to New York to live. She has never since returned to South Carolina. Her son William came of age in 1863, but he left South Carolina before the late civil war and has been absent ever since. James did not CARSON v. HYATT. 281 Opinion of the Court. come of age until after the war, and the executor Blacklock was absent from the United States during the whole of it. In March, 1863, the firm of Hyatt, McBurney & Company, doing business in Charleston, bought “ Dean Hall ” from Ball, and he, at their request, induced Robertson, the only trustee then in America, to accept payment of the bonds held for Mrs. Carson in Confederate treasury notes and discharge the mortgage. This being done, Ball conveyed the property to Edmund Hyatt, William McBurney, William Hasseltine, Thomas R. Mc-Gahan, and Alfred L. Gillespie, who composed the firm of Hyatt, McBurney & Co. On the 8th of May, 1863, Hyatt sold his interest in the firm to his other partners, and executed to them a conveyance of this property among the other assets, and the remaining partners gave to him a bond for $40,000, secured by mortgage on these premises. After the war ended Mrs. Carson, then a citizen of New York, brought suit in the Circuit Court of the United States for the District of South Carolina to re-establish the mortgage and to set aside the release which had been executed by Robertson, and for a foreclosure. A decree was entered by the Circuit Court in accordance with the prayer of the bill, but on appeal to this court that decree was reversed for want of proper parties, and the cause sent back for further proceedings. Robertson v. Carson, 19 Wall. 94. When the case got back to the Circuit Court the required additional parties were made, and another decree was finally entered, establishing the rights of Mrs. Carson, and ordering a sale of the property. This decree was affirmed here at the October term, 1878. McBurney v. Carson, 99 U. S. 567. Hyatt was not a party to that suit, he being then a citizen of New York, the same as Mrs* Carson at that time. Under this decree the property was sold and bought by Mrs. Carson. Hyatt died in New York on the 20th of September, 1876, leaving a will appointing his daughter, Mary A. Hyatt, executrix, and Joaquin Delmonte executor. Mary A. Hyatt and Julia Delmonte are devisees under the will and heirs-at-law of his estate, and Mary E. Hyatt is his widow and an heir-at-law. Joaquin Delmonte is a citizen or subject of Spain, and all the others are citizens of New York. 282 OCTOBER TERM, 1885. Opinion of the Court. At some time, but precisely when does not appear from the records, these parties filed in the Court of Common Pleas of Charleston, South Carolina, their complaint, which was sworn to on the 15th of October, 1879, against William McBurney, William Hasseltine, Alfred L. Gillespie, and Thomas R. McGa-han, “ members of the late firm of Hyatt, McBurney & Co.,” and Caroline Carson, for the foreclosure of the mortgage given Hyatt on his retirement from the firm. It does not appear how or by what process the defendants were brought into court, but there is in the record a stipulation of which the following is a copy: “ Mary A. Hyatt, as Executrix and as Devisee and Heir-at-law of the late Edmund Hyatt; Joaquin Delmonte, Executor of the said Edmund Hyatt; Mary E. Hyatt, Widow and Heir-at-law of the said Edmund Hyatt, deceased; and Julia Delmonte, as Devisee and Heir-at-law of the said Edmund Hyatt, V8. “ William McBurney, William Hasseltine, Alfred L. Gillespie, and Thomas R. McGahan, members of the late firm of Hyatt, McBurney & Co., and Caroline Carson. “ The time for the defendants in this case to answer having expired, on motion of McCrady & Son, plaintiffs’ attorneys, it is ordered that the case be referred to W. D. Clancy, Esq., one of the masters of this court, to take testimony and report the same; and, with the consent of the said plaintiffs’ attorneys, it is further ordered that the defendant Caroline Carson do have further time to answer the complaint herein, to wit, until the twetity-fourth day of January next, and that she be allowed to file the same, under the signature of her counsel, who has entered an appearance in the cause, without oath thereto. “ December 16, 1879. A. P. Aldrich. “We consent. McCrady & Son, A. G. Magrath.” The record shows an answer of Mrs. Carson, not under oath, and signed only by her counsel, setting up her defence upon CARSON v. HYATT. 283 Opinion of the Court. the same facts on which she recovered in the other suit. In this answer it is, among other things, stated, that early in 1861 she “left South Carolina and went to New York, where she has ever since resided and had her domicil.” This answer was filed January 31, 1880, and, on the 16th of February, Mrs. Carson presented her petition for the removal of the suit to the Circuit Court of the United States, the material parts of which are as follows: “ To the honorable the judges of the said court: “ Your petitioner, Caroline Carson, respectfully sheweth that the above-entitled suit is of a civil nature, and is now pending in this court; the matter or amount in dispute is, exclusive of costs, the sum or value of five hundred dollars, and is of the value of over ten thousand dollars; that the controversy in the said suit is between citizens of different States and between citizens of a State and a citizen or subject of a foreign State; that your petitioner was at the beginning of this suit, and still is, a citizen of the State of Massachusetts; that the said Joaquin Delmonte then was, and still is, a citizen or subject of Spain, and all the other parties, plaintiffs above mentioned, then were, and still are, citizens of the State of New York; that William McBurney and Thomas R. McGahan then were, and still are, citizens of South Carolina; that Alfred L. Gillespie then was, and still is, a citizen of Tennessee; and William Hasseltine then was, and still is, a citizen of California. “ Your petitioner further says that in the above-mentioned suit there is a controversy which is wholly between citizens of different States and between a citizen of a State and a foreign State, namely, between the said plaintiffs and your petitioner, and which can be wholly determined as between them.” Accompanying this petition was the following affidavit: “ Personally appeared before me James Lowndes, and made oath that he is the attorney of Caroline Carson, and has read her petition for the removal of the said cause to the Circuit Court of the United States for the District of South Carolina, and that the facts therein stated are true to the best of his 284 OCTOBER TERM, 1885. Opinion of the Court. information and belief, save that he cannot aver that Dean Hall is of greater value than five thousand dollars and five hundred dollars; that his information as to the domicil of Hasseltine is drawn from a statement made to him by some person, whose name he cannot recall; that his information as to the domicil of Caroline Carson is drawn from these facts, viz.: That about the 1st July, 1877, he received in due course of mail a letter from the said Caroline Carson, dated at Brookline, Massachusetts, in which she informed the deponent that she had made a declaration or affidavit of her change of domicil from New York to Massachusetts; and that deponent continued to receive letters from her in the latter State during the month of July, 1877, and he knows her purpose to have been to become a citizen of Massachusetts; and he knows that she has not in fact for many years resided in New York. “ James Lowndes.” On the 25th of March the court refused to stop further proceedings, giving its reasons therefor as follows: “ The plaintiffs in this case, except one, a Spanish subject, are citizens of the State of New York, and the controversy, as appears by the pleadings, is wholly between them and the defendant Caroline Carson, who, in her answer, states that she is also a citizen of that State. She has also filed with her answer an exhibit of a previous case in the United States Court relating to the same matter, in which case she was plaintiff, suing as a citizen of the State of New York. No motion has been made by her for leave to amend or withdraw her answer, nor has any affidavit or other testimony been submitted showing that her answer was erroneous and the matter therein in reference to her citizenship was inserted by inadvertence or mistake. After this case had been referred to the master, and after the filing of her said answer by the said defendant, and the master, attended by the attorneys for plaintiffs and said defendant, had finished taking the testimony offered by the plaintiffs, the said defendant filed a petition in this court praying a removal of this case to the Circuit Court of the United States^ and alleging that she is a citizen of the State of Massachusetts. CARSON v. HYATT. 285 Opinion of the Court. “ That petition is not properly verified, and the insufficient affidavit by her attorney does not state any matter which would justify me in disregarding the positive statement in her answer and exhibit. “I, therefore, hold that the controversy in this case is between a citizen of the State of New York on the one side and other citizens of the same State and a Spanish subject on the other side; and, further, that the petition of defendant for the removal of the case was not filed until after the trial had commenced. “ She is, therefore, not entitled to have the case removed from this court, and her motion to that effect is refused.” On the 9th of March, 1880, a transcript of the record was filed by Mrs. Carson in the Circuit Court of the United States, and on the 10th of December, 1881, the cause came up for hearing in that court on a motion to remand. At this time affidavits were filed showing clearly that Mrs. Carson, in May or June, 1877, changed her citizenship from New York to Massachusetts, and that she had not from that time resided in New York or represented that State as her home. The answer was drawn by her counsel and her domicil in New York stated by inadvertence without her knowledge. As soon as the answer was seen by her she called attention to the mistake which had been made in this particular. The court, upon consideration of the record and the affidavits, granted the motion to remand, on the ground that, as the petition had not been filed in the State court until after answer, and after the master had under the order, of reference proceeded to take testimony, it was too late, as the trial had been begun. From this order an appeal was taken, which is one of the cases now under consideration. Before the motion to remand was decided in the Circuit Court the State court proceeded with the suit, and on the 30th of August, 1880, a decision was rendered in favor of Mrs. Car-son. An appeal was thereupon taken to the Supreme Court, where the judgment of the Common Pleas was reversed, on the 16th of July, 1881, and the cause remanded for further proceedings. Afterwards, on the 9th of September, 1881, a decree Was rendered in the Common Pleas against Mrs. Car 286 OCTOBER TERM, 1885. Opinion of the Court. son, from which she appealed on the ground, among others, that because of her petition for removal all rightful jurisdiction of the Court of Common Pleas ceased, and its proceedings thereafter were null and void. Afterwards the Supreme Court affirmed the decree, and in so doing sustained the jurisdiction of the Common Pleas, giving its reasons as follows: “ The facts stated in this petition were, perhaps, sufficient to entitle the petitioner to the order had the petition been filed within proper time, and had the facts stated been sustained by the record as a whole, but the petition broke down at both of these points. It was not filed as required by the act of Congress (1875) at or before the term at which the suit could have been tried; nor did it appear upon the face of the record that the citizenship of Mrs. Carson was in Massachusetts. True, this fact was stated in the petition, but her answer distinctly stated that she was a citizen of New York. Thus the record on its face failed to show the important fact required for removal. Meyer n. Construction Co., 100 U. S. 457. Hence, Judge Pressley had no other alternative but to dismiss the petition upon both of the grounds mentioned.” From this decree of affirmance a writ of error has been taken to this court, which presents the other of the two cases now before us. In our opinion the State court erred in retaining jurisdiction of the suit after the petition for removal was presented, and the Circuit Court in remanding it after it had been docketed there. The record presents but a single controversy in the suit, and that between the plaintiffs and Mrs. Carson as t.o the priority of her lien. This is conceded. In this controversy all the other defendants may properly be arranged on the same side with the plaintiffs, and thus leave Mrs. Carson at liberty to apply for a removal without joining the others with her. Removal Cases, 100 U. S. 457. So far there is no dispute, but the objections to the removal are: 1. That upon the face of the record, as the case stood in the State court, after the petition for removal was presented, Mrs. Carsori appeared as a citizen of the same State with some of those on the other side of the controversy; and, CARSON v. HYATT. 287 Opinion of the Court. 2. That the petition was not in time, because it was not presented “ before or at the term at which said cause could be first tried, and before the trial thereof.” 1. As to the citizenship. In Stone v. South, Carolina, 117 U. S. 430, it was said, following the former cases on the subject, that a State court is not bound to surrender its jurisdiction until a case has been made which, on its face, shows that the petitioner for removal has a right to the transfer, but it was also said that “ all issues of fact made upon the petition for removal must be tried in the Circuit Court.” The State court is only at liberty to inquire whether, on the face of the record, a case has been made which requires it to proceed no further. In the present case the petition stated, in positive terms, that Mrs. Carson was, at the beginning of the suit, and still continued to be, a citizen of Massachusetts. With that fact established, the necessary citizenship for a removal existed. Whether it was a fact or not, could, under the ruling in Stone v. South Carolina, only be tried in the Circuit Court, unless the statement in the answer filed on behalf of Mrs. Carson estopped her from denying her citizenship in New York. The record of the former suit, which is referred to in the opinion of the Common Pleas judge, we put entirely out of this branch of the case, because the statements there related to a time long anterior to that in which, according to the affidavit, the change of her citizenship occurred. At most it was only evidence, and had nothing to do with the “face of the record.” Neither can we look on the statement in the answer as to her domicil, signed by her counsel only, and not under oath, which was filed some days before her petition for removal was presented, as estopping her from asserting the truth. The affidavits on that subject, filed in the Circuit Court, show how the, mistake arose, and that the statement was promptly denied by Mrs. Carson as soon as it was brought to her attention. Upon the hearing of the motion to remand in the Circuit Court, there was a full argument by McCrady & Son for the complainants, and by Mr. Young for Mrs. Carson, and the evidence which was submitted, and which was uncontradicted, 288 OCTOBER TERM, 1885. Opinion of the Court. sufficiently established a change of citizenship from New York to Massachusetts as early as the middlé of 1877, and long before this suit was brought. 2. As to the time. The record is silent as to the manner in which Mrs. Carson was brought into court. The complaint could not have been filed before October 15, 1879, because that is the date of its verification. The evidence establishes the fact beyond question that Mrs. Carson was not in South Carolina between October 15 and December 16, 1879. Consequently she could not have been served personally with process in the State between those days. By the statutes of South Carolina the terms of the Common Pleas of Charleston County began on the second Monday of February, June, and November in each year. The second Monday of November, 1879, fell on the 10th of the month. Consequently, there were only twenty-five days between the 15th of October and the beginning of the November term of the court for that year. By the Code of Practice of South Carolina, Mrs. Carson, if she had been served personally with process on the 15th of October, could not have been required to answer before November 4th, and if by publication, as she might have been, not before December 16th. A section of the Code, § 278, as amended, provides : “ At any time after issue and at least fourteen days before court, the plaintiff shall file in the clerk’s office the summons and complaint in the cause, endorsing thereon the nature qf the issue and the number of the docket upon which the same shall be placed ; and if the plaintiff fail to do so, the defendant, seven days before the court, may file copies of said papers, with like endorsement, and thé clerk shall thereupon place said cause upon its appropriate docket, and it shall stand for trial without any further notice of trial or notice of issue.” The stipulation of December 16,1879, amounted to a waiver of all default previous to that date, and put the parties in no worse condition than they would have been if Mrs. Carson had filed her answer and put the case at issue at rules. Certainly, we are not to presume, on the face of this record, that she could have been forced to trial at the November term. Had CARSON v. HYATT. 289 Opinion of the Court. she answered on the 4th of November, which was the earliest day she could have been required to do so, there would not have been fourteen days between that and the term, and so, under the Code of Practice, the case could not have been tried until the February term without her consent; and the same would be true if she had put in her answer on the 16th December, which ,is probably the day it was really due. Her petition was presented at the February term, and consequently it was “ at the term at which the cause could be first tried,” according to the meaning of that phrase in the act of 1875, as it has been construed. Babbitt v. Clark, 103 U. S. 606; Pullman Palace Car Co. v. Speck, 113 U. S. 84. It remains only to consider whether the petition was presented before a trial was begun. The stipulation was not to send the case to the master for “ trial,” but “ to take testimony and report the same.” In its effect, this was nothing more than an agreement for the appointment of an examiner before whom the testimony in the suit, which was in its nature a suit in equity, could be taken. The master had no authority to find either the facts or the law. His duty was to take and write out the testimony to be reported to the court for use on. the trial when it should be begun. We conclude, therefore, that the suit was removable, and' that the petition therefor was presented in time. The judgment of the Supreme Court of South Carolina is Reversed and the cause remanded, with directions that it be sent to the Court of Common Pleas of Charleston County for removal to the Circuit Court, in accordance with the prayer of the petition for that purpose, and the order of the Circuit Court remanding the suit is reversed, and that court is directed to take jurisdiction and proceed to a final determination of the matter in controversy. Mr. Justice Blatchfokd took no part in the decision of these cases. vol. cxvni—19 290 OCTOBER TERM, 1885. Syllabus. PENNSYLVANIA RAILROAD COMPANY & Others v. ST. LOUIS, ALTON & TERRE HAUTE RAILROAD COMPANY. ST. LOUIS, ALTON & TERRE HAUTE RAILROAD COMPANY v. PENNSYLVANIA RAILROAD COMPANY & Others. APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. Argued January 14, 15, 1886.—Decided April 26, 1886. When an existing railroad corporation, organized under the laws of one State, is authorized by the laws of another State to extend its road into the latter, it does not become a citizen of the latter State by exercising this authority, unless the statute giving this permission must necessarily be construed as creating a new corporation of the State which grants this permission. Where a lease of a railroad for ninety-nine years contained covenants for the payment of monthly instalments of rent, to keep the road in repair, and to keep accounts of all matters connected with its business, as affecting the amount of rent to be paid, which covenants were guaranteed by other parties than the lessee, a bill which shows failure to pay rent, depreciation of the road, and combination of the guarantors and lessee to divert the earnings of the road to the benefit of the guarantors, presents a case of equitable jurisdiction when it prays for specific performance of the obligations of the lease. • In such a case a suit at law on each instalment of rent as it falls due is not an adequate remedy. Unless specially authorized by its charter, or aided by some other legislative action, a railroad company cannot by lease or other contract turn over to another company for a long period of time its road and all its appurtenances, the use of its franchises, and the exercise of its powers, nor can any other railroad company, without similar authority, make a contract to run and operate such road, property, and franchises of the first corporation. Such a contract is not among the ordinary powers of a railroad company, and is not to be inferred from the usual grant of powers in a railroad charter. Thomas v. Railroad Co., 101 U. S. 70, reaffirmed. The act of the Illinois legislature of February 12, 1855, is a sufficient authority on the part of the St. Louis, Alton & Terre Haute Company to make the lease sued on in this case. But if the other party to the contract, the Indianapolis and St. Leuis Company, had no such authority, the contract is void as to it; and if the other PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 291 Argument for St. Louis, Alton & Terre Haute Railroad Company. companies had no power to guarantee its performance, it is void as to them, and cannot give a right of action against them. An examination of the statutes of Indiana and of the decisions of its courts fails to show, in the one or the other, any authority for an Indiana railroad company to make such a contract as that between the principal contracting companies in this case. Nor is any authority found in the charters of any of these guaranteeing companies, or of the laws of the States under which they are organized, to guarantee the performance of such a contract as this ; the parties to it and the road which it relates to being outside the limits of these States, and having no direct connection with their roads. The doctrine is sound that when acts have been done and property has changed hands under void contracts which have been fully executed, courts will not interfere; but relief in such cases must be based on the invalidity of the contract, and not in aid of its enforcement. While the plaintiff in this case might recover in an appropriate action the rental value of the use of its road against the lessee company, the other defendants who had received nothing, but had been paying out money under a void contract, cannot be compelled to pay more money under the same contract. This was a bill in equity to enforce specific performance of a contract of lease of a railway, and contracts of guarantee. Cross appeals from the decree below. The case is stated in the opinion of the court. Mr. John M. Butler and J/r. Joseph E. McDonald for St. Louis, Alton & Terre Haute Railroad Company, appellant in the second case and appellee in the first, made the following citations to such of the points made by counsel as are decided in the opinion of the court. I. St. Louis, Alton c& Terre Haute Railroad Co. v. Miller, 43 Ill. 199 ; Railroad Co. v. Harris, 12 Wall. 65; Railway Co. v. Whitton, 13 Wall. 270 ; Insura/nce Co. v. Morse, 20 Wall. 445 ; Steamship Co. v. Tugman, 106 U. S. 118; Memphis Charleston Railroad Co. v. Alabama, 107 U. S. 581; Bank of Augusta v. Earle, 13 Pet. 519; Railroad Co. v, Koontz, 104 U. S. 7; Canada Southern Railroad Co. v. Gebhard, 109 U. S. 527; Muller v. Dows, 94 U. S. 444; Chicago & Northwestern Railroad Co. v. Chicago de Pacific Railroad Co., 6 Bissell, 219; Williams v. Missouri Kansas <& Texas Railroad Co., 3 Dillon, 267; Baltimore de Ohio Railroad Co. v. Gallahue, 12 Gratt. 655. II. and III. Pittsburgh, Cincinnati c& St. Louis Railway Co. 292 OCTOBER TERM, 1885. Argument for St. Louis, Alton & Terre Haute Railroad Company. v. Columbus Chicago & Indiana Central Railway Co., 8 Bissell, 456 ; Tippecanoe County v. Lafayette, Muncie A Bloomington Railroad Co., 50 Ind. 85; Pittsburgh, Cincinnati & St. Louis Railway Co. v. Kain, 35 Ind. 291; Huey v. Indianapolis As Vincennes Railroad Co., 45 Ind. 320 ; Railroad Co. v. Vance, 96 IT. S. 450; Archer n. Terre Haute & Indianapolis Railroad Co., 102 Ill. 493; Railway Co. v. McCarthy, 96 U. S. 258 ; Railroad Co. v. Pratt, 22 Wall. 123; Green Bay As Minnesota Railroad Co. v. Union Steamboat Co., 107 IT. S. 100; Hitchcock v. Galveston, 96 IT. S. 341; Attorney General v. Great Eastern Railway Co., 5 App. Cas. 473; South Yorkshire Railway Co. v. Great Northern Railway Co., 9 Ex. 55 ; Great Northern Railway Co. v. South Yorkshire Railway Co., 9 Ex. 642; Smead v. Indianapolis, Pittsburgh & Cleveland Railroad Co., 11 Ind. 104; State Board of Agriculture v. Citizen) s Street Railway Co., 47 Ind. 407; Low v. Central Pacific Railway Co., 52 Cal. 53; Stewart v. Erie Transportation Co., 17 Minn. 372, 373; Zabriskie v. Cleveland, Columbus As Cincinnati Railroad Co., 23 How. 381; Railroad Co. v. Howard, 7 Wall. 392, 413 ; Board, etc. v. Lafayette, etc. Railroad Co., 50 Ind. 85; Flagg v. Manhattan Railway Co., 20 Blatchford, 142; Hoyt v. Thompson)s Executor, 19 N. Y. 207; Van Host/rup v. Madison, 1 Wall. 291. IV. San Antonio N. Mehaffey, 96 IT. S. 312; Railway Co. n. McCarthy, 96 IT. S. 258 ; Hitchcock v. Galveston, 96 IT. S. 341; National Bank v. Graham, 100 IT. S. 699 ; Daniels v. Tearney, 102 IT. S. 415 ; Gold Mining Co. v. National Bank, 96 IT. S. '640 ; National Bank v. Matthews, 98 IT. S. 621; Township of Pine Grove v. Talcott, 19 Wall. 666 ; Oil Creek A Allegheny Railroad Co. n. Penn. Trans. Co., 83 Penn. St. 160 ; Woodruff n. Erie Railway Co., 93 N. Y. 609, 615 ; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Parish v. Wheeler, 22 N. Y. 494; Behler v. German Mutual Fire Ins. Co., 68 Ind. 347 ; Pancoast v. Travelers' Ins. Co., 79 Ind. 172; Bradley v. Ballard, 55 Ill. 413 ; Chicago Building Society v. Crowell, 65 Ill. 453; Darst v. Gale, 83 Ill. 136; Hamilton Hydraulic Co. v. Cincinnati, Hamilton A Dayton Railroad Co., 29 Ohio St. 341; Hays v. Gallion Gas Co., 29 Ohio St. 330; Newburgh Petroleum Co. v. Weare, 27 Ohio St. 343 ; Grant v. White, 42 Missouri, 285. PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 293 Argument for Lake Shore & Michigan Southern Railway Company. Mr. Stevenson Burke for Pennsylvania Railroad Company and others, appellants in the first case, and appellees in the second cited to point III., decided by the court, the following cases: Lafayette v. Cox, 5 Ind. 38; Green Bay <& Minnesota Railroad Co. v. Union Steamboat Co., 107 U. S. 98 ; Bank of Augusta v. Earle, 13 Pet. 519; Miners' Ditch Co. v. Zellerbach, 37 Cal. 543 ; Thomas v. Railroad Co., 101 U. S. 71 ; Vandali v. South San Francisco Dock Co., 40 Cal. 83 ; Bell-meyer v. Marshalltown, 44 Iowa, 564 ; Weckler v. First Nat. Bank, 42 Maryland, 581, St. Louis v. Weber, 44 Missouri, 547 ; Matthews v. Skinker, 62 Missouri, 329 ; Brooklyn Gravel Road Co. v. Slaughter, 33 Ind. 185 ; East Anglian Railways Co. v. Eastern Counties Railway Co., 11 C. B. 775 ; Ogdensburg & Lake Champlain Railroad Co. v. Vermont & Canada Railroad Co., 63 N. Y. 176 ; Davis v. Old Colony Railroad Co., 131 Mass. 258 ; Troy cfe Boston Railroad Co. v. Boston Hoosac Tunnel & Western Railway Co., 86 N. Y. 107 ; Hinckley v. Gildersleeve 19 Grant Ch. U. Canada, 212 ; Archer v. Terre Llaute & Lndianapolis Railroad Co., 102 Ill. 493 ; Pearce v. Madison <& Lndianapolis Railroad Co., 21 How. 441 and cases cited ; Taft v. Pittsford, 28 Vt. 286 ; Franklin Co. v. Lewiston Lnsti-tution for Savings, 68 Maine, 43 ; Rock River Bank v. Sherwood, 10 Wis. 230 ; Minor v. N. Y. <& N. H. Railroad Co., 53 N. Y. 363 ; Monument Bank v. Globe Works, 101 Mass. 57 ; Lafayette Savings Bank v. St. Louis Stone Ware Co., 2 Missouri App. 299 ; Central Bank v. Empire Stone Dressing Co., 26 Barb. 23 ; Madison & Watertown Plank Road Co. v. Watertown & Portland Plank Road Co., 7 Wis. 59 ; .¿Etna Bank n. Charter Oak Life Lns. Co., 50 Conn. 167 ; Bank of Genessee v. Patchin Bfanh,A3 N. Y. (3 Kernan) 309; Woodruff v. Erie Railway Co., 25 Hun. 246 ; Chambers v. Falkner, 65 Ala. 448 ; Dowing v. Mt. Washington Road Co., 40 N. H. 230 ; Wiswall v. Greenville <& Raleigh Plank Road Co., 3 Jones Eq. 183 ; Toll Bridge Co. v. Osborn, 35 Conn. 7. Mr. Ashley Pond for Lake Shore & Michigan Southern Railway Co., appellant in the first case, and appellee in the second cited the following cases not cited by Mr. Stevenson 294 OCTOBER TERM, 1885. Opinion of the Court. Burke: Zabriskie v. Cleveland, Columbus de Cincinnati Bailroad, 23 How. 381; Vail v. Hamilton, 85 N. Y. 453 ; Bochester Savings Bank v. Averill, 96 N. Y. 467; Bailroad Co. v. Howard, 1 Wall. 392; State Board v. Citizens' Bailway Co., 47 Ind. 407; Low v. Cent. Pac. Bail/way Co., 52 Cal. 53; Stewart v. Erie Transportation Co., 17 Minn. 372. Hr. John T. Pye filed a brief for appellants in the first case and appellees in the second, citing the following cases not cited by Mr. Burke: On the first point in the opinion of the court, Christian Union v. Yount, 101 U. S. 352: And on the other points, Witt ent on Hills v. Upton, 10 Gray 582; Bichard-son n. Sibley, 11 Allen 65 ; Ashbury Bailway Carriage de Iron Co. v. Biche, L. R. 7 H. L. 653; Stevens v. Butland dec. Bailroad, 29 Vt. 545; Danbury <0 Norwalk Bailroad Co. v. Wilson, 22 Conn. 435 ; Coleman v. Eastern Counties Baibway, 10 Beav. 1; Bagshaw v. Eastern Union Bailway, 7 Hare, 114; HcGregor v. Dover de Deal Bailway, 18 Q. B. 618; Eastern Counties Bailway v. Hawkes, 5 H. L. Cas. 331; Smead n. Indianapolis, Pittsburgh de Cleveland Bailroad Co., 11 Ind. 104; Harietta Cincinnati Bailroad v. Elliott, 10 Ohio St. 57; Adkinson n. Harietta de Cincinnati Bailroad Co., 15 Ohio St. 21; Strauss v. Eagle Ins. Co., 5 Ohio St. 59; Peoria do Bock Island Bailway Co. v. Coal Valley Hining Co., 68 Ill. 489; Bailroad Co. v. Vance, 96 IT. S. 450. Mr. Justice Miller delivered the opinion of the court. These are cross-appeals from a decree of the Circuit Court for the District of Indiana. The suit was brought in that court by a bill in chancery, filed by the St. Louis, Alton and Terre Haute Railroad Company, alleging that it was a corporation organized under the laws of the State of Illinois, and a citizen of that State, against the Indianapolis and St. Louis Company, a corporation similarly organized under the laws of the State of Indiana, and a citizen of that State, and against the other corporations mentioned in the bill as citizens of Indiana, or of other States than the State of Illinois. PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 295 Opinion of the Court. A final decree was rendered in favor of plaintiff for the sum of $664,874.70, with costs, and an injunction against several of the defendants, from which both complainants and defendants in the court below have appealed. 1. The first question arising on the record is that of the jurisdiction of the Circuit Court of the Indiana district as founded on the citizenship of the parties. This question was raised at an early stage of the controversy by a distinct plea to the jurisdiction, and was overruled by the court. Afterwards, and before the decree, the defendant corporations who had filed this plea withdrew it, and desired to have the case decided on the merits. As it is not competent to any parties to confer jurisdiction on the Circuit Court by a waiver of objections to it, the question is one which lies at the threshold of any further proceeding, and must be decided. The objection arises out of the admitted fact that the Indianapolis and St. Louis Railroad Company is a corporation organized under a statute of Indiana and is a necessary party to the suit, and the assumption that the St. Louis, Alton and Terre Haute Railroad Co. is organized under laws of both Illinois and Indiana, and is, therefore, a citizen of the latter State, as is its principal opponent in the controversy. The complainant company owns a road extending from the Mississippi River, opposite St. Louis, to Terre Haute, Indiana, of which only a very few miles—ten or twelve—are within the State of Indiana. The controversy grows out of a lease of this road by the complainant company to the Indianapolis and St. Louis Company. As the complainant company was chartered originally by the State of Illinois, and is undoubtedly a citizen of that State, and in that character would have the right to sue the other companies in the Circuit Court for Indiana, do the other facts in the case defeat this right by making it also a citizen of Indiana ? It does not seem to admit of question that a corporation of one State, owning property and doing business in another State by permission of the latter, does not thereby become a citizen of this State also. And so a corporation of Illinois, authorized 296 OCTOBER TERM, 1885. Opinion of the Court. by its laws to build a railroad across the State from the Mississippi River to its eastern boundary, may by the permission of the State of Indiana extend its road a few miles within the limits of the latter, or, indeed, through the entire State, and may use and operate the line as one road by the permission of the State, without thereby becoming a corporation or a citizen of the State of Indiana. Nor does it seem to us that an act of the legislature conferring upon this corporation of Illinois, by its Illinois corporate name, such powers to enable it to use and control that part of the road within the State of Indiana, as have been conferred on it by the State which created it, constitutes it a corporation of Indiana. It may not be easy in all such cases to distinguish between the purpose to create a new corporation which shall owe its existence to the law or statute under consideration, and the intent to enable the corporation already in existence under laws of another State to exercise its functions in the State where it is so received. The latter class of laws are common in authorizing insurance companies, banking companies and others to do business in other States than those which have chartered them. To make such- a company a corporation of another State, the language used must imply creation or adoption in such form as to confer the power usually exercised over corporations by the State, or by the legislature, and such allegiance as a State corporation owes to its creator. The mere grant of privileges or powers to it as an existing corporation, without more, does not do this, and does not make it a citizen of the State conferring such powers. In a case where the corporation already exists, even if adopted by the law of another State and invested with full corporate powers, it does not thereby become such new corporation of another State, until it does some act which signifies its acceptance of this legislation and its purpose to be governed by it. We think what has occurred between the State of Indiana and this Illinois corporation falls short of this. The origin of this corporation was a special act of the Illinois legislature of January 28, 1851, chartering the Terre Haute and Alton Railroad Company to construct a road from PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 297 Opinion of the Court. the State line near Terre Haute to Alton; and by an act of the Indiana legislature, passed a few days later, this Illinois corporation was permitted to extend its road through Indiana to Terre Haute. Some changes took place in the name and power of this company by statutes of Illinois, but none which affected its powers derived from the Indiana statute of February 11, 1851. But the property of the corporation was sold out under foreclosure of a mortgage to Robert Bayard, Samuel J. Tilden, Russell Sage, and others, who, under an act of the Illinois legislature, reorganized the purchasers into the corporation called The St. Louis, Alton and Terre Haute Railroad Company, which is the present company, and which, by the Illinois statute, succeeded to all the franchises of the original Terre Haute, Alton and St. Louis Company. As these included all the powers necessary to operate the few miles of the road in Indiana under the act of February 11, 1851, it was unnecessary to seek an act of incorporation from that State. It appears, however, that Bayard, Tilden, and their associates, did file in the office of the Secretary of State of Indiana a certificate of the organization of the new company, with the names of the first directors of it who were to serve until 1863.; and it is argued that this made the St. Louis, Alton and Terre Haute Company a corporation of the State of Indiana. A critical examination of this certificate renders it very doubtful whether that was its purpose, but rather indicates that it was intended to secure and perpetuate the rights granted to the Terre Haute and Alton Company by the act of February 11, 1851. At all events, no evidence exists of the agreement of the new Illinois company to accept of or act under this attempt at organization under Indiana laws. They never held an election for directors of the Indiana corporation, if one existed, and they never in any other manner recognized the existence of an Indiana corporation of the same name. Without going into the question whether the plaintiff in this case, if it were clearly a corporation of both States, could maintain this suit in the Circuit Court under the decisions in this court, we are satisfied that, with reference to its right to 298 OCTOBER TERM, 1885. Opinion of the Court. sue as a citizen of Illinois, it is not, also, a corporation and citizen of Indiana under the facts found in this record. As regards the asserted existence of the Indianapolis and St. Louis Company under the law of Illinois, by which it is asserted to be a citizen of the same State with plaintiff, the objection is the same as that which was overruled in Hallway Co. n. Whitton, 13 Wall. 270, and in Muller v. Dows, 94 IT. S. 444. 2. The next objection to the decree is, that the bill does not present a case for equitable relief, and should have been dismissed for want of jurisdiction in chancery.® To understand the force of this proposition clearly, it is necessary to make a statement of the case as made by the bill. It seems that in May, 1867, the St. Louis, Alton and Terre Haute Railroad Company, plaintiff in the bill, had nearly completed and was operating, from Terre Haute to St. Louis by way of Alton, a road about one hundred and eighty-nine miles long. From Terre Haute to Indianapolis (about seventy miles) a corporation had been organized under the laws of Indiana to build a road, and probably had - built the whole or a part of it. Indianapolis was then a railroad centre of importance, from which roads ran to Chicago and other lake towns, and to Louisville, Cincinnati, and other towns on the Ohio River, and to all the principal cities of the Atlantic Coast. At St. Louis the Terre Haute and Alton road connected with the railroad system west of the Mississippi River. Several of these railroad companies whose traffic was east of Indianapolis, and all of whom had connection, direct or indirect, with that city, were desirous of reaching St. Louis with their business, and made proposal to the complainant company for the purpose of accomplishing this result. The companies who executed the agreements to secure this purpose, all of whom were made defendants to the bill, were the Indianapolis, Cincinnati and Lafayette Railroad Company, the Pittsburgh, Fort Wayne and Chicago Railway Company, the Pennsylvania Company, the Bellefontaine Company, the Cleveland, Columbus and Cincinnati Company, and the Cleveland, Painesville and Ashtabula Company. PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 299 Opinion of the Court. Their proposition was that the Indianapolis and Terre Haute Company should lease, for a period of ninety-nine years, the part of complainant’s road between St. Louis and Terre Haute, and thus with its own road make a continuous line between. Indianapolis and St. Louis, and the other companies agreed to guarantee the payment of the rent and performance of the other obligations of the Terre Haute and Indianapolis Company. And it was also agreed that if this company refused to execute this operating contract, the defendants might procure some other company to build the seventy miles of road from Indianapolis to Terre Haùte, and execute the agreement in place of the Terre Haute and Indianapolis Company, and in like manner they would guarantee the performance of its obligations in the lease. What occurred was that the Terre Haute and Indianapolis Company refused to execute the contract of lease, and another corporation was organized, under the influence and control of these guaranteeing companies, to build the seventy miles of road between Indianapolis and Terre Haute, and the line of road between Indianapolis and St. Louis was thus made complete. This company was called the Indianapolis and St. Louis Railroad Company, and it executed the contract of lease with the complainant company September 11, 1867. At the same time, the guaranteeing companies, except the Pennsylvania Company, executed a new guaranty as a substitute for the former. The averments of the bill, however, bring in the Pennsylvania Company as defendant, by alleging that, in its lease of the Pittsburgh, Fort Wayne and Chicago road it bound itself to perform the obligation of this latter company as one of the guarantors, and that, by signing the original contract of guaranty for the Terre Haute and Indianapolis Company, it bound itself to the same guaranty for any road substituted in its place, and, by the further averment, that the Indianapolis and St. Louis Company, which did enter into the contract of lease, was in reality but the creature of the companies who signed the original contract of guaranty, the Pennsylvania company included. This contract of lease between the complainant company 300 OCTOBER TERM, 1885. Opinion of the Court. and the Indianapolis and St. Louis Company lies at the foundation of all claim for relief in this suit. It is a carefully drawn instrument of nineteen articles. It leases out complainant’s road from St. Louis to Terre Haute, and a short connecting line of four miles to Alton, for the period of ninety-nine years, and it provides for the absolute control of this road by the Indianapolis and St. Louis Company, called party of the first part, during this period; for its being kept in repair by that company; for the payment of a rent by that company to the party of the second part, the St. Louis, Alton and Terre Haute Company, which should be regulated by the gross income derived from the use of the road, but in no event to be less than $450,000 per annum. Some of these articles of agreement and parts of others important to the issues before us are as follows : “ Article I. “ The said party of the first part shall, will, and may manage, operate, and carry on the business of a certain railroad belonging to the party of the second part, and known as the principal or main line of the St. Louis, Alton and Terre Haute Railroad, extending from Terre Haute, in the State of Indiana, to East St. Louis or Illinoistown, in the said State of Illinois, and also a certain branch thereof belonging to the party of the second part, and extending from a point on the said main line to Alton, in the said State of Illinois, for and during the period of ninety-nine years from the first day of June, in the present year of our Lord one thousand eight hundred and sixty-seven, upon and subject to the terms and conditions of this indenture, and all and singular the provisions herein contained. “Article II. “ The said party of the first part shall, and will, within a reasonable time hereafter, finish and put in good order and condition, any and all unfinished portions of said main line of railroad, or of .said Alton branch thereof, and any and all parts or portions of either said main line or said branch which may PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 301 Opinion of the Court. be in inferior condition or out of repair; and thereafter, at all times during the said period of ninety-nine years, the said party of the first part, its successors and assigns, shall and will keep the said main line of railroad, and the said Alton branch thereof, in the order and condition, of first-class western railroads, making from time to time all needful repairs, replacements, improvements of and additions to the same at the proper cost and expense of the said party of the first part, without deduction or abatement, from the moneys hereinafter provided to be paid to the party of the second part; and the said party of the first part shall and will expend, for improvements and equipments upon the said line of railroad, in addition to the ordinary expenses of operation, repair, and replacement, a sum not less in the a^OTefi'ate than five hundred thousand dollars before the thirty-first day of December, in the year one thousand eight hundred and sixty-eight. “ Article III. “ The said party of the first part shall, and may, for and during the term aforesaid, use and apply to and for the business of said main line and branch railroads any and all depots, stations, station-houses, car-houses, freight-houses, wood-houses, and other buildings, and all machine-shops and other shops, and all depot grounds and other lands adjacent to the said main line and branch railroad, or either of them, or used or acquired for use in connection therewith, including certain depot grounds at East St. Louis aforesaid.” . . . Article V. authorizes the lessee company to fix all rates of fare for freight and passengers, with a provision for the protection of other companies not material here. “Article VI. “ The said party of the first part, keeping and performing all and singular the terms, provisions, and conditions of these presents, and making the payments hereinafter required, shall and may, at all times during the period of ninety-nine years aforesaid, demand, collect, and receive any and all fares, charges, freights, tolls, rents, revenues, issues, and profits of 302 OCTOBER TERM, 1885. Opinion of the Court. the said main line of railroad extending from Terre Haute to East St. Louis aforesaid, and of the said branch thereof to Alton aforesaid. “Article VII. “ The party of the first part shall, in each and every year of the term of ninety-nine years, pay, or cause to be paid, to the party of the second part, in the manner and at the times hereinafter provided, thirty per cent, of the gross earnings of the said railroad from Terre Haute to East St. Louis, and the branch thereof to Alton, until such gross earnings for such year shall amount to the aggregate sum of two millions of dollars, and twenty-five per cent, of any excess over two millions of dollars, until the whole earnings for such year shall amount to three millions of dollars, and twenty per cent, of any excess over three millions of dollars of gross earnings for such year, and such percentage of the gross earnings for each such year shall be paid over without any deduction, abatement, or diminution for any cause whatever; every demand or claim accruing, or to accrue, to the party of the first part being hereby declared to be chargeable on that portion of the gross earnings which the said party is, by the next succeeding article hereof, empowered to retain as therein provided; but it is hereby expressly agreed that the aforesaid payments shall amount, in each and every year, to at least four hundred and fifty thousand dollars, which is hereby agreed upon as a minimum for each and every year, and it is to be paid absolutely, without reference to the percentage which it forms of the gross earnings of such year, and without leaving or creating any claim or charge upon the earnings of any future year.” “ Article XV. “ The said party of the first part shall and will, during the whole period of ninety-nine years aforesaid, keep just, full, and true accounts of any and all business which shall or may be done upon the said main line of railroad, and the said Alton branch thereof, or upon either or any part of either thereof, and of all moneys earned or received from or on account of such business, and shall render to the party of the second part, PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 303 Opinion of the Court. monthly during such period, a detailed approximate statement of such business, showing the receipts and disbursements on account thereof, and shall also, annually, to wit, on or before the first day of March in each year, account to and with the party of the second part for. any and all moneys earned or received as aforesaid for and during the year terminating with the thirty-first day of December preceding the time of such accounting, and the president of the party of the second part, or an agent duly authorized by the board of directors, shall, at all reasonable hours and times during the term aforesaid, have the right to examine and inspect, and there shall be produced and exhibited to them, any and all books of account wherein shall be entered, or which shall purport to contain, any entry or statement relating to the business done on said main line and branch railroads, or on any part of either thereof during the term aforesaid, and any and all vouchers relating to such business, and shall also have the right to take transcripts from and copies of such entries or statements and of such vouchers.” The following is the contract of guarantee, signed by the other railroad companies on the same day that the foregoing lease was signed by the two principal companies. The reference to the operating contract of the 17th May, 1867, being to the one prepared for the Indianapolis and Terre Haute Company which it refused to execute. The recitals are omitted, and only the language descriptive of the contract of guarantee is given: “ Now, therefore, this indenture witnesseth, That for and in consideration of the premises, and of the sum of one dollar to each of them duly paid, the receipt whereof is hereby acknowledged, the said parties of the first, second, and third parts to these presents, for themselves, their successors and assigns, have covenanted, promised, and agreed, and by these presents do covenant, promise, agree, and guarantee to and with the said party of the fourth part, its successors and assigns, that the said Indianapolis and St. Louis Railroad Company shall and will at all times hereafter keep, observe, and perform all and singular the covenants, conditions, and provisions of the said operating contract, bearing date on the 17th day of May, in the year 304 OCTOBER TERM, 1885. Opinion of the Court. of our Lord 1867, and of the said instrument bearing even date herewith, by which the said Indianapolis and St. Louis Railroad Company has assumed, adopted, or become liable to carry out the said operating contract according to the true intent and meaning thereof: Provided, nevertheless, That all the obligations of the parties of the first, second, and third parts hereto, created or intended to be created hereby, shall be several and not joint, and as to each of them for the equal third part of any and all damages which may arise from any default of the said Indianapolis and St. Louis Railroad Company, its successors or assigns in the premises, or for any breach of this agreement by the said parties of the first, second, or third parts thereto.” The bill charges, as violations of the contract of lease, that the Indianapolis and St. Louis Company has for some time past failed to pay the rent as fixed at the minimum of $450,000 per annum; that it is insolvent, and is in many other respects in default in regard to its obligations under the operating contract; that it has not kept the road adequately furnished with equipments, but has allowed it to run down and depreciate, and has resorted to the use of leased cars and equipments, instead of purchasing and owning the same; that the road is not in the order and condition of a first-class western road, as required by said contract; that the money which should go to pay complainant is used to pay for the leased cars; and that the rails have become worn and the track out of repair. It is also alleged that the lessee’s road is covered by a large mortgage, to secure bonds held chiefly, if not altogether, by the guaranteeing companies, and, in fact, by means of their ownership of the stocks and bonds of that company, they are drawing from it the money which should go to pay complainant’s rent and to purchase rolling-stock and repair the road. It is then alleged that suits for the instalments of rent as they fall due, and judgments at law against all the defendants, would be no adequate remedy. That to do this, or resume possession and control of complainant’s road for non-performance, would not be sufficient for that purpose. That complainant has a contract with the defendants more valuable than would be the resumption of the PENN. CO. v. ST. LOUIS,. ALTON, &c., KAILROAD. 305 Opinion of the Court. possession of the road in its depreciated condition, both in respect to the road and equipments and the traffic over it, so largely diminished by construction of the road of the Indianapolis and St. Louis Company to the Mississippi River at St. Louis by that company, and by the other defendants, on a line nearly parallel to complainant’s road, and not far from it. The prayer for relief is, that the Indianapolis and St. Louis Company be required specifically to perform its obligations in all the respects mentioned, and that, in default thereof, the guaranteeing defendants be required to do so, and that the latter companies be required to perform, by paying such of the instalments of minimum rent as the lessee company fails to do as they fall due ; that the companies be enjoined from receiving from the Indianapolis and St. Louis Company interest on its bonds held by them while it is in arrears for rent, and also enjoined from selling these bonds ; and that a receiver be appointed to take such a per cent, of the gross earnings of the company as may be necessary to pay the rent due complainant. We have been thus minute in showing the breaches of the contract alleged in the bill, the condition of the parties as to ability to perform, and the relief sought, because it is said that an action at law for the unpaid rent, as often as the instalments become due, is an adequate remedy, and is all that the defendants are liable for. But we cannot concur in this view of the matter. If the contracts are valid contracts, and the complainant has the rights which are guaranteed to it under them, such relief is very inadequate. To sue for every monthly instalment of rent, even if the prirfcipal and the guarantors can be sued jointly, is almost equivalent to a denial of justice. If the contract is to continue and the road to be run by the lessee company, which is insolvent, a monthly resort to a suit at law against the guarantors is destructive of the substantial right of the plaintiff under the contract. Having a valuable contract in regard to the operation of the road for a great many years to come, plaintiff cannot be compelled to forfeit it and resume possession and sue for all its damages in one action, because this would best serve the purposes of the solvent guarantors. vol. cxvni—20 306 OCTOBER TERM, 1885. Opinion of the Court. The Indianapolis and St. Louis Company agreed to keep the road, its rolling stock, and its equipment in good condition, equal to a first-class western railroad. The plaintiff has a right to have this done specifically, and is not bound to bring action after action for damages at every stage of this depreciation. These suits would be vexatious, unsatisfactory, expensive, and the relief would be inadequate. A clause in the contract requires the lessee to keep regular accounts of all the matters essential to complainant’s rights. The examination of these accounts by a master is eminently appropriate, rather than by a jury. The relief granted by the decree, of enjoining the guaranteeing companies from collecting the interest on the bonds of the Indianapolis and St. Louis Company while it is insolvent and in arrears, can only be given in a court of equity. In short, the numerous questions, the complex issues, raised in the case can only be satisfactorily tried in a court of equity, and that court alone can give full, adequate and complete remedy for the grievances of plaintiffs growing out of the violation of this contract, and adjust the extent and nature of that relief among the parties to it. We are of opinion, therefore, that if the complainant is entitled to any relief on the facts of the case, it is in a court of equity as distinguished from a court of law. 3. It is objected that the contract of lease between the two primary parties to that contract, the lessor and the lessee company, was one which they had no power to make, and that, still less, had the other defendant companies authority to guarantee its performance by the latter.* In the consideration of this question no reference will be had to any want of regularity in the proceedings attending the execution of these agreements, nor to the absence of any such authority as the boards of directors could have given to the officers of the companies who signed the contracts. It is here a question pure and simple as to how far the authority to execute these contracts is sustained by the corporate powers which the law has vested in these companies. A case very much like the present one, as it relates to this PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 307 Opinion of the Court. point, was before us some six years ago, and the opinion in it establishes for this court the main principles on which the inquiry must proceed. In that case a railroad company in New Jersey had leased its road, franchises, and property for a period of twenty years, yielding as in this case complete control of it all to the lessees, and receiving as rent one half the gross sum collected by the lessees from the operation of the road. The agreement contained a condition that the railroad company might at any time terminate the contract and take possession of its property: but in that event they should pay to the lessees the value of the lease for the remaining period of the twenty years to which the lease extended. The company exercised this option, took possession of its road, and the suit was brought to recover on this covenant. Thomas v. Railroad Company, 101 U. S. 71. The decision turned upon the power of the company under its corporate authority to make the lease. The plaintiffs in error, who were the lessees, insisted that a corporation may, as at common law, do any act which is not either expressly or impliedly prohibited by its charter, although, where the act is unauthorized, a shareholder may enjoin its execution, and the State may, by proper process, forfeit the charter. To this the court responded: “ We do not concur in this proposition. We take the general doctrine to be in this country, though there may be exceptional cases and some authorities to the contrary, that the powers of corporations organized under legislative statutes are such and such only as those statutes confer. Conceding the rule applicable to all statutes, that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corporation is the measure of its powers, and that the enumeration of these powers implies the exclusion of all others.” The reports of decisions in the English courts were very fully examined, as will be seen by the reported statement of counsels’ briefs, and many of them specially referred to in the opinion; also several cases in this court and in the State courts of this country. It is not expedient here to go again over the ground there 308 OCTOBER TERM, 1885. Opinion of the Court. considered, as we are of opinion now, as we were then, that • the great preponderance of judicial decisions supports the proposition above stated. It has been distinctly recognized, and repeated in this court in the case of the Green Bay de Minnesota Railroad Co. v. Union Steamboat Co., 107 U. S. 98. It is cited with approval in the Supreme Court of Massachusetts in the case of Davis v. Old Colony Railroad Co., 131 Mass. 258. This latter opinion is a very full and able review of all the important decisions on that subject, and sustains very clearly the main propositions. In this court the principle is completely covered by the decision of the case of Pearce v. Madison & Indianapolis Railroad Co., 21 How. 441, decided in 1858. In that case the defendant companies, whose road at one end of it terminated oh the Ohio River, had purchased a steamboat to be used on that river in connection with their freight and passenger traffic, and had given notes for the purchase money. In a suit on these notes this court ruled that they were void for want of any authority in the companies to buy the boat, or to engage in the carrying trade on the river. The opinion delivered by Mr. Justice Campbell cites several of the English cases relied on in Thomas v. Railroad Co., and in Davis et al v. Old Colony Railroad Co., above referred to, and concludes with the observation that “ the opinion of the court is, that it was a departure from the business of the corporation, and that their officers exceeded their authority.” This doctrine had been previously asserted with great force in the case of New York db Maryland Line Railroad Co., v. Winans, 17 How. 30. These are all cases in which railroad companies were parties, and their powers, as regulated by their charters, were the matters mainly considered. There are many other cases of the highest authority where railroad corporations are held to the doctrine laid down in Thomas v. Railroad Co., above cited; Eastern Counties Railway v. Hawkes, 5 Hr L. Cas. 331, 371 to 381; Ashbury Railway Ca/rriage a/nd Iron Co. v. Riche, L. R. PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 309 Opinion of the Court. 7 H. L. 653 ; McGregor v. Dover &, Deal Railway, 18 Q. B. 618; East Anglian Railways v. Eastern Counties Railway, 11 C. B. 775. We think it may be stated, as the just result of these cases and on sound principle, that unless specially authorized by its charter, or aided by some other legislative action, a railroad company cannot, by lease or any other contract, turn over to another company, for a long period of time, its road and all its appurtenances, the use of its franchises, and the exercise of its powers, nor can any other railroad company without similar authority make a contract to receive and operate such road, franchises, and property of the first corporation, and that such a contract is not among the ordinary powers of a railroad company, and is not to be presumed from the usual grant of powers in a railroad charter. We must, therefore, proceed to inquire if any such powers have been given to the railroad companies engaged in this transaction. There is found in the record a copy of an act of the Illinois legislature, approved February 12,1855, of which the following is the first section: “ Sec. 1. Be it enacted by the people of the State of Illinois represented in the General Assembly, That all railroad companies incorporated or organized under, or which' may be incorporated or organized under the authority of the laws of this State, shall- have power to make such contracts and arrangements with each other, and with railroad corporations of other States, for leasing or running their roads, or any part thereof, and also to contract for and hold in fee-simple, or otherwise, lands or buildings in this or other States for depot purposes; and also to purchase and hold such personal property as shall be necessary and convenient for carrying into effect the object of this act.” Though it might be said that this act only authorizes Illinois railroad companies to become lessees, we think it must be conceded that this enactment authorized the St. Louis, Alton and Terre Haute Railroad Company, which we have already said was exclusively an Illinois corporation, to enter into the lease or operating contract found in the record. 310 OCTOBER TERM, 1885. Opinion of the Court. But if the other party to the contract, the Indianapolis and St. Louis Company, had no such authority, the contract of lease is void as to it, and if the other companies had no power to guarantee its performance, it is void as to them, and the capacity of the complainant to make this contract does not make it valid as against those which had not such capacity, and cannot give a right of action on it against them. In the case of Thomas v. The Railroad Company, the lessees were natural persons with no disability to contract, but they were held to have no remedy on their contract, because it was not binding on the other party for want of a similar power to make the contract. An act of the legislature of Indiana of December 18, 1865, is relied on as by implication conferring this power. Section 8 is as follows: “ Sec. 8. In case any railroad or part thereof shall have been, or shall hereafter be leased, conveyed, or mortgaged to any other railroad company, and shall be in the possession of such other company, under such lease, conveyance, or mortgage, the road, or part thereof, so leased, conveyed, or mortgaged, shall, during the continuance of such possession, be assessed, for taxation, as the property of the company having such possession, in the same manner as if it were a part of the road of such lessee, grantee, or mortgagee, under its own charter; and such lessee, grantee, or mortgagee, shall, during the continuance of such possession, have all the rights and be subject to all the duties and liabilities in relation to the road, or parts thereof, so held, which are created by this act, and both its property and the road, or parts thereof, so held, with its fixtures and the property used in operating the same, shall be liable for the payment of such taxes, in the same manner as railroad property is, in other cases, made liable for taxes properly assessed against the same.” 3 Ind. Stat., Davis’ Ed. (1870), 420, 421. It will be seen at once that this is a statute for the collection of revenue, and that to make sure of the payment of taxes due on railroad property the legislature has undertaken to provide that in cases where the possession has passed out of the corporation which owns it or has the title, it shall be paid PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 311 Opinion of the Court. by the persons having that possession. Hence, in enumerating this latter class it speaks of property leased then or thereafter, or conveyed or mortgaged, and makes the holder liable during the continuance of such possession for the taxes. This precise question, only more strongly presented, in favor of the affirmance of the lease by the act of the New Jersey legislature, Was decided in Thomas v. Railroad Co., 101 U. S. 85. The statute in that case having direct relation to the company which had made the invalid lease, passed after the lease was made and in operation, declared it should “ be unlawful for the directors, lessees, or agents of said railroad to charge more than three cents per mile for carrying passengers,” and the proviso said “ that nothing contained in this act shall deprive the railroad company or . its lessees of the benefit of the provisions of another act,” relative to fares on other railroads in the State. This court said that, though “it might be fairly inferred that the legislature knew that the road was operated under the lease in that case, it was not important for the purpose of that act to decide whether this was done under a lawful contract or not.” “ The legislature was determined that whoever did run the road, and exercise the franchises conferred on the company, and under whatever claims of right this was done, should be bound by the rates of fare established by that act. . . . It is not by such an incidental use of the word lessees, in an effort to make sure that all who collected fares should be bound by the law, that a contract unauthorized by the charter and forbidden by public policy is to be made valid and ratified by the State.” So here the mention of lessees as possible holders of the possession of railroad property neither implies that they are lawfully so, or that such an absolute transfer of road, appurtenances, franchises, powers, and their control as the one found in this case, is authorized by law, nor, though it may be in operation, does it give sanction to or create such a law. The following section of the act of February 23, 1853, of the Indiana legislature is relied on as authorizing this contract: “Sec. 3. Any railroad company heretofore organized or 312 OCTOBER TERM, 1885. Opinion of the Court. which may hereafter be organized under the general or special laws of this State, and which may have constructed or commenced the construction of its road, so as to meet and connect with any other railroad in an adjoining State at the boundary line of this State, shall have the power to make such contracts and agreements with any such road constructed in an adjoining State, for the transportation of freight and passengers, or for the use of its said road, as to the board of directors may seem proper.” Rev. Stat. Ind. 1881, § 3973. We cannot see in this provision any authority to make contracts beyond those which relate to forwarding by one company the passengers and freight of another, on terms to be agreed on, and possibly for the use of the road of one company in running the cars of the other over it to its destination without breaking bulk. In the case of the Board of Commissioners of Tippecanoe County v. Railroad Co., 50 Ind. 85, 110, this same statute was relied on as supporting the authority to make the lease then under consideration. But the Supreme Court of Indiana said: “ That act is, ¹ to authorize railroad companies to consolidate their stock with the stock of other railroad companies in this or in an adjoining State, and to connect their roads with the roads of said Companies.’ The title nowhere mentions a lease or a sale. Indeed, the words to connect their roads with the roads of other companies, would seem to exclude such a conclusion. To connect one road with another does not fairly mean to lease or sell it to another.” This was said in a case where the whole question turned on the power of one railroad company to make, and the other to receive, a lease of the road. It is cited in the brief of counsel for complainant as sustaining the doctrine that in Indiana the right of railroad companies to lease their roads to other companies is recognized by the judiciary of that State. We think it proves the opposite. The lease in that case was held void as being ultra vires. All the arguments of the court are based on the proposition that the corporation can do no valid act unauthorized by statute, and can make no contract in contravention of public PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 313 Opinion of the Court. policy. And while it says, “We do not decide that railroad companies cannot become lessors or lessees of other railroad companies, for the purpose of running their lines in conjunction, facilitating commerce, travel, and transportation, or for any legitimate purpose for which railroad companies are organized, and there is much in the legislation of the State favoring this view, and many decisions sustaining the advancing enterprise of the country,” it adds: “ But all such contracts must come within the powers of the corporation, must not exceed the powers of the agency that makes them, iqust not violate the rights of stockholders or contravene public policy.” We look in vain in this latest decision of the State for any assertion of the proposition that, by the laws of that State or by the decisions of its courts, there exists any law by which one railroad company can, by lease or by any other contract, make an absolute surrender of its road and its franchises to another. And yet that was the question under discussion, and because the lease in that case contained a clause of perpetual renewal, and in effect amounted to a sale, the court held it ultra vires. What practical difference is there between this and a lease with the same powers for ninety-nine years ? If that decision does no more, it at least leaves this court free to follow its own views of the powers conferred by the Indiana law in regard to this subject on its railroad corporations. Lastly, it is said that in Railroad v. Va/nce, 96 U. S. 450, this court decided that this same contract was binding on the Indianapolis and St. Louis Company. That was done on the ground that the latter company was made a corporation of the State of Illinois by the act of that State’of March 11,1869, and was using that part of the present plaintiff’s road lying within the State of Illinois, under that contract. In reference to its liability to pay the taxes on that part of the plaintiff’s road, it was held to be an Illinois corporation, and bound under the Illinois statute by the contract of lease now under consideration. But we have just shown that the Indianapolis and St. Louis Company was an Indiana corporation when this contract of lease was made, which was two years before it became an II- 314 OCTOBER TERM, 1885. Opinion of the Court. linois corporation by the act of 1869. The present suit is against it as an Indiana corporation, otherwise it could not be maintained. The validity of the contract depends on its power as an Indiana corporation to make it at the time it was made. It had none then, and no act of the Indiana legislature has ratified it since. That suit was founded on an Illinois contract between Illinois corporations to collect Illinois revenue, and was in no sense governed by Indiana law, but by the law of Illinois. As regards this lease in a suit against the Indiana corporation, organized under its laws by the name of the Indianapolis and St. Louis Railroad Company, in the Circuit Court of the United States for that District, we must hold it to be void for want of power in the defendant company to make it. We have been thus careful in our examination into the power of the lessor and lessee companies in the contract of lease, because if the lease itself is void the contract of the other companies must be equally so. A contract to perform for the Indianapolis and St. Louis Railroad Company obligations which it was forbidden to assume, and which it had no authority to assume, must itself be void. There is no power shown in any of these companies to accept a lease of the complainant such as the one in the present case, and perform its conditions, and they cannot, therefore, become parties to such a contract with a road outside the State which chartered them any more than the principal company. If these guaranteeing companies had executed the original contract of lease it would have been void for want of authority from the legislature of Indiana, or of any other State by whose laws they are incorporated or endowed with corporate power. No such power is shown in them to lease roads beyond their own States. Indeed, while there may be a just claim of authority for some kind of running arrangement between two connecting roads under the Indiana statutes, there is no connection between the plaintiff’s road and any road of a guaranteeing company. The connection even by traffic is remote. These companies might as well have assumed the power to loan them money, or to endorse their notes, or any other commercial transaction, as to PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 315 Opinion of the Court. guarantee the performance of a void contract by one company to another. It may not be amiss to cite one or two cases in which this power to guarantee the contract of one corporation by “another is more directly in point. Among these are Coleman n. Eastern Counties Railway Co. 10 Beav. 1; Madison & Watertown Plank Road Co. v. Watertown & Portland Pla/nk Road Co., 7 Wis. 59. In the first of these cases, under the powers contained in the acts of Parliament, the Eastern Counties Railway Company and the Eastern Union Railway Company had formed a railroad from London to Manningtree, a place about ten miles from the port of Harwich. The directors of these companies conceived that it would add to the traffic and profits of the railway if a steam packet company could be formed communicating between Harwich and the northern ports of Europe, and they accordingly took proceedings for the establishment of such a company. It was intended that the railway companies should guarantee to the shareholders in the steam packet company a dividend of five per cent, per annum upon their paid-up capital until the dissolution of that company, and that then the whole paid-up capital should be paid by the railway companies to the shareholders of the packet company in exchange for a transfer of its assets. On a bill by a shareholder of the railway company to enjoin, it was held by the Master of the Rolls, Lord Langdale, that no such contract was within the power of the railway companies, and further proceedings in the matter were enjoined. Among other things, that learned judge said that, “ if there is one thing more desirable than another, after providing for the safety of all persons travelling on railroads, it is this, that the property of the railway companies shall be itself safe ; that a railway investment shall not be considered a wild speculation, exposing those engaged in it to all sorts of risks, whether they intended it or not. Considering the vast property which is now invested in railways, and how easily it is transferable, perhaps one of the best things that could happen would be that the investment should be of such a safe nature that 316 OCTOBER TERM, 1885. Opinion of the Court. prudent persons might without improper hazard invest their moneys in it. Quite sure I am that nothing of that kind can be approached if railway companies should be- at liberty to pledge their funds in support of speculations not authorized by their legal powers, and which might very possibly, to say the least, lead to extraordinary losses on the part of the railway company.” This became a leading case in England, where its doctrines have been steadily followed. It is cited with approval in Pearce v. Madison & Indianapolis Railroad Co., 21 How. 441. In the case of Madison Plank Road Co. n. Watertown Company, 1 Wis. 59, the former company, in order to aid the latter company to build a plank road, which was a continuation of the road of the former, agreed to guarantee a loan made to the Watertown Company. After the road was built the Madison Company refused to pay on the default of the Watertown Company. The Supreme Court held that the Madison Company had no corporate power to guarantee the payment of the debt of the other company ; and, when pressed with the argument that, by the building of the road, the Madison Company had received the benefit which had induced it to guarantee the debt, the court said it was a contract ultra vires and could not be enforced. We are of opinion that the guarantee of the obligations of the lease on the part of the Indianapolis and St. Louis Company by the other defendants is void. 4. It is argued, in support of the decree, that, though the contract of lease may be void, so that no action could originally have been sustained upon it, there has been for ten years such performance of it, in the use, possession, and control of plaintiff’s road and its franchises, by the defendants, that they cannot now be permitted to repudiate or abandon it: that it now presents one of a class of cases which hold that where a void contract has been so far executed that property has passed under it and rights have been acquired under it, the courts will not disturb the possession of such property or compel restitution of money received under such a contract. Undoubtedly there are such decisions of courts of high PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 317 Opinion of the Court. authority, and. there is such a principle, very sound in its application to appropriate cases. But we understand the rule in such cases to stand upon the broad ground that the contract itself is void, and that neither what has been done under it, nor the action of the court, can infuse any vitality into it. Looking at the case as one where the parties have so far acted under such a contract that they cannot be restored to their original condition, the court inquires if relief can be given independently of the contract, or whether it will refuse to interfere as the matter stands. We know of no well considered case where a corporation, which is party to a continuing contract which it had no power to make, seeks to retract and refuses to proceed further, can be compelled to do so. As was said in Thomas v. Railroad Co., (a case so often in point here,) “ having entered into the agreement it was the duty of the company to rescind or abandon it at the earliest moment. This duty was independent of the clause in the contract which gave them the right to do it. Though they delayed its performance for several years, it was nevertheless a rightful act when it was done. Can this performance of a legal duty, a duty both to stockholders of the company and to the public, give to plaintiffs a right of action ? Can they found such a right on an agreement void for want of corporate authority and forbidden by the policy of the law ? To hold that they can is, in our opinion, to hold that any act performed in execution of a void contract makes all its parts valid, and that the more that is done under a contract forbidden by law, the stronger is the claim to its enforcement by the courts.” 101 U. S. page 86. Whatever may be said in regard to the Indianapolis and St. Louis Company, there is wanting in the case of the guaranteeing companies one of the strongest reasons usually urged in support of the estoppel, as it is sometimes called, namely, that the recalcitrant party has received the money or the property of the other. For, so far from these guaranteeing companies having received of the plaintiffs any money or property, they are the parties who have been paying money and the plaintiffs receiving it for rent of its road. They are not, therefore, estopped 318 OCTOBER TERM, 1885. Dissenting Opinion: Bradley, Harlan, J J. on any principles of that doctrine from ceasing to pay money on an illegal contract because they have heretofore done so. On the contrary, as we have already said, the duties of these directors to their stockholders is to cease to perform a contract to which they were never bound. We do not decide the question whether the Indianapolis and St. Louis Railroad Co. cannot be compelled to pay the plaintiff for the use of its road, though the contract be void. Whether it would be so liable on a quantum meruit admits of doubt. It is unnecessary to decide this, because that company has submitted to the decree of the Circuit Court in favor of plaintiff for that rent, by failing to give bond and perfect its appeal from that decree. That part of the decree \which requires the Indianapolis and St. Louis Railroad Company to pay renf\ must stand, as no appeal from it has beenprosecuted. The decree against the other defendants, appellants here, is for the reasons given reversed, and the case remanded to the Circuit Court with directions to dismiss the bill as to them. Mr. Justice Bradley, with whom concurred Mr. Justice Harlan, dissenting. I dissent from the judgment of the court in this case, and will very briefly state my reasons for dissenting. The St. Louis, Alton and Terre Haute Railroad Company, the lessor, had full authority to make the lease of its road and works which is brought in question in the cause. The Indianapolis and St. Louis Railroad Company, the lessee, assumed to have power to take the lease, and had such power in Illinois by the effect of the laws of that State, and was supported in its assumption of power by the implications of several statutes of Indiana. If these implications were not sufficiently strong to amount to a grant of power, still, they were sufficient to show that the legislature of Indiana understood the power as existing and acquiesced in it. The other railroad companies, parties to the suit, who guaranteed the performance of the lease and its covenants on the part of the lessee, had the power to do so by the laws of Illinois, and the engagement of guaranty on PENN. CO. v. ST. LOUIS, ALTON, &c., RAILROAD. 319 Dissenting Opinion: Bradley, Harlan, JJ. their part was a contract entered into by them in furtherance of their through business to and from St. Louis and the States west of the Mississippi. The whole arrangement, in fact, was devised by them for the purpose of facilitating and increasing their business as integral parts of great trunk lines, which, in the absence of inter-State regulations of commerce made by Congress, are of the greatest utility to the business of the country. To hold that the railroad companies of the country thus situated cannot, without acting ultra vires, make business arrangements beyond the limits of their own tracks in a country situated and divided up into States as ours is, it seems to me is to take a very contracted view of the powers and duties of these public institutions. According to the doctrine of the court, a New York or Pennsylvania company could not even have a ticket or freight agent in St. Louis for the purpose of soliciting freight and passengers to be carried on the trunk line of which it forms a part. They could not hire an office for such an agent, or, if they did, they could not be held responsible for the rent. This is carrying the doctrine of ultra vires to what seems to me an absurd extent. It is following out the English notions on that subject, which always seemed to me inapplicable to our situation and circumstances, however well suited to that compact and homogeneous country—homogeneous in government and jurisdiction. All the principal railroads in England extend across the entire country from London, in different directions, to the sea. In this country, as Congress declines to charter through lines across the States, the State governments themselves charter local roads, limited by the boundary lines of the State. In order to give the country through facilities at all, these State roads are obliged to unite their lines, and make what is called a trunk line. The necessities of the country require it. Yet, according to the logic of the decision in this case, this is all ultra vires. Look at it. One of our great trunk lines, extending from West to East, is composed (say) of five connected railroads, forming together a continuous line, working together under a contract which regulates their mutual rights and obligations 320 OCTOBER TERM, 1885. Dissenting Opinion : Bradley, Harlan, J J. in the management of the business and the distribution of its joint receipts. All this is ultra vires and void! One of the links of the chain is a ferry which, in consideration of extra accommodations afforded for the business of the line, is guaranteed a certain sum annum. The guaranty is ultra vires and void! Is this law ? It may be English law; but is it American law ? I cannot believe it. We must not shut our eyes to the fact that new circumstances and conditions, of themselves, require and produce a modification of old rules, or the application of new ones. This narrow doctrine has already been discarded by the courts, and by this court. It has become settled law, that a railroad company at one end of a trunk line may enter into contracts for the transportation of passengers and goods to any part of the line, hundreds of miles beyond its own track; and will be held liable for the fulfilment of such contracts. And yet, according to the doctrine of the opinion in this case, this is ultra vires. But this is not all. The contract has been performed on the part of the lessor company, and the lessee and its guarantors have enjoyed the benefit of it. With what face can they now refuse to pay what they agreed to pay ? With what face can they plead incapacity to contract ? This is not a suit to compel the specific performance of the contract in future ; but to compel the payment of the money earned by past performance of the contract. It seems to me that the companies concerned are estopped to deny their liability to make this payment. It is the companies themselves who make the plea, not their stockholders. In several national bank cases, where the banks have loaned money on mortgages of land, contrary to the express prohibition of the act of Congress, and ultra vires, we have enforced the contract, leaving it to the government to call the banks to account for acting outside of their chartered powers. Why should not the same rule be applied to railroads, if it is thought they have exceeded their powers; especially when no stockholder complains of the company’s action, and the ob- LORING v. PALMER. 321 Statement of Facts. ject of the suit is, to compel them to pay for a benefit actually received. In every aspect in which the case can be viewed, it seems to me that the decree of the Circuit Court was not only just and right, but in accordance with sound principles of American law, and ought to be affirmed. I am authorized to say that Mr. Justice Harlan agrees with me in opinion. LORING & Another v. PALMER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN. Argued March 18,19, 1886.—Decided May 10,1886. A series of letters and agreements passing between the parties interested, all relating to the same property, which, when read together, show a purpose ■ in all the parties to create a trust respecting it, and which express and •define that trust and the parties and their respective interests, creates a trust fully expressed and clearly defined within the meaning of the statute of the State of Michigan which enacts that “express trusts” may “be' created” “for the beneficial interest of any person or persons when such trust is fully expressed and clearly defined on the face of the instrument creating it.” When a conveyance of land is made to two or more persons, and the deed is* silent as to the interest which each is to take, the presumption will be that; the interests are equal. This rule applies to two or more cestuis que trust,. beneficiaries under a common deed of trust, and prevails in Michigan. The statute of Michigan which enacts that “ every disposition of land ” “ shall be directly to the person in whom the right to the possession and the profits shall be intended to be vested, and not to any other to the use of or in trust for such person ; and if made to one or more persons, in trust for or to the> use of another, no estate legal or equitable shall vest in the trustee,” does; not apply to a trust not expressed in the deed, but created by an independent instrument or instruments, executed at a different time, or times, from, the execution of the deed. This was a suit in equity brought by Charles H. Palmer, the--appellee, against Elisha T. Loring and Charles A. Welch, the VOL. CXVIII—21 322 OCTOBER TERM, 1885. Statement of Facts. appellants, to obtain a conveyance of one undivided third part of the N. | of the N. W. and of the N. W. | of the S. W. |, sec. 23, T. 56, N. R. 33 W., Houghton County, Michigan, containing in all 1-20 acres, on the ground that the lands were bought from Thomas F. Mason for Loring, Palmer, and William B. Frue, and the title taken by Loring in trust for himself and his associates. The material facts were these : From the year 1856, and perhaps before, Palmer, Loring, and Frue had been engaged in the purchase of lands in the upper peninsula of Michigan, in the formation of mining corporations, and in the purchase and sale of mining stocks. Frue resided at the time in Houghton County, which was in the upper peninsula, Palmer at Pontiac, Michigan, and Loring at Boston, Massachusetts ;. but Palmer spent much of his time at the peninsula and in its vicinity. During all the time "the purchases were generally made and the titles, both of lands and stocks, taken in the name of Loring, as trustee for all the parties in interest. Among other lands purchased in this, way were some which were afterwards put into the Ossipee Mining Company, a mining corporation promoted by these parties, with a capital stock consisting of 20,000 shares, of which Lpr-ing and Frue each owned 2250, and Palmer 2220. Under these circumstances Palmer and Frue met Thomas F. Mason, of New York, at Houghton, and negotiated with him for thè purchase of the lands in question. The price was to be $20,000, payable $5000 down, $7500 in six months, and $7500 in eight months, with interest at the rate of seven per cent, per annum on the last two sums. No contract was executed at the time, as Mason preferred a form which he had at home, and the matter was postponed until he got there, with the understanding that Loring should execute the formal contract in New York, and pay the $5000. A memorandum of the transaction was, however, made at the time and assented to by both parties. This memorandum has been lost, but the testimony showed that it was substantially the same as the contract made with Loring, hereinafter referred to, except that either “ Charles H. Palmer ahd William B. Frue ” were named as vendees, or “ Charles H. Palmer and his associates.” LORING v. PALMER. 323 Statement of Facts. The day that this occurred Palmer wrote from Michigan to Loring, in Boston, as follows: “ Kearsarge Mining Company, Calumet^ Mich., June VSth, 1868. “ E. T. Loring, Esq. “Dear Sir: I have this day bought of T. F. Mason the following lands in the Hecla section 23, namely, the north half of the northwest quarter, and the northwest quarter of the southwest quarter, in all 120 acres, for $20,000, $5000 down, $7500 in six months, and $7500 in eight months, with 7 per cent, interest on the last two sums. I had the contract drawn up and was ready to pay him the $5000 down; but as he had just come from Ontonagon and the boat was to leave in two hours, he preferred to return to New York and write Such a contract as he had given Hurlburt on his purchase, and have you execute the contract and pay him the $5000. He will then send you the contract, and I want you to see it carried out in all respects. Mason agrees that if you are away or do not do this, he will send it to me to do, and to carry out as I have agreed to do. Mr. Mason has given me his word, in the presence of Frue, that all this shall be done as he agreed, and that I shall have the land—making his word as good as his deed. There was not time to do this before Mason left, and I want you to treat him in this matter without doubting him at all. I will write you again this evening and send the contract I had drawn up. He has a copy of it, with the terms, as I have stated. This matter is very important. The purchase will add to the Ossipee five dollars per share at once in actual value. I do not want anything said of this at all. You will see by this that we shall get a division with the Hecla so as to get what will make a mine out of it by itself. We can make the Calumet vein by this over 3200 feet in length. The purchase is very important. I send this by the hands of Randall, and will write again to-night by mail. Do not mention this. If you can, I would go to New Yqrk and see Mason and close this at once. In no case will this be neglected. It is a fortune to us if well handled. Mason has the contract which "324 OCTOBER TERM, 1885. Statement of Facts. I drew up, and will show it to you. But this will tell you what is to be done. I give a sketch of the land. When I present the whole matter you will see how important it is to us. We can take from Hecla from 1550 to 2305 feet in length, and still give them out of this purchase double the amount of mining value that we get from them. The fact is, this ground bought is worth more to them than the ground next to Ossipee. It is for this reason that I do not want anything said till we have fully considered this matter together and see how we shall open it to Shaw. This is a rough sketch of the land bought. The vein is nearer to it than I have given the dotted lines, as if made to divide between them. Hecla would be free then to give us 100 acres, 50 of which would carry the vein, and we should give them 100, all of which would carry the vein. You will see the importance of this matter, and that we should not say anything till we consult. The Hecla is rich and we can make the Ossipee as rich. “ Truly yours, Charles H. Palmer.” The next day he wrote again as follows: “ Kearsarge Mining Company, Calumet, Mich., June 19ZA, 1868. “E. T. Loring, Esq., “ Dear Sir: I have drawn a map of the land bought of Mason. The Hecla owns all in the section, but the 40 and 80. You may say that Shaw will not do anything about it. We can wait as long as he can, as we have enough to mine till the Hecla needs some of this land. The least I would take now would be the 80 next the Ossipee, through which the lode runs, and most likely with the right of mine perpendicular to the vein in the direction of the line AB. I do not think best now to say anything to Shaw about this. I have given on the other side the land in the Calumet section 14, bought by Hurlburt. I could have bought this a year ago last winter for $40,000, including the 120 now bought. If I had done so, we could now have this land in 23 for nothing, as Shaw will have to buy Hurlburt out even at $100,000. Stanton, who now has the Huron, is intending to buy Hurlburt out in 14, and I wish you would see him when he returns, and urge him to do it. Hurl- LORING v. PALMER. 325 Statement of Facts. hurt bought of Mason some 1200 acres of land in 14,15,11, 22, and 28. If Stanton can get the land in 14, 480 acres, and the land in 22, on the east half, I should like it, as the land in 22 is desirable for us. Hurlburt offered the land in 14 to Stanton for Huron stock. This would be a good thing for Stanton. I shall write Stanton on this subject. This matter is not to be talked about. I had a long talk with Stanton, and he is inclined to buy it. He has let Hurlburt have money. “ I send the duplicate of the contract I gave Mason. Mason is to write a contract like his, contract with Hurlburt, and send to you. Mason talked this matter over with Frue and myself, and says we shall have this land as agreed, and that his word is as good as his deed. I trust nothing will be left undone to carry this out, and you had better go to New York'and see it done. We shall get out of Hecla all I have indicated. The land we would exchange is more convenient on surface and underground for them than what they would give us. It will be under their machinery and improvements. This is a great thing for Ossipee. You had better telegraph me as soon as this is done, as I shall be most anxious about it. I wrote you to-day and sent by Randall, and I write this by mail. I shall put a note on this for Burr to open, in case you should be absent. On the $5000 to be paid down, pay interest if Mason wants it. If Burr reads this, I wish him to see all is done which he can do. Send the $5000 in case you are not there to execute the papers, saying that you will execute them and return them as soon as you get home, as they can be sent to you. I do not want anything by which Mason can get out of this. He agreed that if there was any hindrance on your part, to send them to me to execute. “ The S. P. is doing finely, 30 tons a week. To-day 50 tons have been shipped, and by Monday morning there will be at the smelting works 60 tons unsmelted. I think we have a sure thing in the S. P. We must make a family concern of Ossipee, and I would not sell any stock in it. We can make it put on its own importance. This we will do. I see this matter clearly. I write in haste and do not read over. I “ Truly yours, Charles H. Palmer. 326 OCTOBER TERM, 1885. Statement of Facts. “ Be particular to say nothing about Stanton’s wishes. We need not buy any Hecla unless upon good time and satisfactory prices. We shall have a Hecla of our own. I think the S. P. will improve upon what she is now doing. The 40 acres is less than 350 feet from line of vein. In case you want us to raise $5000 here, write us or telegraph, and we will use it for the mine.” Enclosed in this was a copy of the memorandum made while Mason was in Michigan. After the receipt of these letters Loring wrote and perhaps telegraphed to Palmer approving the purchase. On the 25th of June Loring also wrote W.'Hart Smith, of New York, as follows : . I). AT. Debmas and JZ?. A. L. Rhodes for Santa Clara County. On the points on which the decision turned, J/r. Del/mas said as follows: I now take leave of the Federal questions in this cause, and proceed to examine briefly some minor points which include no question of constitutional law, but simply refer to modes of procedure under the statutes of the State. Objection is made to a recovery here because it is claimed that the fences on the line of the road were improperly included in the assessment of the roadway, because, in the first place, they were not proved to be the property of defendant, and secondly, they were not within the jurisdiction of the Board of Equalization. It is said that the plaintiff ought to have proved that the fences belonged to defendant. TAiq prima facie case made out by the plaintiff’s documents establishes everything necessary to its recovery—among which is that the property assessed belongs to the taxpayers assessed. Besides, as a general rule, fences belong to the railroads whose right of way they enclose. Civ. Code, § 485. The defendants, in rebuttal of plaintiff’s primafacie case, have not proved that they did not own the fences. All the presumptions, then, arising from the plaintiff’s prima facie case, remain standing in full force. Such fences are not enumerated by the Code among the SANTA CLARA CO. v. SOUTH. PAC. RAILROAD. 397 Opinion of the Court. . things assessable by local assessors. These are, “ the depots, station grounds, shops, buildings, and gravel beds.” Political Code, § 3664. Obviously, then, unless the legislature intended they should not be taxed, they are to be assessed by the Board of Equalization as a part of the roadway. Fences built upon the line of the roadway are a part of the roadway as necessary to its protection. As much so as the railing of a bridge is a part of the bridge, or the framework of a tunnel is part of the tunnel. Such has always been the understanding of the law in California, and the fences have always been assessed by the Board of Equalization. I have never been able to grasp the proposition that fences are no part of the railroad which they enclose. If the defendant made a conveyance of “ its railroad from San Francisco to San Jose ” would not the fences pass by the deed ? Clearly as much so as a sale of my garden would convey the fence which encloses the garden. Mr. E. C. Marshall, Attorney General of California for all the plaintiffs in error. Jfz¹. S. W. /Sanderson, Mr. George F. Edmunds and Mr. ’William M. Evarts for defendants in error. Me. J ustice Haelan delivered the opinion of the court. These several actions were brought—the first one in the Superior Court of Santa Clara County, California, the others in the Superior Court of Fresno County, in the same State— for the recovery of certain county and State taxes, claimed to be due from the Southern Pacific Railroad Company and the Central Pacific Railroad Company under assessments made by the State Board of Equalization upon their respective franchises, roadways, roadbeds, rails, and rolling stock. In the action by Santa Clara County the amount claimed is $13,366.53 for the fiscal year of 1882. For that sum, with five per cent, penalty, interest at the rate of two per cent, per month from December 27, 1882, cost of advertising, and ten per cent, for attorney’s fees, judgment is asked against the Southern Pacific 398 OCTOBER TERM, 1885. Opinion of the Court. Railroad Company. In the other action against the same company the amount claimed is $5029.27 for the fiscal year of 1881, with five per cent, added for non-payment of taxes and costs of collection. In the action against the Central Pacific Railroad Company judgment is asked for $25,950.50 for the fiscal year of 1881, with like penalty and costs of collection. The answer in each case puts in issue all the material allegations of the complaint, and sets up various special defences, to which reference will b.e made further on. With its answer the defendant, in eacli^case, filed a petition, with a proper bond, for the removal of the action into the Circuit Court of the United States for the District, as one arising under the Constitution and laws of the United States. The right of removal was recognized by the State court, and the action- proceeded in the Circuit Court. Each case—the parties having filed a written stipulation waiving a jury—was tried by the court. There was a special finding of facts upon which judgment was entered in each case for the defendant. The general question to be determined is, whether the judgment can be sustained upon all, or either, of the grounds upon which the defendants rely. The case as made by the pleadings and the special finding of facts is as follows: By an act of Congress, approved July 27,1866,14 Stat. 292, the Atlantic and Pacific Railroad Company was created, with power to construct and maintain, by certain designated routes, a continuous railroad and telegraph line from Springfield, Missouri, to the Pacific. For the purpose—which is avowed by Congress—of facilitating the construction of the line, and thereby securing the safe and speedy transportation of mails, troops, munitions of war, and public stores, a right of way over the public domain was given to the company, and a liberal grant of the public lands was made to it. The railroad so to be constructed, and every part of it was declared to be a post route and military road, subject to the use of the United States for postal, military, naval, and all other government service, and to such regulations as Congress might impose for restricting the charges for government transportation. By the SANTA CLARA CO. v. SOUTH. PAC. RAILROAD. 399 Opinion of the Coiirt. 18th section of the act, the Southern Pacific Railroad Company—a corporation previously organized under a general statute of California, passed May 20, 1861, Stat. Cal. 1861, p. 607—was authorized to connect with the Atlantic and Pacific Railroad at such point, near the boundary line of that State, as the former company deemed most suitable for a railroad to San Francisco, with “uniform gauge and rate of freight or fare with said road;” and in consideration thereof, and “to aid in its construction” the act declared that it should have' similar grants of land, “ subject to all the conditions and limitations ” provided in said act of Congress, “ and shall be required to construct its road on like regulations, as to time and manner, with the Atlantic and Pacific Railroad.” §§ 1, 2, 3, 11 and 18. In November, 1866, the Atlantic and Pacific Railroad Company, and the Southern Pacific Railroad Company, filed in the office of the Secretary of the Interior their respective acceptances of the act. By an act of the legislature of California, passed April 4, 1870, to aid in giving effect to the act of Congress relating to the Southern Pacific Railroad Company, it was declared that: “ To enable the said company to more fully and completely comply with and perform the requirements, provisions, and conditions of the said act of Congress, and all other acts of Congress now in force, or which may hereafter be enacted, the State of California hereby consents to said act, and the said company, its successors and assigns, are hereby authorized to change the line of its railroad so as to reach the eastern boundary line of the State of California by such route as the company shall determine to be the most practicable, and to file new and amendatory articles of association, and the right, power, and privilege is hereby granted to, conferred upon, and vested in them to construct, maintain, and operate by steam or other power the said railroad and telegraph line mentioned in said acts of Congress, hereby confirming to, and vesting in, the said company, its successors and assigns, all the rights, privileges, franchises, power and authority conferred upon, 400 OCTOBER TERM, 1885. Opinion of the Court granted to, or vested in said company by the said acts of Congress, and any act of Congress which may be hereafter enacted.” Subsequently, by the act of March 3, 1871, 16 Stat. 573, Congress incorporated the Texas Pacific Railroad Company, with power to construct and maintain a continuous railroad and telegraph line from Marshall, in the State of Texas, to a point at or near El Paso, thence through New Mexico and Arizona to San Diego, pursuing, as near as might be, the thirty-second parallel of latitude. To aid in its construction, Congress gave it, also, the right of way over the public domain, and made to it a liberal grant of public fands. The 19th section provided : “ That the Texas Pacific Railroad Company shall be, and it is hereby, declared to be a military and post road ; and for the purpose of insuring the carrying of the mails, troops, munitions of war, supplies, and stores of the United States, no act of the company nor any law of any State or Territory shall impede, delay, or prevent the said company from performing its obligations to the United States» in that regard: Provided, That said road, shall be subject to the use of the United States for postal, military, and all other governmental services, at fair and reasonable rates of compensation, not to exceed the price paid by private parties for the same kind of service, and the government shall at all times have the preference in the use of the same for the purpose aforesaid.” The twenty-third section of that act has special reference to the Southern Pacific Railroad Company, and is as follows: “ Sec. 23. That, for the purpose of connecting the Texas Pacific railroad with the city of San Francisco, the Southern Pacific Railroad Company of California is hereby authorized (subject to the laws of California) to construct a line of railroad from a point at or near Tehacapa Pass, by way of Los Angeles, to the Texas Pacific railroad, at or near the Colorado River, with the same rights, grants, and privileges, and subject to the same limitations, restrictions, and conditions, as were granted to said Southern Pacific Railroad Company of California by the act of July twenty-seven, eighteen hundred and sixty-six: Provided, however, That this section shall in no way SANTA CLARA CO. v. SOUTH. PAC. RAILROAD. 401 Opinion of the Court. affect or impair the rights, present or prospective, of the Atlantic and Pacific Railroad Company, or any other railroad company.” Under the authority of this legislation, Federal and State, the Southern Pacific Railroad Company constructed a line of railroad from San Francisco, connecting with the Texas and Pacific Railroad (formerly the Texas Pacific Railroad) at Sierra Banca, in Texas; and with other railroads it is operated as one continuous line (except for that part of the route occupied by the Central Pacific Railroad) from Marshall, Texas, to San Francisco. It is stated in the record that the Southern Pacific Railroad Company of California, since the commencement of this action, has completed its road to the Colorado River, at or near the Needles, to connect with the Atlantic and Pacific Railroad, and that with the latter road it constitutes a continuous line from Springfield, Missouri, to the Pacific, except as to the connection, for a relatively short distance, over the road of the Central Pacific Railroad Company. On the 17th of December, 1877, the said Southern Pacific Railroad Company, and other railroad corporations, then existing under the laws of California, were legally consolidated, and’ a new corporation thereby formed, under the name of the* Southern Pacific Railroad Company, the present defendant in error, 59.30 miles of whose road is in Santa Clara County and. 17.93 miles in Fresno County. On the 1st of April, 1875, this company was indebted to* divers persons in large sums of money advanced to construct and equip its road. To secure that indebtedness, it executed on that day a mortgage for $32,520,000 on its road, franchises^ rolling-stock and appurtenances, and on a large number of tracts of land, in different counties of California, aggregating over eleven million acres. These lands were granted to the company by Congress under the above-mentioned acts, and are-used for agricultural, grazing, and other purposes not connected! with the business of the railroad. Of those patented, 3138 acres are in Santa Clara County and 18,789 acres in Fresno’ County. When these proceedings were instituted no part of its above mortgage debt had been paid, except the accruing in- vol. cxvm—36 402 OCTOBER TERM, 1885. Opinion of the Court. terest and $1,632,000 of the principal, leaving outstanding against it $30,898,000. In the year 1852 California, by legislative enactment, granted a right of way through that State to the United States for the purpose of constructing a railroad from the Atlantic to the Pacific Ocean—declaring that the interests of California, as well as the whole Union, “ require the immediate action of the Government of the United States, for the construction of a national thoroughfare, connecting the navigable waters of the Atlantic and Pacific Oceans, for the purpose of the national safety, in the event of war, and to promote the highest commercial interests of the Republic.”. Stat. Cal. 1852, p. 150. By an act passed July 1, 1862, 12 Stat. 489, § 1, 8, Congress incorporated the Union Pacific Railroad Company, with power to construct and maintain a continuous railroad and telegraph line to the western boundary of what was then Nevada Territory, “ there to meet and connect with the line of the Central Pacific Railroad Company of California.” The declared object of extending government aid to these enterprises was to effect the construction of a railroad and telegraph line from the Missouri River to the Pacific, which, for all purposes of communication, travel, and transportation, so far as the public and the General Government are concerned, should be operated “as one connected continuous line.” Ibid. §§ 6, 9, 10, 12, 17, 18. In 1864 the State of California passed an act to aid in carrying out the provisions of this act of Congress, the first section of which declared that: “To enable said company more fully and completely to comply with and perform the provisions and conditions of said act of Congress, the said company, their successors and assigns, are hereby authorized and empowered, and the right, power, and privilege is hereby granted to, conferred upon, and vested in them, to construct, maintain, and operate the said railroad and telegraph line, not only in the State of California, but also in the said Territories lying east of and between said State and the Missouri River, with such branches and extensions of said railroad and telegraph line, or either of them, as said company may deem necessary or proper, and also the right of way for said railroad and telegraph line over any lands belonging to SANTA CLARA CO. v. SOUTH. PAC. RAILROAD. 403 Opinion of the Court. this State, and on, over, and along any streets, roads, highways, rivers, streams, water, and water courses, but the same to be so constructed as not to obstruct or destroy the passage or navigation of the same, and also the right to condemn and appropriate to the use of said company such private property rights, privileges, and franchises as may be proper, necessary, or convenient for the purposes of said railroad and telegraph, the compensation therefor to be ascertained and paid under and by special proceedings, as “prescribed in the act providing for the incorporation of railroad companies, approved May 20th, 1861, and the act supplementary and amendatory thereof, said company to be subject to all the laws of this State concerning railroad and telegraph lines, except that messages and property of the United States, of this State, and of said company shall have priority of transportation and transmission over said line of railroad and telegraph, hereby confirming to and vesting in said company all the rights, privileges, franchises, power, and authority conferred upon, granted to, and vested in said company by said act of Congress, hereby repealing all laws and parts of laws inconsistent or in conflict with the provisions of this act, or the rights and privileges herein granted.” In 1870, the Central Pacific Railroad Company of California and the Western Pacific Railroad Company formed themselves into one corporation under the name of the Central Pacific Railroad Company, the defendant in one of these actions, 61.06 miles of whose road is in Fresno County. The company complied with the several acts of Congress, and there is in operation a continuous line of railway from the Missouri River to the Pacific Ocean, the Central Pacific Railroad Company owning and operating the portion thereof between Ogden, in the Territory of Utah, and San Francisco. When the present action was instituted against this company the United States had and now have a lien, created by the acts of Congress of 1862 and 1864, for $30,000,000, with a large amount of interest, upon its road, rolling-stock, fixtures and franchises; and there were also outstanding bonds for a like amount issued by the company prior to January 1, 1875, and secured by a mortgage upon the same property. Such were the relations which these two companies held to 404 OCTOBER TERM, 1885. Opinion of the Court. the United States and to the State when the assessments in question were made for purposes of taxation. It is necessary now to refer to those provisions of the constitution and laws of the State which, it is claimed, sustain these assessments. The constitution of California, adopted in 1879, exempts from taxation growing crops, property used exclusively for public schools, and such as may belong to the United States, or to that State, or to any of her county • or municipal corporations, and declares that the legislature “ may provide, except in the case of credits secured by mortgage or trust deed, for a reduction from credits of debts due to bona fide residents ” of the State. It is provided in the first section of Article XIII. that, with these exceptions—all property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law. The word ‘property,’ as used in this article and section, is hereby declared to include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal and mixed, capable of private ownership.” The fourth section of the same article provides: “ A mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby. Except as to railroad and other quasi-public corporations, in case of debts so secured, the value of the property affected by such mortgage, deed of trust, contract, or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof, in the county, city, or district in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security ; if paid by the owner of the security, the tax so levied upon the property affected thereby shall become a part of the debt so secured ; if the owner of the property shall pay the tax so levied on such security, it shall constitute a payment thereon, and to the extent of such payment, a full discharge thereof: Provided, That if any such security or indebtedness shall be SANTA CLARA CO. v. SOUTH. PAG. RAILROAD. 405 Opinion of the Court. paid by any such debtor or debtors, after assessment and before the tax levy, the amount of such levy may likewise be retained by such debtor or debtors, and shall be computed according to the tax levy for the preceding year.” The ninth section makes provision for the election of a State Board of Equalization, “ whose duty it shall be to equalize the valuation of the taxable property of the several counties in the State for the purpose of taxation.” The boards of supervisors of the several counties constitute boards of equalization for their respective counties, and they equalize the valuation of the taxable property therein for purposes of taxation—assessments, whether by the State or county boards, to “conform to the true value in money of the property” contained in the assessment roll. The tenth section declares: “ All property, except as hereinafter in this section provided, shall be assessed in the county, city, city and county, town, township, or district in which it is situated, in the manner prescribed by law. The franchise, roadway, roadbed, rails, and rolling-stock of all railroads operated in more than one county in this State shall be assessed by the State Board of Equalization at their actual value, and the same shall be apportioned to the counties, cities and counties, cities, towns, townships, and districts in which such railroads are located, in proportion to the number of miles of railway laid in such counties, cities and counties, cities, towns, townships, and districts.” The assessments in question, it is contended, were made in conformity with these constitutional provisions, and with what is known as § 3664 of the Political Code of California. That section made it the duty of the State Board of Equalization, on or before the first Monday in May in each year to “ assess the franchise, roadway, road-bed, rails, and rolling-stock of railroads operated in more than one county—to which class belonged the defendants. It required every corporation of that class, by certain officers, or by such officer as the State Board should designate, to furnish the board with a sworn statement showing, among other things, in detail, for the year ending March 1, the whole number of miles of railway owned, operated, or leased by it in the State, the value thereof 406 OCTOBER TERM, 1885. Opinion of the Court. per mile, and all of its property of every kind located in the State; the number and value of its engines, passenger, mail, express, baggage, freight and other cars, or property used in operating and repairing its railway in the State, and on railways which are parts of lines extending beyond the limits of the State. It is also directed that “ the said property shall be assessed at its actual value; ” that the “ assessment shall be made upon the⁻ entire railway within the State, and shall include the right of way, road-bed, track, bridges, culverts, and rollingstock ; ” and that “ the depots, station grounds, shops, buildings, and gravel beds shall be assessed by the assessors of the county where situated, as other property.” It further declares: “ On or before the fifteenth day of May, in each year, said board shall transmit to the county assessor of each county through which any railway, operated in more than one county, may run, a statement showing the length of the main track or tracks of such railway within the county, together with a description of the whole of said tracks within the county including the right of way by metes and bounds, or other description sufficient for identification, and the assessed value per mile of the same, as fixed by a pro rata distribution per mile of the assessed value of the whole franchise, roadway, road-bed, rails, and rolling-stock of such railway, within this State. Said statement shall be entered on the assessment roll of the county. At the first meeting of the board of supervisors, after such statement is received by the county assessor, they shall make and cause to be entered in the proper record-book an order stating and declaring the length of the main track, and the assessed value of such railway lying in each city, town, township, school district, or lesser taxing district in their county, through which such railway runs, as fixed by the State Board of Equalization, which shall constitute the taxable value of said property for taxable purposes in such city, town, township, school, road, or other district.” Stat. Cal. 1881, ch. 73, § 1, page 82. These companies, within due time, filed with the State Board the detailed statement required by that section. At the trials below, no record of assessment against the respective defendants, as made by the State Board, was given in evidence, and there was introduced no written evidence of the SANTA CLARA CO. v. SOUTH. PAC. RAILROAD. 407 Opinion of the Court. assessment except an official communication from the State Board to each of the assessors of Santa Clara and Fresno Counties, called, in the special findings, the assessment roll for the particular county. The roll for Fresno county, in 1881, relating to the Southern Pacific Railroad Company, is as follows: Original.—Assessment Book of the Property of Fresno County for the year 1881. Assessed to all known owners or claimants, and when unknown to wnknown owners or claima/nts. Taxpayer’s Description of Property. Value of the franchise, roadway, Total value of all property after Total value after equalization by Total tax. I Remarks. Name. Real estate other than city and town lots. road-beds, rails, and rolling-stock deductions. (Changes by the the State Board of Equalization. Subdivision of sections or metes and of railroads as, apportioned to county boards of equalization to bounds. City and town lots. Improve- the county by the State Board of be noted in red ink.) ments. Personal property. Equalization. Southern Office of s $ $ $ cts. Pacific The State Board of Equalization, 295,845 602,869 602,869 10.246.78 Railroad Sacramento, May 14,1881. Company. To W. H. McKenzie, Assessor of Fresno County. Sir : The State Board of Equalization on the 2nd day of May, 1881, assessed for the year 1881, the Southern Pacific Railroad Com- pany for its franchise, roadway, road-bed, rails, and rolling-stock, in the State of Cali- fornia, in the aggregate sum of $11,739,915. The entire line or main track of said rail- road of said company in the said State is 711.51 miles. The length of the main track of said rail- way in Fresno County is 17.93 miles. The description of the whole of the main track of the railway of the said Southern Pa- cific Railroad Company, and the right of way for the same, in the county of Fresno, is as follows: Beginning at the town of Huron and running easterly in the direction of Goshen, in Tulare County, to the east line of Fresno County. The assessed value per mile of said railway, as fixed by a pro rata distribution per mile of the assessed value of the whole franchise, roadway, road-bed, rails, and rolling-stock of such railway of the said company within this State is $16,500. The apportionment of the assessment of the eaid franchise, roadway, road-beds, rails, and rolling-stock, by this board, for and to Fresno County, is $295,845. WARREN DUTTON, Chairman, M. M. DREW, D. M. KENFIELD, T. D. HEISKELL, State Board of Equalization. E. W. MASLIN, Clerk. (Duly Certified, by the Auditor.) 408 OCTOBER TERM, 1885. Opinion of the Court. There were similar rolls in reference to the Central Pacific Railroad in the same county, for the same year, and the Southern Pacific in Santa Clara County for 1882. For each of those years the board of supervisors of the respective counties made an apportionment of the taxes among the legal subdivisions of such counties. It is stated in the findings that the delinquent lists for those years, so far as they related to the taxes in question, were duly made up in form corresponding with the original assessment roll; that in pursuance of § 3738 of the Political Code of California, the board of supervisors of the respective counties duly passed an order, entered on the minutes, dispensing with the duplicate assessment roll for that year; that the controller of the State transmitted a letter to the tax collector of the county, in pursuance of the provisions of § 3899 of that Code, directing him to offer the property for sale but once, and if there were no l)ona fide purchasers to withdraw it from sale; that the tax collector, in obedience to the provisions of that section, transmitted to the controller, with his endorsement thereon of the action had in the premises, a certified copy of the entry upon the delinquent list relating to the tax in question in these several actions; that such endorsement shows that the tax collector had offered the property for sale and had withdrawn it because there was no purchaser for the same; and that the controller, in pursuance of the provisions of the same section, transmitted to the tax collector of the county a letter directing him to bring suit. In each case there were, also, the following findings: “ The State Board of Equalization, in assessing said value of said property to and against defendant, assessed the full cash value of said railroad, roadway, road-bed, rails, rolling-stock, and franchises, without deducting therefrom the value of the mortgage, or any part thereof, given and existing thereon as aforesaid, to secure the indebtedness of said company to the holders of said bonds, notwithstanding they had full knowledge of the existence of the said mortgage; and in making said assessment the said State Board of Equalization did not consider or treat said mortgage as an interest in said property, but as- SANTA CLARA CO. v. SOUTH. PAC. RAILROAD. 409 Opinion of the Court. sessed the whole value thereof to the defendant, in the same manner as if there had been no mortgage thereon.” “ The State Board of Equalization, in making the supposed assessment of said roadway of defendant, did knowingly and designedly include in the valuation of said roadway the value of fences erected upon the line between said roadway and the land of coterminous proprietors. Said fences were valued at $300 per mile.” The special grounds of defence by each of the defendants were: 1. That its road is a part of a continuous postal and military route, constructed and maintained under the authority of the United States, by means in part obtained from the General Government; that the company having, with the consent of the State, become subject to the requirements, conditions, and provisions of the acts of Congress, it thereby ceased to be merely a State corporation, and became one of the agencies or instrumentalities employed by the General Government to execute its constitutional powers; and that the franchise to operate a postal and military route, for the transportation of troops, munitions of war, public stores, and the mails, being derived from the United States, cannot, without their consent, be subjected to State taxation. 2. That the provisions of the constitution and laws of California, in respect to the assessment for taxation of the property of railway corporations operating railroads in more than one county, are in violation of the Fourteenth Amendment of the Constitution, in so far as they require the assessment of their property at its full money value, without making deduction, as in the case of railroads operated in one county, and of other corporations, and of natural persons, for the value of the mortgages covering the property assessed; thus imposing upon the defendant unequal burdens, and to that extent denying to it the equal protection of the laws. 3. That what is known as § 3664 of the Political Code of California, under the authority of which in part the assessment was made, was not constitutionally enacted by the legislature, and had not the force of law. 4. That no valid assessment appears in fact to have been made by the State Board. 5. That no interest is recoverable in this action until after judgment. 6. 410 OCTOBER TERM, 1885. Opinion of the Court. That the assessment upon which the action is based is void, because it included property which the State Board of Equalization had no jurisdiction, under any circumstances, to assess, and that, as such illegal part was so blended with the balance that it cannot be separated, the entire assessment must be treated as a nullity. The record contains elaborate opinions stating the grounds upon which judgments were ordered for the defendants. Mr. Justice Field overruled the first of the special defences above named, but sustained the second. The circuit judge, in addition, held that § 3664 of the Political Code had not been passed in the mode required by the State Constitution, and, consequently, was no part of the law of California. These opinions are reported as The Santa Clara Railroad Tax Case, in 9 Sawyer, 165, 210. The propositions embodied in the conclusions reached in the Circuit Court were discussed with marked ability by counsel who appeared in this court for the respective parties. Their importance cannot well be over-estimated ; for, they not only involve a construction of the recent amendments to the National Constitution in their application to the Constitution and the legislation of a State, but upon their determination, if it were necessary to consider them, would depend the system of taxation devised by that State for raising revenue, from certain corporations, for the support of her government. These questions belong to a class which this court should not decide, unless their determination is essential to the disposal of the case in which they arise. Whether the present cases require a decision of them depends upon the soundness of another proposition, upon which the court below, in view of its conclusions upon other issues, did not deem it necessary to pass. We allude to the claim of the defendant, in each case, that the entire assessment is a nullity, upon the ground that the State Board of Equalization included therein property which it was without jurisdiction to assess for taxation. The argument in behalf of the defendant is: That the State Board knowingly and designedly included in its assessment of “ the franchise, roadway, road-bed, rails, and rolling-stock ” of SANTA CLARA CO. v. SOUTH. PAC. RAILROAD. 411 Opinion of the Court. each company, the value of the fences erected upon the line between its roadway and the land of coterminous proprietors ; that the fences did not constitute a part of such roadway, and, therefore, could only be assessed for taxation by the proper officer of the several counties in which they were situated ; and that an entire assessment which includes property not assessable by the State Board against the party assessed is void, and, therefore, insufficient to support an action, at least, when—and such is claimed to be the case here—it does not appear, with reasonable certainty, from the face of the assessment or otherwise, what part of the aggregate valuation represents the property so illegally included therein. If these positions are tenable, there will be no occasion to consider the grave questions of constitutional law upon which the case was determined below ; for, in that event, the judgment can be affirmed upon the ground that the assessment cannot properly be the basis of a judgment against the defendant. That the State Board purposely included in its assessment and valuation the fences erected on the line between the railroads and the lands of adjacent proprietors, at the rate of $300 per mile, is undoubtedly true : for it is so stated in the special finding of facts, and that finding must be taken here to be indisputable. It is equally true that that tribunal has no general power of assessment, but only jurisdiction to assess “ the franchise, roadway, road-bed, rails, and rolling-stock ” of railroad corporations operating roads in more than one county, and that all other property of such corporations, subject to taxation, is assessable only “ in the county, city, city and county, town, township, or district, in which it is situated, in the manner prescribed by law.” Such is the declaration of the State constitution. People v. Sacramento County, 59 Cal. 321, 324 ; Art. XIII. § 10. It must also be conceded that “ fences,” erected on the line between these railroads and the lands of adjoining proprietors, were improperly included by the State Board in its assessments, unless they constituted a part of the “ roadway.” Some light is thrown upon this question by that clause of § 3664 of the Political Code of California—which, in the view 412 OCTOBER TERM, 1885. Opinion of the Court. we take of these cases, may be regarded as having been legally enacted—providing that “ the depots, station grounds, shops, buildings, and gravel beds ” shall be assessed in the county where situated as other property. From this it seems, that there is much of the property daily used in the business of a railroad operated in more than one county, that is not assessable by the State Board, but only by the proper authorities of the municipality where it is situated. So that, even if it appeared that the fences assessed by the State Board were the property of the railroad companies, and not of the adjoining proprietors, they could not be included in an assessment by that board unless they were part of the roadway itself; for, as shown, the jurisdiction of that board is restricted to the assessment of the “ franchise, roadway, road-bed, rails and rollingstock.” We come back, then, to the vital inquiry, whether the fences could be assessed under the head of roadway? We are of opinion that they cannot be regarded as part of the roadway for purposes of taxation. The Constitution of California provides that “ land and improvements thereon shall be separately assessed.” Art. XIII. § 2; and, although that instrument does not define what are improvements upon land, the Political Code of the State expressly declares that the term “ improvements ” includes “ all buildings, structures, fixtures, fences, and improvements erected upon or affixed to the land.” § 3617. It would seem from these provisions that fences erected upon the roadway, even if owned by the railroad company, must be separately assessed, as “ improvements,” in the mode required in the case of depots, station grounds, shops, and buildings owned by the company; namely, by local officers in the county where they are situated. The same considerations of public interest or convenience upon which rest existing regulations for the assessments of depots, station grounds, shops, and buildings of a railroad company operated in more than one county, would apply equally to the assessment and valuation for taxation of fences erected upon the line of railway of the same company. In San Francisco and North Pacific Railroad Co. v. State Board of Equalization, 60 Cal. 12, 34, which was an applica- SANTA CLARA CO. v. SOUTH. PAC. RAILROAD. 413 Opinion of the Court. tion, on certiorari., to annul certain orders of the State Board assessing the property of a railroad corporation, one of the questions was as to the meaning of the words “ road-bed ” and “roadway.” The court there said: “The road-bed is the foundation on which the superstructure of a railroad rests. Webster. The roadway is the right of way, which has been held to be the property liable to taxation. Appeal of JV. B. & M. B. B. Co., 32 Cal. 499. The rails in place constitute the superstructure resting upon the road-bed.” This definition was approved in San Francisco v. Central Pacific Bailroad Co., 63 Cal. 467, 469. In the latter case the question was whether certain steamers owned by the railroad company, upon which were laid railroad tracks, and with which its passenger and freight cars were transported from the eastern shore of the bay of San Francisco to its wTestern shore, where the railway again commenced, were to be assessed by the city and county of San Francisco, or by the State Board of Equalization. The contention of the company was that they constituted a part of its road-bed or roadway, and must, therefore, be assessed by the State Board. But the Supreme Court of the State held otherwise. After observing that all the property of the company, other than its franchise, roadway, road-bed, rails, and rolling-stock, was required by the Constitution to be assessed by the local assessors, the court said: “ They are certainly not the franchise of the defendant corporation. They may constitute an element to be taken into the computation to arrive at the value of the franchise of such corporation, but they are not such franchise. It is equally as clear that they are not rails or rolling-stock. . . . Are they, then, embraced within the words roadway or road-bed, in the ordinary and popular acceptation of such words as applied to railroads ? These two words, as applied to common roads, ordinarily mean the same thing, but as applied to railroads their meaning is not the same. The roadbed referred to in § 10, in our judgment, is the bed or foundation on which the superstructure of the railroad rests. Such is the definition given by both Worcester and Webster, and we think it correct. The roadway has a more extended signification as applied to railroads. In addition to the part denominated 414 OCTOBER TERM, 1885. Opinion of the Court. road-bed, the roadway includes whatever space of ground the company is allowed by law in which to construct its road-bed and lay its track. Such space is defined in subdivision 4 of the 17th section and the 20th section of the act ‘ to provide for the incorporation of railroad companies,’ etc., approved May 20, 1861. Stat. 1861, p. 607; & F. & N. P. R. R. Co. v. State Board, 60 Cal. 12.” The argument in support of the proposition that these steamers—constituting, as they did, a necessary link in the line of the company’s railway, and upon which rails were actually laid for the running of cars—were a part either of the road-bed or roadway of the railroad, is much more cogent than the argument that the fences erected upon the line between a roadway and the lands of adjoining proprietors are a part of the roadway itself. It seems to the court that the fences in question are not, within the meaning of the local law, a part of the roadway for purposes of taxation; but are “ improvements ” assessable by the local authorities of the proper county, and, therefore, were improperly included by the State Board in its valuation of the property of the defendants. The next inquiry that naturally arises is, whether the different kinds of property assessed by the State Board are distinct and separable upon the face of the assessment, so that the company being thereby informed of the amount of taxes levied upon each, could be held to have been in default in not tendering such sum, if any, as was legally due ? Upon the transcript before us, this question must be answered in the negative. No record of assessment, as made by the State Board, was introduced at the trial, and presumably, no such record existed. Nor is there any documentary evidence of such assessment, except the official communication of the State Board to the local assessors, called, in the findings, the assessment roll of the county. That roll shows only the aggregate valuation of the company’s franchise, roadway, road-bed, rails, and rolling-stock in the State; the length of the company’s main track in the State ; its length in the county ; the assessed value per mile of the railway as fixed by the pro rata distribution per mile of the assessed value of its whole franchise, roadway, road-bed, rails, SANTA CLARA COUNTY v. SOUTH. PAC. R. R. CO. 415 Opinion of the Court. and rolling-stock in the State; and the apportionment of the property so assessed to the county. It appears, as already stated, from the evidence, that the fences were included in the valuation of the defendants’ property; but under what head, whether of franchise, roadway, or road-bed, does not appear. Nor can it be ascertained, with reasonable certainty, either from the assessment roll or from other evidence, what was the aggregate valuation of the fences, or what part of such valuation was apportioned to the respective counties through which the railroad was operated. If the presumption is, that the State Board included in its valuation only such property as it had jurisdiction under the State constitution to assess, namely, such as could be rightfully classified under the heads of franchise, roadway, roadbed, rails, or rolling-stock, that presumption was overthrown by proof that it did, in fact, include, under some one or more of those heads, the fences in question. It was then incumbent upon the plaintiff, by satisfactory evidence, to separate that which was illegal from that which was legal—assuming for the purposes of this case only, that the assessment was, in all other respects, legal—and thus impose upon the defendant the duty of tendering,-or enabling the court to render judgment for, such amount, if any, as was justly due. But no such evidence was introduced. The finding that the fences were valued at $300 per mile is too vague and indefinite as a basis for estimating the aggregate valuation of the fences included in the assessment, or the amount thereof apportioned to the respective counties. Were the fences the property of adjacent proprietors ? Were they assessed at that rate for every mile of the railroad within the State? Were they erected on the line of the railroad in every county through which it was operated, or only in some of them? Wherever erected, were they assessed for each side of the railway, or only for one side ? These questions, so important in determining the extent to which the assessment included a valuation of the fences erected upon the line between the railroad and coterminous proprietors, find no solution in the record presented to this court. If it be suggested that, under the circumstances, the court 416 OCTOBER TERM, 1885. Opinion of the Court. might have assumed that the State Board included the fences in their assessment, at the rate of $300 per mile for every mile of the railroad within the State, counting one or both sides of the roadway, and, having thus eliminated from the assessment the aggregate so found, given judgment for such sum, if any, as, upon that basis, would have been due upon the valuation of the franchise, road-bed, roadway, rails and rolling-stock of the defendant, the answer is, that the plaintiff did not offer to take such a judgment; and the court could not have rendered one of that character without concluding the plaintiff hereafter, and upon a proper assessment, from claiming against the defendant taxes for the years in question, upon such of its property as constituted its franchise, roadway, road-bed, rails and rolling-stock. The case as presented to the court below, was, therefore, one in which the plaintiff sought judgment for an entire tax arising upon an assessment of different kinds of property as a unit—such assessment including property not legally assessable by the State Board, and the part of the tax assessed against the latter property not being separable from the other part. Upon such an issue, the law, we think, is for the defendant; an assessment of that kind is invalid and will not support an action for the recovery of the entire tax so levied. Cooley on Taxation, 295-6, and authorities there cited; Libby n. Burnham, 15 Mass. 144, 147; State Randolph, dec. v. City of Plainfield, 38 N. J. Law (9 Vroom), 93; Gamble v. Witty, 55 Mississippi, 26, 35; Stone v. Bean, 15 Gray, 42, 45; JWoshier v. Robie, 11 Maine (2 Fairfield), 137; Johnson v. Colburn, 36 Vt. 695; Wells v. Burba/nk, 17 N. H. 393, 412. It results that the court below might have given judgment in each case for the defendant upon the ground that the assessment, which was the foundation of the action, included property of material value, which the State Board was without jurisdiction to assess, and the tax levied upon which cannot, from the record, be separated from that imposed upon other property embraced in the same assessment. As the judgment can be sustained upon this ground it is not necessary to consider any other questions raised by the pleadings and the facts found by the court. SAN BERNARDINO CO. v. SOUTH. PAC. RAILROAD. 417 Syllabus. It follows that there is no occasion to determine under what circumstances the plaintiffs would be entitled to judgment against a delinquent tax-payer for penalties, interest, or attorney’s fees; for, if the plaintiffs are not entitled to judgment for the taxes arising out of the assessments in question, no liability for penalties, interest, or attorney’s fees, could result from a refusal or failure to pay such taxes. Judgment affirmed. California v. Northern Railway Company. Error to the Circuit Court of the United States for the District of California. The facts in this case are substantially those which appear in County of Santa Clara, &c. v. Railroad Companies, just decided. For the reasons given in the opinion in that case, and upon the ground therein stated, the judgment is Affirmed. SAN BERNARDINO COUNTY -y. SOUTHERN PACIFIC RAILROAD COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE; DISTRICT OF CALIFORNIA. Argued January 27, 28, 29, 1886.—Decided May 10, 1886. This case differs from Santa Clara County v. Southern Pacific Railroad Company, ante 394, only in this:—that after entry of judgment defendant below paid the taxes claimed under a stipulation that the payment should be “ without prejudice to the right of the plaintiff in the case to proceed for penalties, interest, and attorney’s fees claimed.” Held that, as the plaintiff would not have been entitled to judgment for the taxes originally claimed, it could not have judgment in its favor for penalty, interest, and. attorney’s fees. The case is stated in the opinion of the court. Mr. E. C. Marshall, Attorney General of California, for plaintiff in error. vol. cxvni—27 418 OCTOBER TERM, 1885. Opinion of the Court. Jyfr. S. W. Sanderson, Mr. George F. Edmunds, and J/r. William M. Evarts for defendant in error. Mr. Justice Harlan delivered the opinion of the court. This action was brought in the Superior Court of San Bernardino, California, for the recovery of certain taxes, county and State, alleged to be due from the Southern Pacific Railroad Company for the fiscal year of 1880-1881. The amount claimed for county taxes is $8785.90; that claimed for State taxes is $4608.99. For each sum judgment is asked, with five per cent, penalty, interest on the taxes and penalty at the rate of two per cent, per month from December 26, 1880, and costs of advertising. The complaint alleges that the taxes were duly assessed and levied upon “ forty-eight miles of the roadway, road-bed, and rails of said defendant, assessed at ten thousand eight hundred dollars per mile; ” upon its rolling-stock, “ assessed at nineteen hundred and thirty-three tVv dollars per mile; ” and upon its franchise, assessed at $2000 per mile. It also alleges that the whole of the defendant’s property, so far as its franchise, roadway, rails, road-bed, and rolling-stock in California are concerned, was assessed for the period named at $10,483,-518, the length of the defendant’s.road in the State being seven hundred and eleven miles. An answer was filed similar to those in the cases of The County of Santa Clara, dec. v. Railroad Companies, just decided, ante 394. This case was removed to the Circuit Court of the United States upon the same grounds as those presented in the other cases. The facts specially found by that court are, in all material respects, like those found in the former cases. The copy of the assessment roll for San Bernardino County, introduced at the trial below, is not, so far as it bears upon this case, materially different from that for Fresno and Santa Clara Counties, set forth in the report of the other cases. For the reasons given in the opinions delivered in the Circuit Court in the former cases, reported as Santa Clara Rail- SAN BERNARDINO CO. v. SOUTH. PAC. RAILROAD. 419 Opinion of the Court. road Tax Cases. 9 Sawyer, 165, 210, judgment was given for the defendant. But the bill of exceptions further states : “ That, after said judgment was ordered, the defendant, being minded to pay, notwithstanding the fact that the tax had been declared invalid, the full amount of said tax due, without penalty, interest, or counsel fees, and to leave the question of its liability for said penalty, interest, and counsel fees to be finally determined by the Supreme Court of the United States in cases already pending there, or in this case if appealed or taken there upon a writ of error, agreed, for the purposes aforesaid, that the judgment in its favor might be set aside and judgment in favor of the plaintiff be entered for the full amount of said tax, less penalties, interest, and counsel fees; which was done. “ And be it further remembered, that, before said judgment for the defendant was set aside, and in open court, it was stipulated and agreed by and between the attorneys for the plaintiff and defendant, that if said judgment was set aside and judgment for the plaintiff entered as aforesaid, the said defendant should not be deemed to have admitted thereby the validity of the taxes claimed or any part thereof, nor should said judgment be treated, upon an appeal or proceedings under writ of error, as a consent judgment; defendant then and there expressly waiving that point, if point it was. “And be it further remembered, that the object and purpose of the proceeding then had was to enable the defendant to pay into the State and county treasuries on account the sum for which the judgment was rendered, without prejudice to the right of the plaintiff in the case to proceed for penalties, interest, and attorney’s fees claimed, and in order that the litigation might be brought to a speedy conclusion. “ The plaintiff tenders this its bill of exceptions, which, being agreed to by the respective attorneys for the parties, is allowed, signed, sealed, and made a part of the record of the court.” The record also shows that in forty suits, heard with this one, brought in the name of different counties, and of the State, against the Southern Pacific Railroad Company, 420 OCTOBER TERM, 1885. Opinion of the Court. the Central Pacific Railroad Company, and the Northern Railway Company, to recover like taxes, alleged to be due to counties and to the State, judgments were ordered for the respective defendants; that thereafter a stipulation, signed by the attorney of the several defendants in those cases and by the attorney general of the State, was filed, in which it is recited that the defendants, “ notwithstanding the fact that the taxes therein sued for have been declared invalid, being minded to pay portions of the sums claimed,” agree that judgments in favor of the plaintiffs might be entered for certain sums, being, as we suppose, the amount of the taxes sued for in the respective actions, less the penalties, interest and counsel fees therein claimed. On the 8th of December, 1885, the following stipulation was filed in the court below, and a printed copy thereof filed in this case here: “ In the Circuit Court of the United States, Ninth Circuit, Dis-trict of California. “The County of San Bernardino, Plaintiff, ) vs. 1 No. 2757. “ The Southern Pacific Railroad Company Defendant. ) “ It is hereby stipulated, between the parties to the aboveentitled action, that for the fiscal year 1880-1881 the principal of the tax claimed to be due by plaintiff from defendant for State and county purposes amounted to $13,394.88; that before judgment was entered herein in this court—from which judgment a writ of error has been taken—there had been paid on account of such taxes to the plaintiff herein, through its county officers, the sum of $4932.40, leaving a balance due of $8462.48, for which said sum judgment was taken. “ That for the fiscal year 1881-1882, the principal of the tax claimed to be due by plaintiff, The County of San Bernardino, from defendant for State and county purposes, was $16,347.87; that before judgment was entered in the action brought to recover such taxes, the defendant therein, The Southern Pacific Railroad Company, paid to the plaintiff, through its county officers, on account of such taxes, the sum of $6518.20, and judgment was taken in said action for the balance, $9829.67. SAN BERNARDINO CO. v. SOUTH. PAC. RAILROAD. 421 Opinion of the Court. “That for the fiscal year 1882 the total amount claimed by said county from defendant, The Southern Pacific Railroad Company, for State and county purposes, was $9631.45; that no payment had been made on account of said taxes, and judgment was, therefore, taken for the full amount. “ That in the three actions brought to recover taxes claimed to be due to the county of San Bernardino from the defendant herein, the total amount claimed as principal of State and county taxes, when the aforesaid judgments were entered, was $27,923.60, which amount was, upon the rendition of said judgments, paid in full to the attorney general, attorney for plaintiff, and by him subsequently paid into the county treasury of San Bernardino County, as directed by law, for the use and benefit of the State and of the county, and that said payment, together with the sums which had, prior thereto, been paid by said defendant, The Southern Pacific Railroad Company, on account of said taxes, constituted payment in full of the principal of all State and county taxes claimed to be due for the three years aforesaid. “(Signed) E. C. Marshall, Atty Genl. Cal. and Atty for Pl'ff. P. D. Wiggington, Atty for Defendant” As it appears that the taxes, for the recovery of which this suit was brought, have, through the action of the attorney general of California, been received by the plaintiff for the use of and benefit of itself and the State, the only question which remains to be determined is as to the defendant’s liability for the statutory penalty, interest, and attorney’s fees. There is no substantial difference, upon the facts, between this case and that of the County of Santa Clara v. Railroad Companies, just determined ; for, in this case, as in the others, the assessment—upon which the taxes sued for depend for their validity—improperly included fences, erected upon the line between the railroad and the lands of adjacent proprietors, at the rate of $300 per mile. For the reasons given in the opinion in the other cases—which are equally applicable here—that assessment must be held to 422 OCTOBER TERM, 1885. Concurring Opinion: Field, J. be insufficient as a basis for judgment against the company. As upon this ground judgment might have been rendered for the defendant, it is unnecessary to consider other questions determined by the court below, and discussed by counsel who appeared in this court. The plaintiff not, then, being entitled to judgment for the taxes originally in question, and the parties having stipulated that the judgment entered for the plaintiff, with the consent of the defendant, should not be treated as an admission by the latter of the validity of the taxes claimed, it follows that the plaintiff cannot have judgment in its favor for penalty, interest, and attorney’s fees. Apart from every other view, the defendant could not be adjudged liable for penalty, interest, or attorney’s fees for not paying taxes arising out of an invalid assessment, and which, under the law, were not collectible by suit. Judgment affirmed. Mr. Justice Field, concurring. I agree to the judgment of the court in this as also in the other tax cases from California. But I regret that it has not been deemed consistent with its duty to decide the important constitutional questions involved, and particularly the one which was so fully considered in the Circuit Court, and elaborately argued here, that in the assessment, upon which the taxes claimed were levied, an unlawful and unjust discrimination was made between the property of the defendant and the property of individuals, to its disadvantage, thus subjecting it to an unequal share of the public burdens, and to that extent depriving it of the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution. At the present day nearly all great enterprises are conducted by corporations. Hardly an industry can be named that is not in some way promoted by them, and a vast portion of the wealth of the country is in their hands. It is, therefore, of the greatest interest to them whether their property is subject to the same rules of assessment and taxation as like property of natural persons, or whether elements which affect the valuation of property are to be omitted from consideration SAN BERNARDINO CO. v. SOUTH. PAC. RAILROAD. 423 Concurring Opinion : Field, J. when it is owned by them, and considered when it is owned by natural persons; and thus the valuation of property be made to vary, not according to its condition or use, but according to its ownership. The question is not whether the State may not claim for grants of privileges and franchises a fixed sum per year, or a percentage of earnings of a corporation—that is not controverted—but whether it may prescribe rules for the valuation of property for taxation which will vary according as it is held by individuals or by corporations. The question is of transcendent importance, and it will come here and continue to come until it is authoritatively decided in harmony with the great constitutional amendment which insures to every person, whatever his position or association, the equal protection of the laws; and that necessarily implies freedom from the imposition of unequal burdens under the same conditions. Barbier v. Connolly, 113 U. S. 27, 31. Much as I regret that the question could not now be decided, I recognize fully the wisdom of the rule that the constitutionality of State legislation will not be considered by the court unless by the case presented its consideration is imperatively required. Although the objection, that in the assessment of the roadway there was included property not appertaining to it, was raised in the answer and taken on the trial, the point was not discussed by counsel, as the constitutional questions were deemed of far greater importance. The attention of the court was specially directed to them, and thus the minor point was left undetermined. After judgment had been entered in favor of the defendant on the ground that the assessment upon which the taxes claimed were levied was illegal, it entered into an agreement with the attorney general of the State to allow the judgment to be set aside and a judgment to be entered in favor of the plaintiff for the face of the taxes claimed, and to leave the question of its liability for the penalty, interest, and counsel fees to be finally determined by the Supreme Court. It is stated in the record that the object and purpose of the proceeding was “ to enable the defendant to pay into the State and county treasuries, on account, the sum for which the 424 OCTOBER TERM, 1885. Concurring Opinion: Field, J. judgment was rendered, without prejudice to the right of the plaintiff in the case to proceed for penalties, interest, and attorney’s fees claimed, and in order that the litigation might be brought to a speedy conclusion.” It is also suggested that the same amount of taxes, if not recoverable when levied upon the property, might under the Constitution be recovered in another action when levied upon the mortgage ; and in that event that the company could claim a credit from the mortgagees for the payment. The motives of the company in this matter, however, do not affect the question of its liability for the penalty, interest, and attorney’s fees. It was agreed between the respective attorneys that, in consenting to the judgment for the face of the taxes, the defendant should not thereby be deemed to admit their validity, desiring, as it would seem, to contest, on the ground of their alleged invalidity, the claim for the penalties, interest, and attorney’s fees. Judgment was accordingly entered for the plaintiff for the face of the taxes claimed and the amount has been paid. The arrangement was a wise and judicious one on the part of the attorney-general, as it at once enabled the State and county treasuries to have the amount of the taxes levied, and to proceed for the penalties, interest, and attorney’s fees. To have refused such an advantageous arrangement might have subjected him to just animadversion. Every right which the State could under any circumstance have had was fully guarded by the agreement. No conceivable benefit could have arisen to the State by his refusing to accede to it, and, as it has turned out from the decisions in the other cases, great inconvenience and loss would have followed. The record shows that after the Circuit Court had announced its decision in favor of the defendant and different railway companies in forty other cases, brought to recover alleged delinquent taxés, they agreed to allow judgments to be entered against them for portions of the sums claimed. It was admitted by counsel on the argument that these judgments, amounting to several hundred thousand dollars, were for the face of the taxes ; and that any claim in the cases for penalties, interest, NORTON v. SHELBY COUNTY. 425 Syllabus. and attorney’s fees, was by stipulation to abide the determination of the Supreme Court in the present case. According to the decision of the court in the Santa Clara case, the assessment upon which the taxes were levied was illegal, as it embraced items not assessable by the Board of Equalization. Of course no penalties for not paying an illegal tax, and no attorney’s fees charged for the attempt to collect them, could be recovered, and for a like reason the interest of two per cent, a month claimed could not be demanded. Besides, the statute allows no such interest on delinquent taxes where property is possessed by the delinquent upon which a levy could be made for them. The collector must, on the third Monday of March of each year, make an affidavit that the taxes not marked paid on the delinquent list have not been paid, and that he has been unable to discover any property belonging to, or in the possession of the persons liable to pay the same, from which to collect them. It is only on such delinquent taxes that the two per cent, a month interest is collectible. Since this case has been pending in this court a decision to that effect has been made by the Supreme Court of the State. People v. North Pacific Coast JR. P. Co.} 9 West Coast Rep. 5T4. NORTON v. SHELBY COUNTY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE. Argued March 24, 25, 1886.—Decided May 10,1886. This court follows the decisions of the highest court of a State, in construing the Constitution and laws of the State, unless tljey conflict with or impair the efficacy of some principle of the Federal Constitution, or of a Federal statute, or a rule of commercial or general law. The decisions of State courts on questions relating to the existence of its subordinate tribunals, and the eligibility and election or appointment of their officers, and the passage of its laws are conclusive upon Federal courts. 426 OCTOBER TERM, 1885. Statement of Facts. Following the decision of the highest court of the State of Tennessee in Pope v. Phifer, 3 Heiskell, 691, and other cases, this court holds that the Board of Commissioners of Shelby County, organized under the Act of March 9, 1867, had no lawful existence; that it was an unauthorized and illegal body; that its members were usurpers of the functions and powers of the justices of peace of the county; that their action in holding a county court was void; and that their acts in subscribing to the stock of the Mississippi River Railroad Company and issuing bonds in payment therefor were void. While acts of a de facto incumbent of an office lawfully created by law and existing are often held to be binding from reasons of public policy, the acts of a person assuming to fill and perform the duties of an office which does not exist de jure can have no validity whatever in law. An unconstitutional act is not a law; it confers no rights ; it imposes no duties ; it affords no protection; it creates no office ; it is, in legal contemplation, as inoperative as though it had never been passed. The action of a minority of the justices of the peace of the County Court of Shelby County, Tennessee, prior to May 5,1870, did not operate as a ratification by the County Court of the previously invalid subscription of the county to stock in the Mississippi River Railroad Company: and on and after that day, on which the new constitution of Tennessee took effect, no ratification could be made without previous assent of three fourths of the voters of the county. This suit was brought to enforce payment of twenty-nine bonds for $1000 each, issued by the Board of Commissioners of Shelby County, in payment of a subscription by the county to stock in the Mississippi River Railroad Company. The form of the bond appears in the opinion of the court, post p. 434. On the 25th February, 1867, the County Court of any county through which that railroad might run, was authorized to sub-scribe to its capital stock. Laws of 1866-7, page 131, ch. 48, § 6; * * Sec. 6. Be it further enacted, That the county court of any county through which the line of the Mississippi River Railroad is proposed to run, a majority of the justices in commission at the time concurring, may make a corporate or county subscription to the capital stock of said railroad company, of an amount not exceeding two thirds of the estimated cost of grading the road-bed through the county and preparing the same for the iron rails; the said cost to be verified by the sworn statement of the president or chief engineer of said company. And after said subscription shall have been entered upon the books of the railroad company, either by the chairman of the county court, or by any other member of the court appointed therefor, the court shall proceed without further reference or delay, to levy an assessment on all the taxable property within the county, sufficient to pay said subscription ; and the same shall be payable in three equal annual instalments, commencing with the fiscal year in NORTON V. SHELBY COUNTY. 42T Statement of Facts. which power was enlarged. November 5, 1867, Private Acts 1867-8, 5* On the 7th day of the following March the legislature reorganized the City of Memphis, and enacted that the powers theretofore vested in the Quarterly Court should be vested in a Board of Commissioners created by that act. Acts of 1867-8, ch. 46, §§ 21, 25. f This act was subsequently held by the Supreme Court of Tennessee to be unconstitutional and invalid, and the Board created by it to have had no legal existence. The board, however, before it was so held had organized, and had performed the functions of the County Court until November, 1869; and among other things had subscribed in the name of the county to stock of the Mississippi River Railroad Company, and had issued bonds in payment therefor, of which bonds those in suit were part. It had received certificates of stock in which said subscription shall be made. And it shall be lawful for county courts making subscriptions as herein provided, to issue short bonds to the railroad company, in anticipation of the collection of the annual levies, if thereby construction of the work may be facilitated ; and in all other respects, except as herein specially provided, the capital stock of said railroad company to be subscribed by counties, shall be governed by the general internal improvement laws of the State. * “ The subscription authorized . . . to be made to the capital stock of the Mississippi River Railroad Company may be made at any monthly term the county courts of said counties, or at any special term of said courts: Provided that a majority of all the justices in commission shall be present, and' a majority of those present shall concur therein.” f Sec. 21. Be it further enacted, That there shall be established in the county of Shelby, in this State, a Board of County Commissioners, to consist of five persons, etc. * * * * * * * Sec. 25. Be it further enacted, That all the powers and duties which are now vested in and performed by the quarterly court of said county, shall be vested in the said board of commissioners ; and in addition to the power now conferred by law, shall have authority ... to subscribe stock to railroads which the county court of Shelby county has been authorized by general or special laws to subscribe, and under the same conditions and restrictions ; and to represent such stock in all elections for directors, and to provide for the payment of subscription as made. ******* 428 OCTOBER TERM, 1885. Argument for Plaintiff in Error. exchange for its bonds, and had and has since exercised its rights as a stockholder. Before the Board of Commissioners abdicated they ordered taxes to be levied to pay these bonds, and the justices of the peace, upon resuming functions, received the money collected on the tax and paid the interest on the bonds, and paid the principal bonds maturing. This was continued, and thus a large amount of interest has been paid on the bonds, and a large part of the principal has also been paid, since the County Court resumed its functions. On the 5th May, 1870, a new Constitution came into force in Tennessee, which contained the following provisions: “But the credit of no county, city or town shall be given or loaned to or in aid of any person, company, association or corporation, except upon an election to be first held by the qualified voters of such county, city or town, and the assent of three fourths of the votes cast at said election; nor shall any county, city or town become a stockholder with others in any company, association or corporation, except upon a like election and the assent of a like majority.” “ All laws and ordinances now in force and in use in this State, not inconsistent with the Constitution, shall continue in force and use until they expire or be altered or repealed by the Legislature. But ordinances contained in any former Constitution or schedule thereto are hereby abrogated.” A large part of the payments of principal and interest above •referred to was made after this Constitution came into force. The court below ordered a verdict for the county, and from the judgment entered on such verdict this writ of error was taken. Mr. Joseph H. Choate for plaintiff in error. I. That provision of the 25th section of the Act of March 9, 1867, creating the County Commissioners of Shelby County, by which, in addition to vesting in them the powers and duties vested in the Quarterly Court of the county, they were expressly and specifically authorized, among other things, “ to subscribe to stock in railroads, which the County Court of Shelby County NORTON v. SHELBY COUNTY. 429 Argument for Plaintiff in Error. has been authorized by general and special law to subscribe, and under the same conditions and restrictions, and to represent such stock in all elections of directors, and provide for payment of subscriptions as made,” was constitutional and valid, even though in deference to the subsequent decision of the Supreme Court of Tennessee, the first clause of the section should be condemned as unconstitutional and void. And the proposition here stated has not been passed upon or considered by any court of that State, but is an original question to be determined here and now. The well-settled rule is that although parts of an act, or, indeed, most of the provisions of it, be unconstitutional, because beyond the scope of legislative power to enact, yet that other provisions in the same act, which are clearly within the power of the legislature to enact, and are severable from the rest, may and must be saved from the judicial condemnation. The crucial point is, are they separable? Bank of Hamilton v. Dudley, 2 Pet. 492; Packet Co. v. Keokuk, 95 U. S. 80; Allen v. Louisiana, 103 U. S. 80; Poindexter v. Greenhorn, 114 U. S. 270 ; Presser v. Illinois, 116 U. S. 252 ; People v. Briggs, 50 N. Y. 553; Hagerstown v. Deckert, 32 Maryland, 369. Viewed in the light of this principle, the provisions of § 25 of the Act of March 9, 1867, by which, after completely vesting in the Board of Commissioners the entire powers which inhered in the County Court, it proceeded to confer upon the Commissioners, in addition, certain express powers, which were not, by the Constitution, vested in that court—powers neither judicial nor legislative in their character, but purely administrative, respect, ing the business affairs of the county—and among the rest “ tu subscribe stock to railroads,” &c., may well be sustained as constitutional, although the first clause of the section, which attempts to substitute the commissioners in the place of the justices of the peace as judges of the County Court, be condemned. These additional provisions are neither conditional nor dependent upon the first clause, nor is the first clause conditional or dependent upon them. The court will not fail to observe that here is an act of more than forty sections, making a radical change in the affairs of 430 OCTOBER TERM, 1885. Argument for Plaintiff in Error. the county, and only the first clause of § 25 has been challenged. Outside of the sections providing for the constitution of the Board of County Commissioners, all the rest of the act stands as unquestioned law. The decisions of the Supreme Court of Tennessee do not touch this question. They decide (1) That the legislature had no constitutional power “ to supplant and abolish that ancient institution of the State known as the Quarterly Court, and place in its stead a board of three commissioners; ” and, (2) that § 25 is further open to the constitutional objection that it is special legislation for one or two counties; but they nowhere decide that the Board of Commissioners, though unconstitutional in respect of the functions of the County Court, may not have been a legal body for the purpose of exercising the additional powers conferred upon it. And the later expression of opinion by the court in McLean v. Tennessee, 8 Heiskell, 22, 237, intimates a recognition of this distinction. The power to subscribe for stock in a railroad and issue bonds is distinct from the power of taxation. Police Jury v. Britton, 15 Wall. 566; Clair-home County v. Brodks, 111 IT. S. 400; United States v. New Orleans, 98 U. S. 381. And there is nothing in the Constitution of Tennessee restricting the power of the Legislature to designate any agent it may select to execute the former power. Louisville & Nashville Bailroad Co. n. County Court, 1 ®6need, 677. See also United States v. Baltimore cfi Ohio BaiVroad Co., 17 Wall. 322. II. Even though § 25 of the act of March 9,1867, should be condemned as unconstitutional in all its parts, yet the subscription to the stock made by the commissioners, and the bonds issued by them while in the undisturbed tenure of their office as justices of the County Court, are good and binding as regards third persons and the public, including the holders of the bonds, as the acts of a de facto court or of de facto officers. It is clear on the face of the act, and is admitted by the pleadings that the legislature intended to confer upon the county power to subscribe for the stock and issue the bonds ; and that this power was assumed and exercised by the commissioners on behalf of the county, and that their acts were sustained NORTON y. SHELBY COUNTY. 431 Argument for Plaintiff in Error. by the State authorities. It must be also noted that the identity of the court with all its powers, functions, and jurisdiction was preserved by the act of March 9, 1867. The change the act made was in providing commissioners as judges in the place of justices of the peace. Although the tenure of office of the commissioners may have been unconstitutional and illegal, they were de facto officers, and their acts as such were, as to the public and third persons, as binding as the acts of the justices of the peace assembled in the County Court would have been if the statute installing the Commissioner in their place had not been passed. Cocke v. Halsey, 16 Pet. 71; County of Ralls v. Douglas, 105 U. S. 728. The decision of the Supreme Court of Tennessee in the Butterworth Case (not yet reported) is utterly at variance with these decisions of this court, and with the great array of authorities. The only case cited by the court in support of it is Hildreth v. Jf ’Intire, 1 J. J. Marsh. 206, which arose under circumstances so peculiar as to deprive it of any weight as an authority on the general question. And the other cases relied upon, Carlton v. People, 10 Mich. 250; Ex parte Strang, 21 Ohio St. 610, and Hooper v. Goodwin, 48 Maine, 79, fail to sustain the point relied upon. On the other hand, the great leading case of State v. Carroll, 38 Conn. 449 ; and the cases of Brown v. O' Connell, 36 Conn. 432 ; Taylor v. Skrine, 3 Brevard, 516 ; People v. White, 24 Wend. 520 ; Clark n. Commonwealth, 29 Penn. St. 129 ; and Commonwealth v. McCombs, 56 Penn. St. 436, all cited in the Connecticut case, support the proposition that the acts of an officer holding, under an unconstitutional law, are valid and binding as regards the public and third persons, until such law is adjudged to be unconstitutional. See also State v. Bloom, 17 Wis. 521; Demarest v. Wickham, 63 N. Y. 320 ; Kimball v. Alcorn, 45 Miss. 151; Fleming v. Mulhall, 9 Missouri App. 71; Woodside v. Wagg, 71 Maine, 207 ; Sheehan? s Case, 122 Mass. 445; Fowler v. Bebee, 9 Mass. 231. The courts of Tennessee have acquiesced in this doctrine. Ward v. The State, 2 Cold well, 605; Blackburn v. The State, 3 Head, 690. III. By the acts of the County Court subsequent to their 432 OCTOBER TERM, 1885. Argument for Plaintiff in Error. reinstatement, which took place November, 15, 1869, the previous issue of the bonds was ratified by the county. (a) Full legislative authority having been given to the county to issue the bonds, a defect in the channel by which they were issued can be cured by ratification. Ralls County Court v. United States, 105 IT. S. 733 ; County of Daviess v. Huidekooper, 98 IT. S. 98; Supervisors n. Schenck, 5 Wall. 772; County of Scotland v. Thomas, 94 IT. S. 682. The cases of Marsh v. Fulton Co., 10 Wall. 676; Loan Association v. Topeka, 20 Wall. 655 ; Thompson v. Perrine, 103 IT. S. 806; Harshman v. Bates County, 92 IT. S. 569; Lewis v. Shreveport, 108 IT. S. 282; Otta/wa v. Carey, 108 IT. S. 110, were all cases where either there was no grant whatever of legislative authority, or where the authority was granted upon a condition which never took place. (5) The provision in the constitution of 1870 was not equivalent to a prohibition to ratify or validate subscriptions already made, or bonds issued prior to the adoption of the amendment. It related to future loans and/Wur^ subscriptions. IV. The transactions between the County Court and the Paducah and Gulf Railroad Company, as represented by the plaintiff, in October, 1871, in reliance upon which transactions that company was consolidated with the Mississippi River Railroad Company, and the bonds of the latter company, now in suit, subsequently purchased by the plaintiff, estop the county from questioning the validity of the bonds in his hands. V. The decisions of the Supreme Court of Tennessee, declaring the act of March 9, 1867, establishing a board of commissioners for Shelby County, unconstitutional and void are not binding upon this court, which is entitled to examine the question de novo ; and the act itself was constitutional. They are at variance with the prior cases of Moore v. The State, 5 Sneed, 510; Wilcox v. The State, 3 Heiskell, 110 ; and the subsequent case of Halsey n. Gaines, 2 B. J. Lea, 319. Mr. D. H. Poston for plaintiff in error (Mr. W. K. Poston was with him on his brief) cited, in addition to the cases cited NORTON v. SHELBY COUNTY. 433 Argument for Plaintiff in Error. by Mr. Choate, the following—Upon the question of authority: County of Tipton v. Locomotive Works, 103 U. S. 523; Farga-son v. Lauderdale Co., 7 Lea. 153; Bell v. Bank of Nashville, Peck (Tenn.), 269; Hope v. Deaderick, 8 Humphries, 1; Blomer v. Stolley, 5 McLean, 158; Pine Grove n. Talcott 19 Wall. 666; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210; Ward v. State, 2 Coldwell, 605 ; Venable v. Curd, 2 Head, 582; Pearce v. Hawkins, 2 Swan, 87; Brown v. Lant, 37 Maine, 423; McKinstry v. Tanner, 9 Johns. 135; Bucknam n. Buggies, 15 Mass. 180; Havermeyer v. Lowa County, 3 Wall. 294; Ohio Life <& Trust Co. n. Debolt, 16 How. 416; Cass County v. Johnston, 95 U. S. 360; Douglass County v. Pike, 101 U. S. 679; Groves n. Slaughter, 15 Pet. 449; Bowan v. Bunnells, 5 How. 134; Planter’s Bank v. Sharp, 6 How. 301; State Bank v. Knoop, 16 How. 369; Butz v. Muscatine, 8 Wall. 575; Olcott n. Supervisors, 16 Wall. 678; Philadelphia v. Field, 58 Penn St. 320; Darlington n. Mayor, 31 N.Y, 164 ; People v. Flagg, 46 N. Y. 401; Guilford v. Supervisors, 13 N. Y. (3 Kern.) 143; Luehrmann v. Taxing District, 2 Lea, 425. On the question of ratification: McCracken v. San Francisco, 16 Cal. 591; Seago v. Martin, 6 Heiskell, 308; O' Conner n. Carver, 12 Heiskell, 436; Lloyd v. Brewster, 4 Paige, 537; Oil Works v. Jefferson, 2 Lea, 581; Walker v. Walker, 7 Baxter, 260; Nugent v. Supervisors, 19 Wall. 241;; State v. Anderson Co., 8 Baxter, 249; Pendleton County v, Amy, 13 Wall. 297; County of Bay v. Va/nsycle, 96 U. S. 675;; Johnson n. Stark County, 24 Ill. 75, 90; Keithsburg v. Frick, 34 Ill. 405, 421; Hart v. Dixon, 5 Lea, 336; HatteU n. Stewart,. 2 Lea, 233; Brownson v. Chappell, 12 Wall. 681; County of Callaway v. Foster, 93 U. S. 567; County of Scotland v, Thomas, 94 U. S. 628; County of Henry v. Nicolay, 95 U. S. 619; County of Macon v. Shores, 97 U. S. 272; County of Schuyler v. Thomas, 98 U. S. 169; Supervisors v. Galbraith, 99 Ü. S. 214; Fairfield n. Gallatin County, 100 U. S. 47; Callens v. East Tenn., Va. de Geo. Bailroad, 9 Heiskell, 841. Mr. W. B. Glisson, Mr. B. D. Jordan, and Mr. Julius A. Taylor for defendant in error. vol. cxvin—28 434 OCTOBER TERM, 1885. Opinion of the Court. Mr. Justice Field delivered the opinion of the court. This is an action upon twenty-nine bonds, of $1000 each, alleged to be the bonds of Shelby County, Tennessee, issued on the 1st of March, 1869, and payable on the 1st of January, 1873, with interest from January 1, 1869, at six per cent, per annum, payable annually on the surrender of matured interest coupons attached; and three coupons of $60 each. The following is a copy of one of the bonds and of a coupon : “ $1000 United States of America, $1000 Issued under and by A special tax is levied virtue of section 6 of an eu f j ’T'e'n'ne. SHELBY COUNTY. 439 Opinion of the Court. the two decisions mentioned, and said that they had “ determined that the legislature exceeded its constitutional powers in assuming to abolish the county court and substitute in its place a board of county commissioners with the powers before belonging to the county court. The act of March 9, 1867, was, therefore, a nullity and the board of commissioners appointed and organized thereunder was an unauthorized and illegal body. The act was inoperative as to the existing organization, powers, and duties of the county court. Neither the board of commissioners nor Barbour Lewis, its president, had any more powers under said act than if no act had been passed.” Counsel for the plaintiff have endeavored to show that the adjudication in these cases has been questioned by later decisions, and therefore should have no controlling force in this litigation. A careful examination of those decisions fails to support this position. The opinion that the act was invalid because it was special legislation applicable only to certain counties would seem indeed to be thus modified. But the adjudication that the constitution did not permit the appointment of commissioners to take the place of the justices of the peace for the county, and perform the duties of the county court, stands" unimpaired, and as such is binding upon us. Two of the cases, as we have seen, were brought against the commissioners, in one case, of Shelby County, and in the other, of White County, to test the validity of the acts under which they were appointed, or about to be appointed, and their right to assume and exercise the functions and powers of the justices of the peace, and hold the county court in their place. From the nature of the questions presented we cannot review or ignore this determination. Upon the construction of the constitution and laws of a State, this court, as a general rule, follows the decisions of her highest court, unless they conflict with or impair the efficacy of some principle of the Federal Constitution, or of a Federal statute, or a rule of commercial or general law. In these cases no principle of the Federal Constitution, or of any Federal law, is invaded, and no rule of general or commercial law is disregarded. The determination made relates to the existence 440 OCTOBER TERM, 1885. Opinion of the Court. of an inferior tribunal of the State, and that depending upon the constitutional power of the legislature of the State to create it and supersede a pre-existing institution. Upon a subject of this nature the Federal courts will recognize as authoritative the decision of the State court. As said by Mr. Justice Bradley, speaking for the court in Claiborne County v. Brooks, 111 U. S. 400,410:’ “ It is undoubtedly a question of local policy with each State, what shall be the extent and character of the powers which its various political and municipal organizations shall possess; and the settled decisions of its highest courts on this subject will be regarded as authoritative by the courts of the United States ; for it is a question that relates to the internal constitution of the body politic of the State.” It would lead to great confusion and disorder if a State tribunal, adjudged by the State Supreme Court to be an unauthorized and illegal body, should be held by the Federal courts, disregarding the decision of the State court, to be an authorized and legal body, and thus make the claims and rights of suitors depend, in many instances, not upon settled law, but upon the contingency of litigation respecting them being before a State or a Federal court. Conflicts of this kind should be avoided if possible by leaving the courts of one sovereignty within their legitimate sphere to be independent of those of another, each respecting the adjudications of the other on subjects properly within its jurisdiction. On many subjects the decisions of the courts of a State are merely advisory, to be followed or disregarded, according as they contain true or erroneous expositions of the law, as those of a foreign tribunal are treated. But on many subjects they must necessarily be conclusive; such as relate to the existence of her subordinate tribunals; the eligibility and election or appointment of their officers; and the passage of her laws. No Federal court should refuse to accept such decisions as expressing on these subjects the law of the State. If, for instance, the Supreme Court of a State should hold that an act appearing on her statute book was never passed and never became a law, the Federal courts could not disregard the decision and declare that it was a law and enforce it as such. South Ottawa v. Perkins, 94 U. S. 260; Post v. Supervisors, 105 U. S. 667. NORTON V. SHELBY COUNTY. 441 Opinion of the Court. The decision of the Supreme Court of Tennessee as to the constitutional existence of the board of commissioners of Shelby County is one of this class. That court has repeatedly adjudged, after careful and full consideration, that no such board ever had a lawful existence; that it was an unauthorized and illegal body; that its members were usurpers of the functions and powers of the justices of the peace of the county; and that their action in holding the county court was utterly void. This court should neither gainsay nor deny the authoritative character of that determination. It follows that in the disposition of the case before us we must hold that there was no lawful authority in the board to make the subscription to the Mississippi River Railroad Company and to issue the bonds of which those in suit are a part. But it is contended that if the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers de facto, and that the acts of the board as a de facto court are binding upon the county. This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill. As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensions, nor did the Supreme Court of the State. Whenever such pretensions were considered in that court, they were declared to be without any legal foundation, and the commissioners were held to be usurpers. The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode’prescribed by law their title is investigated and deter- 442 OCTOBER TERM, 1885. Opinion of the Court. mined; It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question. But the idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an officer who holds no office, and a public office can exist only by force of law. This seems to us so obvious that we should hardly feel called upon to consider any adverse opinion on the subject but for the earnest contention of plaintiff’s counsel that such existence is not essential, and that it is sufficient if the office be provided for by any legislative enactment, however invalid. Their position is, that a legislative act, though unconstitutional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent. That position, although not stated in this broad form, amounts to nothing else. It is difficult to meet it by any argument beyond this statement. An unconstitutional act is not a law ; it confers no rights ; it imposes no duties ; it affords no protection ; it creates no office ; it is, in legal contemplation, as inoperative as though it had never been passed. In Hildreth v. M'lntire^ 1 J. J. Marsh. 206, we have a decision from the Court of Appeals of Kentucky which well illustrates this doctrine. The législature of that State attempted to abolish the Court of Appeals established by her constitution, and create in its stead a new court. Members of the new court were appointed and undertook to exercise judicial functions. They dismissed an appeal because the record was not filed with the person acting as their clerk. A certificate of the dismissal signed by him was received by the lower court, and entered of record, and execution to carry into effect the original decree was ordered to issue. To reverse this order an appeal was taken to the constitutional Court of Appeals. The question was whether the court below erred in obeying the mandate of the members of the new court, and its solution depended upon another, whether they were judges of the Court of Appeals and the person acting as their clerk was its clerk. The court said : “ Although they assumed the functions of judges and clerk, and attempted to act as* such, NORTON V. SHELBY COUNTY. 443 Opinion of the Court. their acts in that character are totally null and -void unless they had been regularly appointed under, and according to, the constitution. A de facto court of appeals cannot exist under a written constitution which ordains one supreme court, and defines the qualifications and duties of its judges, and prescribes the mode of appointing them. There cannot be more than one court of appeals in Kentucky as long as the constitution shall exist; and that must necessarily be a court⁴ de jure? When the government is entirely revolutionized, and all its departments usurped by force, or the voice of a majority, then prudence recommends and necessity enforces obedience to the authority of those who may act as the public functionaries, and in such a case the acts of a de facto executive, a de facto judiciary, and a de facto legislature must be recognized as valid. But this is required by political necessity. There is no government in action except the government de facto, because all the attributes of sovereignty have, by usurpation, been transferred from those who had been legally invested with them, to others who, sustained by a power above the forms of law, claim to act, and do act, in their stead. But when the constitution or form of government remains unaltered and supreme, there can be no de facto department, or de facto office. The acts of the incumbents of such departments or office cannot be enforced conformably to the constitution, and can be regarded as valid only when the government is overturned. When there is a constitutional executive and legislature, there cannot be any other than a constitutional judiciary. Without a total revolution there can be no such political solecism in Kentucky as a ⁴ de facto ’ court of appeals. There can be no such court whilst the constitution has life and power. There has been none such. There might be under our constitution, as there have been, ⁴ de facto’ officers. But there never was and never can be, under the present constitution, a ⁴ de facto ’ office.” And the court held that the gentlemen who acted as judges of the legislative tribunal were not incumbents of de jure or de facto offices, nor were they de facto officers of de jure offices, and the order below was reversed. In some respects the case at bar resembles this one from Ken- 444 OCTOBER TERM, 1885. Opinion of the Court. tucky. Under the constitution of Tennessee there was but one county court. That was composed of the justices of the county elected in their respective districts. The commissioners appointed under the act of March 9, 1867, by the governor were not such justices, and could not hold such court, any more than the legislative tribunal of Kentucky could hold the Court of Appeals of that State. In Shelby County n. Butter^niorth^ from the opinion in which we have already quoted, Chief Justice Nicholson, speaking of the claim that Barbour Lewis, the President of the Board of County Commissioners, was a de facto officer, after referring to the decisions of the Supreme Court of the State holding that the board of commissioners was an illegal and unconstitutional body, said: “ This left the organization of the county court in its former integrity, with its officers entitled to their offices and creating no vacancy to be filled by the illegal action under the act of 1867. It follows that Barbour Lewis could not be a de facto officer, as there was no legal board of which he could be president, and as there was no vacancy in the legal organization. The warrants issued by him show the character in which he was -acting, and repel the presumption that he was a de facto officer. He could be under the circumstances, as we can judicially know from the law and pleadings in the case, nothing but a usurper. There must be a legal office in existence, which is being improperly held, to give to the acts of such incumbent the validity of an officer de facto” Numerous cases are cited in which expressions are used which, read apart from the facts of the cases, seemingly give support to the position of counsel. But, when read in connection with the facts, they will be seen to apply only to the invalidity, irregularity, or unconstitutionality of the mode by which the party was appointed or elected to a legally existing office. None of them sanctions the doctrine that there can be a de facto office under a constitutional government, and that the acts of the incumbent are entitled to consideration as valid acts of a de facto officer. Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is NORTON v. SHELBY COUNTY. 445 Opinion of the Court. enough that he is clothed with the insignia of the office, and exercises its powers and functions. As said by Mr. Justice Manning, of the Supreme Court of Michigan, in Carleton v. The People, 10 Mich. 250, 259, “ where there is no office there can be no officer de facto, for the reason that there can be none de jure. The county offices existed by virtue of the constitution the moment the new county was organized. No act of legislation was necessary for that purpose. And all that is required when there is an office to make an officer de facto, is that the individual claiming the office is in possession of it, performing its duties, and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary his election or appointment should be valid, for that would make him an officer de jure. The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact.” The case of The State v. Carroll, 38 Conn. 449, decided by the Supreme Court of Connecticut, upon which special reliance is placed by counsel, and which is mentioned with strong commendation as a landmark of the law, in no way militates against the doctrine we have declared, but is in harmony with it. That case was this: The constitution of Connecticut provided that all judges should be elected by its general assembly. An act of the legislature authorized the clerk of a city court, in case of the sickness or absence of its judge, to appoint a justice of the peace to hold the court during his temporary sickness or absence. A justice of the peace having thus been called in and having acted, a question arose whether the judgments rendered by him were valid. The court held that whether the law was constitutional or not, he was an officer de facto, and, as such, his acts were valid. The opinion of Chief Justice Butler is an elaborate and admirable statement of the law, with a review of the English and American cases, on the validity of the acts of de facto officers, however illegal the mode of their appointment. It criticises the language of some cases that the officer must act under color of authority conferred by a person having power, or primafacie power, to appoint or elect in the particular case ; and it thus defines an officer de facto: 446 OCTOBER TERM, 1885. Opinion of the Court. “An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office are exercised : “ First. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. “ Second. Under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like. “ Third. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. “ Fourth. Under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.” Of the great number of cases cited by the Chief Justice none recognizes such a thing as a de facto office, or speaks of a person as a de facto officer, except when he is the incumbent of a de jure office. The fourth head refers not to the unconstitutionality of the act creating the office, but to the unconstitutionality of the act by which the officer is appointed to an office legally existing. That such was the meaning of the Chief Justice is apparent from the cases cited by him in support of the last position, to some of which reference will be made. One of them, Taylor v. Skrine, 3 Brevard, 516, arose in South Carolina in 1815. By an act of that State of 1799, the governor was authorized to appoint and commission some fit and proper person to sit as judge in case any of the judges on the circuit should happen to be sick, or become unable to hold the court in his circuit. A presiding judge of the court was thus appointed by the governor. Subsequently the act was declared to NORTON v. SHELBY COUNTY. 447 Opinion of the Court. be unconstitutional, and the question arose whether the acts of the judge were necessarily void. It was held that he was a judge de facto and acting under color of legal authority, and that as such his acts were valid. Here the judge was appointed to fill an existing office, the duties of which the legal incumbent was temporarily incapable of discharging. Another case is Cocke v. Halsey, in 16 Pet. 71. It there appeared that, by the constitution of Mississippi, the judges and clerks of probate were elected by the people. The legislature provided by law that, in case of the disability of the clerk, the court might appoint one. An elected clerk having left the State for an indefinite period, the judge appointed another to serve during his absence. The law authorizing the appointment was declared unconstitutional, but the acts of the clerk were deemed valid as those of an officer de facto. Here the office was an existing one created by law. To Carleton, v. The People, 10 Mich. 250, we have already referred. By the constitution of Michigan the laws of the legislature took effect ninety days after their passage. The legislature on the 4th of February passed an act creating a new county, and authorized the election of county officers in April following. The officers were elected within the ninety days, that is, before the act took effect, and they subsequently acted as such officers. The validity of their acts was questioned on the ground that there was at the time no law that authorized the election, but the officers were existing by the constitution, and as they subsequently entered upon the duties of those offices, it was held that they 'were officers de facto. In Clark, v. Commonwealth, from the Supreme Court of Pennsylvania, 29 Penn. St. 129, the question related only to the title of the officer. The constitution of that State provided for a division of the State into judicial districts, and for the election of the presiding judge of the county court for each district by the people thereof. The legislature passed a law transferring a county from one judicial district to another during the term for which the judge of the district had been elected, and whilst presiding judge of the district to which the county was thus transferred he held court, at which a prisoner was con- 448 OCTOBER TERM, 1885. Opinion of the Court. victed of murder. It was contended that the act of the legislature was equivalent to an appointment of a judge for that county, and, therefore, unconstitutional. The Supreme Court held that, admitting the law to be unconstitutional, the judge was an officer defacto, and that the prisoner could not be heard to deny it. Here, also, the office was one created by law, and the only question was as to the constitutionality of the law authorizing the judge to exercise it. It is evident, from a consideration of these cases, that the learned Chief Justice, in State v. Carroll, had reference, in his fourth subdivision, as we have said, to the unconstitutionality of acts appointing the officer, and not of acts creating the office. Other cases cited by counsel will show a similar view. In Brown v. O Connell, 36 Conn. 432, the constitution of the State provided that the judges of the courts should be appointed by the general assembly. An act of the legislature established a police court in the city of Hartford, and provided for the appointment of judges of the court by the common council. It was held that the judge could be appointed only by the general assembly, and to that extent the act was unconstitutional. There was no question as to the validity of the act, so far as it established a police court, and the appointee of the common council was held to be a judge de facto. The case of Blackburn v. The State, 3 Head, 690, only goes to show that the illegality of an appointment to a judicial office does not affect the validity of the acts of the judge. The constitution of Tennessee requires a judge to be thirty years of age. A judge under that age having been appointed, it was held that he could be removed by a proper proceeding, but until that was done his acts were binding. In Fowler v. Beebe, 9 Mass. 231, the legislature passed an act erecting the county of Hampden, and provided that the law should take effect from the 1st of August next ensuing. Before that date the governor, with the advice and consent of the then council, commissioned a person as sheriff of the county. There was no such office at the time his commission was issued, but when the law went into effect he acted under his commission. It was only the case of a premature appoint- NORTON V. SHELBY COUNTY. 449 Opinion of the Court. ment; and it was held that he was an officer de facto., and that the legality of his commission could not be collaterally questioned. None of the cases cited militates against the doctrine that, for the existence of a de facto officer, there must be an office de jure, although there may be loose expressions in some of the opinions, not called for by the facts, seemingly against this view. Where no office legally exists, the pretended officer is merely a usurper, to whose acts no validity can be attached; and such, in our judgment, was the position of the commissioners of Shelby County who undertook to act as the county court, which could be-constitutionally held only by justices of the peace. Their right to discharge the duties of justices of the peace was never recognized by the justices, but from the outset was resisted by legal proceedings, which terminated in an adjudication that they were usurpers, clothed with no authority or official function. It remains to consider whether the action of the commissioners in subscribing for stock of the Mississippi River Railroad Company and issuing the bonds, of which those in suit are a part, being originally invalid, was afterwards ratified by the county. The County Court, consisting of the justices of the peace, elected in their respective districts, alone had power to make a subscription and issue bonds. The sixth section of the act of February 25, 1867, to which the bonds on their face refer, provides: “ That the County Court of any county through which the line of the Mississippi River Railroad is proposed to run, a majority of the justices in commission at the time concurring, may make a corporate or county subscription to the capital stock of said railroad company, of an amount not exceeding two-thirds the estimated cost of grading the road-bed through the county and preparing the same for the iron rails; the said cost to be verified by the sworn statement of the president or chief engineer of said company. And after such subscription shall have been entered upon the books of the railroad company, either by the chairman of the county court, or by any other member of the court appointed therefor, the court shall proceed, without further reference or delay, to levy an vol. cxvni—29 450 OCTOBER TERM, 1885. Opinion of the Court. assessment on all the taxable property within the county sufcient to pay said subscription; and the same shall be payable in three equal annual instalments, commencing with the fiscal year in which said subscription shall be made. And it shall be lawful for county courts making subscriptions as herein provided, to issue short bonds to the railroad company, in anticipation of the collection of the annual levies, if thereby construction of the work may be facilitated. Statutes of 1866-1867, ch. 48, § 6, p. 131. On the 5th of the following November the legislature passed an act declaring: “That the subscription authorized in said sixth section to be made to the capital stock of the Mississippi River Railroad Company, by the counties along the line of said railroad, may be made at any monthly term of the county courts of said counties, or at any special term of said courts: Provided, that a majority of all the justices in commission in the counties respectively shall be present when any such subscription is made; and provided further, that a majority of those present shall concur therein.” Private Acts, 1867-1868, ch. 6, § 1, page 5. Neither of these acts, as counsel observe, recognizes or in any way refers to the county commissioners, though the last act was passed eight months after the act creating the board of commissioners for Shelby County. Both provide that the subscription may be made by the county court, but upon the condition that a majority of all the justices in commission shall be present and a majority of those present shall concur therein. The county court met on the 15th of November, 1869, for the first time after the passage of the act of March 9,1867, and assumed its legitimate functions as the governing agency of the county. On the 11th of April, 1870, it again met and established the rate of taxation for the Mississippi River Railroad bonds at twenty cents on each one hundred dollars’ worth of taxable property. At its meeting on the 16th of that month it ordered that the tax for those bonds should be ten cents on each one hundred dollars’ worth of property. At the meeting on the 11th there were twenty two justices of the peace present, of whom eighteen voted for the tax levy, and on the 16th only NORTON V. SHELBY COUNTY. 451 Opinion of the Court. twelve justices were present. There were in the county at that* time forty five justices in commission. There were no other meetings of the county court until after May 5,1870, on which day the new constitution of Tennessee went into effect, which declares that, “ The credit of no county, city, or town shall be given or loaned to or in aid of any person, company, association or corporation, except upon an election to be first held by the qualified voters of such county, city, or town, and the assent of three-fourths of the votes cast at said election. Nor shall any county, city, or town become a stockholder with others in any company, association or corporation, except upon a like election and the assent of a like majority.” By this provision of the constitution the county court, as thus seen, was shorn of any power to order a subscription to stock of any railroad company without the previous assent of three-fourths of the voters of the county cast at an election held by its qualified voters, and, of course, it could not afterwards, without such assent, give validity to a subscription previously made by the commissioners. It could not ratify the acts of an unauthorized body. To ratify is to give validity to the act of another, and implies that the person or body ratifying has at the time power to do the act ratified. As we said in Marsh v. Fulton County, 10 Wall. 676, 684, where it was contended, as in this case, that certain bonds of that county, issued without authority, were ratified by various acts of its supervisors: “ A ratification is, in its effect upon the act of an agent, equivalent to the possession by him of a previous authority. It operates upon the act ratified in the same manner as though the authority of the agent to do the act existed originally. It follows that a ratification can only be made when the party ratifying possesses the power to perform the act ratified. The supervisors possessed no authority to make the subscription or issue the bonds in the first instance without the previous sanction of the qualified votersi of the county. The supervisors in that particular were the mere agents of the county. They could not, therefore, ratify a subscription without a vote of the county, because they could not make a subscription in the first instance without such authorization. It would be absurd to say that 452 OCTOBER TERM, 1885. Opinion of the Court. they could without such vote, by simple expressions of approval, or in some other indirect way, give validity to acts, when they were directly in terms prohibited by statute from doing those acts until after such vote was had. That would be equivalent to saying that an agent, not having the power to do a particular act for his principal, could give validity to such act by its indirect recognition.” 10 Wall. 676, 684. See also County of Daviess v. Dickinson, 117 IT. S. 657; McCracken n. City of San Francisco, 16 Cal. 591, 623. No election was held by the voters of Shelby County with reference to the subscription for stock of the Mississippi River Railroad Company after the new constitution went into effect. No subsequent proceedings, resolutions, or expressions of approval of the county court with reference to the subscription made by the county commissioners, or to the bonds issued by them, could supersede the necessity of such an election. Without this sanction the county court could, in no manner, ratify the unauthorized act, nor could it accomplish that result by acts which would estop it from asserting that no such election was had. The requirement of the law could not, in this indirect way, be evaded. The case of Aspinwall v. Commissioners of Daviess County, 22 How. 364, is directly in point on this subject. There the charter of the Ohio and Mississippi Railroad Company, created by the legislature of Indiana in 1848, as amended in 1849, authorized the commissioners of a county, through which the road passed, to subscribe for stock and issue bonds, provided a majority of the qualified voters of the county voted on the first of March, 1849, that this should be done. The election was held on that day, and a majority of the voters voted that a subscription should be made. In September, 1852, the board of commissioners, pursuant to the acts and election, subscribed for 600 shares of the stock of the railroad company, amounting to $30,000, and in payment of it issued thirty bonds of $1000 each, signed and sealed by the president of the board and attested by the auditor of the county, and delivered the same to the company. These bonds drew interest at the rate of six per cent, per annum, for which coupons were attached. NORTON v. SHELBY COUNTY. 453 Opinion of the Court. The plaintiffs became the holders of sixty of these coupons, and upon them the suit was brought against the commissioners of the county. After the subscription was voted, but before it was made or the bonds issued, the new constitution of Indiana went into effect, which contained the following provision : “ No county shall subscribe for stock in any incorporated company unless the same be paid for at the time of such subscription, nor shall any county loan its credit to any incorporated company, nor borrow money for the purpose of taking stock in any such company.” Art. 10, section 6. This provision was set up against the validity of the bonds and coupons ; and the question arose whether, under the charter of the company and its amendment, the right to the county subscription became so vested in the company as to exclude the operation of the new constitution. The court held that the provisions of the charter authorizing the commissioners to subscribe conferred a power upon a public corporation, which could be modified, changed, enlarged, or restrained bv the legislature ; that by voting for the subscription no contract was created which prevented the application of the new constitution ; that the mere vote to subscribe did not of itself form a contract with the company within the protection of the Federal Constitution ; that until the subscription was actually made no contract was executed ; and that the bonds, being issued in violation of the new constitution of the State, were void. That constitution withdrew from the county commissioners all authority to make a subscription for the stock of an incorporated company, except in the manner and under the circumstances prescribed by that instrument, even though a vote for such subscription had been previously had, and a majority of the voters had voted for it. The doctrine of this case was reaffirmed in Wadsworth v. Supervisors, 102 U. S. 534. It follows that no ratification of the subscription to the Mississippi River Railroad Company, or of the bonds issued for its payment, could be made by the county court subsequently to the new constitution of Tennessee, without the previous assent of three-fourths of the voters of the county, which has never been given. 454 OCTOBER TERM, 1885. Opinion of the Court. The question recurs whether any ratification can be inferred from the action of the County Court on the 11th and 16th of April, 1870, which was had before that Constitution took effect. At the meeting of the court on those days a rate of tax was established to be levied for the payment of the bonds, but it appears from its records that on both days less than a majority of the justices of the county were present ; and the County Court under those circumstances could not even directly have authorized the subscription. The levy of a tax for the payment of the bonds, when a less number of justices were present than would have been necessary to order a subscription, could not operate as a ratification of a void subscription. It is unnecessary to pursue this subject further. We are satisfied that none of the positions taken by the plaintiff can be sustained. The original invalidity of the acts of the commissioners has never been subsequently cured. It may be, as alleged, that the stock of the railroad company, for which they subscribed, is still held by the county. If so, the county may, by proper proceedings, be required to surrender it to the company, or to pay its value.; for, independently of all restrictions upon municipal corporations, there is a rule of justice that must control them as it controls individuals. If they obtain the property of others without right, they must return it to the true owners, or pay for its value. But questions of that nature do not arise in this case. Here it is simply a question as to the validity of the bonds in suit, and as that cannot be sustained, the judgment below must be Affirmed. MORGAN v. LOUISIANA. 455 Statement of Facts. MORGAN’S STEAMSHIP COMPANY v. LOUISIANA BOARD OF HEALTH & Another. ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA. Argued April 26, 27, 1886.—Decided May 10, 1886. The system of quarantine laws established by statutes of Louisiana is a rightful exercise of the police power for the protection of health, which is not forbidden by the Constitution of the United States. While some of the rules of that system may amount to regulations of commerce with foreign nations or among the States, though not so designed, they belong to that class which the States may establish until Congress acts in the matter by covering the same ground or forbidding State laws. Congress, so far from doing either of these things, has, by the act of 1799 (ch. 53, Rev. Stat.) and previous laws, and by the recent act of 1878, 20, Stat., 37, adopted the laws of the States on that subject, and forbidden all interference with their enforcement. The requirement that each vessel passing a quarantine station shall pay a fee fixed by the statute, for examination as to her sanitary condition, and the ports from which she came, is a part of all quarantine systems, and is a compensation for services rendered to the vessel, and is not a tax within the meaning of the Constitution concerning tonnage tax imposed by the States. Nor is it liable to constitutional objection as giving a preference for a port of one State over those of another. That section (nine) of the first article of the Constitution is a restraint upon powers of the General Government and not of the States, and can have no application to the quarantine laws of Louisiana. This was a writ of error to the Supreme Court of the State of Louisiana. The plaintiff in error was plaintiff in the State court, and in the court of original jurisdiction obtained an injunction against the Board of Health prohibiting it from collecting from the plaintiffs the fee of $30 and other fees allowed by Act 69 of the Legislature of Louisiana of 1882, for the examination which the quarantine laws of the State required in regard to all vessels passing the station. This decree was reversed, on appeal, by the Supreme Court of the State, and to this judgment of reversal the present writ of error was prosecuted. 456 OCTOBER TERM, 1885. > Statement of Facts. The grounds on which it was sought, in this court, to review the final judgment of the Louisiana court were thus stated in an amended petition filed in the cause in the court of first instance: “ The amended petition of plaintiffs respectfully represents: “ That all the statutes of the State of Louisiana, relied on by defendants for collection of quarantine and fumigation fees are null and void, because they violate the following provisions of the United States Constitution: “ Article first, section 10, paragraph 3, prohibits the States from imposing tonnage duties without the consent of Congress. “ Article first, section 8, paragraph 3, vesting in Congress the power to regulate commerce, which power is exclusively so vested. “ Article first, paragraph 6, section 9, which declares that no preference shall be given by any regulation of commerce to the ports of one State over that of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another.” The statute which authorizes the collection of these fees, approved July 1, 1882, is as follows: “Sec. 1. Be it enacted by the General Assembly of the State of Louisiana, That the resident physician of the Quarantine Station on the Mississippi River shall require for every inspection and granting certificate the following fees and charges : For every ship, thirty dollars ($30) ; for every bark, twenty dollars ($20); for every brig, ten dollars ($10); for every schooner, seven dollars and a half ($7.50); for every steamboat (towboats excepted), five dollars ($5); for every steamship, thirty dollars ($30). “ Sec. 2. Be it further enacted, &c., That the Board of Health shall have an especial lien and privilege on the vessels so inspected for the amount of said fees and charges, and may collect the same, if unpaid, by suit before any court of competent jurisdiction, and in aid thereof shall be entitled to the writ of provisional seizure on said vessels. “ Sec. 3. Be it further enacted, dec., That all laws and parts of laws in conflict with the provisions of this act, are hereby MORGAN v. LOUISIANA. 457 Argument for Plaintiff in Error. repealed, and all laws and parts of laws on the same subjectmatter not in conflict or inconsistent herewith, are continued in full force and effect.” Mr. H. J. Leovy and Jfr. Joseph E. McDonald for plaintiff in error. We contend that all the provisions of the act of 1882, of 1870, and of the other acts, to which reference has been made, that impose charges on vessels to defray the expenses of a quarantine system, and to support a Board of Health, are null and void, for the following reasons: First. Because they impose tonnage dues and conflict with the third paragraph, tenth section, of the first Article of the United States Constitution, which declares that “no State shall, without the consent of Congress, lay any duty of tonnage.” Steamship Co. v. Portwar dens, 6 Wall. 31; Peete v. Morgan, 19 Wall. 581; State Tonnage Tax Cases, 12 Wall. 204; Cannon v. New Orleans, 20 Wall. 580; Henderson v. Mayor of New York, 92 U. S. 259; Inman Steamship Co. v. Tinker, 94 U. S. 238; Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423; Railroad Co. N.Lllerman, 105 U. S. 166. Second. Because, so far as they impose charges or duties on vessels engaged in the coast trade, or plying between ports of Louisiana and other States or countries, they are regulations of commerce and violate the third paragraph of the eighth section, first article of the United States Constitution, which vests in Congress the exclusive power to regulate commerce. 2 Curtis Hist. Const. 370; Gibbons v. Ogden, 9 Wheat. 1, 205; State Freight Tax, 15 Wall. 232; Brown n. Ma/ryland, 12 Wheat. 419; Passenger Cases, 7 How. 283, 414; Yicksburg v. Tobin, 100 U. S. 430; Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691; Cooley v. Port Wardens of Philadelphia, 12 How. 299; Steamship Co. n. Jolijfe, 2 Wall. 450; Railroad Co. n. Husen, 95 U. S. 465; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 197; Moran v. New Orleans, 112 U. S. 69; and cases cited under Point 1. Third. Because, by imposing charges exclusively on vessels 458 OCTOBER TERM, 1885. Opinion of the Court. passing the Mississippi River Quarantine Station, preference is given to vessels from the ports of one State over those of another, and duties are imposed on vessels bound from one State to another, in contravention of paragraph six, section nine, of the first Article of the United States Constitution. Inman Steamship Co. v. Tinker, above cited; Guy n. Baltimore, 100 U. S. 434. Fourth. And we allege that said statutes are null and void, because they conflict with the provision of the act of Congress of 1799, 1 Stat. 16, relating to quarantine, which provides “ that nothing herein shall enable any State to collect a duty of tonnage or impost without the consent of the Congress of the United States.” Railroad Co. v. llusen, above cited; State Freight Tax, above cited ; Ward v. JZary Iand, 12 Wall. 418; Welton v. Missouri, 91 U. S. 275; Henderson v. Mayor of New York, above cited; Chy Lung v. Freeman, 92 U. S. 275; Gloucester Ferry Co. v. Pennsylvania, above cited; Steamship Co. v. Portwa/rdens, above cited. Mr. F. C. Zacha/rie and Mr. William M. Evarts for defendants in error. Mr. Justice Miller, after stating the case as above reported, delivered the opinion of the court. The services for which these fees are to be collected are parts of a system of quarantine provided by the laws of Louisiana, for the protection of the State, and especially of New Orleans, an important commercial city, from infectious and contagious diseases which might be brought there by vessels coming through the Gulf of Mexico from all parts of the world, and up the Mississippi River to New Orleans. This system of quarantine differs in no essential respect from similar systems in operation in all important seaports all over the world, where commerce and civilization prevail. The distance from the mouth of the Mississippi River to New Orleans is about a hundred miles. A statute of Louisiana of 1855, organizing this system, created a Board of Health, to whom its administration was mainly confided, and it authorized this MORGAN V. LOUISIANA. 459 Opinion of the Court. board to select and establish a quarantine station on the Mississippi, not less than seventy-five miles below New Orleans. Money was appropriated to buy land, build hospitals, and furnish other necessary appliances for such an establishment. This and other statutes subsequently passed contained regulations for the examination of vessels ascending the river, and of their passengers, for the purpose of ascertaining the places whence these vessels came, their sanitary condition, and the healthy or diseased condition of their passengers. If any of these were such that the safety of the city of New Orleans or its inhabitants required it as a protection against disease, they could be ordered into quarantine by the proper health officer until the danger was removed, and, if necessary, the vessel might be ordered to undergo fumigation. If, on this examination, there was no danger to be apprehended from vessel or passengers, a certificate of that fact was given by the examining officer, and she was thereby authorized to proceed and land at her destination. If ordered to quarantine, after such detention and cleansing process as the quarantine authorities required, she was given a similar certificate and proceeded on her way. If the condition of any of the passengers was such that they could not be permitted to enter the city, they might be ordered into quarantine while the vessel proceeded without them. Whether these precautions were judicious or not this court cannot inquire. They are a part of and inherent in every system of quarantine. If there is a city in the United States which has need of quarantine laws it is New Orleans. Although situated over a hundred miles from the Gulf of Mexico, it is the largest city which partakes of its commerce, and more vessels of every character come to and depart from it than any city connected with that commerce. Partaking, as it does, of the liability to diseases of warm climates, and in the same danger as all other seaports of cholera and other contagious and infectious disorders, these are sources of anxiety to its inhabitants, and to all the interior population of the country who may be affected by their spread among them. Whatever may be the truth with regard to the contagious character of yellow fever and 460 OCTOBER TERM, 1885. Opinion of the Court. cholera, there can be no doubt of the general belief, and very little of the fact, that all the invasions of these epidemics in the great valley of the Mississippi River and its tributaries in times past have been supposed to have spread from New Orleans, and to have been carried by steamboats and other vessels engaged in commerce with that city. And the origin of these diseases is almost invariably attributed to vessels ascending the Mississippi River from the West Indies and South America, where yellow fever is epidemic almost every year, and from European countries whence our invasions of cholera uniformly come. If there is any merit or success in guarding against these diseases by modes of exclusion, of which the professional opinion of medical men in America is becoming more convinced of late years, the situation of the city of New Orleans for rendering this exclusion effective is one which invites in the strongest manner the effort. Though a seaport in fact, it is situated a hundred miles from the sea, and is only to be reached by vessels from foreign countries by this approach. A quarantine station, located as this one is under the Louisiana laws, with vigilant officers, can make sure of inspecting every vessel which comes to New Orleans from the great ocean in any direction. Safe and ample arrangements can be made for care and treatment of diseased passengers and for the comfort of their companions, as well as the cleansing and disinfecting of the vessels. The system of quarantine has here, therefore, as fair a trial of its efficacy as it could have anywhere, and the need of it is as great. None of these facts are denied. In all that is important to the present inquiry they cannot be denied. Nor is it denied that the enactment of quarantine laws is within the province of the States of this Union. Of all the elements of this quarantine system of the State of Louisiana, the only feature which is assailed as unconstitutional is that which requires that the vessels which are examined at the quarantine station, with respect to their sanitary condition and that of their passengers, shall pay the compensation which the law fixes for this service. MORGAN V. LOUISIANA. 461 Opinion of the Court. This compensation is called a tonnage tax, forbidden by the Constitution of the United States; a regulation of commerce exclusively within the power of Congress; and also a regulation which gives a preference to the port of New Orleans over ports of other States. These are grave allegations with regard to the exercise of a power which, in all countries and in all the ports of the United States, has been considered to be a part of, and incident to, the power to establish quarantine. We must examine into this proposition and see if anything in the Constitution sustains it. Is this requirement that each vessel shall pay the officer who examines it a fixed compensation for that service a tax? A tax is defined to be “a contribution imposed by government on individuals for the service of the State.” It is argued that a part of these fees go into the treasury of the State or of the city, and it is therefore levied as part of the revenue of the State or city and for that purpose. But an examination of the statute shows that the excess of the fees of this officer over his salary is paid into the city treasury to constitute a fund wholly devoted to quarantine expenses, and that no part of it ever goes to, defray the expenses of the State or city government. That the vessel itself has the primary and deepest interest in this examination it is easy to see. It is obviously to her interest, in the pursuit of her business, that she enter the city and depart from it free from the suspicion which, at certain times, attaches to all vessels coming from the Gulf. This she obtains by the examination and can obtain in no other way. If the law did not make this provision for ascertaining her freedom from infection, it would be compelled to enact more stringent and more expensive penalties against the vessel herself, when it was found that she had come to the city from an infected port or had brought contagious persons or contagious matter with her; and throwing the responsibility for this on the vessel, the heaviest punishment would be necessary by fine and imprisonment for any neglect of the duty thus imposed. The State now says you must submit to this examination. If you appear free of objection, you are relieved by the officer’s cer- 462 OCTOBER TERM, 1885. Opinion of the Court. tificate of all responsibility on that subject. If you are in a condition dangerous to the public health, you are quarantined and relieved in this manner. For this examination and fumiera-tion you must pay. The danger comes from you, and though it may turn out that in your case there is no danger, yet as you belong to a class from which all this kind of injury comes, you must pay for the examination which distinguishes you from others of that class. It seems to us that this is much more clearly a fair charge against the vessel than that of half pilotage, where the pilot’s services are declined, and where all the pilot has done is to offer himself. This latter has been so repeatedly held to be a valid charge, though made under State laws, as to need no citations to sustain it. In all cases of this kind it has been repeatedly held that, when the question is raised whether the State statute is a just exercise of State power or is intended by roundabout means to invade the domain of Federal authority, this court will look into the operation and effect of the statute to discern its purpose. See Henderson v. Mayor of New York, 92 IT. 8. 259; Chy Lunq v. Freeman. 92 IT. S. 275; Cannon v. New Orleans. 20 Wall. 587.; In the case of Packet Co. v. St. Louis, 100 IT. S. 423, where a city wharfage tax was assailed on the same ground as the fee in the present case, the court said the fee was a fair equivalent for the use of the wharf. “Nor is there any ground whatever to suppose that these wharfage fees were exacted for the purpose of increasing the general revenue of the city beyond what was necessary to meet its outlay, from time to time, in maintaining its wharves in such condition as the immense business of that locality required.” So here, there is no reason to suppose that these fees had any other purpose or destination than to keep up and pay the expenses of the quarantine station and system. But, conceding it to be a tax, in what sense can it be called a tonnage tax? The cases of State Tonnage Tax, 12 Wall. 204; Peete v. Morgan, 19 Wall. 581; Cannon v. New Orleans, 20 Wall. 577; Inman Steamship Co. v. Tinker, 94 IT. S. 238, are all cited and relied on to show that this is a tonnage tax. But MORGAN V. LOUISIANA. 463 Opinion of the Court. in all these cases the contribution exacted was measured by the tonnage of the vessel in express terms; and the decision of the court rested on that fact. In the first of them it was admitted that the statute of Alabama would have been valid as a tax on property within the State, but for the single fact that the amount of it was measured by the tonnage of the vessel. In Peetds Case the tax was for every vessel arriving at a quarantine station, whether any service was rendered or not, $5 for the first hundred tons of her capacity, and one and a half cents for every additional ton, and this mode of measuring the tax was held to make it a tonnage tax. The same fact was presented in Cannon v. New Orleans, though it was called a wharfage tax. The court, however, held it to be a tax for the privilege of landing in the port, whether the vessel used a wharf or not, and for this reason, and because the amount of it was measured by the vessel’s tonnage, it was held void. In the case of Steamship v. Port Wardens, 6 Wall. 31, the court held a fee payable to the port wardens by every vessel which entered the port, whether it received any service or not, to be void as a regulation of commerce and as contravening the policy of the prohibition of a tonnage tax by the States. But in almost all the cases relied on by the appellants there was a reference to the tonnage capacity of the vessel as the measure of the tax, and in all of them there was an absence of any service rendered for which the contribution was a compensation ; generally they were held to be imposed for the privilege of entering and anchoring in the port. In the present case we are of opinion that the fee complained of is not a tonnage tax, that, in fact, it is not a tax within the true meaning of that word as used in the Constitution, but is a compensation for a service rendered, as part of the quarantine system of all countries, to the vessel which receives the certificate that declares it free from further quarantine requirements. Is the law under consideration void as a regulation of commerce? Undoubtedly it is in some sense a regulation of commerce. It arrests a vessel on a voyage which may have been a long one. It may affect commerce among the States when 464 OCTOBER TERM, 1885. Opinion oi the Court. the vessel is coming from some other State of the Union than Louisiana, and it may affect commerce with foreign nations when the vessel arrested comes from a foreign port. This interruption of the voyage may be for days or for weeks. It extends to the vessel, the cargo, the officers and seamen, and the passengers. In so far as it provides a rule by which this power is exercised, it cannot be denied that it regulates commerce. We do not think it necessary to enter into the inquiry whether, notwithstanding this, it is to be classed among those police powers which were retained by the States as exclusively their own, and, therefore, not ceded to Congress. For, while it may be a police power in the sense that all provisions for the health, comfort, and security of the citizens are police regulations, and an exercise of the police power, it has been said more than once in this court that, even where such powers are so exercised as to come within the domain of Federal authority as defined by the Constitution, the latter must prevail. Gibbons v. Ogden, 9 Wheat. 1, 210; Henderson v. The Mayor, 92 U. S. 259, 272; New Orleans Gas Co. v. Louisia/na Light Co., 115 U. S. 650, 661. But it may be conceded that whenever Congress shall undertake to provide for the commercial cities of the United States a general system of quarantine, or shall confide the execution of the details of such a system to a National Board of Health, or to local boards, as may be found expedient, all State laws on the subject will be abrogated, at least so far as the two are inconsistent. But, until this is done, the laws of the State on the subject are valid. This follows from two reasons : 1. The act of 1799, the main features of which are embodied in Title LVIII. of the Revised Statutes, clearly recognizes the quarantine laws of the States, and requires of the officers of the Treasury a conformity to their provisions in dealing with vessels affected by the quarantine system. And this very clearly has relation to laws created after the passage of that statute, as well as to those then in existence; and when by the act of April 29, 1878, 20 Stat. 37, certain powers in this direction were conferred on the Surgeon-General of the Marine Hospital Service, and consuls and revenue officers were required to MORGAN y. LOUISIANA. 465 Opinion of the Court. contribute services in preventing the importation of disease, it was provided that “ there shall be no interference in any manner with any quarantine laws or regulations as they now exist cr may hereafter be adopted under State laws,” showing very clearly the intention of Congress to adopt these laws, or to recognize the power of the States to pass them. 2. But, aside from this, quarantine laws belong to that class of State legislation which, whether passed with intent to regulate commerce or not, must be admitted to have that effect, and which are valid until displaced or contravened by some legislation of Congress. The matter is one in which the rules that should govern it may in many respects be different in different localities, and for that reason be better understood and more wisely established by the local authorities. The practice which should control a quarantine station on the Mississippi River, a hundred miles from the sea, may be widely and wisely different from that which is best for the harbor of New York. In this respect the case falls within the principle which governed the cases of Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Cooley v. The Board of Wardens, 12 How. 299; Gilman v. Philadelphia, 3 Wall. 713, 727; Pound v. Turk, 95 U. S. 459, 462; Hall v. DeCuir, 95 U. S. 485, 488; Packet Co. v. Catlettsburg, 105 U. S. 559, 562; Transportation Co. v. Parkersburg, 107 U. S. 691, 702; Escanaba Co. v. Chicago, 107 U. S. 678. This principle has been so often considered in this court that extended comment on it here is not needed. Quarantine laws are so analogous in most of their features to pilotage laws in their relation to commerce that no reason can be seen why the same principle should not apply. In one of the latest of the cases cited above, the town of Catlettsburg, on the Ohio River, had enacted that no vessel should, without permission of the wharfmaster, land at any other point on the bank of the river within the town than a space designated by the ordinance. This court said, “ that, if this be a regulation of commerce under the power conferred on Congress by the Constitution, that body has signally failed to provide any such regulation. It belongs, also, manifestly to that class of rules which, like pilotage and vol. cxvin—30 466 OCTOBER TERM, 1885. Opinion of the Court. some others, can be most wisely exercised by local authorities, and in regard to which no general rules applicable alike to all ports and landing places can be properly made. If a regulation of commerce at all, it comes within that class in which the States may prescribe rules until Congress assumes to do so.” For the period of nearly a century since the government was organized Congress has passed no quarantine law, nor any other law to protect the inhabitants of the United States against the invasion of contagious and infectious diseases from abroad; and yet during the early part of the present century, for many years the cities of the Atlantic coast, from Boston and New York to Charleston, were devastated by the yellow fever. In later times the cholera has made similar invasions; and the yellow fever has been unchecked in its fearful course in the Southern cities, New Orleans especially, for several generations. During all this time the Congress of the United States never attempted to exercise this or any other power to protect the people from the ravages of these dreadful diseases. No doubt they believed that the power to do this belonged to the States. Or, if it ever occurred to any of its members that Congress might do something in that way, they probably believed that what ought to be done could be better and more wisely done by the authorities of the States who were familiar with the matter. But to be told now that the requirement of a vessel charged with contagion, or just from an infected city, to submit to examination and pay the cost of it is forbidden by the Constitution because only Congress can do that, is a strong reproach upon the wisdom of a hundred years past, or an overstrained construction of the Constitution. It is said that the charge to the vessel for the officer’s service in examining her is not a necessary part of quarantine system. It has always been held to be a part in all other countries, and in all quarantine stations in the United States. No reason is perceived for selecting this item from the general system and calling it a regulation of commerce, while the remainder is not. If the arrest of the vessel, the detention of its passengers, the cleansing process it is ordered to go through MORGAN v. LOUISIANA. 467 Opinion of the Court. with, are less important as regulations of commerce than the exaction of the examination fee, it is not easily to be seen. We think the proposition untenable. There remains to be considered the objection that the law is forbidden by paragraph six of section nine of the first article of the Constitution, which declares that “no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.” It is not readily perceived how this quarantine statute of Louisiana, and particularly the fees of the quarantine officers, do give such a preference. Are the ports of Louisiana given a preference over ports of other States? Are the ports of any other State given a preference over those of Louisiana ? Or are the ports of other States given a preference as among themselves. Nothing of this is pointed out. The eighth section of this first article of the Constitution is devoted exclusively to defining the powers conferred on Con-, gress. The ninth section, including the above paragraph, is in like manner devoted to restraints upon the power of Congress and of the National Government; and the tenth section contains only restraints upon the powers of the States, by declaring what they shall not do. The most casual inspection shows this, and the clause of the Constitution here relied on is not found among the restrictions of the States, but among those imposed upon the Federal Government. As the matter under discussion is the validity of the statute of Louisiana, it is unaffected by the constitutional provision alluded to. Woodbury, J., in Passenger Cases, 7 How. 283, 541; The Brig Wilson v. United States, 1 Brock. 423, 432; Butler v. Hopper, 1 Wash. C. C. 499; Pennsylvania v. Wheeling Bridge Co., 18 How. 421, 435 ; Munn v. Illinois, 94 U. S. 113, 135. We see nd error in the judgment of the Supreme Court of Louisiana, and it is Affirmed. Mr. Justice Bradley dissented. 468 OCTOBER TERM, 1885. Syllabus. THE CITY OF NORWICH. PLACE & Others v. NORWICH & NEW YORK TRANSPORTATION COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EA.STERN DISTRICT OF NEW YORK. Argued November 16, 17, 1886.—Decided May 10, 1886. In a case of collision occasioned by the negligence of the officers or hands of one of the vessels, without any neglect, privity, or knowledge of her owner, and where said vessel took fire and sank with loss of cargo, and never completed her voyage nor earned any freight, but was afterwards raised and repaired, and was then libelled and seized on behalf of the owners of her cargo, and claimed and bonded at her then value by her owner, who filed an answer and a petition for limited liability; and where it further appeared that the owner received certain moneys for insurance of the ship against loss by fire, Held: (1.) That the owner was entitled to a limitation of liability to the value of his interest in ship and freight under the act of 1851. Sections 4282-4287 Rev. Stat. (2.) That the point of time at which the amount or value of the owner’s interest in ship and freight is to be taken for fixing his liability is the termination of the voyage on which the loss or damage occurs. (3.) That if the ship is lost at sea, or the voyage be otherwise broken up before arriving at her port of destination, the voyage is then terminated for the purpose of fixing the owner’s liability. (4.) That in the present case, the voyage was terminated when the ship had sunk, and that her value at that time was the limit of the owner’s liability ; and that the subsequent raising of the wreck and repair of the ship, giving her an increased value, had nothing to do with the liability of the owner. (5.) That no freight except what is earned is to be estimated in fixing the amount of the owner’s liability. (6.) That insurance is no part of the owner’s interest in the ship or freight with in the meaning of the law, and does not enter into the amount for which the owner is held liable. (7.) That the limitation of liability is applicable to proceedings in rem against the ship as well as to proceedings in personam against the owner; the limitation extends to the owner’s property as well as to his person. (8.) That the right to proceed for a limitation of liability, is not lost or waived by a surrender of the ship to underwriters. In this case, although an application for limitation of liability had been origi- THE CITY OF NORWICH. 469 Statement of Facts. nally overruled by the District Court, and an interlocutory decree had been rendered in favor of the libellants for their entire damage, with a reference for proofs and a report by the master; yet the court, after the decision of this court in Norwich Co. v. Wright, 13 Wall. 104, relating to the same collision, and the promulgation of the additional rules adopted by this court, received a new petition and ordered a new appraisement to ascertain the value of the ship whilst lying sunk; and made a decree limiting the liability of the owner to the value at that time: Held that the District Court had jurisdiction to receive such new petition and to take such proceedings. The case was stated by the court as follows: This case arose out of a collision which occurred on Long Island Sound, opposite Huntington, on the 18th of April, 1866, between the Steamboat City of Norwich, belonging to the Norwich and New York Transportation Company, the appellees, and the schooner General S. Van Vliet, belonging to William A. Wright and others, appellants, by which the schooner and her cargo were sunk and lost, and the steamboat was set on fire and sunk, and her cargo lost. The owners of the schooner filed a libel in personam in the District Court of the United States for the District of Connecticut, against the own-ers of the steamboat, and obtained a decree for about $20,000 for the schooner, and about $2000 for her cargo, with interest. Before the decree was passed, the respondents filed a petition, stating that proceedings in rem had been commenced against the steamboat in the District Court of the United States for the Eastern District of New York, for the recovery of damages for the loss of the cargo on board said steamboat; and they prayed leave to show the whole amount of damages sustained by all parties, and the value of the steamer and her freight then pending ; and that the libellants might have a decree for only such proportion of damages sustained by them as the value of steamer and freight bore to the whole amount of damages sustained by all parties by the collision; this claim being made under the limited liability act of 1851. The District Court denied the prayer of this petition, holding that it had no jurisdiction to give relief. On appeal to the Circuit Court the decree was affirmed, and the petition for limitation of liability was denied on the ground that cases of collision were not within the act. The case then 470 OCTOBER TERM, 1885. Statement of Facts. came to this court, and we held, first, that the act of 1851 adopted the general maritime law in reference to limited liability as contra-distinguished from the English law, measuring the liability by the value of ship and freight after, instead of before, the collision; secondly, that the act embraced cases of damage received by collision as well as cases of injury to the cargo of the offending ship; thirdly, that the district courts of the United States, as courts of admiralty, have jurisdiction to administer the law; fourthly, that the proper court to hear and determine the question is the court which has possession of the fund, that is, the ship and freight, or the proceeds and value thereof. And in view of the want of rules of procedure, and of any uniform practice on the subject, we directed that proceedings should be suspended in the District Court of Connecticut, in order to give the respondents an opportunity of making the proper application to the District Court of the Eastern District of New York, which had possession of the steamer, or a stipulation for her value in lieu of the steamer itself. We also adopted some general rules of practice for the aid and guidance of the district courts in such cases. Norwich Co. v. Wright, 13 Wall. 104. The libel in rem, filed in the District Court for the Eastern District of New York, was filed by George Place and Charles Place (now appellants here) in August, 1866, after the steamboat had been raised and carried to the shore of Long Island and repaired. The Norwich and New York Transportation Company appeared as claimants, and filed an answer and a petition to have the benefit of the act of 1851 for a limitation of their liability to the value of the steamboat and freight pending at the time of the collision and fire. Other libels were also filed by other owners of cargo. The steamer as repaired was appraised at $70,000. On the 13th day of June, 1872, after the decision of this court was rendered in the case of the Norwich Co. v. Wright, the company, by leave of the court, filed a new petition in the District Court for the Eastern District of New York for the benefit of limited liability under the act of 1851, conformable to the rules adopted by this court. THE CITY OF NORWICH. 471 Statement of Facts. The petition stated the various claims against the vessel arising out of the collision, (amounting to nearly $150,000,) the previous proceedings that had been taken, the libels that had been filed, the circumstances of the loss, the raising and repair of the vessel, &c., and prayed for a new appraisement in accordance with the decision of this court, a monition to claimants, &c., as will more fully appear in the finding of facts made by the Circuit Court, hereinafter stated. Orders for publication and appraisement were made pursuant to the prayer of the petition, and the commissioner appointed to make the appraisement reported as follows, to wit.: “In ascertaining the value of the steamboat City of Norwich, as directed by the order of reference herein, I have followed what I understood to have been the decision of the Supreme Court of the United States in the case of Wright against the owners of this boat, 13 Wall. 104, and have ascertained her value in the situation and condition she was in after the collision, and before she was raised, and I find from the testimony taken before me that she was at that time of the value of $2500. I have arrived at such value by taking the testimony as to her value in New York after she was raised by her owners and brought there, which shows that she was then and there worth the sum of $25,000, and I have deducted from that amount the sum of $22,500, being the sum which, according to the testimony, it had actually cost to raise her and bring her to New York, which leaves $2500 to be her value, as I have above stated.” Exceptions were taken to the report, first, that the former appraisement of $70,000 was binding on the parties and the court; secondly, that the appraisement should have been for the value of the steamer immediately before the collision; thirdly, that it should have been for the value immediately after the collision, before the occurrence of damage by the fire; fourthly, that there should have been no deduction for the expenses of raising the steamer; fifthly, that the sum of $600 should have been added for the pending freight; sixthly, that the money received for insurance on the vessel should have been added, amounting to $49,283.07. 472 . OCTOBER TERM, 1885. Statement of Facts. The exceptions were overruled, and a decree was made authorizing the petitioners to pay into court the sum of $2500, the value of the steamer, and directing a monition to issue, citing all parties interested to appear and prove their claims, restraining the further prosecution of all suits, and appointing a commissioner to take proof of claims. On the subsequent report of the commissioner a final decree was made in January, 1879, distributing the fund in court, and discharging the petitioners from further demands. The case was appealed to the Circuit Court and argued before Mr. Justice Strong, who, in October, 1879, affirmed the decree of the District Court, but the decree of affirmance was not entered until July 3, 1882. That decree is now before us for review. The finding of facts by the Circuit Court was substantially as follows: 1. It states the fact of the collision, and that “ it was caused by the negligence of the steamboat’s officers or hands, without any design, neglect, privity or knowledge of her owners. Very soon, within half an hour after the collision, the boat took fire, her deck and upper works were burned off, and she sank in about twenty fathoms of water. The fire was the direct consequence of the collision and inseparable from it. It was caused by the rushing of the waters through the broken hull of the boat, whereby the fire was driven out of the furnaces upon the woodwork, and the boat sank by reason of her filling with water. “ 2. At the time of the disaster the boat had a cargo of merchandise on board belonging to different freighters, all of which was totally lost. The freight then pending amounted to $600, but none of it was earned or received by the ship owners. “ 3. Sometime after the steamboat was sunk, and her cargo destroyed, she was raised by salvors and taken to the Long Island shore, within the port of Hew York, where she was repaired.” 4. It states the suit by Wright & Co., in the District Court of the United States for the District of Connecticut, and the decision of the Supreme Court in that case. 5. It states the proceedings upon libel filed by George and THE CITY OF NORWICH. 473 Statement of Facts. Charles Place in the District Court for the Eastern District of New York, the appraisement at $70,000, and the release of the vessel to the claimants (The Norwich & N. Y. Trans. Co.) upon their giving stipulation therefor, adding, “ The stipulation purported to be for the security not only of the Messrs. Place, but also for the benefit of all persons who might, by due proceedings in said court, show themselves entitled to liens upon the vessel by reason of said collision. The appraisement was of the value of the vessel as it was after she had been raised and repaired. It was returned into the court on the 11th of March, 1867, and the stipulation in the amount of the appraisement was filed on the 29th day of the same month. On the 20th day of December, 1869, the District Court ordered decrees to be entered in favor of the libellants in all the suits commenced against the steamer as aforesaid. “ 6. Such was the condition of the litigation when the present petition was filed in July, 1872, after the rendition of the judgment by the Supreme Court in the case of the libel of William A. Wright et al. in the District Court of Connecticut. The petition prayed that, in conformity with the act of Congress, the decision of the Supreme Court, and the admiralty rules made in pursuance thereof, the court would cause an appraisement to be made of the value of the interest of the petitioners in the steamboat, and her freight for the voyage in which she was employed, for which they were liable, and that an order should be made for paying the amount of such valuation into court, or for giving a stipulation therefor, with sureties. It prayed further for a monition against all the persons claiming damages arising out of the said collision and fire, citing them to appear and make proof of their claims, and it prayed also for a restraining order against the further prosecution of all or any suits against the steamboat or the petitioners for any damage caused by the collision, fire, and loss. There was also a prayer for general relief. The monition was issued, the appellants appeared, and an order was made for an appraisement of the amount of value of the interest of the petitioners as owners, respectively, of said steamboat and her freight, pending for the voyage upon which she was employed, for which the petition- 474 OCTOBER TERM, 1885. Statement of Facts. ers were liable. A restraining order, as prayed for, was also made. Pursuant to the direction of the court, an appraisement was made. The appraiser ascertained and reported the value of the steamboat, as she lay immediately after the collision and fire, and before she was raised, to have been $2500, and the District Court confirmed the report and ordered the amount to be paid into the registry, which was accordingly done. “ 7. The value of the interest of the petitioners in the steamboat, as she was immediately after the disaster, was $2500 and no more. “ 8. The value of that interest immediately before the collision was $70,000. “ 9. When the collision occurred the steamboat was insured against fire (not against marine disaster), and upon the several policies the petitioners, as owners, have recovered from the underwriters the sum of $49,283.07; that part of said sum was recovered by the petitioner herein in an action brought by it in the Circuit Court of the United States for the District of Connecticut on one of said five policies against the Western Massachusetts Insurance Company. One of the defences in that action was that the loss and damages were occasioned by the collision (which is the same mentioned in these proceedings), while the petitioner herein claimed that the greater part of the loss was by fire. The court held in that case that there were two classes of losses : one, the damage done the steamer by the collision itself, and the other caused by the fire. The damages caused by the collision were proved at $15,000. The damages caused by the fire were determined to be $69,000. The said insurance company moved for a new trial, but the motion was denied. “10. The steamboat itself has never been surrendered or transferred to a trustee for the persons injured by her fault.” The conclusions at which Mr. Justice Strong arrived upon these facts were: 1st. That the value of the steamboat immediately after the collision and fire, as she lay at the bottom of the Sound, with her pending freight, was the measure of the owners’ liability, and the amount to be apportioned. 2d. That insurance is not an interest in the vessel within the mean- THE CITY OF NORWICH. 475 Mr. Ward’s Argument for Appellants. ing of the 3d section of the act of 1851, or section 4283 of the Revised Statutes. 3d. That the limitation of the owners’ liability under the act is as applicable when the proceeding is in rem, as when it is in personam; so that, if the owners’ liability is only the amount of the vessel’s value when at the bottom of the Sound, the vessel’s liabilitv, after being raised and repaired, is no greater. Mr. J. Langdon Ward for appellants Place and Bigelow. I. Neither the District nor the Circuit Court had jurisdiction to entertain the petition in these proceedings, nor by order or decree thereon to perpetually restrain these appellants from proceeding to decree under the libels filed by them. The Scotland, 105 U. S. 24, 33; The Ann Caroline, 2 Wall. 538; The Lottawanna, 21 Wall. 558; Norwich Co. n. Wright, 13 Wall. 104; Prov. & N. Y. Steamship Co. n. Hill Mfg. Co., 109 IT. S. 578. II. The order of March 5, 1873, directing an appraisement was unauthorized and irregular, and must, with the proceedings founded thereon, be set aside so far as these appellants are concerned. The stipulation for value represented the ship, was her proceeds, and constituted the fund which in any event the court was bound to apportion under the second petition. Norwich Co. v. Wright, above cited; The North Carolina, 15 Pet. 40. III. The court below erred in finding as matter of fact that the fire was inseparable from the collision. IV. It also erred in finding as matter of fact that the order for the appraisement of the amount of the value of the interest of the petitioners as owners respectively of said steamboat and her freight pending was made after the issue of the monition and the appearance of these appellants herein. V. It also erred in finding as matter of fact that the value of the interest of petitioners in the steamboat as she was immediately after the disaster was $2500 and no more. Sun Mut. Ins. Co. n. Ocean Ins. Co., 107 U. S. 485, 501. VI. The sum received by the petitioners from the insurance companies as indemnity for the damage caused to the City of 476 OCTOBER TERM, 1885. Mr. Ward’s Argument for Appellants. Norwich by fire, with interest from the date of its receipt, should have been included in the appraisement of the amount of the value of the interest of the petitioners as owners in that vessel. This is discussed in The Scotland, post 507; and The Great Western, post 520; We adopt all that is there said by the able counsel, and, without repeating it further, present our own views of the statute, based upon its warding. The act of 1851 provides that the liability of the owner or owners of the vessel for damage caused as in the present case “ without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel and her freight then pending; ” and then provides that where loss has been suffered by several owners of property, exceeding the whole value of the ship or vessel, and her freight for the voyage, they shall receive compensation from the owner or owners in proportion to their respective losses, and that any one interested may take appropriate proceedings for the apportioning of the sum among the parties entitled thereto. It then provides that a transfer by the owner of his interest in the ship and freight to a trustee for the benefit of the claimants shall be deemed a sufficient compliance with the act. At what time is that interest to be estimated? This court has considered it three times: in The Benefactor, 103 IT. S. 239, 246; Norwich Co. v. Wright, above cited; and The Scotland, 105 IT. S. 24. Neither of these expositions is sufficiently comprehensive to meet all the cases which can arise. See The North Star, 106 IT. S. 17. It seems to us that the meaning and intent of the legislature, in the enactment of this statute, was to constitute the owners of a vessel, on the instant of the happening of any event by reason of which damage might result to others, for which they were or might be liable, and for which they desired to limit their liability under the statute, into trustees, holding the vessel and everything which might be realized from her thereafter during that voyage for the benefit of the sufferers. It is a fundamental principle in the interpretation of statutes that they must, if possible, be so construed as to operate with uniformity in all cases; and on no THE CITY OF NORWICH. 477 Mr. Ward’s Argument for Appellants. other theory can absolute uniformity be secured in the operation of this statute. The liability of the vessel owner to the shipper of the cargo, for damage to his cargo during the carriage, results from the contract of carriage, and its breach; and the action for breach of that contract in a case where the damages would be properly limited under the statute, would be what was formerly denominated an action of trespass on the case. The responsibility of the vessel owner for damages caused by collision with another vessel, in a case where his responsibility for those damages would be limited by the statute, would arise from his responsibility for the act of his master or mariners, his servants, and would be an action of trespass on the case. Both these actions sound in tort. It is settled law that in such an action the right of action accrues at the instant of the commission of the fault, even though the resulting damages may not be suffered for some time afterwards. Argali v. Bryant, 1 Sandford (N. Y.), 98; Wilcox v. Plummer, 4 Pet. 172. Such being the case, it is equitably and fairly within the meaning of the law, that at the instant of the occurrence by which the liability of the shipowner is fixed, the ship itself and the freight that may be earned on that voyage should be deemed appropriated to the satisfaction of the resulting damages, and so it was held under the statute 53 Geo. III. ch. 159, the wording of which was entirely similar to the act of 1851. Pobree n. Schroder, 6 Sim. 291; see also Waldron v. Willard, 17 N. Y. 466. If we are correct in this it is manifest that the rules applied in the cases above cited cannot be applicable to all possible cases. It is no answer to this to say that the contract of insurance is a personal contract, and that no insurable interest remains in the holder after transfer of the property. For, in the first place, if as matter of fact the transfer to a trustee were made before the occurrence of subsequent disaster, there would be opportunity for, and it would be the duty of, the trustee to insure the property forthwith, and by delay on the part of the owners for their own benefit in taking such a course the sufferers should not be prejudiced; and second, in the case at 478 OCTOBER TERM, 1885. Mr. Ward’s Argument for Appellants. bar the moneys have been collected from the insurance companies and received by the owners, and we say that, under the statute, the common case is presented of the legal title to property vested in one person, the beneficial interest in another, and in analogous cases it has been uniformly held that if loss or damage occurs to the property, and the holders of the legal title receive compensation therefor, they receive it for the benefit of the holders of the beneficial interest. Wyman v. Wyman, 26 N. Y. 253 ; Burbank v. Rockingham Ins. Co., 4 Foster (24 N. H.) 550 ; Beach n. Bowery Ins. Co. 8 Abb. Pr. (K. Y.) 261; Parry v. Ashley, 3 Sim. 97; Ins. Co. v. Updegraff, 21 Penn. St. 513 ; Gates v. Smith, 4 Edw. Ch. (N. Y.) 702; Eagle's Case, 3 Abb. Pr. (N. Y.) 218-235. The act of 1851 does not release the shipowner from the obligation to secure trustworthy persons to manage his vessels. Recognizing that with the utmost diligence he may fail in doing so, and aiming to enable the honest shipowner to invest a part of his capital in ships on the sea without perilling what remains to him on land, it only requires him in case of disaster to surrender his interest in what remains. That interest includes insurance. See Abbott”s Law Diet. Tit. Interest. To hold otherwise would nullify the act of 1851, as it will permit the owner to retain his sea fortune intact, while refusing redress to the sufferers by the misconduct of his own agent. We submit that the change of the phraseology in the Revised Statutes: to wit, § 4283, “ the liability of the owner of the vessel . . . shall in no case exceed the amount or value of the interest of such owner in such vessel,” indicates conclusively the intention of the legislature to be that for which we have contended, and excludes the interpretation placed upon the act of 1851 by the court below. If it is objected that this theory of a trust finds no support in the wording of the act of 1851; we say that it necessarily results therefrom, though not declared in ipsissimis verbis. By the maritime law the sufferers by the fault of a ship acquire, on the commission of the fault, a lien upon the offending res for their damages, that is a right in the thing. In the case of cargo the familiar expression is that imme- THE CITY OF NORWICH. 479 Mr. Halsey’s Argument for Appellee. diately upon shipment the ship is bound to the cargo, and the cargo to the ship, for the faithful performance of the contract of carriage. The act of 1851 simply provides that when such a lien has attached the shipowner may, if he chooses, limit the remedy of the lienor to the offending ship, and confine his recovery to that which he may be able to get out of the ship. It is reasonable that time should be given the shipowner in which to make his election, whether to stand his liability for the whole loss or to refer the claimants to the offending res alone; nevertheless, the plainest principles of equity require that the time so granted should not be permitted to change the relative situations of the parties to the advantage of either. In a case like this, where damages done to an offending res (in which, by reason of the offence, the whole right of the owner has become appropriated by statute to the satisfaction of the sufferers by that offence, and the owners absolved from liability for their claims) is paid for by an insurer, the reason of the rule will necessitate the surrender of the insurance moneys to those sufferers, and will not permit the owner to retain them to his own use, because the loss is not his own, and he does not remain personally liable for the debt. We do not claim that if before the happening of the loss the vessel had been transferred to a trustee under the statute any then existing policy of insurance would by force of that transfer have passed so as to give the trustee a right of action in his own name against the underwriter in respect of a subsequent loss; but we do claim that if in such a case the assured should recover, his recovery would in equity be to the use of the beneficiaries under the trust; and that by the force of a transfer made after the loss the right of action on the policy would pass to the trustee. J/?. Jeremiah Halsey (Mr. J. W C. Leveridge was with him on the brief), for appellee. That the petitioners are entitled to the limitation which the statute gives is settled in the case of Norwich Co. v. Wright, 13 Wall. 104. The proceeding, whenever taken, is a proceed- 480 OCTOBER TERM, 1885. Mr. Halsey’s Argument for Appellee. ing to obtain the benefit of the statute, and the court must give the full limitation allowed by it, or it can give nothing. The rule of the general maritime law is to be adopted; under which the owner’s liability is limited to his interest in the vessel and cargo ; i. e., to that which the general maritime law would have compelled him to surrender, in order to be discharged from liability. This amount has been accurately fixed by the report of the commissioner in this proceeding. The rule of limitation under the general maritime law that the liability is limited to the ship and freight refers only to the property which the shipowner has put at risk in the maritime venture—to his sea fortune, not to his land fortune. The proceeding to obtain the benefit of this limitation, which is quite a different thing, is the .surrender of the ship and freight in the manner provided for by the law of the country. See Caumont Diet. Com. Mar. Abandon, § 8; 1 Bedarride, Code de Com., § 297. The Scotland, 105 IT. S. 24; Thommessen v. Whitwill, 21 Blatchford, 45. But the rule of limitation itself, which is universal, without regard to local proceedings to enforce it, confines the liability to the condition of the ship in her damaged condition. Strong J. in 21 Blatchford, 231. And proceedings to obtain the benefit of the act, though taken subsequently, are taken as of the time of the disaster. The claim that the value after the collision and before the fire should have been taken as the value under the statute is untenable, because the fire was the result of the collision, and the two cannot be separated. The main question relates to the insurance. This court has intimated in previous cases its opinion that insurance recovered forms no part of the amount for which ship owners are liable. The Benefactor, 102 IT. S., at page 246 ; The North Star, 106 IT. S., at page 29; Norwich Co. v. Wright, 13 Wall, at page 126 ; The Scotland, 105 IT. S. at page 28; Moore v. Am. Trans. Co., 24 How. at page 29; which is in accord with the general doctrine that an insurance policy is a personal contract. Mildmay v. Folgham, 3 Yes. Jr. 471; Vernon v. Smith, 5 B. & Aid. 1. This view has been held uniformly by District and Circuit THE CITY OF NORWICH. 481 Mr. Halsey’s Argument for Appellee. Courts. Wattson v. Marks, 2 Am. Law. Reg. 157; Petin, Norwich <& N. Y. Trans. Co., 8 Ben. 312; A C., 17 Blatch-ford, 221; The Peshtigo, 2 Flippin, 466 ; Thomrnessen v. Whitwill, 21 Blatchford, 45 ; City of Columbus, 22 Fed. Rep. 460. The soundness of this uniform line of decisions is now before the court for determination. It is respectfully submitted, that the interest in the vessel, w’hich is the measure of liability under § 4283, and a transfer of which, if made under § 4285, operates to discharge the claim for loss or damage, does not include a claim for insurance money received by the owners of the vessel. I. The proper construction of the statute leads to this result. Ships are usually owned in shares. The obvious purpose of the word “ interest,” is to indicate that each co-owner’s liability is limited to his share (which is Jiis interest), and is not to extend to the entire vessel. To extend his liability beyond this to the insurance money would cause a word used for the purpose of limiting liability to operate in a contrary sense. This would violate settled rules of construction. The word “ interest ” extends to the freight as well as the ship. If both were totally lost to their owners “ by a surrender to the waves,” could it be contended, in the light of the reported expressions of this court in relation to freight, that insurance on freight was to be surrendered ? The construction of § 4283, is aided by the language of § 4284, being § 4 of the original act, which describes the liability as “The whole value of this vessel, and her freight for the voyage.” It is now settled by the decisions of this court that all claims for damages arising from the disaster stand upon an equality, when the whole value is insufficient to make full compensation, and that the measure of the owner’s liability is the same whether he surrenders his interest under § 4285, or takes “ appropriate proceedings ” under § 4284. The “ whole value of the vessel and freight for the voyage ” is then clearly the limit of the liability, and in case of part owners each is liable only for the value of his interest or share in the ship. This construction gives full effect to the language of each section, and renders them harmonious. vol. cxvin—31 482 OCTOBER TERM, 1885. Mr. Halsey’s Argument for Appellee. A policy of insurance on a vessel is not an interest in the vessel itself. It is a right existing by itself, and is the representative of the premium. In addition to the authorities already cited, see McDonald v. Black, 20 Ohio, 185 ; Wilson n. Hill., 3 Met. 65 ; Powles v. Innes, 11 M. & W. 10; Columbia/n Ins. Co. v. lawrence, 10 Pet. 512; Plympton v. Ins. Co., 43 Vt. 497 ; Gleason v. First Nat. Bank, 13 Fed. Rep. 719. There is no inequity in this construction. This statute was enacted to free shipowners from the severe rules of the common law. See New Jersey Steam Nav. Co. v. Merchant^ Bank, 6 How. 344. It is in harmony with the general maritime law. Stinson v. Wyman, 2 Ware, 172 ; and should be so construed as to carry out the policy introduced in its enactment. See the debates in Congress on the passage of this act. By the general maritime law, the shipowners (if personally free from blame) were not liable for the negligent or wrongful acts of the master and crew, beyond the amount of their interest in the ship. So that if they surrendered the ship they were discharged. Norwich Co. v. Wright, 13 Wall, at page 116 ; The Scotland, 105 IT. S. at page 28. In the first of these cases this court (on page 11) quotes from Pardéssus, intimating that insurance must be surrendered. But this extract, taken from an early edition, is not contained in the edition of 1841, where it would seem that he has a doubt of its correctness, and in any event he stands alone. Many other and far more weighty authorities are against him. See 1 Boulay-Paty, Droit Com. Mar. 297 ; de Villeneuve & Massé, Diet. Cont. Com. Armateur § 18 ; Éloy & Guerrand, Capitaines Mait. et Pat. 270; 1 Bédarride, Com. Mar. 359; Valin, Com. sur 1’Ord de la Marine. In addition to the sections of Gaumont’s Dictionnaire du Droit Maritime, referred to in the opinion of the District Court, we refer also to sections 57 and 58. The 7th section of the same article states the earlier authorities for the general rule, as follows: “The ordinance of 1681,₍ and the jurisprudence of the Parliament of Aix, while it had authority, decided that the owner never exposed anything but his ship to the chances of navigation ; that is to say, his sea THE CITY OF NORWICH. 483 Mr. Ingersoll’s Argument for Appellants. property and not that of the land. So taught also Loccenius and Vinnius; Decree of Pari, of Aix, 18 May, 1761, Êmerigon, Contrats à la grosse, ch. 4, Section 4, § 5 ; Consul, de la Mer. ch. 194 and 239 ; Grotius, Stypmann, part 4, ch. 15, No. 120 ; Kuricke, Quest. 21 ; Pothier, Traité des Obligations, No. 451 and Charter parties ; Boulay-Paty 1, 270 ; Dageville 2, 111 ; Frémery, p. 189; Court of Cassation, 9 March, 1814, at Rennes, 16 Jan., 1821 ; at La Haye, 4 Nov., 1824 ; at Marseilles, 20 Sept., 1831. Mr. C. R. Ingersoll, for appellants Wright and another. 1. The court below erred in not apportioning among the sufferers by the steamer’s fault the whole value of the owner’s interest in the offending vessel at the time the limitation of liability was sought ; such value being fixed by the stipulation at $70,000. That the stipulation taken upon the release of the vessel from custody is (independently of any peculiar provision) a substitute for the released vessel, and that the rights and remedies of all parties interested in the released vessel remain unaffected by the substitution, and are to be regarded precisely the same as though the vessel itself was now in court, as the actual res to be subjected to its decrees, we suppose will be conceded. United States v. Ames, 99 U. S. 35, 42 ; The Wanata, 95 U. S. 600, 611. When this statute was enacted the general maritime law as administered, not only in the United States, where no limitation of the shipowner’s liability by Federal law obtained, but in continental Europe and England, also, where the limitation existed, entitled the lien-creditor to the full amount of the owner’s interest in the vessel as that interest might be at the time of its appropriation for his benefit. The Rebecca, 1 Ware, 188; The Maggie Hammond, 9 Wall. 449 ; The China, 1 Wall. 68 ; The Siren, 7 Wall. 155 ; The Alive, 1 W. Rob. Ill ; The Europa, 2 Moore P. C. N. S. 1 ; The Charles Amelia, 2 L. R. Adm. & Eccl. 330 ; The Bold Buccleugh, 1 Moore P. C. 267. This maritime lien or hypothecation of the vessel, adheres to the ship from the instant it attaches—as a proprietary interest 484 OCTOBER TERM, 1885. Mr. Ingersoll’s Argument for Appellants. —&jus in re—and travels with her wherever she may go and in whatever condition she may be, so long as her identity as a ship is preserved. However it may be in England, where the administration of the general maritime law has been largely influenced by common law rules and practice, it is very certain that in this country, and particularly in this court, the doctrine of the general maritime law, as declared in The Rebecca (p. 203), has been uniformly followed, and the master of the ship regarded “ not precisely as the agent, or, in the language of the civil law the propositus of the owners, but as standing with regard to them in a peculiar relation which was expressed by the term commendatory.” And therefore, as Emerigon says (as quoted by Judge Ware, p. 204): “ The obligations of the proprietors are rather real than personal. . . . The master’s legal power does not extend beyond the ship of which he is the master, that is the administrator.” And later commentators upon the general maritime law are in accord with this. Bedarride in his Commentaire du Code de Commerce, Paris, 1859, vol. 1, art. 216, says: “ The responsibility of the owner rests upon the basis that those who have directly or indirectly dealt with the captain, acting in that character, and within the limits of his power, have really dealt with the ship itself, which becomes the principal bound.” Out of this responsibility which the maritime law imposes upon the offending vessel, has grown the peculiar remedy of the court of admiralty, in rem. Its sole purpose is to enforce the lien by which the ship is bound. Also out of this distinction between the liability of the vessel and the liability of the person grew the mode by which the principle of limiting the personal liability of the shipowner to his sea-fortune was carried into effect. He was allowed to limit his own liability by limiting the creditor to the remedy which the maritime law gave him against the ship; but he could not limit the liability of the ship, or impair the remedy which the maritime law gave the creditor in rem. THE CITY OF NORWICH. 485 Mr. Ingersoll’s Argument for Appellants. It seems to be clear that by the general maritime law : (1.) The ship was primarily liable for the faults of its navigation, the owner’s liability being through the ship. (2.) The owner could, therefore, discharge himself from this liability by relinquishing to the creditor his interest in the ship ; in other words he could limit the remedy of the creditor to that part of his property which was invested in the ship, as the representative of his sea fortune. But against this sea fortune, after the limitation arose, the remedy of the creditor was absolute. (3.) This limitation of the creditor’s remedy could not arise except by some positive act of the owner, advising the creditor that he could pursue his remedy against the ship without any opposition from the owner. And until such act of “ abandonment ” the liability of the owner and the remedies of the creditor remained unlimited. Boulay-Paty makes this clear in contrasting the “ abandonment ” of Art. 216 of the French Commercial Code with the “ délaissement ” to the insurer, 1 Droit Com. Mar. 293 : “ Article 216 does not attach the same effect to the abandonment which it (Art. 369) authorizes ; it is the simple declaration of the shipowner that he makes no claim whatever to that property ; it is a mere turning over of the property to the shipper that he may pay himself, if he can, out of the res solely, and not out of the person of the owner, whose obligation, according to the expression of Emerigon, is rather real than personal.” That this abandonment or quit-claim of the ship must leave to the creditor the whole value of the ship quit-claimed, and as she is quit-claimed, seems obvious. And so by the maritime law, as administered under the Commercial Code of France, the shipowner, upon the occurrence of a disaster to his ship, bringing him under liability, if he has not renounced his legal right of surrender or abandonment expressly, or tacitly, may make the surrender at any time thereafter. Caumont Diet. Dr. Mar., tit. Abandon. From this it must follow that the ship when abandoned to the creditors, (after collision,) may be in a different condition, and of a very different value to that when she came out of the collision. And further, under the 486 OCTOBER TERM, 1885. Mr. Ingersoll’s Argument for Appellants. maritime law as administered in France, we understand that the shipowner who should, after a collision resulting in serious damage to his vessel, repair his vessel fully and for a new voyage, would be held- to have elected not to abandon, and, therefore, could not thereafter set up his privilege of limitation against the creditor. Upon this review of the maritime law as it was administered when the act of March 3, 1851 was passed, it is plain that, at that time, the sufferer by collision, in this country, had his remedy against the offending vessel to the full extent of the value of the owner’s interest in that vessel at the time when such value was sought to be appropriated for his benefit. That remedy was not taken from him by the act. The statute created no new tribunal; conferred no new jurisdiction on existing tribunals; it only declared, for the guidatice of all courts, the measure of the shipowner’s liability. It had a twofold purpose: 1, (derived from continental law), to limit the shipowner’s liability in every case of loss without his privity to the value of his interest in the vessel and pending freight, to be the same whether the creditors are one or many, and in all cases: 2, (from the English Equity System), to apportion that value among the sufferers by the wrong, in the special case where there are several on the same voyage and the whole value of the vessel and freight is not sufficient to make compensation to each of them. The construction which is now sought to be put on the act is this : that in cases of collision it was intended to limit, not only the liability of the owner of the offending vessel, but the liability of the offending vessel itself, also; the limit, in each case, being the value of the owner’s interest in the vessel, as that interest was at a certain point of time, namely, immediately after the collision. This is a radical change in the maritime law of the country, which if Congress had intended, it would have clearly expressed. The statute expresses but one measure for the owner’s liability, and that is the value of the vessel when it shall be transferred for the benefit of the creditor ; and from this premise the only sound conclusion is, that where there is an existing vessel, the owner’s liability is, there- THE CITY OF NORWICH. 487 Mr. Ingersoll’s Argument for Appellants. fore, the value of that vessel when either the vessel itself or its representative value shall be appropriated for the benefit of the creditor. But if the provision in the statute respecting a transfer is decisive evidence, as the court found it to be, of the intention of the statute to measure the owner’s liability by the value of the vessel at some time after the collision, is it not with greater reason decisive evidence that the statute intends the absolute liability to remain until the owner shall either transfer the vessel “ in compliance with the requirements of the act,” or do some other equivalent thing ? And does it not necessarily follow that the equivalent thing to do must be something which will give to the claimants the value of the vessel at the time the thing is done.? And, therefore, if the owner may pay the value into court instead of transferring the vessel to a trustee, that such value must be the value of the vessel as she then is when the payment into court is made ? The provisions of § 3 of the act are. in harmony with the provision for a transfer. Taking the statute as a whole, the measure of the owner’s liability is his interest in that ship or vessel which by the maritime law is responsible in specie for the injury—the vessel which is bound by the tacit hypothecation of the maritime lien to pay “ with its whole value ” the losses resulting from its fault—and the vessel which the owner may transfer to a trustee for the benefit of his creditors if he desires to comply with the requirements of the statute. And so long as that vessel exists and is liable to admiralty seizure at the suit of the creditor or to “ transfer ” by the owner, so long it continues, with its present value, to measure the liability of its owner. The declaration of § 3 is only the declaration of the maritime law that the shipowner, in the cases there mentioned, may restrict his creditor to the remedy (in effect) which the maritime law gives him in rem—against the vessel, or, as it is expressed in The China supra, the “ primary liability ” is regarded as upon the vessel and the limitation “limits the creditor to this part of the owner’s property.” For the statute, it will be observed, makes no attempt to interfere with the ordinary jurisdiction of the admiralty court in rem. 488 OCTOBER TERM, 1885. Mr. Ingersoll’s Argument for Appellants. Indeed this provision for a transfer “ to a trustee ” seems to have been intended for the purpose of affording the State or common law courts (and the act of 1851 had its origin in States having similar legislation) a method of applying the statute analogous to that which is peculiar to the admiralty court. II. The District Court of the United States for the Eastern District of New York, was without jurisdictional power to do anything else, upon the appellee’s petition, than to apportion among the claimants, the stipulated value of the condemned steamer, that is, $70,000. The Benefactor, 103 U. S. 214, 249; James v. London de Southwestern Railroad Co., 7 L. R. Exch. 287. III. The apppellee became bound by the proceedings taken upon its petition of October 2, 1866, for the benefit of the act of March 3,1851, resulting in the stipulation of March 28,1867, to pay into court the sum of $70,000 for apportionment among the lien-creditors. IV. The Circuit Court, having adopted as the measure of the owner’s liability the value of his interest in the vessel at the time immediately after the collision, and, as reduced by it, erred in its computation of that value. It should have found that value as of the time immediately after the collision and before the fire had supervened ; and either have computed that value as the value before thecollision, reduced only by the damage caused by the collision, or the value after the fire increased by the insurance received on account of the fire. Brown v. Wilkinson, 15 M. & W. 391; Wyman v. Wyman, 26 N. Y. 353; Burbank v. Insurance Co., 24 N. H. (4 Foster) 550; Parry v. Ashley, 3 Sim. 97. V. But even if the measure of the owner’s liability adopted by the Circuit Court shall be intended to be as of the time immediately after the fire, or when the steamer was lying at the bottom of the Sound, the computation of that value by the Circuit Court is still erroneous. The value of the insurance should have been carried into the valuation of the owner’s interest. THE CITY OF NORWICH. 489 Opinion of the Court. Mr. Justice Bradley, after stating the case in the language reported above, delivered the opinion of the court. The first ground of error which we shall notice is the alleged want of jurisdiction in the District Court to allow a reappraise-ment of the steamboat for the purpose of fixing her value as the limit of the owner’s liability, after her value had once been appraised at $70,000, and she had been delivered to the claimants upon their stipulation for that amount. This ground cannot be maintained, because the question had not then been decided, what particular time was to be taken for fixing the value of the vessel in reference to the limited liability of the owners. They wished to have possession of her, and were willing to give a stipulation for her full value at that time in order to obtain such possession. Had the vessel remained in custody until the final petition for a limited liability was filed, the court would have been at liberty then to determine the time at which the value of the vessel should be taken for that purpose, and to order a new appraisement if necessary. The stipulation given merely stood in place of the vessel itself, and did not deprive the court of any of its power. The subsequent trial on the merits, the interlocutory decree in favor of the libellants, and the report of the commissioner showing the amount of their damage, did not preclude the claimants from exercising their right to proceed for a limitation of their liability under the rules of procedure adopted by this court. The trial on the merits resulted in determining which vessel was in fault, and in liquidating the amount of damage sustained by the libellants, to be used as a basis of their pro rata share in the fund which might ultimately be decreed subject to their claim and the claims of other parties. It did not settle the amount of that fund, nor the extent of the liability of the owners of the steamer. In the case of The Benefactor, 103 U. S. 239, 244, this matter was fully considered, and we held that “ the amount recovered, whether before the limitation proceedings are commenced, or afterwards, and whether in the court of first instance, or an appellate court, will stand as the recoverer’s basis for pro rata division when the condemned fund is distributed. In all other respects the proceedings for obtaining a 490 OCTOBER TERM, 1885. Opinion of the Court. limitation of liability may proceed in ordinary course.” In view of the want of any settled practice on the subject, this court, in its opinion in the case of Norwich Co. v Wright, suggested the precise course which was taken by the petitioners. 13 Wall. 126. We think it was the proper course, and that the District Court had jurisdiction to entertain the petition, and to order a new appraisement. The next question to be considered is, at what time ought the value of the vessel and her pending freight to be taken, in fixing the amount of her owners’ liability. Ought it to be taken as it was immediately before the collision, or afterwards ? And if afterwards, at what time afterwards ? The first question has been repeatedly answered by the decisions of this court. We held in Norwich Co n. Wright, and have held and decided in many cases since, that the act of Congress adopted the rule of the maritime law as contradistinguished from that of the English law on this subject; and that the value of the vessel and freight after, and not before, the collision is to be taken. But at what precise time after the collision this value should be taken has not been fully determined so as to establish a general rule on the subject. That is a question which deserves some consideration. In the case of The Scotland, 105 IT. S. 24, the collision occurred opposite Fire Island Light, and the steamer, being much injured, put back in order, if possible, to return to New York, but was unable to get further than the middle ground outside and south of Sandy Hook, where she sank, and nothing was saved but a few strippings, taken from her before she went down. We held that these strippings were all of the ship that could be valued, although she had run thirty or forty miles after the collision. The value was taken, not as it was, or as it might have been supposed to be, immediately after the collision, but as it was after the effects of the collision were fully developed in the sinking of the ship. An examination of the statute will afford light on this subject. Section 4283 declares that the liability of the owner of any vessel [for various acts and things mentioned] shall “ in no case ” exceed the value of his interest in the vessel and her THE CITY OF NORWICH, 491 Opinion of the Court. freight then pending. When it says “in no case,” does it mean that for each case of “ embezzlement, loss, destruction, collision,” &c., happening during the whole voyage his liability may extend to the value of his whole interest in the vessel ? Twenty cases might occur in the course of a voyage, and all at different times. Does not the provision made in § 4284, for compensation pro rata to each party injured, apply to all cases of loss and damage happening during the entire voyage; happening, that is, by the fault of the master or crew, and without the privity or knowledge of the owner ? Pending freight is of no value to the shipowner until it is earned, and it is not earned, if earned at all, until the conclusion of the voyage. Does this not show that every “ case ” in which the principle of limited liability is to be applied means every voyage? We think it does. It seems to us that the fair inference to be drawn from § 4283 is, that the voyage defines the limits and boundaries of the casus, or case, to which the law is to be applied. This is rendered certain by the language of § 4284, which is: “ Whenever any such embezzlement, loss, or destruction is suffered by several freighters, or owners of goods, wares, merchandise, or any property whatever, on the same voyage, and the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of them, they shall receive compensation from the owner of the vessel in proportion to their respective losses.” There may be more than one case of embezzlement during the voyage, and more than one case of loss and destruction, and they may happen at different and successive times, yet they are to be compensated pro rata. This shows conclusively that it must be at the termination of the “ voyage,” that the vessel is to be appraised, and the freight (if any be earned) is to be added to the account for the purpose of showing the amount of the owner’s liability. This conclusion is corroborated by § 4285, which declares that it shall be a sufficient compliance with the requirements of the law if the owner shall transfer his interest in the vessel and freight to a trustee for the benefit of the claimants. In most cases this cannot be done until the voyage is ended, for, until 492 OCTOBER TERM, 1885. Opinion of the Court. then, the embezzlement, loss, or destruction of property cannot be known. And this was manifestly the maritime law, for by that law the abandonment of the ship and freight (when not lost) was the remedy of the owners to acquit themselves of liability ; and, of course, this could only be done at the termination of the voyage. If the ship was lost, and the voyage never completed, the owners were freed from all liability. Boulay-Paty, Droit Com. Mar., tit. III. sec. 1, vol. I. pp. 263, 275, &c. ; Emerigon, Contrats à la grosse, ch. 4, sec. 11, §§ 1, 2 ; Valin, Com. lib. II. tit. VIII. art. II. ; Consolato del Mare, chs. 34, (141) 186, (182) 227, (194) 239 ; 2 Pardessus, Collection des lois Maritimes antérieur au XVIII. Siècle; Cleirac, Nav. de Rivières, art. XV. If, however, by reason of the loss or sinking of the ship the voyage is never completed, but is broken up and ended by causes over which the owners have no control, the value of the ship (if it has any value) at the time of such breaking up and ending of the voyage must be taken as the measure of the owner’s liability. In most cases of this character no freight will be earned ; but if any shall have been earned, it will be added to the value of the ship in estimating the amount of the owner’s liability. These consequences are so obvious that no attempt at argument can make them any plainer. If this view is correct, it follows, as a matter of course, that any salvage operations, undertaken for the purpose of recovering from the bottom of the sea any portion of the wreck, after the disastrous ending of the voyage as above supposed, can have no effect on the question of the liability of the owners. Their liability is fixed when the voyage is ended. The subsequent history of the wreck can only furnish evidence .of its value at that point of time. And it makes no difference, in this regard, whether the salvage is effected by the owners, or by any other persons. Having fixed the point of time at which the value is to be taken, the statute does the rest. It declares that the liability of the owner shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending. If the vessel arrives in port in a damaged con- THE CITY OF NORWICH. 493 Opinion of the Court. dition, and earns some freight, the value at that time is the measure of liability; if she goes to the bottom and earns no freight, the value at that time is the criterion. And the benefit of the statute may be obtained either by abandoning the vessel to the creditors or persons injured, or by having her appraisement made and paying the money into court, or giving a stipulation in lieu of it, and keeping the vessel. This double remedy given by our statute is a great convenience to all parties. It does not make two measures or standards of liability; for the measure is the same whichever course is adopted; but it enables the owner to lay out money in recovering and repairing the ship, without increasing the burden to which he is subjected. It follows from this, that the proper valuation of the steamer was taken in the court below, namely, the value which she had when she had sunk, and was lying on the bottom of the sea. That was the termination of the voyage. The next question to be considered is, whether the petitioners were bound to account for the insurance money received by them for the loss of the steamer, as a part of their interest in the same. The statute, § 4283, declares that the liability of the owner shall not exceed the amount or value of his interest in the vessel and her freight ; and § 4285 declares that it shall be a sufficient compliance with the law, if he shall transfer his interest in such vessel andfreight, for the benefit of the claimants, to a trustee. Is insurance an interest in the vessel or freight insured, within the meaning of the law ? That is the precise question before us. It seems to us, at first view, that the learned justice who decided the case below was right in holding that the word “ interest ” was intended to refer to the extent or amount of ownership which the party had in the vessel, such as his aliquot share, if he was only a part owner, or his contingent interest, if that was the character of his ownership. He might be absolute owner of the whole ship, or he might own but a small fractional part of her, or he might have a temporary or contingent ownership of some kind or to some extent. Whatever the extent or character of his ownership might be, that is to 494 OCTOBER TERM, 1885. Opinion of the Court. say, whatever his interest in the ship might be, the amount or value of that interest was to be the measure of his liability. This view is corroborated by reference to a rule of law which we suppose to be perfectly well settled, namely, that the insurance which a person has on property is not an interest in the property itself, but is a collateral contract, personal to the insured, guaranteeing him against loss of the property by fire or other specified casualty, but not conferring upon him any interest in the property. That interest he has already, by virtue of his ownership. If it were not for a rule of public policy against wagers, requiring insurance to be for indemnity merely, he could just as well take out insurance on another’s property as on his own, and it is manifest that this would give him no interest in the property. He would have an interest in the event of its destruction or non-destruction; but no interest in the property. A man’s interest in property insured is so distinct from the insurance, that unless he has such an interest independent of the insurance, his policy will be void. This rule of law manifests itself in various ways. If a mortgagor insures the property mortgaged, the mortgagee has no interest in the insurance. He may stipulate that the policy shall be assigned to him, and the mortgagor may agree to assign it; and if it be assigned with the insurer’s consent, the mortgagee will then have the benefit of it; or, if not assigned according to agreement, the mortgagee may have relief in equity to obtain the benefit of it. So where property is sold, the insurance does not follow it, but ceases to have any value, unless the insurer consent to the transfer of the policy to the grantee of the property. In other words, the contract of insurance does not attach itself to the thing insured, nor go with it when it is transferred. It is hardly necessary to cite authorities for a rule which has become so elementary. We will only refer to a few of them. Lord Chancellor King in Lynch n. Dalzell, 4 Bro. P. C. 431, 2d ed., London, 1803 [Vol. 3, p. 497, 1st ed.]; & C., 2 Marsh, on Ins. 801 ; Lord Hardwicke in Sadlers Co. v. Badcock, 2 Atk. 554; Carroll v. Boston Mar. Ins. Co., 8 Mass. 515; Columbia Ins. Co. v. Lawrence, 10 Pet. 507, 512; Carpenter v. Prov. THE CITY OF NORWICH. 495 Opinion of the Court. Wash. Ins. Co., 16 Pet. 495, 503 ; Æùna Ins. Co. v. Tyler, 16 Wend. 385, 397 ; Wilson v. Hill, 3 Met. 66, 68 ; Powles v. Innes, 11 M. & W. 10, 13 ; McDonald v. Black, 20 Ohio, 185 ; Plympton v. Ins. Co., 43 Vt. 497. Carroll v. Boston Marine Ins. Co., Powles v. Innes, and McDonald v. Black, were cases of marine insurance, and the same rule was followed in those cases as in cases of insurance against fire. It is not an irrelevant consideration in this regard, that the owner of the property is under no obligation to have it insured. It is purely a matter of his own option. And being so, it would seem to be only fair and right, and a logical consequence, that if he chooses to insure, he should have the benefit of the insurance. He does not take the price of insurance from the thing insured, but takes it out of the general mass of his estate, to which his general creditors have a right to look for the satisfaction of their claims. They are the creditors who have the best right to the insurance. Stress is laid upon the hardship of the case. It is said to be unjust that the shipowner should be entirely indemnified for the loss of his vessel, and that the parties who have suffered loss from the collision by the fault of his employés should get nothing for their indemnity. This mode of contrasting the condition of the parties is fallacious. If the shipowner is indemnified against loss, it is because he has seen fit to provide himself with insurance. The parties suffering loss from the collision could, if they chose, protect themselves in the same way. In fact, they generally do so ; and when they do, it becomes a question between their insurers and the shipowner whether they or he shall have the benefit of his insurance. His insurers have to pay his loss. Why should not the insurers of the other parties pay their loss? The truth is, that the whole question, after all, comes back to this : Whether a limited liability of shipowners is consonant to public policy or not. Congress has declared that it is, and they, and not we, are the judges of that question. Having, as we think, ascertained the true construction of the statute, the point in dispute is really settled. It is a question of construction, and does not require an examination of the 496 OCTOBER TERM, 1885. Opinion of the Court. general maritime law to determine it. If the rule of the maritime law is different, the statute must prevail. But from such examination as we have been able to make, we think that the weight of maritime authority is in accord with the disposition of our statute as we have construed it, and that the statute has adopted the maritime law on this point as well as on the question of time for estimating the value of the ship. The contract of insurance is of modern origin. It is not mentioned in the early treatises or compilations of maritime law. It is but little noticed prior to the sixteenth century. On a question like the present we naturally turn to the French writers, who are distinguished for their great learning and acumen on maritime subjects. The principal text law on which they rely, prior to the Code of Commerce adopted in the present century, is the Ordonnance de la Marine of 1681. By this ordinance it is declared that the owners of ships shall be responsible for the acts of the master : but they shall be discharged therefrom by abandoning their vessel and the freight. The Code of Commerce, Art. 216, has substantially the same provision. Beyond this general declaration (which is simply an announcement of the maritime law on the subject), the special rules applicable to particular cases, and necessary for securing the benefit of the general rule in all, had to be drawn from the general principles of the same maritime law. Whether in abandoning the ship to the creditors, the owners are, or are not, obliged to abandon the insurance effected on the ship, is a question which had to be decided by the application of the general principles referred to. The history of opinion amongst maritime writers on this subject is briefly this : Valin and Emerigon, two great French jurists, contemporaries and friends, wrote on the maritime law. In 1760 Valin published his New Commentary on the Ordinance of the Marine of 1681. In 1783 Émerigon published his Treatise on Assurances and Contracts of Bottomry. (Traité des Assurances et des Contrats à la grosse.) Emerigon furnished Valin a large portion of the materials of which the latter’s commentary was composed. Both of them are regarded as great authorities on maritime law. These jurists differed on the THE CITY OF NORWICH. 497 Opinion of the Court. question we are considering. Valin thought that those who furnished materials and supplies for a ship, and those who labored on its construction or repair, should have the power of transferring their lien on the vessel to the insurance money received by the owner for its loss. He reasons that this should be so because the material men and the workmen helped to make the thing which forms the subject of the insurance; whilst he admits that the Parlement of Bordeaux had decided otherwise as late as September, 1758. So that the views expressed by Valin seem to be his opinion of what the law ought to be rather than what it was. (Valin Com., vol. I. 315, 316, lib. I. tit. XII. art. III.) Emerigon strenuously opposes Valin’s opinion. His reasons are, that liens are stricti juris, and are not to be extended by construction; that if Valin’s rule is well founded, a vendor on credit would have a lien on the price arising on a subsequent sale of the same thing by his vendee after the thing itself had ceased to exist, which was contrary to repeated decisions; that, by stronger reason, material men and workmen have no lien on the assurance of a ship which never belonged to them, for there is nothing essentially common between the right of pledge and that of property; that the ordinance gives no privilege to the material men and workmen, except on the ship, and, therefore, they have none on the insurance according to the rule of strict construction already stated; that if the ship were represented by the insurance, it would be necessary to give the same privilege to the seamen and all other privileged creditors, which would destroy the whole object of insurance; that, on the same principle, insurance ought to be represented by reinsurance, which, it is well settled, cannot be done. Emerigon, Contrats a la grosse, ch. 12, sec. 7. The opinion of Emerigon was followed with but little dissent until a recent period. The most prominent writer who disagreed with him was Pardessus, who, in the first edition of his Droit Commercial, published in 1814, (Art. 663,) after stating the general rule that the owner may discharge himself from responsibility by abandoning the ship and freight, added: “ If these things have been insured, he ought to abandon also vol. cxvni—32 498 OCTOBER TERM, 1885. Opinion of the Court. his rights against the insurers.” This sentiment is repeated as his personal opinion in the subsequent editions of his work, (same art. 663,) but he is obliged to concede that the law is otherwise. In the edition of 1841, article 594, 2d, after asking the question whether a creditor, having a privilege or a hypothecation on a thing insured, could require a distribution of the insurance money as would be made of the price on a sale, he says: “ I think not; there is not the same reason. In the case of sale the price must, in the nature of things, represent the thing sold, the owner parting with it only for that; in the case of insurance the thing has perished; it has not been assigned in consideration of any price. The debtor has procured, it is true, a guaranty, by the effect of which the insurer pays him the value of it; but this guaranty is the result of an agreement independent of the engagements of the assured with any particular creditors. The value paid does not represent the thing insured, except in the relations between the insurer and the insured; not in the relation between the latter and his creditors, except as an accession to the mass of his property, against which the creditors may prosecute their actions according to the principle of the civil law by which all the property of a debtor is the common pledge of his creditors ; but without any preference, none of them having a peculiar right to a privilege on the contract of insurance which has caused the amount assured to be added to the assets of the common debtor. It would be otherwise, undoubtedly, if the debtor, in borrowing upon a hypothecation of a house insured, should at the same time assign to his creditor the contingent benefits of the insurance to serve for his discharge to that extent, and if the creditor should duly notify the insurer,” &c. This passage shows that even Pardessus admitted the law to be as fimerigon had declared it. Boulay-Paty, the contemporary of Pardessus, who published his work on Maritime Commercial Law (Droit Commercial Maritime) in 1821, warmly espouses the views of Emerigon. His observations on the subject are exceedingly sensible and persuasive. After quoting the views of Valin and Emerigon, he says: “ We must agree that JSmerigon’s opinion is most THE CITY OF NORWICH. 499 Opinion of the Court. conformable to principle, and that the transfer or subrogation of which Valin speaks is not admissible,” that is, the transfer of the lien from the property to the insurance. He adds: “The axiom suljrogatum tenet locum subrogati should be understood as applicable, when the thing has been changed into something else by the owner, who has received the other thing in its place, as in the case when the owner of a ship has sold it, it is certain that the lien is transferred according to undoubted law to the price. But when the thing is perished in the hands of the debtor certainly all lien is extinct. (L 8 ff guibus modis pignus vet hypotheca solvitur.) Is it possible to suppose that an insurance, which is an agreement, foreign to the creditors holding liens, which has been effected between the owners and a third party, can have the effect to bring again into life the lien on the ship? ” (Vol. I. p. 135.) He goes on to argue the question at great length, and with much force; but it would extend this opinion too much to quote his argument at length. One more extract will suffice. After showing the difference between abandonment to the lien creditors and surrender to the insurers, and that the latter does not interfere with or prevent the former, he says : “ The product of the insurance is the price of the premium which the shipowner has paid to insure the ship. This premium is not bound as a security for debts and obligations contracted by the captain; the law expressly binds the ship and freight alone to that. The Code of Commerce gives to shippers a lien only on ship and freight, consequently they have none on the insurance. In general the ship is not represented by the insurance, which, after the loss of the ship, becomes a right existing by itself, which gives a direct personal action in favor of the insured. “ All these principles, besides, agree with equity and the well understood interests of commerce. Without this rule, indeed, insurances on the hull of a ship would become illusory for her owner, since he would have no way, even by stipulating for a guaranty against barratry of the master, which it is customary to do, to protect himself against any other loss than that of the premium; and yet this is both the object of in- 500 OCTOBER TERM, 1885. Opinion of the Court. surance and the motive for which the premium is paid.” Vol. I. pp. 291, 292. During the seven years from 1827 to 1834, an animated controversy was carried on in France on the question whether Article 216 of the Code of Commerce, in speaking of the “acts” (faits) of the master, meant to include his contracts lawfully made in the course of the voyage, or only his wrongful acts; and finally the matter came before the legislative body for solution. In 1841 that body modified Article 216 so as to expressly embrace contracts of the master, as well as other acts. It was, at the same time, sought to introduce a clause which should render it the owner’s duty, in abandoning the ship and freight to obtain the benefit of limited liability, also to abandon his claim for insurance on them ; but this provision failed to receive assent. The law remained as it had always been. In 1859 two very able works were published in France in which the subject was again discussed; one by Edmund Dufour, entitled Droit Maritime, and one by J. Bédarride, entitled Droit Commercial, a commentary on the Code de Commerce. Dufour attempted to renew the controversy, although he admitted that the views of Emerigon had been acquiesced in even by Pardessus, and that Valin stood alone. He says: “Doctrine and jurisprudence, after some hesitation, pronounced themselves, as is well known, against the existence of a privilege or hypothecation on the indemnity due from the insurer; and in that way the general principle which Emerigon had adopted as the basis of his theory penetrated men’s minds as an indisputable truth which ought thenceforth to govern all indemnities of insurance. Thus it is, for example, that M. Pardessus, speaking of this question in relation to maritime credits, comes back for its solution to the general principles relating to insurance. So that the opinion of Valin seems to be crushed under this imposing unanimity.” Dufour, Droit Maritime, Art. 261. Dufour then devotes many pages to • argue the question ab origine, persuading himself that he has established the correctness of Valin’s views. But his admission at the beginning of his argument demonstrates that the maritime jurisprudence of France was in accordance with the opinion of Emerigon. THE CITY OF NORWICH. 501 Opinion of the Court. In consequence, probably, of this effort to bring the matter again into question, Bédarride examined the subject with great care, both on principle and authority, and showed that the law was not only settled, but should not be disturbed. Bédarride, Droit Commercial, Art. 295. But the advocates of change persisted in their efforts, until finally, on the 22d of December, 1874, on the passage of a law to render ships susceptible of hypothecation, they procured a section to be inserted (sec. 17) declaring that, in case of loss or disablement of the ship, the rights of the creditors [that is, hypothecation creditors] may be enforced, not only against the portions saved, or their proceeds, but (in the order of registry) against the proceeds of any assurances that may have been effected by the borrower on the hypothecated ship. This law, however, does not extend to tacit liens or privileges. For further authorities in the French law, to the same effect as Boulay-Paty and Bédarride, see Pouget, Principes de Droit Mar., vol. 2, pp. 415-419, ed. 1858 ; Êloy et Guerrand, Capitaines, Mait. et Pat. vol. 3, art. 1894 (1860) ; Caumont, Diet, de Droit Mar., tit. Abandon Mar. §§ 54, 55 ; de Villeneuve et Massé, Diet, du Contentieux Commercial ; Armateur, 20. In Germany the history of the question has been, to some extent, the reverse of what it has been in France. The Prussian Code, adopted in 1794, allowed shipowners to “ free themselves from responsibility in all cases by a surrender of the ship, including all benefits of the voyage and their rights against the insurers.” But Prussia was the only country that adopted this rule in relation to insurance. In 1856 a scheme was set on foot to have a conference to prepare a general commercial code for all the German states. Commissioners were appointed by the several states for this purpose, who held repeated sessions, but came to no agreement on a general code until March, 1862. The Prussian commissioners strenuously urged the adoption of their law on the subject of subrogation to the claims for insurance. The arguments presented by them are spread before us at some length in one of the briefs of the counsel for the appellants. The convention, however, were not convinced, and rejected the proposition, and the Prussian commissioners were 502 OCTOBER TERM, 1885. Opinion of the Court. obliged to yield the point, and now all Germany, under this new commercial code, adheres to the old maritime law. It is only necessary to add that, in the discussions of the convention it was conceded that the maritime law had never required the surrender of the insurance, but only that of the ship and freight. By’the commercial code of Holland and the ordinance of Bremen this rule is expressly formulated. It appears, therefore, that the disposition of our statute is in conformity with the general maritime law of Europe; and that the recent legislation in France(1874)is an innovation upon that law. It is next contended that the act of Congress does not extend to the exoneration of the ship, but only exonerates the owners by a surrender of the ship and freight, and, therefore, that the plea of limited liability cannot be received in a proceeding in rem. But this argument overlooks the fact that the law gives a twofold remedy—surrender of the ship, or payment of its value; and declares that the liability of the owner, in the cases provided for, shall not exceed the amount or value of his interest in the ship and freight. This provision is absolute, and the owner may have the benefit of it, not only by a surrender of the ship and freight, but by paying into court the amount of their value, appraised as of the time when the liability is fixed. This, as we have seen, enables the owner to reclaim the ship, and put it into complete repair, without increasing the amount of his liability. The absolute declaration of the statute, that his liability shall not exceed the amount or value of the ship and freight, to wit, at the termination of the voyage, has the effect, when that amount is paid into court, under judicial sanction, of discharging the owner’s liability, and thereby of extinguishing the liens on the vessel itself and of transferring those liens to the fund in court. This is always the result when the owner is allowed to bond his vessel by payment of its appraised value into court, or by filing a stipulation with sureties in lieu of such payment. The vessel is always discharged from the liens existing upon it, when it has been subjected to a judicial sale by order of the admiralty court, or when it has been delivered to the owner on his stipulation with sureties. THE CITY OF NORWICH. 503 Opinion of the Court. The claim that the lien attaches to the repairs and betterments which the owner puts upon the vessel after the amount of his liability has been fixed is repugnant to the entire drift and spirit of the statute. In ordinary cases it may be true, and undoubtedly is true, that a lien or privilege on the ship extends to and affects all its accretions by repair or otherwise; but in the case of a claim for limited liability under the statute, the dispositions of the statute are to govern; and these, as we have seen, fix the amount of liability at a certain time; and when that liability is discharged the lien is discharged, no matter what the then value of the ship may have come to be by means of alterations and repairs. The time when the amount of liability should be paid into court will depend upon circumstances. If the owner sets up his claim to limited liability in his answer, and does not seek a general concurrence of creditors, it will be sufficient if the amount is paid after the trial of the cause and the ascertainment of the amount of liability in the decree. Payment and satisfaction of the decree will be a discharge of the owner as against all creditors represented in the decree. To say that an owner is not liable, but that his vessel is liable, seems to us like talking in riddles. A man’s liability for a demand against him is measured by the amount of property that may be taken from him to satisfy that demand. In the matter of liability, a man and his property cannot be separated, unless where, for public reasons, the law exempts particular kinds of property from seizure, such as the tools of a mechanic, the homestead of a family, &c. His property is what those who deal with him rely on for the fulfilment of his obligations. Personal arrest and restraint, when resorted to, are merely means of getting at his property. Certain parts of his property may become solely and exclusively liable for certain demands, as a ship bound in bottomry, or subject to seizure for contraband cargo or illegal trade; and it may even be called the “ guilty thing; ” but the liability of the thing is so exactly the owner’s liability, that a discharge or pardon extended to him will operate as a release of his property. It is true, that in United States v. Mason, 6 Bissell, 350, it was held that in a 504 OCTOBER TERM, 1885. Opinion of the Court. proceeding in rem for a forfeiture of goods, the owner might be compelled to testify, because the suit is not against him but ■against the goods. That decision, however, was disapproved by this court in the case of Boyd v. United States, 116 IT. S. 616, 637, in which it is said: “ Nor can we assent to the proposition that the proceeding \in reni\ is not, in effect, a proceeding against the owner of the property as well as against the goods; for it is his breach of the laws which has to be proved to establish the forfeiture, and it is his property which is sought to be forfeited. In the words of a great judge, ‘ Goods, as goods, cannot offend, forfeit, unlade, pay duties, or the like, but men whose goods they are.’ Vaughan, C. J., in Sheppard v. Gos-nold, Vaughan 159, 172; approved by Ch. Baron Parker in BLitchell n. Torup, Parker 227, 236.” But the argument is at war with the spirit as well as the text of our decisions on the subject of limited liability. The case of The Benefactor, 102 U. S. 214; S. C. 103 IL S. 239, is precisely in point. That was a case of libel in rem against the vessel in fault, and the proceeding for a limited liability was sustained. It is true that this particular point was not raised; but the parties in the case were represented by able and experienced counsel, and the point would certainly have been raised if they had regarded it as tenable. We are not only satisfied that the law does not compel the shipowner to surrender his insurance in order to have the benefit of limited liability, but that a contrary result would defeat the principal object of the law. That object was to enable merchants to invest money in ships without subjecting them to an indefinite hazard of losing their whole property by the negligence or misconduct of the master or crew, but only subjecting them to the loss of their investment. Now, to construe the law in such a manner as to prevent the merchant from contracting with an insurance company for indemnity against the loss of his investment is contrary to the spirit of commercial jurisprudence. Why should he not be allowed to purchase such an indemnity? Is it against public policy? That cannot be, for public policy would equally condemn all insurance by which a man provides indemnity for himself THE CITY OF NORWICH. 505 Opinion of the Court. against the risks of fire, losses at sea, and other casualties. To hold that this cannot be done tends to discourage those who might otherwise be willing to invest their money in the shipping business. It would virtually and in effect bring back the law to the English rule, by which the owner is made liable for the value of the ship before collision—the very thing which, in all our decisions on the subject, we have held it was the intention of Congress to avoid by adopting the maritime rule. That this would be the result is evident, because all shipowners insure the greater part of their interest in the ship, and by losing their insurance they would lose the value of their ship in every case. No form of agreement could be framed by which they could protect themselves. This is a result entirely foreign to the spirit of our legislation. When it was urged upon the Chamber of Peers of France, in 1841, to pass a law requiring the abandonment of insurance, as well as of ship and freight, in order to relieve the owner from liability, the suggestion was not entertained. The opinion of the majority was, that the relations between the shipowner and lenders or shippers ought to remain entirely independent of contracts of insurance which either could make; that an obligation to abandon insurance would have no other tendency than to prevent insurance by the owner, since he would be deprived of the benefit of it in case of loss. Bedarride, art. 295, vol. 3, p. 361. The argument that to allow the owner to keep his insurance would encourage negligence and recklessness on his part, can always be made in every case of insurance. It has been made and answered a hundred times. Generally a sufficient portion of the value of the thing insured remains uncovered by insurance to prevent indifference to loss; and if the temptation to wish it does exist in any case, the retributions are so fearful as to repress the thought. To the honor of human nature the exceptions to the rule are exceedingly rare. It is also contended that the right to proceed for a limited liability is waived and lost by a surrender of the vessel to the insurers, because it is then out of the owner’s power to abandon the ship to the claimants who have liens upon her. This 506 OCTOBER TERM, 1885. Opinion of the Court. argument assumes that abandonment is necessary, which is not the case under our law. Payment of the ship’s value into court, or setting up the matter as a defence, is quite as efficacious. But if abandonment were necessary, as it is by the maritime law, a surrender to the insurers does not interfere with, or prevent, a subsequent abandonment to the creditors. The insurers take the ship cum onere, and stand in no better plight than the original owners. The liens against the ship are not extinguished by the surrender to the insurers, but may be prosecuted by the creditors, notwithstanding such surrender, unless proceedings for a limited liability are instituted. This is fully shown by Boulay-Paty, vol. 1, pp. 293-297, and by Bedarride, in Article 291 of his work, before cited. The former, after showing that abandonment to the lien creditors may be made notwithstanding a previous surrender to the insurers, and explaining the reason of it, says : “ It follows from thence that the owner may, by abandonment, turn the shippers (of cargo) over to the insurers (now become the owners by the surrender of the ship and freight to them), and thus make abandonment and surrender at the same time.” 1 Boulay-Paty, 295. This disposes of all the important points in the case, and leads to the conclusion that the decree of the Circuit Court was right, and it is Affirmed. Mr. Justice Matthews, with whom concurred Mr. Justice Millee, Mr. Justice Harlan, and Mr. Justice Gray, dissented. Their dissenting opinion will be found at page 526 post, after the opinion of the court in The Great Western. THE SCOTLAND. 507 Statement of Facts. THE SCOTLAND. DYER & Others v. NATIONAL STEAM NAVIGATION COMPANY. ' APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK. Argued March 12,13,1885.—Reargued. October 20, 21, 1885,—Decided May 10, 1886. The decision in the previous case of The City of Norwich, repeated on the question relating to the time when the value of ship and freight is to be taken for fixing the liability of the owner, and on the question of insurance. Where a collision occurred by which the offending ship and her cargo were sunk at sea, but strippings from the ship were rescued before she went down, from which the owners afterwards realized several thousand dollars: Held, that in awarding damages against the owners, limited to the amount of their interest in the ship, the court is not bound to allow interest on the proceeds of the wreck or strippings; but may, in its discretion, allow interest or not. The Circuit Court is not bound to allow interest on costs awarded by the District Court, although such costs are included in the decree of the Circuit Court. The allowance of interest by way of damages in cases of collision and other cases of pure damage, as well as the allowance of costs, is in the discretion of the court. The following is the case as stated by the court: This case presents nearly the same questions which have just been considered in the case of The City of Norwich. It was before this court in October Term, 1881, and was decided in March, 1882. See The Scotland, 105 U. S. 24. From the report of the case, but not from the record now before us, we learn that the ship Kate Dyer and the steamship Scotland (the latter belonging to the appellee) came into collision in December, 1866, opposite Fire Island Light, and the former immediately sank and was lost. The Scotland, being badly injured, put back for New York, but sank outside and south of Sandy Hook, only some strippings being rescued from her before she 508 OCTOBER TERM, 1885. Statement of Facts. went down. The owners of the Kate Dyer and others who had suffered loss filed libels in personam against the National Steam Navigation Company, respondent and now appellee, who filed an answer denying that the Scotland was in fault, and pleading that she was sunk and destroyed, and, therefore, that there was no liability against the respondent. The Circuit Court, on appeal from the District Court, found the Scotland in fault, and rendered a decree in favor of the libellants for the full amount of their damage, amounting with interest to upwards of $250,000, besides the costs of the libellants in the District Court, amounting to $2173.10. This decree was reversed by this court in March, 1882, so far as it condemned the respondent to pay the whole amount of damages sustained by the libellants and intervenors, and affirmed as to the residue, the court, in its opinion, holding that the amount of the respondent’s liability was the value of the ship’s strippings which were saved from the wreck. The case went back to the Circuit Court, but was not further prosecuted until June, 1883, when the libellants applied for leave to file a supplemental allegation to their libel, for the purpose of showing that the respondent had received a large amount of insurance for the loss of the Scotland, which the libellants claimed should be included in the amount of the respondent’s liability. The amendment was' allowed without prejudice to the respondent, and with a reservation of the question as to the legality of such an amendment after the decree of this court had been rendered and a mandate sent down. The case was then referred to ascertain the amount realized from the strippings, and from the insurance of the Scotland. The finding of facts in the court below, based on the report 9! the commissioner, on evidence and on admissions of the parties, states that the amount realized from the strippings was $4927.-85, received on or before the 27th of July, 1868; that the freight for the voyage was $13,703.20, but no part of it was earned or received; that the passage money was $1703.65, but was all absorbed in refunding part, and employing the residue in transferring and reshipping the passengers; that the value of the Scotland before the collision was £100,000; and that THE SCOTLAND. 509 Mr. Taft’s Argument for Appellant Rollins. the insurance effected on her and received by the respondent was £61,647, equal to $299,867.42. As conclusions of law, the court held that the proper .amount to be paid by the respondent, as depending upon the value of the articles saved, was $4927.85; and that the insurance received by the respondent formed no part of its interest in the steamship to be surrendered in limitation of its liability under the statute. A decree was thereupon made that the respondent pay into the registry of the court the sum of $4927.85 as the value of the strippings and remnants of the Scotland; and the sum of $2173.10, the costs of the libellants in the District Court, and the costs in the Circuit Court; and that upon such payment the respondent should be discharged from all liability to the libellants and intervenors. To the findings of fact and conclusions of law of the Circuit Court the libellants excepted on the following grounds, to wit: 1. That interest should have been allowed on the sum of $4927.85: 2. That all freight and passage money should have been added: 3. That the amount of insurance received should have been added: 4. That the libellants should have had a decree for their entire loss. On the argument it was also claimed that interest should have been allowed on the costs of the District Court ($2173.10). The case was first argued at October Term, 1884. On the 6th day of April, 1885, the court ordered a reargument, which was had at the present term by the same counsel who argued at the last term. Mr. E. AT. Taft for appellant Hollins, referring to the briefs in the other cases, cited The Rebecca, 1 Wall. 187; Norwich Co. v. Wright, 13 Wall. 104; Brown n. Wilkinson, 15 M. & W. 396; Wattson v. Marks, 2 Am. Law Reg. 167 ; Coggs n. Bernard, 2 Ld. Raym, 909, 917; Phil, and Read. Railroad Co. v. Derby, 14 How. 468; Railroad Co. v. Lockwood, 17 Wall. 357, 510 OCTOBER TERM, 1885. Mr. Carter’s Argument for Appellants. and cases there cited; Bank of Kentucky v. Adams Express Co. 93 U. S. 174; Ricev. Railroad Co. 1 Black 358; The North Star, 106 U. S. 17; Williams v. Fitzhugh, 37 N.Y. 444; Dyer v. National Steam Navigation Co. 14 Blatchford, 487; Andrews v. Durant, 18 N. Y, 483; Parrott v. Knickerbocker Ice Co. 46 N. Y. 361; Schwerin n. McKee, 51 N. Y. 180; Goddard v. Foster, 17 Wall. 123; McCallum v. Seward, 62 N. Y. 316; The Mary Eveline, 14 Blatchford 497; African Steamboat Co. v. Swanzy, 1 K. & J. 326; Gen. Iron Screw Collier v. Schuemans, 29 L. J. Ch. 877; Nixon v. Roberts, 30 L. J. Ch. 844; Straker v. Hartland, 34 L. J. Ch. 122; Smith v. Kirby, L. R. 1 Q. B. D. 131; The Sisters, 2 Aspinall’s Maritime cases, N. S. 588; The Northumbria, L. R. 3 Ad. & Eccl. 6; Thomessen v. Whitwell, 21 Blatchford 45, 62; Columbian Ins. Co. v. Ashby, 13 Pet. 331; Prov. N. Y. Steamship Co. n. Hill Mfg. Co. 109 U. S. 578; The Rajah, L. R. 3 Ad. & Eccl. 539; Lieber’s Hermeneutics, 3d ed. 136; Prussian Code. Introduction, p. 54, quoted in Lieber’s Hermeneutics, page 120; Insurance Co. v. Durham, 11 Wall. 1; The Dolphin, 1 Flippin, 580; Emerigon Contrats, ch. 3, § 9. Mr. James C. Carter for appellants. The question, shortly stated, is: What is included under the words “ amount or value of 'the interest of such owner in such vessel and her freight then pending,” contained in § 4283 of the Revised Statutes ? In the determination of this question much depends upon the principles of interpretation which are to be applied in ascertaining the real intent of the legislature. If this question be viewed in the light only in which the sufficiency of a declaration, or the terms of a written conveyance inter partes are considered, the conclusion might easily be reached that, as an assignment or transfer of the subject of insurance does not ordinarily carry the insurance with it as an incident, the two things are independent and distinct; and, consequently, that insurance cannot in this statute be embraced under the terms “ amount or value of the interest of such owner in such vessel.” If, upon the other hand, we view the enactment in question THE SCOTLAND. 511 Mr. Carter’s Argument for Appellants. as one effecting changes in the law governing the responsibility of public carriers—a most important branch of the public policy of States—reasons very speedily appear which lead to the conclusion that Congress must have designed that the ordinary insurance by a shipowner against a sea peril should be regarded as incidental to, and, therefore, a part of the subject insured. The interpretation of the statute cannot properly be removed from the control of those considerations of public policy from which it springs. It is first to be observed that the principal field of the operation of this act is the relations between carriers and shippers of goods. By general law a most rigorous liability is imposed upon public carriers for the safety of goods and passengers. This responsibility is so severe that, as to goods, they are declared to stand in the place of insurers ; and as to passengers, they are held to be bound to the exercise of the highest degree of diligence. These rigorous obligations are imposed, not because they are dictated by natural justice, but in accordance with the supposed necessities of a sound public policy. In the view of that policy, the requisite measure of diligence can be secured only by that ever present sense of its necessity which is produced by the imposition of this severe obligation. Railroad Co. v. Lockwood, 17 Wall. 357, 377, et seq. Again, ,the public carrier is subjected to this rigid liability, not only in respect to his own acts, but also in respect to the acts of his agents and servants ; and this rule has been adopted, not in obedience to any principle of natural justice, but as the dictate of a sound view of public policy. Railroad Co. v. Lockwood, above cited. There has been from time immemorial in many continental nations, and more recently by express statute in this country (the act in question), a relaxation of this severe obligation in respect to carriers by water; and such relaxation, like the rule itself, springs from the teachings of public policy, being an indulgence designed to encourage the building and employment of ships. Norwich Co. v. Wright, 13 Wall. 104, 121. Whether this statutory relaxation was applicable in the 512 OCTOBER TERM, 1885. Mr. Carter’s Argument for Appellants. Courts of the United States to controversies in which foreign vessels were parties was an open question until its decision by this court in this case, and such decision as to the intent of Congress was avowedly placed by this tribunal upon like considerations of public policy. The Scotland, 105 U. S. 24, 33. So, also, serious question has been made as to whether, in ascertaining the value of an owner’s interest, for the purpose of determining the extent of his liability, the value is to be taken before or after the casualty. Either construction of the statute is admissible; but, reasoning from grounds of public policy, and imputing to Congress the intent to act in accordance therewith, it has been determined that the value to be ascertained is the value of the interest after the happening of the casualty. Norwich Co. v. Wright, above cited. Applying the same methods to the determination of the question now brought before the court, there can be little doubt that the true construction of the language “ the amount or value of the interest of such owner,” should embrace any insurance upon such interest. Clearly there is nothing in this language which excludes such interpretation. In common understanding a policy of insurance is incidental to the subject insured, and it is entirely consistent with propriety of speech to say that there are two kinds of interest in ships: one, an insured interest; and the other, an uninsureds interest. In all ordinary dealings the insurance is treated as simply incidental to the subject insured. Whenever there is a sale of the subject, be it ship or cargo, the insurance is transferred with the subject to the purchaser. Such transfer may or may not require the performance of a separate act of assignment. In one class of cases, namely, those in which the insurance is for the benefit of whoever may be interested at the time of the loss, the insurance is, by its terms, incidental to the subject insured and passes with it; but in other cases, in which no such language is employed, the insurance, as a general rule, is, in fact, regarded none the less as incidental to the subject. The mere circumstance that an additional act is requisite, in order to effect a transfer of the interest in case of a sale, is quite im- THE SCOTLAND. 513 Mr. Carter’s Argument for Appellants. material. Phillips on Insurance, § 76; 2 Duer on Insurance, §35. There are two considerations which ought to be conclusive on the present position. (1) By the general law a public carrier cannot by special contract relieve himself from the obligation of exercising diligence, nor can he, it is assumed, directly protect himself by insurance against any loss or damage which he may sustain by reason of being obliged to pay damages to others for the consequences of his want of diligence. But, unless in cases like the present, the amount of an insurance upon the offending vessel is, in case of loss, to be made subject to the claims of those who have suffered damage from such offending vessel, the plain consequence is that the owner of the guilty ship is enabled by the mere fact of an insurance upon his interest to achieve two things: first, full indemnity to himself for the loss of his own property; second, complete exemption from liability for the consequences of his own culpable negligence. Can Congress be supposed to have intended the introduction of any such incongruity into the law governing the obligation of carriers ? (2) If the owner of the guilty vessel is entitled in case of the loss of such vessel by a peril subsequent to the casualty, and before the termination of the voyage, to take to himself the proceeds of an insurance on his interest, then this further striking incongruity is brought about. One ship, through culpable negligence, sinks another, and the owners of the former become liable to pay therefor $100,000. The offending ship remains intact and prosecutes her voyage. If such voyage is completed in safety, the ship must be yielded up to satisfy the demands of her victim. If she is lost, those demands are absolutely extinguished by that mere fact, and the proceeds of the insurance are gathered by the owners of the guilty vessel. What situation does the master of the guilty vessel occupy in such a case, after the casualty and before the loss ? By the sacrifice of his vessel he may earn $100,000 for his owners. If he performs his duty, it is only to the detriment of his owners and to the advantage of strangers. Did Congress design any such anomaly as this ? vol. cxvin—33 514 OCTOBER TERM, 1885. Mr. Putnam’s Brief for Appellants. The only obstacles in the way of the interpretation on which we insist arise from the circumstance that a policy, not issued for the benefit of whom it may concern at the time of the loss, is not assignable with the subject of insurance. But it is the opinion of the best authorities that whenever by any policy of insurance, it is the contemplation of the parties, however manifested, that the insurance should pass with a transfer of the subject, it will pass upon such transfer. Is it too much to say that whenever any insurance is effected, the result of which may be to call upon underwriters to indemnify the owner for the loss of a ship which has charged herself with a lien for damages to others occasioned by negligence, there will he imputed to the parties an intention that the proceeds of the policy should go to indemnify the sufferers, and not to those who inflicted the damage? See Phillips on Insurance,- §§ 89, 104. It is well established that where the owner of an insured interest sells it, assuming to stand as trustee of it for the benefit of the purchaser, he will hold a policy of insurance on the subject as such trustee. Why, in this case, do not the owners stand, under the law, as trustees for the benefit of those who have sustained the loss ? The doctrine we contend for is in harmony with every principle of equity, and preserves the integrity of those rules, heretofore deemed so essential to the maintenance of care and diligence on the part of public carriers. The contrary doctrine tends directly to diminish the force of the motives to diligence, and is inconsistent with the fundamental rules governing the liability of carriers. J/?. C. N. Ingersoll, counsel for appellants Wright and Others in The City of Norwich, ante 468, by leave of court filed a brief on behalf of appellants in this case, presenting substantially the views of the law argued by him in that case. Nr. Harrington Putnam and Hr. James K. Hill on behalf of Jens Thommessen & Another, appellants in The Great Western, post 520, by leave of court filed a brief in this case, in which they cited the following continental authorities : THE SCOTLAND. 515 Mr. Putnam’s Brief for Appellants. French Authorities : Laurin, note to 1 Cresp, Cours de Droit Maritime, Paris (1876-1878), page 182, citing Émerigon, Contrats à la grosse, ch. xii. § 7, t. II. p. 585 et seq.‘ 1 Valin, Com. sur Ford, de la Marine, 316 (art. 3, tit. XII.), citing a decision of the Parliament of Bordeaux, Sept. 7,1758 ; Émerigon, Contrats à la grosse (as above cited), Hall’s Translation, Baltimore, 1811, pp. 255, 256; Pardessus, Cours de Droit Commercial, 1st ed. n. 663 ; ib. 2d ed. part IV. tit. 11, ch. III. § 2 ; ib. part III., tit. l,ch. 1 ; Boulay-Paty, Cours de Droit Com. Mar. ; Labraque-Bordenave, Traité des Assurances en France et à l’Etranger, Paris, 1876 ; Gonse, Effets de F Abandon du Navire, 9-10 (Paris, 1872) ; De Courcy, Questions de Droit Maritimes, 2me série, 195 (Paris, 1879) ; le Comte de Portalis, in the Cour de Cassation, 1841 ; Camille Périer, le Comte Portalis, le Comte Marburg, and Persil in debate in the Chambre des Pairs in 1841, Moniteur, April, 1841 ; 8 Revue Étrangère et Française de Liq. 540 ; Dufour, Droit Maritime, 372-398 ; Code Civil, Art. 2095 ; 1 Couder, Diet, du Droit Corn. 418 ; Boistel, Précis de Droit Corn. 885 (2d ed. Paris, 1878). German Authorities : Das Allgemeine Landrecht of Prussia ; Behrend,in Holtzendorff, 1 Encycl. der Rechtswissenschaft, 336 et seq.‘ Kaltenborn, 1 Grundsätze des praktischen Europäischen Seerechts 31 (Berlin, 1851) ; Pöhls, 3 Darstellung des gemeinen Deutschen und des Hamburgischen Handelsrechts, 234; Weiske, 9 Rechtslexikon 744 ; Wendt on Maritime Legislation, London, p. xxvii ; Makower, Das Allgemeine Deutsche Handelsgesetzbuch, XVII. ; Protokolle der Kommission zur Berathung eines allgemeinen Deutschen Handelsgesetzbuches von J. Lutz, Beilagenband, p. 345 ; Commission to amend the Maritime Laws of Germany, 4 Protokolle, 1606 ; 8 Protokolle 4169, 4171. These authorities (they contended) lead to the following conclusions : 1. The equity to insurance was deduced by the French courts from a statute prescribing an abandon only of ship and freight. 2. It has been maintained by Valin and Pardessus and was 516 OCTOBER TERM, 1885. Mr. Putnam’s Brief for Appellants. earnestly advocated by the highest French judicial authority, viz., the Cour de Cassation. 3. The equity to insurance was denied by the Chamber of Peers in 1841, in opposition to the wish of the highest court, on grounds that were professedly temporary and local. 4. Although French jurisprudence on this point may be unsettled, evidencing a transitional stage in its development, the latest expression of the legislative will is in the direction of restoring the insurance equities to all creditors who have a specific lien on the vessel. 5. That the express enforcement of this equity by Prussian legislation for over fifty years was completely satisfactory to both shipowner and creditor ; and that the first attempt of Prussian jurists to change the law in imitation of the supposed policy of France, was met with unanimous remonstrance from the shipping interest represented at the Berlin conference. 6. That the ultimate reversal of the law was against the protest of Prussia, and was accomplished by votes of nations, many of whom had much less at stake in maritime affairs, and at a period when the example of supposed French legislation was much more influential than now. 7. That a principle authoritatively announced by Valin, supported by Pardessus, practically enforced by the French courts, urgently advocated by the Supreme judicial authority of France, administered successfully for over half a century in the great Prussian ports of the Baltic, and sanctioned by the chief legal authority of Berlin, is in fact a veritable equity in maritime law, and worthy the adoption of this tribunal. On The Nature of Insurance, J/r. Putnam and PLr. Hill, further cited : French Code Civil, § 1964 ; Holtzendorff’s Rechtslexikon, 1080 ; 1 Dufour Droit Maritime, 373 ; Hallager Den Norske Soret, 114 (Christiania, 1873); Êmerigon Traité des Assurances et des Contrats à la grosse, t. 2, 221 (Marseilles, 1783); French Law of May 28, 1858; Statute Geo. III. ch. 78; French Code du Commerce, § 191, subd. 10 ; Belgium, Art. 23, Law of June 11, 1874; Italy Com. Code, 1883, Art. 677, subd. 8 ; Spain, Com. Code, § 598 ; Portugal, Com. Code, §§ 1300, 1307 ; 9 Weiske Rechtslexikon, 741 ; The Dolphin, 1 THE SCOTLAND. 517 Mr. Halsey’s Brief for Appellee. Flippin, 580 ; The Illinois, 2 Flippin, 383 ; Persil, Traité des Assurances, 118; 2 Lewis, Das Deutsche Seerecht, 189; 3 Cresp-Laurin, Cours dê Droit Marit. 446 ; 1 de Couder, Diet, de Droit. Com. 418 ; Cour de Cassation, 12 Aug. 1872, 1 Sisey, 1872, 323 ; The Potomac, 105 U. S. 630 ; Wood v. Lincoln Ins. Co., 6 Mass. 479 ; Commonwealth Ins. Co. v. Chase, 20 Pick. 142 ; Reynolds v. Ocean Ins. Co. 22 Pick. 191 ; and they deduced from an examination of these authorities the following principles : That insurance moneys are a representative of some subject of property. To say otherwise would be a return to the wager theory. To say they represent the physical object insured may be open to objection. To affirm, however, that the proceeds of the insurance represent merely the premium is unsound and untrue—unsound, because it falls back on the discarded wager doctrine, and untrue, because in reality payment of premium alone, without right or title, gives no claim to the insurance moneys. Unless the insurance contract is a mere wager, its proceeds must represent the subject matter to be indemnified. But this subject matter is not the physical object destroyed. It is the proprietary ownership, the right or title of the insured, that insurance makes good and represents. In a word the insurance money restores, represents, and replaces the insured’s interest in the object sustaining the injury. It is to be noted that the language of the act of 1851 is exceedingly broad. It does not call for the abandonment or disclaimer of ownership of the French law. It requires a transfer of interest, the exact word of Pardessus, importing a complete cession, leaving no rights in the original owner. This word “ interest ” was a law term as early as the 12th century. Littré, “Intérêt Grimm; “ Inter esseSkeat, “Interest! To transfer one’s interest in a thing is to confer upon the assignee every right or incident of a right in it. Hr. Jeremiah Halsey and Hr. J. W. C. Leveridge, counsel for the owners of the City of Norwich, by leave of court filed a brief on the question of the limitation of the liability of shipowners under the statutes of the United States and under the 518 OCTOBER TERM, 1885. Opinion of the Court. general maritime law, which substantially presented Mr. Halsey’s views in the City of Norwich, ante 468. ♦ JZr. John Chetwood for appellee cited The Santa Maria, 10 Wheat. 431; Sibbald v. United States, 12 Pet. 488, 492; Washington Bridge Co. v. Stewart, 3 How. 413, 424; Burrill’s Law Diet., Bouvier’s Law Diet., Brown’s Law Diet., word Interest j City of Norwich, 3 Ben. 575; Thommessen v. Whitwill, 21 Blatchford, 45; Denn v. Reid, 10 Pet. 524; Pacific Ins. Co. v. Catlett, 4 Wend. 75 ; Yates n. Whyte, 4 Bing. N. C. 272; Lynch v. Dalzell, 3 Bro. P. C. 431; Sadlers Co. v. Bad-cock, 2 Atk. 554; Carpenter v. Providence Washington Ins. Co. 16 Pet. 495; Columbian Ins. Co. v. Lawrence, 10 Pet. 507; Valin; Pardessus; The North Star, 106 U. 8. 17; Wattson v. Marks, 2 Am. Law Reg. 157; The Peshtigo, 2 Flippin, 466; The Benefactor, 103 U. S. 245; The Scotland, 105 U. S. 24; Ex parte Slayton, 105 U. S. 450; Prov. c& N. Y. Steamship Co. v. Hill Mfg. Co., 109 H. S. 578; Howland v. Lavinia, Pet. Adm. 123; Griggs v. Austin, 3 Pick. 20; Mulloy v. Backer, 5 East, 316; Moffat v. East Tndia Co., 10 East, 468; Watson v. Duykinck, 3 Johns. 335; Lewis v. Marshall, 7 Man. & Gr. 729; Gillam v. Simpkin, 4 Campbell, 241. And on the question of interest, Ilemmenway n. Fisher, 20 How. 255, 260; Redfield n. Lron Co., 110 U. S. 174; Boyce v. Grundy, 9 Pet. 275. Mr. Justice Bradley, after stating the case as reported above, delivered the opinion of the court. These points are all disposed of in the previous case of The City of Norwich, except the question of interest.. Were the libellants entitled to interest on the amount received from the strippings ? In answering this question it must be borne in mind that this is not a question of debt, but of damages. The limitation of those damages to the value of the ship does not make them cease to be damages. The allowance of interest on damages is not an absolute right. Whether it ought or ought not to be allowed depends upon the circumstances of each case, and rests very much in the THE SCOTLAND. 519 Opinion of the Court. discretion of the tribunal which has to pass upon the subject, whether it be a court or a jury. The record now laid before us contains no part of the pleadings or proceedings in the cause prior to the first decree of the Circuit Court. We are without any means of knowing the circumstances in the pleadings or the evidence upon which the court was called upon to act, except the bare facts stated in the finding of facts before referred to. The right to a limitation of liability seems to have been denied to the respondent from the beginning. If it offered to pay the value of the strippings into court in its discharge from liability, or desired to do so, it is evident that the court would not allow it to do so, and that the libellants resisted it with all their power. The respondent was obliged to wait till the decision of this court in March, 1882, before getting a declaration of its rights in the matter; and the first move afterwards made was the attempt of the libellants to change the whole form of the controversy by setting up the new claim to the insurance money received by the respondent. Without stopping to decide whether this amendment of the proceedings was lawfully allowed after the decision of this court, it is sufficient to say that the Circuit Court, so far as we have anything before us to show to the contrary, may have had very good reasons for not allowing interest on the value of the strippings. We are not disposed to disturb its decree in this respect. The question relating to interest on the costs requires but brief examination. Costs in admiralty, as well as in equity, are in the discretion of the court. Benedict’s Adm. § 549. Appeals in matter of costs only are not usually entertained; but when the entire case is before the appellate court, it has control of the subject of costs, as well as of the merits. Trustees v. Greenough, 105 U. S. 527; 2. Conk. Adm. Pr. 373. In the present case, the Circuit Court by its original decree, made in 1878, adjudged to the libellants their costs in the District Court, amounting to $2173.10. In March, 1882, we affirmed this part of the decree, but without interest. In affirming a decree in admiralty in this court, if interest is not expressly allowed, it is not included. Ilenimenway v. Fisher^ 20 How. 520 OCTOBER TERM, 1885. Syllabus. 255. No interest on these costs, therefore, can be claimed up to the date of our decree. The new departure then taken by the libellants in claiming the insurance, opened the matter so as to postpone a final decree in the case in the Circuit Court until the decree now appealed from was made. This decree adjudges to the libellants their costs in the District Court precisely in accordance with our mandate. All delay in entering the decree was caused by the libellants themselves. If any interest was allowable on the costs in question, it would only have been that accruing from the date of our decree, March 20, 1882, to the time of rendering the decree appealed from, September 22,1884. In view of the circumstances of the litigation which took place in that period, we do not think that the decree of the Circuit Court is open to objection. Decree affirmed. Mr. Justice Matthews, with whom concurred Mr. Justice Miller, Mr. Justice Harlan, and Mr. Justice Gray dissented. Their dissenting opinion will be found at page 526 post, after the opinion of the court in The Great Western. THE GREAT WESTERN. THOMMESSEN & Another v. WHITWILL. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK. Argued October 19, 20,1885.—Decided May 10,1886. The decision in The City of Norwich, ante 468, in relation to the time when the value of the owner’s interest in the ship is to be taken for fixing the amount of his liability, applied to a case where the offending ship did not sink in consequence of the collision, but was afterwards sunk and wrecked in the same voyage by the negligent navigation of those in charge of her ; this sinking being held to be the termination of the voyage. THE GREAT WESTERN. 521 Argument for Appellee. The decision in the same case as to insurance repeated. Limited liability may be claimed, 1st, merely by way of defence to an action ; or, 2d, by surrendering the ship or paying her value into court. The latter method is only necessary when the shipowner desires to bring all the creditors claiming damage into concourse for distribution. The case is stated in the opinion of the court. J/r. C. Van Santvoord, Mr. Harrington Putnam, Mr. Henry T. Wing and Mr. James K. Hill for appellants, cited, in ad-to the authorities cited in the brief filed by Mr. Putnam and Mr. Hill in The Scotland, ante, 514 the following : 1 Parson’s Adm. and Mar. Law, ed. 1869, 525 ; The Scioto, 2 Ware, 359; The Woodrop Simms, 2 Dodson, 83 ; Reeves n. Ship Constitution, Gilpin, 579 ; Wilson v. Dickson, 2 B. & Aid. 2 ; Cannon v. Medburn, 1 Bing. 465 ; The Benares, 1 Notes of Cases, 538 ; The Benefactor, 103 IT. S. 239 ; Norwich Co. n. Wright, 13 Wall. 104; United States v. Claflin, 97 U. S. 546; Butler v. Russell, 3 Cliff. 251 ; Heckman v. Pinkney, 81 N. Y. 211 ; People v. Gold Stock & Tel. Co. 98 N. Y. 76. Mr. James Thomson (Mr. E. C. Henderson was with him on the brief) for appellee, cited The Scotland, 105 IT. S. 24; The Phebe, 1 Ware, 265 ; Norwich Co. v. Wright, 13 Wall. 104; The Rebecca, *1 Ware, 187 ; TTWfem v. Marks, 2 Am. Law Reg. 157 ; Petition Norwich & N. Y. Trans. Co., 17 Blatchford, 221 ; S. C. S Ben. 312 ; Walker v. Boston Ins. Co., 14 Gray, 288 ; Lynch v. Dalzell, 4 Bro. P. C. 431 ; Sadlers Co. v. Badcock, 2 Atk. 544 ; Pothier, Traité d’Assurance, C. 1, §§ 1,2, pl. 10, 11. Dolby v. India de London Life Assn. Co. 15 C. B. 365; Columbian Lns. Co. v. Lawrence, 10 Pet. 512; Carpenter v. Prov. Wash. Ins. Co. 16 Pet. 496 ; Prov. cê N. Y. Steamship Co., v. Hill Mfg. Co., 109 IT. S. 578 ; The C. H Foster, 1 Fed. Rep. 733 ; In re Long Islamd & Trams. Co., 5 Fed. Rep., 599; The Benefactor, 103 IT. S. 239 ; Exporte Slayton, 105 IT. S. 450. On the question of the origin and construction of the statute of 1851, Mr. Thomson urged the following further considerations : English legislation on this subject prior to the act of 1851, was embraced in the three statutes, 7 Geo. II. ch. 15, 26 Geo. 522 OCTOBER TERM, 1885. Argument for Appellee. III. ch. 86, and 53 Geo. III. ch. 159; and its history has been related in Norwich Co. v. Wright, 13 Wall. 104, in Walker v. Ins. Co., 14 Gray, 288, and by Mr. Lathrop, in his article in 1 Am. Law Rev., 598. The limit of liability prescribed by all these acts, whether in the case of a part owner or of an owner of the whole ship, is the same, the value of the vessel and freight. The phrase, interest of the owner in vessel and freight, does not appear, because it would have no application. The act of 1851 was principally drawn from the Act 26 Geo. II., ch. 86, and from either the Revised Statutes of Maine, Revision 1840, ch. 47, § 8, et seq., or the Revised Statutes of M^sachu-setts, Revision 1836, ch. 32, § 1, et seq.; probably the former, since there are verbal agreements which point to this conclusion, and Mr. Hamlin, of Maine, took charge of the bill in the Senate. Section 8 of chapter 40 of the Revised Statutes of Maine, which was apparently the source of the third section of the act of 1851, is as follows : “ § 8. No shipowner shall be answerable beyond the amount of his interest in the ship and freight for any embezzlement, loss or destruction by the master or mariners, of any goods or merchandise, or any property put on board of such ship or vessel, or for any act, matter or thing, damage or forfeiture done, occasioned or incurred by said master or mariners, without the privity or knowledge of such owners.” This is substantially the provision of the Revised Statutes of Massachusetts, Revision 1836, ch. 32, § 1, and the phrase, “ interest in the ship and freight,” in both revisions, is taken from the act of Massachusetts, Laws 1819, ch. 122, which constituted the earliest legislation in the United States on this subject, and was almost literally copied in the Maine statute, Laws 1821, ch. 14, the phrase, of course, on well settled principles, retaining in the revisions the meaning which it had in the statutes revised. Bishop on Written Laws, §§ 98,144; United States N. Bowen, 100 U. S. 568, p. 573. The material provisions of the Massachusetts act were as follows: THE GREAT WESTERN. 523 Opinion of the Court. “ § 1. Be it enacted, &c., that from and after the passing of this act, no person or persons who is, are or shall be owner or . owners in part or in whole of any ship or vessel, shall be subject to answer for, or make good to any one or more person or persons any loss or damage by reason of any embezzlement, secreting or making away with, by the master or mariners, or any of them, of any goods, wares or merchandise, or any property whatsoever, which shall be shipped, taken or put on board any sliip or vessel, or for any matter or thing, damage, or forfeiture, done, occasioned or incurred by the said master or mariners or any of them, without the privity or knowledge of su$h owner or owners, further than the value of the interest which such owner or owners have or had at the time of such shipment in the ship or vessel, with all the appurtenances and the full, amount of his interest in the freight due or to grow due for and during the voyage, wherein such embezzlement, secreting or making away with, as aforesaid, or other malversation of the master or mariners shall be made.” . That these statutes were based on the 26 Geo. III. ch. 86, is apparent from the narrow scope of the protection afforded; but even a cursory examination shows that the American statutes introduce a different limit of liability in the case of a part owner, and that the construction and object of this phrase in these acts is beyond doubt. They restrict the gross liability of the owners to the value of the vessel and freight, and the liability of any part owner to the value of his share in the vessel and freight, adopting in this respect no new principle, but the well settled rule, amongst others, of the Consolato del Mare, ch. 141, 182 ; Holland, Ordinance of Rotterdam, Arts. 126,127,167, 2 Magens, 101, 102; and Hamburg ; 1 Valin, 569. Mr. Justice Bradley delivered the opinion of the court. This case grew out of a collision which occurred on the 25th of March, 1876, on the high seas, 150 miles from Sandy Hook, between the Norwegian bark Daphne, belonging to the appellants and bound to Marseilles, and the British steamship Great Western, belonging to the respondent and 524 OCTOBER TERM, 1885. Opinion of the Court. others and bound to New York. The Daphne was injured about $7000 worth, and the court below found that the Great Western was in fault,, and was worth $150,000, both before and immediately after the collision; but that after the collision, and on the same day, the steamer, while still on her voyage to New York, was stranded and wrecked on the south coast of Long Island by the careless navigation and fault of those in charge of her, and from no cause connected with the collision. No freight was received by her owners. On the 29th of March they abandoned her to the underwriters, and received from them insurance to the amount of £34,000 as for a total loss. After this the wreck and materials «saved were sold for account of the underwriters and by direction of the owners, and realized $1796.14. On the 27th of March, 1876, the libel was filed in this case on account of the owners of the Daphne, and Whitwill, the respondent, appeared and answered, denying that the Great Western was in fault, and claiming that if she should be found in fault, the owner’s liability was limited to the amount or value of his. interest in the vessel and her freight; and that this interest was of no value whatever, and to this he added by leave of the court during the trial, the following words: “ And he hereby surrenders the same to the libellants.’ ’ He also during the trial tendered an assignment of his interest to the libellants, and offered to give another assignment to a trustee for the benefit of the libellants under section 4285 of the Revised Statutes of the United States. The court below held that the owners of the Great Western were only liable for the proceeds of the wreck, amounting to $1796.14, and gave a decree for that amount and interest, and for the costs of the libellants in the District Court. The errors assigned for the reversal of this decree are substantially as follows, to wit: First. That the limitation of the respondent’s liability to the value of the ship and freight in the condition in which they were after the stranding and wreck is contrary to the rule contained in section 4283 of the Revised Statutes. Secondly. Because the insurance received by the owners was not included in the value of their interest in the THE GREAT WESTERN. 525 Opinion of the Court. ship, liable to be surrendered in order to obtain a limitation of liability, and was not taken into account in fixing the measure of such liability. Thirdly. Because the court allowed the respondent to amend his answer by adding the words “ and he hereby surrenders the same to the libellants; ” and permitted him to give in evidence his written surrender of his interest in the steamer to the libellants ; and his offer to make a like surrender to a trustee for the benefit of the defendants. Fourthly. Because, without proof that the laws of Sweden and Great Britain are the same on the subject, the only law applicable to the case was the law of the forum, of which the general admiralty law forms no part. The points raised in the first and second assignments have been already discussed and decided in the case of The City of Norwich, ante, 468. There is nothing peculiar in the present case, unless it be that the Great Western was not sunk or wrecked by means of the collision, but afterwards, by the carelessness of her master or crew. This can make no difference. We showed in the opinion referred to that the termination of the voyage is the point of time at which the value of the offending vessel is to be taken. The voyage in the present case was not terminated until the vessel was sunk and stranded on the Long Island coast. The carelessness of the master and crew cannot vary the result. It is against their faults and negligence that the law was intended to protect the shipowner, provided the loss and damage sustained were caused without his privity or knowledge. The third assignment of error cannot be maintained, because the evidence referred to therein, which the court allowed to be given on the trial, could not affect the result; nor was the amendment of the answer material. The answer, as originally framed, set up the defence that the liability of the respondent was limited to the amount or value of his interest in the Great Western and her freight upon the voyage, and averred that that interest was of no value. • The issue being thus raised, the respondent was entitled to have the decree against him in that cause limited to the amount which should be shown, by the proofs on the trial, to be the value of said steamer and 526 OCTOBER TERM, 1885. Dissenting Opinion: Miller, Harlan, Matthews, Gray, JJ. freight at the termination of the voyage. He did not need to make any surrender or attempt at a surrender. A surrender of the vessel, or payment of her proceeds, or value, into court would have been necessary in order to bring other creditors into concourse with the libellants; but for the mere defence of that cause it was not necessary. This disposes of the supposed difficulty in making an abandonment to the libellants after a surrender or abandonment to the insurers; a difficulty which we have already shown to be groundless in the opinion referred to. The fourth assignment of error is not well taken, because the case was altogether decided according to the maritime law of this country, which is the law of the forum. The decree of the Circuit Court is Affirmed. Mr. Justice Matthews, with whom concurred Mr. Justice Miller, Mr. Justice Harlan, and Mr. Justice Gray dissenting.* Mr. Justice Miller, Mr. Justice Harlan, Mr. Justice Gray, and myself are unable to concur in the opinion and judgment of the court in the three cases just disposed of. The importance of the question decided justifies a statement of the grounds of this dissent. The principal question, stated generally, involved in all the cases, is, whether under §§ 4282 to 4285, inclusive, of the Revised Statutes, being re-enactments of §§ 1, 3 and 4 of the act of March 3, 1851, limiting the liability of shipowners, so that for the losses specified it shall not in any case exceed the amount or value of the interest of such owner in such vessel and her freight then pending, that value shall be estimated as including or excluding any sum received or receivable by the shipowner on account of insurance upon his interest in the vessel or freight. Although that is the main question in all the cases now decided, the circumstances which give rise to it in them, respect- * This dissent is also entitled in the case of The City of Norwich, ante, 468, and in the case of The Scotland, ante 507. THE GREAT WESTERN. 527 Dissenting Opinion : Miller, Harlan, Matthews, Gray, JJ. ively, differ in some important particulars, a consideration of which will throw light upon the principle according to which it is to be determined. The case of The Scotland (Dyer v. The National Steam Navigation Co.) was a libel in personam, in a cause of collision, for the loss of the ship Kate Dyer, run down on the high seas by the fault of the steamship Scotland, of which the respondents were owners. A former appeal in the same case decided by this court is found reported under the name of The Scotland, 105 U. S. 24. The Kate Dyer was sunk immediately, and the steamship Scotland sunk soon after, from the effects of the collision, and was a total loss, a portion of the wreck being saved. It was held on the former hearing that the respondents were entitled to the benefits of the statute limiting their liability. The decree for the several libellants amounts in the aggregate to $255,047.70. It is also found that the Scotland at the time of the collision was worth £100,000, was insured to the amount of £63,500, and that within nine months after the collision the respondents had received the amount thereof, equal to $299,867.42 ; but that the value of the articles saved from the wreck is the sum of $4927.85, which the decree ascertains to be the amount for which alone the respondents are liable. The case of The Great Western {Thommessen v. WhitwilT) was a cause of collision in which the loss of the bark Daphne was found to be from the fault of the steamship Great Western, of which the respondents were owners, the libel being against them in personam. The libellants were domiciled subjects of the Kingdom of Norway and Sweden, and the respondents of Great Britain. The libellants were found to have sustained damages from the injuries to the bark by the collision in the sum of $7023.44, and the value of the steamship, both before and after the collision, until her subsequent stranding, was from $140,000 to $150,000. After the collision, while on the same voyage to New York, the steamship was stranded and wrecked from a cause in no way growing out of or connected with the collision, by the careless navigation and fault of the persons in charge of her. Immediately thereafter, the owners of the steamship made an abandonment of her to various un- 528 OCTOBER TERM, 1885. Dissenting Opinion : Miller, Harlan, Matthews, Gray, JJ. derwriters who had insured her to the amount of £34,000, which was paid by them to the owners as a total loss. There were saved from the wreck materials which on sale realized to the owners $1796.14. The decree limited the liability of the respondents to this amount. The remaining case of The City of Norwich (Place <& Others, libellants, claimants of the schooner General S. Van Vliet and of the cargo, against The Norwich & New York Transportation Company) presents other features. The collision in this case was caused by the negligence of the steamboat City of Norwich, owned by the appellees. Immediately after the collision the steamboat took fire, her deck and upper works were burnt off, and she sank in about twenty fathoms of water. Her cargo of merchandise was thereby totally lost. The steamboat itself was raised by salvors and taken to the port of New York, where she was repaired. On May 9,1866, less than a month after the disaster, William A. Wright and others, owners of the schooner, filed in the District Court for Connecticut a libel in personam against the appellees, as owners of the steamboat, and obtained a decree for the loss of the schooner and her cargo for $26,657.28, which on appeal to this court was affirmed, and will be found reported in 13 Wall. 104. On August 23, 1866, while that suit was pending in Connecticut, and after the steamboat had been raised, repaired, and brought into the port of New York, two of the appellants, George and Charles Place, as owners of part of the cargo on the steamboat, filed their libel in rem against her in the District Court of the Eastern District of New York. Other libels in rem by other owners of cargo were also filed. The steamboat was seized under process in these suits, and the appellees intervened as claimants, an appraisement was ordered, and a stipulation for the appraised value in the sum of $70,000 having been given, the steamboat was released to them. This appraisement was of the value of the vessel, in her condition at the time, after the repairs had been made. Decrees were entered in favor of the libellants in all these cases. In July, 1872, after the final decision by this court in the case of Norwich and New York Transportation Co. v. Wright, 13 Wall. 104, on appeal from the Circuit Court for the District of THE GREAT WESTERN. 529 Dissenting Opinion : Miller, Harlan, Matthews, Gray, JJ. Connecticut, and after the decrees in the District Court for the Eastern District of New York in the proceedings in rem, the owners of the steamboat, the present appellees, filed their petition in the last named court, praying for the benefit of the act limiting their liability. Such proceedings were thereupon had that an appraisement was made of the value of the steamboat in the condition and situation in which she was, after the collision and before she was raised, and it was found to be $2500, being the difference between $25,000, her value when raised, and $22,-500, the amount expended in raising her. A decree was finally entered in the Circuit Court on appeal, limiting the liability of the appellees to this amount, and it was distributed among the libellants, after refunding to the appellees $1008.41, part thereof, for their costs in the ligitation. The decree thereupon also perpetually enjoined all the libellants who had obtained decrees in their favor in the suits in rem in the Eastern District of New York from the enforcement of those decrees, and thus deprived them of their right to recover against the stipulators, who had filed a stipulation in the sum of $70,000 to answer the decrees in those causes. So that in these cases the owners are exonerated from all personal liability in excess of the sum of $2500, but have received back their vessel free and discharged from all liens established by the decrees against her in rem in the Eastern District of New York. It is also found as a fact, that when the collision occurred the steamboat was insured against fire but not against marine disaster, and of the insurance money the appellees have recovered and received from the underwriters the sum of $49,283.07. It thus appears that in one case the owners of a vessel, whose fault caused a loss to others of more than $250,000, escape all liability over $5000, having received more insurance than necessary to pay the whole amount of the loss; in another, the owners are repaid the whole value of the vessel in insurance, and are exonerated from a decree against them of over $7000 on payment of less than $2000; and in the other, the owners keep their vessel discharged from all liens, and receive nearly $50,000 of insurance with which to repair and restore her, and relieve themselves of all liability on account of losses, decreed vol. cxvm—34 530 OCTOBER TERM, 1885. Dissenting Opinion : Miller, Harlan, Matthews, Gray, JJ. against them, to the amount of over $26,000, on payment of less than $2000. The question is, whether these results can be justified by a reasonable interpretation of the law limiting the liability of shipowners. The question is now for the first time decided by this court. None of its previous decisions have expressly or by implication involved it. It is true, however, that in the opinion of the court in Norwich Company v. Wright, 13 Wall. 104, 117, in stating the rule of the maritime law of the States of Continental Europe, limiting the liability of shipowners to their interest in their ship and its freight, the passage from Pardessus is quoted, Droit Commercial, part 3, tit. 2, ch. 3, § 2, as follows: “ The owner is bound civilly for all delinquencies committed by the captain within the scope of his authority, but he may discharge himself therefrom by abandoning the ship and freight; and, if they are lost, it suffices for his discharge to surrender all claims in respect of the ship and its freight,” and it is added by the court, “ such as insurance,” &c. The court then further said : “ The same general doctrine is laid down by many other writers on maritime law. So that it is evident that by this law the owner’s liability was coextensive with his interest in the vessel and its freight, and ceased by his abandonment and surrender of these to the parties sustaining loss.” But the question of including insurance in the estimate of the value of the owner’s interest in the ship and freight, and whether it followed the surrender of the latter to the parties sustaining loss, was not directly involved, and the expression of an opinion to that effect must be taken to be casual and obiter dictum merely. Inasmuch, however, as the act of Congress of 1851, which is the law of the case, may be supposed to have adopted the rule of liability fixed by it, in view of what was believed to be the rule of the general maritime law of Continental Europe, the quotation from Pardessus, and the application of it to the instance of insurance, as an incident which is involved in the surrender of the ship or in the estimate of its value, is not without significance. It is some evidence, indeed, of the very view of the rule of the maritime law which may have been in the contemplation of Congress when it passed the act THE GREAT WESTERN. 531 Dissenting Opinion : Miller, Harlan, Matthews, Gray, JJ. of 1851,’ and proof to that extent of the meaning of that act. And this is rendered more reasonable from the fact that Baron Parke, in Brown v. Wilkinson, 15 M. & W. 396, seems to have taken the same view as to the foreign maritime law. In that case, he said it was contended by counsel that the effect of the statute 53 Geo. III. ch. 159, § 3, “was to give to British shipping all the protection which the navigation of some foreign States extended to theirs, and this protection goes to the extent of permitting the owners, at the end of the voyage, to give up the vessel in its then state by way of satisfaction to the parties injured, and, if it be lost, the owners are altogether exempt, on abandoning the benefit of insurance, if any, and salvage.” If, now, on a more critical and extended inquiry into the maritime law of the modern States of Continental Europe, it should appear that the opinion of Pardessus, as quoted in the case above cited, was not universally accepted, and that the codes and commentators of various of those states differ in their legislation and interpretation of the general maritime law on the subject, it would not necessarily follow that Congress, in passing the act of 1851, may not have intended to adopt the rule as stated by Pardessus and those who agreed with him, rather than that now insisted on as more generally prevailing. There was, in fact, a controversy among writers on commercial and maritime law, both in France and Germany, on the point. The opinion of Pardessus coincided with that of Valin, while Emerigon, who was followed by Boulay-Paty and others, maintained the opposite opinion. This controversy was settled for French law by an amendment to Art. 216 of the Code de Commerce, which expressly excluded insurance from the abandon of ship and freight, in exoneration of the shipowner from his liability, though the debate seems to be reopened as a consequence of additional legislation by Art. 17 of the law of December 10, 1874, which, in case of loss of the ship through becoming unnavigable or otherwise, allows subrogation in favor of hypothecation creditors. It also appears that the Prussian Code, adopted in 1794, and continued in force until 1862, provided expressly, that, “ when the ship has been insured, the right against the insurer must also be ceded to creditors; ” and, 532 OCTOBER TERM, 1885. Dissenting Opinion : Miller, Harlan, Matthews, Gray, J J. applying the principle to the particular case now under consideration, Kaltenborn, in a treatise on the subject, published at Berlin,in 1851, says: “The Roman law, which held the owner absolutely liable with all his property, is nowhere put in practice, and was not current as early as the Middle Ages. Indeed, the Consulate of the Sea, ch. 183, 224, 236, the law of Wisby, reasoning from Arts; 13 and 68, that of the Hanse Towns, reasoning from Art. 2, Title X, render the owners, as a rule, answerable only to the extent of the ship’s value; and the modern maritime laws free the owners, by the abandon of the ship and their several shares in the vessel, from all further liability for the ship enterprise, particularly for the acts and contracts of the captain. In the ship are included all gains arising during the voyage, as well as the insurance. Should the ship and the freight have perished, it is sufficient for exoneration of the owners if all claims and causes of action having reference to the vessel and freight are abandoned by them.” This was the law of Prussia in 1851, when the Act of Congress of that year on the subject was passed, and continued to be so until March 1,1862, when the Prussian Code was superseded by that of the Germanic Confederation, which omitted any provision on the subject, overruling the proposals of the Prussian delegates to the contrary. This statement of the contemporary law of modern Continental Europe on the point is condensed from the very able and learned brief in these cases, prepared and submitted by Mr. Harrington Putnam, one of the counsel, who supports it by elaborate extracts and translations from foreign writers on the subject, whose citations have not in any way been questioned or impugned by opposing counsel, and have, therefore, been relied on as accurate. He states the further fact, that, besides Holland, two other countries, Belgium, by a law of June 19, 1855, and Finland, Maritime Code of 1874, Art. 17, have expressly enacted that the insurance shall not be comprised in the shipowner’s abandon to creditors. The inference is, that there was nothing in the maritime law of Continental Europe in 1851 which justifies the conclusion that Congress must have intended to exclude insurance from the surrender required of the THE GREAT WESTERN. 533 Dissenting Opinion: Miller, Harlan, Matthews, Gray, JJ. shipowner to limit his liability, but, on the contrary, the argument is strong, if not convincing, from the examples of European codes, that it would require express language to effect that exclusion, if such was the intention. But whatever bearing the foreign law may be thought to have upon the meaning of the statute, it is clear that the latter must be interpreted in the light of the antecedent domestic law which it modified and displaced. What that was is not a matter of dispute. The passage of the act of March 3, 1851, was no doubt due to the decision of this court in the case of The New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 343, where it was held that in admiralty, as at common law, the owners of a steamboat were liable in personam for the loss by fire of specie carried by their boat, notwithstanding a contract of exemption, the loss having occurred from want of ordinary care on the part of those engaged in the navigation of the vessel. Accordingly it was provided, in the first section of the act of March 3, 1851, that owners of vessels should not be liable for losses by fire of goods carried by them, unless such fire was caused by the design or neglect of the owner himself, with a proviso, now omitted from the corresponding § 4282 of the Revised Statutes, that the parties, nevertheless, might extend or limit the liability of shipowners by “ making such contract as they please.” A reference to the debates in Congress upon the bill during its progress will show that this was the only provision which excited any comment; and while allusion was made to English legislation on the subject of limiting the liability of shipowners, and to the statutes of Massachusetts and Maine on the same subject, there was no mention whatever made of any supposed rule of general maritime law prevailing on the subject in Continental Europe, and no explanation of the expected operation and effect of the provision fixing the limit of liability at the value of the interest of the owner in the ship and freight, and of the effect of a surrender of the vessel and freight in exonerating the shipowner from any recovery beyonckthat limit. In all cases of liability covered by the statute, there were 534 OCTOBER TERM, 1885. Dissenting Opinion: Miller, Harlan, Matthews, Gray, JJ. provided by the existing law of admiralty jurisdiction a remedy against the vessel itself in rem when it could be seized, and the alternative remedy in personam against the owners. There was no limit to their liability, but, as in other cases of personal liability, all property of the defendants was subject to process in payment of the judgment or decree. The procedure in rem has for its object the enforcement of a liability which by the maritime law is a lien upon the vessel, which is a jus in re, and is treated as a proprietary right, capable of being realized by judicial process. Ward v. Chamberlain, 2 Black, 430; Wandewater v. Mills, 19 How. 82; The Lottawanna, 21 Wall. 558. And in cases of torts, as well as in many cases of contract, where the general owner has intrusted a special owner or charterer with authority to bind the ship but not himself, the vessel is treated by the maritime law as an actor and juridical person, capable of committing wrongs, and is pursued as a delinquent without regard to ownership or agency. The China, 1 WAX. 53; Malek Adhel, 2 How. 210. And when the liability is not only a lien on the vessel, but a claim against the owner personally, if satisfaction is not secured by process in rem, the deficiency may be made good by proceedings in personam. The subject-matter of the act of March 3, 1851, was the personal liability of shipowners to answer for the losses specified, and its limitation. It does not deal with the liability of the vessel itself to answer in rem for such losses, as it had no occasion to do. For the sole purpose of the act was to limit the personal liability of owners, so that it should not exceed the value of the ship and freight. It left the vessel, therefore, to be proceeded against in rem precisely as before, leaving that procedure entirely untouched and unaffected. There is nothing whatever in the statute to forbid parties having suffered from its fault from prosecuting the offending vessel, as a res, to the full extent, as previously authorized by the maritime law, and with all the necessary consequences. On the contrary, the act proceeds throughout on the assumption of that right and liability. It only adds, that in cases where the owners are not personally guilty of the alleged wrong, on taking the steps pointed THE GREAT WESTERN. 535 Dissenting Opinion: Miller, Harlan, Matthews, Gray, JJ. out in the law, there shall be no recovery against them personally in excess of the value of their interest in the ship and freight. The act only operates as a limitation upon the personal liability of the owners, as distinguished from the liability of the offending vessel itself.. This seems to us very clear ; and yet, in the case of The City of Norwich, the libellants have been perpetually enjoined from prosecuting their decrees actually obtained against the steamboat* City of Norwich, because the owners have obtained under the statute a release from their personal liability on account of its wrong. It is not to the purpose to say that, in a proceeding against the vessel, its appraisement included the cost of raising and repairs put upon it by the owners, which ought not to have been included ; for that is a question which could only properly have been litigated in the case in which the decree complained of was rendered. Besides, it is difficult to see on what grounds an owner can rightfully complain, who has voluntarily raised his sunken vessel and repaired her, that those having maritime liens upon her seek to enforce them, or how he can claim, as against them, a prior or any lien on his own vessel for raising and repairing her. And we think it is quite plain that it was an error in the decree appealed from to deprive the libellants, who had obtained their decrees against the vessel, from prosecuting them to their legitimate results, when the whole force of the statute authorizing the proceeding is expended in a limitation of the recovery in suits against the owner in personam. It is not to be assumed, however, that, because the proceeding in rem remains unaffected by the act of 1851, the personal liability of owners in proceedings against them in personam is restricted to the. same extent as it would be if the proceeding in rem were declared to be the sole remedy. For that would be to declare, that, in all the cases within the purview of the act, when a proceeding in rem could be brought against ship or freight, or the proceeds of either, there should be no personal liability of the owner and no proceeding in personam against him. But the statute does not proceed upon the idea that, in such cases, the personal liability of the owner is 536 OCTOBER TERM, 1885. Dissenting Opinion: Miller, Harlan, Matthews, Gray, JJ. altogether superseded by the proceeding in rem, but only that it is restricted within certain expressed limits, on compliance with certain definite conditions. In all cases the owner must surrender the vessel and its pending freight, or their value; whereas, in many, such as suits for pilotage and for damage by collision, no process in rem against freight is given by the 14th and 15th Rules in Admiralty, such as is authorized by the 12th and 13th in. suits by material men and for mariners’ wages. So that the statute is not to be treated as if it confined the recovery of the party suffering loss strictly to what he might obtain by a proceeding in rem against the vessel alone. It, therefore, does not conclude the inquiry to say, that, in a proceeding in rem against the vessel, the libellant had no lien which he could follow on any policies of insurance taken out by the owners, or the proceeds of any such when payable or paid. The question still recurs, what does the statute of Congress require the owner to give up or account for, as a condition of his release from personal liability for the loss and wrong suffered by the libellant ? For the same reason, it is irrelevant and immaterial to say that the policy of insurance, taken out by the owner on his interest in the ship or freight, is a contract of personal indemnity, collateral to his ownership, which does not pass by operation of law with a transfer of the title to the thing which is the subject of the insurance, and to the benefit of which those having liens on the thing are not entitled, in case of its loss, on the principle of subrogation. All that may be true ; but, if it is, it nevertheless remains to ascertain whether, recognizing the owner’s independent right to recover for his own use insurance accruing to him by the loss of its subject, the statute has not said that he shall not have the privilege of release and exoneration from his personal liability for injuries inflicted by his agents and representatives, except upon the condition, as a price for its purchase, that he shall voluntarily surrender, as the value of his interest in the vessel and freight, whatever they have procured for him of pecuniary advantage, including the insurance money recoverable for their loss. The language of the statute, Rev. Stat. § 4283, is, that “ the THE GREAT WESTERN. 537 Dissenting Opinion: Miller, Harlan, Matthews, Gray, J J. liability of the owner of any vessel,” &c., in the cases described, “ shall in no case exceed the amount or value of the interest of such owner in such vessel and her freight then pending.” By § 4285 it is enacted that “ it shall be deemed a sufficient compliance, on the part of such owner, with the requirements of this title . . . if he shall transfer his interest in such vessel and freight, for the benefit of such claimants, to a trustee,” . . . “ from and after which transfer all claims and proceedings against the owner shall cease.” It was decided in the case of The Scotland, 105 U. S. 24, that it is not necessary that shipowners should surrender and transfer the ship in order to entitle them to the benefit of the law. That is only one mode of relief. In the alternative, they may retain their interest in the ship, abiding a decree for the value of the ship and freight as ascertained by the court upon the proofs. But this double method of executing the purpose of the statute does not imply any difference in the estimated amount of the possible recovery. The limit of that, in every case, is the value of the owner’s interest in the ship and freight, and is the same, whether he makes an actual transfer, or whether he submits himself personally to the payment of the ascertained amount. The question, then, upon the statute is reduced to this: Whether the insurance money payable or paid to the owner in case of the loss of or damage to the ship is to be included in the estimate of the value of the owner’s interest in it. And that question turns, as we think, on another and a very simple one: Whether the value of the owner’s interest in his lost or damaged ship, in the sense of the statute, means its money value to him, computed with reference to every pecuniary advantage and benefit it brings to him, or whether it means the price brought by the material things which remain when put to sale to the best bidder, leaving him still in possession of all those legal rights springing out of and supported by his interest in it, which in case of insurance, or a right of action against the cause or instrument of its loss, may result in restoring to him in money its full original value. It is true, that the act declares that a transfer of the owner’s interest in the ship and 538 OCTOBER TERM, 1885. Dissenting Opinion: Miller, Harlan, Matthews, Gray, JJ. freight shall be a sufficient compliance with its conditions, and, by construing this with narrow and literal exactness, this transfer may be confined to the- mere wreck and physical remnant of the broken ship, or, if sunk to the bottom of the sea, the mere spes recuperandi. But this construction, we think, ha&ret in cortice. The whole language of the act must be taken together, and nothing less will satisfy its meaning or its policy than such a transfer or payment as will include the full money value to the owner of his interest in the ship, which the statute requires him to sacrifice in order to purchase the immunity which it bestows on that condition alone. For the policy of the act was to encourage investments in ships by limiting losses from the risks of navigation to the amount and value of the investment, and that includes the insurance recovered by force of a premium which, when paid, constitutes part of the investment, the insurance money itself being the produce of the investment, which restores it when lost or impaired. Insurance adds to the ship a value of its own, by imparting to the subject of insurance the quality of reproducing itself or its value in case of injury or loss. It was the policy of the act to encourage the shipping interest by a protection against the unlimited personal liability of shipowners for the acts and defaults of their agents and representatives, with reasonable regard to the rights and interests of others engaged in the same pursuit, and not to put a premium on its destruction by taking away from shipowners a principal motive for regarding either their own or the interests of others. And the language of the statute seems to us not only to bear such a meaning, but fairly to imply it. For certainly every pecuniary advantage or profit which the ownership of a thing actually secures by necessary operation of law may be estimated to ascertain the value of the thing to its owner. The insurance, which in case of damage or loss repairs and restores the vessel or stands in its place, and is its produce and earning, being the purchase money paid for it by virtue of the contract which assumes the risks insured against, is strictly an accessory of the ship insured, as much so as the freight which she earns, and the express mention of the latter, as part of the THE GREAT WESTERN. 539 Dissenting Opinion: Miller, Harlan, Matthews, Gray, JJ. interest to be transferred, is not to be held as excluding insurance because not expressly mentioned, for the reason that the mention of freight is sufficient to characterize the nature of the owner’s interest to be valued, as including not merely the material remnants of the broken or sunk vessel in specie, but as well that which it produces, and which is in truth her representative, and of which it is the meritorious cause and consideration. For the insurance is the price paid by the insurer to the insured as the purchase pro tanto of the thing insured when damaged or lost, and, in the hands of the owner or due to him, still remains as the value of an interest in the ship as that existed when damaged or lost, and ought to be accounted for as part of that value as much so as freight paid, though no longer freight money in kind, must still be valued and accounted for by the owner who has received it. The insurance money is the interest of the owner in the ship reduced to money, and, therefore, most accurately measures its value; for, in cases of total loss, actual or constructive, all interest of the owner, even though it be a mere spes recuperandi, on payment of the insurance money, passes by operation of law to the insurer. Yet that very interest, thus the property, on abandonment or payment of a total loss, the title to which passes to the insurer, is the same interest, the value of which, by the terms of the statute, must be decreed to the libellant to exonerate the owner from personal liability to any additional extent. An effort was made in argument by counsel to restrict the meaning of the words “ the interest of such owner,” as used in Rev. Stat. § 4283, so as merely to distinguish between the several liabilities of part owners; but there is no foundation for this. The words are used as well with reference to the interest of a single owner, as of part owners, where there are- more than one. It means, we are constrained to believe, and naturally suggests, not merely the naked title of the owner to the physical materials which constitute the ship, or its wreck, or its remnants, but every interest in, attached to, or growing out of it, capable of pecuniary valuation and measurement, so as to include every right of action accruing to its owner, by con- 540 OCTOBER TERM, 1885. Dissenting Opinion: Miller, Harlan, Matthews, Gray, JJ. tract or by operation of law, growing out of its ownership, or any damage or loss previously occasioned to it by others, embracing rights of actions against others for torts causing the injury, if any there be, and upon policies of insurance or other contracts of indemnity, taking effect in consequence of or notwithstanding the loss. Suppose, for instance, that, after the collision which gave to the libellants the lien and right to proceed against the offending vessel for the loss and damage, the latter had been effectually sold, while still pursuing her voyage, and the title transferred to a purchaser, would not the purchase money, either in the hands of the vendor when paid, or in those of the vendee until paid, notwithstanding the subsequent total loss of the ship itself during the same voyage before reaching her home port, be the measure of the value of the owner’s interest to the full amount of which the injured party might recover ? It seems to us there can be but one answer to that question, and that in the affirmative. It seems to us equally clear, that no distinction can be drawn between the case just supposed and that of insurance. For the policy of insurance in cases of total loss is analogous to a contract of sale, by which the ship, or what remains of her, or the hope of her recovery, become on the happening of the contingency the property of the insurer, and the insurance money' payable, the price, as upon a conveyance. In both cases, the interest of the owner is transferred from the thing to the money which represents it and stands in place of it, and the money is the measure of the value of the interest of the owner in the thing, for it is the price and equivalent paid for it. We cannot bring ourselves to think that Congress intended by limiting the personal liability of the shipowner, in cases where previously his whole fortune was responsible for the wrongs committed through his agents and representatives, to the value of his interest in the ship, which was the instrument of the injury, to permit the innocent party, suffering the damage to go entirely without redress, when the vessel in fault, by disaster subsequently happening during the whole period of the same voyage, has been totally lost, and the owner, by a contract in force when the wrong was done, re- THE GREAT WESTERN. 541 Dissenting Opinion: Miller, Harlan, Matthews, Gray, J J. ceives full compensation by way of insurance for the loss he has incurred, and has thus restored to him the offending vessel, not indeed in specie, but in value. It seems to us it is the meaning of the statute that the owner shall receive no pecuniary benefit from his interest in the vessel doing the wrong, which shall not inure to the compensation of him who has suffered the loss which it has caused. And that meaning Congress has taken pains to express by the use of the word “ interest,” as the subject which, or the value of which, the owner must surrender and transfer or account for, as the price of his immunity from personal liability, because it is appropriate to convey the idea, being large enough to embrace, not the mere legal title to the vessel or the wreck and remnant of her which may be saved from the perils of the voyage, but every claim and benefit which constitutes to the owner its substance and value, capable of measurement in money. IL CASES ADJUDGED AT OCTOBER TERM, 1886. CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1886. VICKSBURG AND MERIDIAN RAILROAD COMPANY v. PUTNAM. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA. Argued April 22,1886.—Decided October 22, 1886. In an action against a railroad corporation by a passenger, for a personal injury caused by a car being thrown off the track in consequence of a worn-out rail, the admission of evidence that the general condition of that portion of the road which included the place of the accident had long been bad, and that the rails had been in use a great many years, affords the defendant no ground of exception. The official reports of the superintendent of a railroad to the board of directors are competent evidence, as against the corporation, of the condition of the road. At a trial by jury in a court of the United States, the judge may express his opinion upon the facts ; the expression of such an opinion, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, cannot be reviewed by writ of error; and the powers of the courts of the United States in this respect are not controlled by State statutes forbidding judges to express any opinion upon the facts. In an action for a personal injury, the plaintiff is entitled to recover compensation, so far as it is susceptible of an estimate in money, for the loss and vol. cxvni—85 546 OCTOBER TERM, 1886. Statement of Facts. damage caused to him by the defendant’s negligence, including not only expenses incurred for medical attendance, and a reasonable sum for his pain and suffering, but also a fair recompense for the loss of what he would otherwise have earned in his trade or profession, and has been deprived of the capacity of earning, by the wrongful act of the defendant. In an action against a railroad corporation by a passenger, for personal injuries impairing his capacity to earn his livelihood, standard life and annuity tables are competent evidence for the consideration of the jury, but not absolute guides to control their decision. This was an action against a railroad corporation for personal injuries received on September 16, 1881, by a passenger (then forty nine years of age), from the car in which he was seated being thrown off the track, in consequence of a worn-out rail and rotten cross-ties, whereby his collar-bone, shoulder-blade, and. several ribs were broken, and his sight, hearing, ease of breathing, and capacity to do business impaired. At the trial it appeared that the accident happened between the stations of Edwards and Bolton, and that the heaviest traffic was over that part of the road. A witness, who had travelled over the road some twenty five times, was asked by the plaintiff the condition of the road between those places. The defendant objected to any evidence of the condition of the road generally, or at any place except at the place of the accident in question. But the court overruled the objection, and permitted the witness to answer that the condition of the road between those places was bad; and the defendant excepted. The plaintiff offered in evidence two printed reports made by the superintendent of the road to the board of directors, one in 1877, which stated that in the portion of the road where the heaviest traffic was done there were about thirty five miles of iron that had been run over for more than twenty five years, and required the closest attention to prevent accidents; and the other, made in 1880, stated that there were twenty five miles of track made of iron forty two years in service, and now almost entirely worn out. The defendant objected to the admission of these reports, because they were not sworn to under examination in court; because they had no reference to the place of the accident, but only to the general condition of VICKSBURG, &c., RAILROAD CO. v. PUTNAM. 547 Statement of Facts. the rails ; because they could not bind the defendant as admissions ; and because the information of the superintendent as to the condition of the road was derived in part frofti the reports of subordinates. But the court overruled the objections, and admitted the reports in evidence; and the defendant excepted. The plaintiff testified to the extent of his injuries, as alleged in the declaration, and that they had been improving and he was gradually getting relief, but that he never expected to get entirely well; and further testified as stated in the charge of the court, quoted below. The surgeon who attended him likewise testified to the extent of the injuries, and, among other things, as follows: “ The injuries in such cases are apt to be permanent; sometimes they grow worse, and sometimes they get well. Sometimes they get entirely well; in other cases they do not; cannot tell how it will be in the plaintiff’s case.” The plaintiff offered in evidence two tables: The first, entitled, “ Expectation Table of Assured Lives,” which an agent of the Equitable Life Insurance Company testified was the table used by the American Life Insurance Company, and which showed, at forty nine years old, “ Expectation, years 21.6.” The second, a table from Reese’s Manual, entitled a “ Table showing the Value of Annuities on Single Lives according to the Carlisle Table of Mortality,” which showed the present value of an annuity of $1 a year for the life of a man aged forty nine to be $10.82. To the admission of each of these tables the defendant objected, because “the plaintiff had not shown a case in which such evidence is admissible, the plaintiff not having been killed permanently or disabled.” But the court overruled the objections, and admitted the tables in evidence; and the defendant excepted. The material parts of the judge's charge to the jury were as follows, the passages excepted to being printed in italics : “Upon the testimony I charge you as follows: The principal witness for the defendant was a man who was the sectionmaster , that is, Mr. Smith. If there was a rotten tie there, and he had overlooked it, he would be strongly tempted to conceal it and put the fault on somebody else. The superintendent was the agent of the road, but he testifies he did not examine it. 548 OCTOBER TERM, 1886. Statement of Facts. He saw the accident was caused by a broken rail. He was in a hurry to get off, and he did not examine it closely. His testimony, therefore, does not amount to much, except to establish the fact that it was caused by a broken rail. What broke the rail he does not know. If it was a bad cross-tie and it was the cause of the accident, why then the negligence of the road would be very great, or the negligence of the employes, because that was a thing anybody could see. Three of the witnesses say that it was a bad cross-tie. You remember, with regard to these things, it is only a matter of opinion of these men. One says that it was a rusty place, as though it had lain on a rotten cross-tie. Another says, right at the place where it was broken there was a rotten cross-tie. Another stated the primary cause was a rotten cross-tie. Mr. Smith stated that he went and worked on it and studied it, and he came to the conclusion that the rotten cross-tie had nothing to do with it, and he arrived at that conclusion from examining the different breaks, and deduced what was probably the result from them, he saying none of the breaks was under the decayed cross-tie. He is contradicted by one of the witnesses, who says that right under the place which was broken was a rotten cross-tie. If the rotten cross-tie was the primary cause, there was a plain, open case of negligence. It would be their duty to look after it, and if that caused the broken rail and this man is damaged the company would be liable. “.But it is insisted by the company that the broken rail came from some secret defect. If you believe that to be true, and that secret defect could not have been ascertained by proper diligence—for every means must be used to detect it, especially in case of iron that is very old—if every means had been used to detect it, then the road is not liable. If you put an old man to do a young man's work, you ought to be sure that the old man is sound', you ought to test him. And so, if you put an old rail forty years old, that has been run over by train after train for forty years, and put that to do the work of a piece of iron. I believe there is no testimony about the average age, but it is a guestion of universal notoriety that, as Mr. Smith said in his testimony, old rails are much more apt to break than new. VICKSBURG, &c., RAILROAD CO. «. PUTNAM. 549 Statement of Facts. If this rail had been here a long time, it was their duty to take extraordinary care. Now, what would that be ? Not merely to look at it; you can do that with the very best kind of rails. They would have a man pass over there, as he says, two or three times a week, and look over everything. He does that with the very best kind of rails. When these rails get old and are liable to break, much closer care ought to be taken. I would not be prepared to say what they ought to do in a case like this. If a rail be forty years old, perhaps they ought to send a man around every day to hammer it. I do not say that this would be their duty. I suggest that to you for your consideration, because this is extraordinary to use a forty yeard old rail. There is no evidence that they did anything more with that than they did with any other rail. In this State the jury are judges of what the duty would be. I do not know what is the law of Mississippi, but as it is to be tried by Georgia law the jury are the judges. “ As to damages : 1st. There is the actual pecuniary damage ; that is, the damage which can be computed with certainty, as, for instance, a doctor’s bill; that can be computed with certainty, and that has been proven in this case to be $290. Also the loss of time can be computed. It did not appear whether this man lost anything or not by the loss of time—whether he lost his salary. The company would not be bound to pay him, perhaps, for his salary if he did not perform his duty. There might be actual damage for the loss of time if there has been any sustained, but you cannot imagine expenses unless they are proven. In this case, so far as the salary is concerned, the presumption would be that he had lost his salary. That might be computed’, but there is no evidence about it. What the truth is about that we do not know, but, he having lost his time, the presumption is he lost his pay, and that would be another element of damage which you could ascertain with certainty. “2d. Then there is another kind of damage for which there may be compensation, and that is for the pain and suffering. In all these cases of serious injury money cannot pay for the pain and suffering. It only approaches to it; but he is 550 OCTOBER TERM, 1886. Statement of Facts. entitled to some compensation for the pain and suffering. Now, that is left to the enlightened consciences of the jury. “ There is another element of damage, as claimed in this case, which is less certain; to wit, a kind of speculative damage, in which it is ascertained what a man would make at the time of the accident and what he was capable of making afterward. To find out what he was capable of making, you must find out what he did make, and then how much his capacity to do his former duties was injured; and, having ascertained that, find out how old he is; then find out how much he is damaged every year; and then find out from the table which you will have out before you how much $1 of annuity to the end of his expectation is worth, and multiply them together. “ As I said, all this is not very certain. You cannot ascertain it to a certainty for several reasons. No man can tell how long a man is going to live, but you can come close to it; you can tell about how many out of ten thousand are going to die per year. You must only average it. A man who makes a good deal of money one day may get to be a drunkard, or his whole business may break down, as is often the case. His mode of life may change. “ Find out what that man is capable of making. His testimony is he had a salary of $3000, and he had a trade, to wit, an adjuster. That was his profession. He said he made $700 to $1000 as an adjuster. Now, you take this $3000 and what he could have made otherwise, what he has shown he did make otherwise, and find out what he did make in one year. Find out from the- proof how much he has lost. There is his own testimony, and it is to be taken like the testimony of every other party at interest; his own testimony is he could not carry on his old business. It required an amount of exercise and travel which would be perfectly impossible for him to take, and he had to go back into a business by the month, where he could have an office and where he would be at expense. Under his contract there would be no expense; they paid his expenses. As an adjuster he had his .expenses paid, and $10 a day. Now, in the new business he still keeps up a small business of adjuster. He gets $175 a month. VICKSBURG, &c., RAILROAD CO. v. PUTNAM. 551 Argument for Plaintiff in Error. “ I say to you that the kind of damage we are now discussing cannot be sure, certain. He may be damaged more or less now, next year he may be better. This is only one mode of arriving at it. You must take the whole thing together. He may get well. The doctors tell you the chances are that things of this sort are permanent. He may get well or he may not. Try to do what is right and just between the parties. You cannot be accurate as to this kind of damage, you can only approximate. “ Now if, under all these rules, you find the defendant is liable, then find the amount of his liability. In arriving at the amount of liability, as I said before, there are two things you must find ; first, how much is the actual pecuniary damage he has sustained, the loss of the time and doctor's bill; second, his pain and suffering for the future; and, third, you will find out what he¹ has been injured by the year. The company is hound to give him an annuity of the amount he has been damaged by the year, for a period equal to the expectation of the plaintiff'’s life. It would not do to say this: His expectation is thirty years, and he has lost $1000 a year, therefore we will give him $30,000; for the annuity will be payable one part this year and another part next year, and each of the thirty parts payable each of the thirty years. You must have a sum such that when he dies it will all be used up at the end of thirty years.” [The judge then directed the plaintiff’s counsel to “ mark the table that has got the calculation; ” and, after the annuity table had been marked opposite forty nine years of age, proceeded:] “ Add that to the present worth of annuity if you find he was damaged. Find, gentlemen, a verdict, first, for the pecuniary damage; next, the pain, if he has suffered any; next, the loss per year; multiply by the amount you find in that table, and add the three together, and your verdict would be just a .general verdict for the amount found.” The jury returned a verdict for the plaintiff in the sum of $16,000, and the defendant brought the case to this court by writ of error. J/r. Edgar JT. Johnson (Mr. George Iloaddy and JZ?. Ed- 552 OCTOBER TERM, 1886. Argument for Defendant in Error. ward Colston were with him on the brief), for plaintiff in error, cited Nelson v. The C. R. I. & P. R. R. Co., 38 Iowa, 564; Simonson v. The C. P. I. de P. R. R. Co., 49 Iowa, 8*7; Rowley v. London de Northwestern Railway Co., L. R., 8 Ex. 221; Bristow v. Sequeville, 5 Exch. 275; Milwaukee de St. Paul Railway Co. v. Arms, 91 IT. S. 489; Scheffler v. Minneapolis de St. Louis Railway Co., 19 Am. & Eng. Railroad Cas. 173. Mr. Lloke Smith, for defendant in error, cited Central Railroad Co. v. Richards, 62 Georgia, 307; Atlanta de West Point Railroad v. Johnson, 66 Georgia, 260; McDonald v. Chicago de Northwestern Railroad, 26 Iowa, 139; Missouri de Pacific Railway v. Collier, 18 Am. & Eng. Railroad Cas. 281; Hol/yoke v. Grand Trunk Railway, 28 N. H. 541; Brown v. Piper, 91 U. S. 37, 42; Terhune v. Phillips, 99 IT. S. 592; King v. Gallun, 109 U. S. 99; Adams Mining Co. n. Leuter, 26 Mich. 73; Sacalaris v. Eureka de Palisade Railwa/y, 18 Nevada, 155; United States v. Gooding, 12 Wheat. 460, 470; Barry n. Foyles, 1 Pet. 311; American Fur Co. v. United States, 2 Pet. 358; Cliquofs Champagne, 3 Wall. 114; Malecek v. Tower Grove de Lafayette Railway, 57 Missouri, 17; Norwich de Worcester Railroad v. Cahill, 18 Conn. 484; Central Branch Union Pacific Railroad v. Butman, 22 Kansas, 639; Nudd v. Burrows, 91 IT. S. 426; Lndianapolis de St. Louis Railroad n. Horst, 93 U. S. 291; Transportation Line v. Hope, 95 IT. S. 297, 302; Mitchell v. Harmony, 13 How. 115, 131; Magniac v. Thompson, 7 Pet. 348; Stokes n. Saltonstall, 13 Pet. 181; Railroad Co. n. Pollard, 22 Wall. 341; Pennsylvania Co. n. Roy, 102 TT. S. 451; Ames v. Quimby, 106 IT. S. 342; The Belgenland, 114 IT. S. 355; Orleans v. Platt, 99 IT. S. 676; Marion County v. Clarke, 94 IT. S. 278; Schofield v. Chicago de St. Paul Railway, 114 IT. S. 618; Pleasants v. Fant, 22 Wall. 116; Pence n. Langdon, 99 IT. S. 578; Herbert n. Butler, 97 U. S. 319; Decatur Bank v. St. Louis Bank, 21 Wall. 294; Phoenix Ins. Co. v. Doster, 106 IT. S. 30; Hendricks v. Lindsay, 93 IT. S. 143; La/ncaster v. Collins, 115 IT. S. 222, 227. VICKSBURG, &c., RAILROAD CO. v. PUTNAM. 553 Opinion of the Court. Mb. Justice Geay delivered the opinion of the court. This was an action against a railroad corporation for personal injuries received on September 16, 1881, by a passenger, then forty nine years of age. The verdict was for the plaintiff in the sum of $16,000, and the defendant tendered a bill of exceptions and sued out this writ of error. Some of the exceptions relate to rulings and instructions on the question of the defendant’s liability, and others to the measure of damages. Those relating to the defendant’s liability present no serious difficulty. There being evidence tending to show that the accident was caused by a worn-out rail, it was, to say the least, within the discretion of the court to admit evidence that the general condition of that portion - of the road which included the place where the accident occurred had long been bad, and that the rails had been in use for a great many years. Such evidence had some tendency to prove both that a worn-out rail was the cause of the accident, and that the defendant had neglected to repair the defect. The reports made by the superintendent to the board of directors in the course of his official duty were competent evidence, as against the corporation, of the condition of the road. In the courts of the United States, as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts; and the expression of such an opinion, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, cannot be'reviewed on writ of error. Carver v. Jackson, 4 Pet. 1, 80; Magniac v. Thompson, 1 Pet. 348, 390; Mitchell v. Harmony, 13 How. 115, 131; Transportation Line v. Hope, 95 U. S. 297, 302; Taylor on Evidence, (8th ed.) § 25. The powers of the courts of the United States in this respect are not controlled by the statutes of the State forbidding judges to express any opinion upon the facts. Nudd v. Burrows, 91 U. S. 426; Code of Georgia, 554 OCTOBER TERM, 1886. Opinion of the Court. § 3248. The exceptions to so much of the judge’s charge as bore upon the liability of the defendant cannot therefore be sustained. We are then brought to a consideration of the exceptions which relate to the evidence admitted and the instructions given upon the measure of damages. In an action for a personal injury, the plaintiff is entitled to recover compensation, so far as it is susceptible of an estimate in money, for the loss and damage caused to him by the defendant’s negligence, including not only expenses incurred for medical attendance, and a reasonable sum for his pain and suffering, but also a fair recompense for the loss of what he would otherwise have earned in his trade or profession, and has been deprived of the capacity of earning, by the wrongful act of the defendant. Wade v. Leroy, 20 How. 34; Nebraska City v. Campbell, 2 Black, 590; Ballou v. Far num, 11 Allen, 73; New Jersey Express Co. v. Nichols, 3 Vroom, 166, and 4 Vroom, 430; Phillips v. London de Southwestern Railway, 4 Q. B. D. 406, 5 Q. B. D. 78, and 5 C. P. D. 280; S. C., 49 Law Journal (Q. B.) 233. In order to assist the jury in making such an estimate, standard life and annuity tables, showing at any age the probable duration of life, and the present value of a life annuity, are competent evidence. The D. S. Gregory, 2 Benedict, 226, 239, affirmed 9 Wall. 513 ; Rowley v. London rf: Northwestern Railway, L. R. 8 Ex. 221; Sauter v. New York Central Railroad, 66 K. Y. 50; McDonald v. Chicago & Northwestern Railroad, 26 Iowa, 124, 140; Central Railroad v. Richards, 62 Georgia, 306. But it has never been held that the rules to be derived from such tables or computations must be the absolute guides of the judgment and the conscience of the jury. On the contrary, in the important and much-considered case of Phillips v. London & Southwestern Railway, above cited, the judges strongly approved the usual practice of instructing the jury in general terms to award a fair and reasonable compensation, taking into consideration what the plaintiff’s income would probably have been, how long it would have lasted, and all the VICKSBURG, &c., RAILROAD CO. v. PUTNAM. 555 Opinion of the Court. contingencies to which it was liable; and⁻as strongly deprecated undertaking to bind them by precise mathematical rules in deciding a question involving so many contingencies incapable of exact estimate or proof. See especially the opinions of Lord Justice Brett and Lord Justice Cotton, as reported in 49 Law Journal (Q. B.) 237, 238, and less fully in 5 C. P. D. 291, 293. In the present case, it was not suggested by the defendant at the trial that the life tables admitted in evidence were not standard tables, or not duly authenticated. The only ground assigned for the objection to their competency was that “ the plaintiff had not shown a case in which such evidence is admissible, the plaintiff not having been killed permanently or disabled ”—probably meaning “ killed or permanently disabled.” It is a sufficient answer to this objection, that there was evidence from which the jury might conclude that the plaintiff’s disability was permanent. . But the instructions on the measure of damages, to which exception was taken, cannot be approved. Those instructions were, 1st, that the plaintiff having lost his time, the presumption would be that he lost his salary, and that would be an element of damage which the jury could ascertain with certainty; and, 2d, that the company was bound to give the plaintiff an annuity of the amount he had been damaged by the year, for a period equal to the expectation of his life. As the judge directed the jury to add the worth of such an annuity at the time of the accident to the amount allowed for loss of time, including the loss of salary, it would seem that the jury were permitted, in making up their verdict, to take into consideration twice over the earnings lost by the plaintiff between the time of the accident and the time of the trial. But the second instruction is open to the more serious objection of requiring the jury, in estimating the loss of future income, to compute the average amount of injury to the plaintiff’s capacity each year, even if they should be satisfied, on the evidence before them, that the effect of that injury would vary from year to year, and would be either greater or less as time went on. A reference to the rest of the charge rather strengthens than 556 OCTOBER TERM, 1886. Opinion of the Court. removes this objection. At the beginning of that part of the charge which relates to this subject, the judge told the jury : “ To find out what he was capable of making, you must find out what he did make, and then how much his capacity to do his former duties was injured ; and, having ascertained that, find out how old he is ; then find out how much he is damaged every year, and then find out from the table which you will have out before you how much $1 of annuity to the end of his expectation is worth, and multiply the three together.” In the last paragraph of the charge, just before the sentence excepted to, the judge told the jury that, in arriving at the amount of liability, they must “ find out what he has been injured by the year.” And finally, after causing the annuity table to be marked opposite forty nine years of age, he directed the jury “to find a verdict, first, for the pecuniary damage ; next, the pain, if he has suffered any ; next, the loss per year; multiply by the amount you find in that table, and add the three together.” The natural, if not the necessary, effect of these peremptory instructions at the beginning and end of dealing with this matter would be to lead the jury to understand that they must accept the tables as affording the rule for the principal elements of their computation, and to create an impression on their minds, which would not be removed by the incidental observation of the judge, when speaking of the possibility of the plaintiff’s getting well—“ This is only one mode of arriving at it ; ” especially, as it was nowhere, throughout the charge, suggested to the jury that they would be at liberty, if they found difficulty in following the mathematical rules prescribed to them, to estimate the loss of income according to their own judgment. Life and annuity tables are framed upon the basis of the average duration of the lives of a great number of persons. But what the jury in this case had to consider was the probable duration of this plaintiff’s life, and of the injury to his capacity to earn his livelihood. Upon the evidence before them, it was a controverted question whether that injury would be temporary or permanent. The instruction excepted to, either taken by itself or in connection with the whole charge, tended WABASH, &c., RAILWAY CO. v. ILLINOIS. 557 Syllabus. to mislead the jury, by obliging them to ascertain the average injury to the plaintiff’s capacity by the year, whether the extent of that injury would be constant or varying; and by giving them to understand that the tables were not merely competent evidence of the average duration of human life, and of the present value of life annuities, but furnished absolute rules which the law required them to apply in estimating the probable duration of the plaintiff’s life, and the extent of the injury which he had suffered. For this reason the Judgment is reversed, and the case remanded to the Circuit Court, with directions to set aside the verdict and to order a new trial. WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY v. ILLINOIS. ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS. Argued April 14, 15, 1886.—Decided October 25,1886. A statute of Illinois enacts that, if any railroad company shall, within that State, charge or receive for transporting passengers or freight of the same class, the same or a greater sum for any distance than it does for a longer distance, it shall be liable to a penalty for unjust discrimination. The defendant in this case made such discrimination in regard to goods transported over the same road or roads, from Peoria, in Illinois, and from Gilman, in Illinois, to New York ; charging more for the same class of goods carried from Gilman than from Peoria, the former being eighty-six miles nearer to New York than the latter, this difference being in the length of the line within the State of Illinois. Held; (1.) This court follows the Supreme Court of Illinois in holding that the statute of Illinois must be construed to include a transportation of goods under one contract and by one voyage from the interior of the State of Illinois to New York. (2.) This court holds further that such a transportation is “commerce among the States,” even as to that part of the voyage which lies within the State of Illinois, while it is not denied that there may be a transportation of goods which is begun and ended within its limits, and disconnected with any carriage outside of the State, which is not commerce among the States. 558 OCTOBER TERM, 1886. Citations for Plaintiff in Error. (3.) The latter is subject to regulation by the State, and the statute of Illinois is valid as applied to it. But the former is national in its character, and its regulation is confided to Congress exclusively, by that clause of the Constitution which empowers it to regulate commerce among the States. (4.) The cases of Munn v. Illinois, 94 U. S. 113 ; Chicago, Burlington & Quincy Railroad Co. v. Iowa, 94 IT. S. 155 ; and Peik v. Chicago & Northwestern Railway, 94 IT. S. 164, examined in regard to this question, and held, in view of other cases decided near the same time, not to establish a contrary doctrine. (5.) Notwithstanding what is there said, this court holds now, and has never consciously held otherwise, that a statute of a State, intended to regulate or to tax or to impose any other restriction upon the transmission of persons or property or telegraphic messages from, one State to another, is not within that class of legislation which the States may enact in the absence of legislation by Congress ; and that such statutes are void even as to that part of such transmission which may be within the State. (6.) It follows that the statute of Illinois, as construed by the Supreme Court of the State, and as applied to the transaction under consideration, is forbidden by the Constitution of the United States, and the judgment of that court is reversed. The case is stated in. the opinion of the court. J/r. H. S. Greene, for plaintiff in error, cited The Daniel Ball, 10 Wall. 557; Bail/road Co. v. Husen, 95 IT. S. 465, 470; Hall v. De Cuir, 95 IT. S. 485; Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299; Lemmon v. People, 20 N. Y. 562; License Cases, 5 How. 504; Thames Bank v. Lovell, 18 Conn. 500; Passenger Cases, 7 How. 283; State Freight Case, 15 Wall. 232; Henderson v. New York, 92 IT. S. 259; Sherlock v. Alling, 93 IT. S. 99 ; Welton v. Missouri, 91 U. S. 275; Gibbons n. Ogden, 9 Wheat. 1; Holmes v. Jennison, 14 Pet 540; Brown v. Maryland, 12 Wheat. 419; New York v. Miln, 11 Pet. 119; Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; State Tax on Bailway Gross Beceipts, 15 Wall. 284; Mobile County v. Kimball, 102 IT. S. 690; Webber v. Yir-ginia, 103 IT. S. 344; Peik v. Chicago & Northwestern Bailway, 94 IT. S. 164; Chicago, Burlington c& Quincy Bailroad v. Towa,. 94 IT. S. 155; Bailroad Commissioners v. Yazoo & Missis- WABASH, &c., RAILWAY CO. v. ILLINOIS. 559 Citations for Defendant in Error. sippi Valley Railroad, 21 Am. & Eng. Railroad Cas. 6 ; Chicago, Burlington <& Quincy Railroad v. Parks, 18 Ill. 460; Ex parte Koehler, 21 Am. & Eng. Railroad Cas. 58; Gloucester Ferry Co. v. Pennsylvania, 114 IT. S. 196; Carton v. Illinois Central Railroad, 59 Iowa, 148; Hardy v. Atchison, Topeka <& Santa Fe Railroad, 18 Am. & Eng. Railroad Cas. 432; Kaeiser v. Illinois Central Railroad, 5 McCrary, 496; £ C., 16 Am. & Eng. Railroad Cas. 40; Illinois Central Railroad v. Stone. 18 Am. & Eng. Railroad Cas. 416; Louisville de Nashville Railroad v. Railroad Commissioners, 16 Am. & Eng. Railroad Cas. 1. Mr. George Hunt, Attorney-General of Illinois, for defendant in error, cited Messenger v. Penn. Railroad Co., 36 N. J. Law, 407; McPuffee v. Railroad Co., 52 N. H. 430; Sandford v. Railroad Co., 24 Penn. St. 378; New Jersey Steam Navigation Co. v. Merchant^ Bank, 6 How. 344; Shel-denN. Robinson,7 N.H. 157: Grayx. Jackson, 51 N. H. 9; Hollister v. Nowlen, 19 Wend. 234; Bennett v. Button, 10 N. H. 481; New England Express Co. v. Maine Central Railroad, 57 Maine, 188; Munn v. Illinois, 94 U. S. 113; Pickford v. Grand Junction Railway, 10 M. & W. 399 ; Parker v. Great Western Railway, 11 C. B. 545; Commonwealth v. Puane, 98 Mass. 1; State v. Perry, 5 Jones’ Law, (N. C.) 252; State v. Nixon, 5 Junes’ Law, (N. C.) 257; Murray v. Hoboken Land de Improvement Co., 18 How. 272; Kirkman v. Shawcrass, 6 T. R. 14; Ogden v. Saunders, 12 Wheat. 213, 259 ; Webber v. Virginia, 103 IT. S. 344; State Tax on Railway Gross Receipts, 15 Wall. 284; Passenger Cases, 7 How. 283; Gibbons v. Ogden, 9 Wheat. 1; Slaughter-House Cases, 16 Wall. 36; Railroad Co. v. Husen, 95 IT. S. 465; The James Gray v. The John Fraser, 21 How. 184; Packet Co. v. St. Louis, 100 IT. S. 423; Vicksburg v. Tobin, 100 IT. S. 430; Packet Co. v. Keokuk, 95 IT. S. 80; Cooley v. Philadelphia, 12 How. 299; Inman Steamship Co. v. Tinker, 94 IT. S. 238; Transportation Co. v. Parkersburg, 107 IT. S. 691; Railroad Co. v. Fuller, 17 Wall. 560; Willson n. Blackbird Marsh Co., 2 Pet. 245 ; Gilman n. Philadelphia, 3 Wall. 713; Pennsylvania 560 OCTOBER TERM, 1886. Opinion of the Court. v. Wheeling -& Belmont Bridge Co., 18 How. 421; Houston v. Moore, 5 Wheat. 1; Sturgess v. Crowninshield, 4 Wheat. 122; License Cases, 5 How. 504; Gloucester Ferry Co. v. Pennsylvania, 114 IT. S. 196; Peik v. Chicago & Northwestern Bailway, 94 IT. S. 164; Chicago, Burlington c& Quincy Railroad v. Iowa, 94 U. S. 155 ; Illinois v. Wabash, St. Louis de Pacific Railway, 104 Ill. 476 ; Stone v. Yazoo de Mississippi Valley Railroad, 62 Mississippi, 607; Hardy v. Atchison, Topeka de Santa Fe Railroad, 18 Am. & Eng. Railroad Cas. 432; Stone v. Illinois Central Railroad, 18 Am. & Eng. Railroad Cas. 416; New York v. Miln, 11 Pet. 102 ; State v. Railroad Co., 24 West Vir. 783; Telegraph Co. v. Texas, 105 IT. S. 460. Mr. W. C. Goudy, for plaintiff in error, cited the following authorities not cited on Mr. Greends brief : Munn n. Illinois, 94 U. S. 113; Pensacola Telegraph Co. v. Western Union Telegraph Co.,W) IT. S. 1; Brown v. Houston, 114 IT. S. 622; Walling v. Michigan, 116 IT. S. 446; New Orleans Gas Co. v. Louisiana Light Co., 115 IT. S. 650; Pickard v. Pullman Southern Car Co., 117 IT. S. 34; Railroad Co. v. Fuller, 17 Wall. 560. Mr. Justice Miller delivered the opinion of the court. This is a writ of error to the Supreme Court of Illinois. It was argued here at the last term of this court. The case was tried in the court of original jurisdiction on an agreed statement of facts. This agreement is short, and is here inserted in full: “ For the purposes of the trial Of said cause, and to save the making of proof therein, it is hereby agreed on the part of the defendant that the allegations in the first count of the declaration are true, except that part of said count which avers that the same proportionate discrimination was made in the transportation of said property—oil-cake and corn—in the State of Illinois that was made between Peoria and the city of New York and Gilman and New York city, which averment is not admitted, because defendant claims that it is an inference from the fact that the rates charged in each case of said transporta- WABASH, &c., RAILWAY CO. v. ILLINOIS. 561 Opinion of the Court. tion of oil-cake and corn were through rates, but it is admitted that said averment is a proper one.” The first count in the declaration, which is referred to in this memorandum of agreement, charged that the Wabash, St. Louis and Pacific Railway Company had, in violation of a statute of the State of Illinois, been guilty of an unjust discrimination in its rates or charges of toll and compensation for the transportation of freight. The specific allegation is that the railroad company charged Elder & McKinney, for transporting twenty six thousand pounds of goods and chattels from Peoria, in the State of Illinois, to New York city, the sum of thirty nine dollars, being at the rate of fifteen cents per hundred pounds for said car-load; and that on the same day they agreed to carry and transport for Isaac Bailey and F. O. Swan-nell another car-load of goods and chattels from Gilman, in the State of Illinois, to said city of New York, for which they charged the sum of sixty five dollars, being at the rate of twenty five cents per hundred pounds. And it is alleged that the car-load transported for Elder & McKinney was carried eighty six miles farther in the State of Illinois than the other car-load of the same weight. This freight being of the same class in both instances, and carried over the same road, except as to the difference in the distance, it is obvious that a discrimination against Bailey & Swannell was made in the charges against them as compared with those against Elder & McKinney ; and this is true whether we regard the charge for the whole distance from the terminal points in Illinois-to New York city or the proportionate charge for the haul within the State of Illinois. The language of the statute which is supposed to be violated by this transaction is to be found in Ch. 114 Rev. Stat. Illinois, § 126. It is there enacted that if any railroad corporation shall charge, collect, or receive for the transportation of any passenger or freight of any description upon its railroad, for any distance within the State, the same or a greater amount of toll or compensation than is at the same time charged, collected, or received for the transportation in the same direction of any passenger or like quantity of freight of vol. cxvin—36 562 OCTOBER TERM, 1886. Opinion of the Court. the same class over a greater distance of the same road, all such discriminating rates, charges, collections, or receipts, whether made directly or by means of rebate, drawback, or other shift or evasion, shall be deemed and taken against any such railroad corporation as prima facie evidence of unjust discrimination prohibited by the provisions of this act. The statute further provides a penalty of not over $5000 for that, offence, and also that the party aggrieved shall have a right to recover three times the amount of damages sustained, with costs and attorneys’ fees. To this declaration the railroad company demurred. The demurrer was sustained by the lower court in Illinois, and judgment rendered for the defendant. This, however, was reversed by the Supreme Court of that State, and on the case being remanded the demurrer was overruled, and the defendant pleaded, among other things, that the rates of toll charged in the declaration were charged and collected for services rendered under an agreement and undertaking to transport freight from Gilman, in the State of Illinois, to New York city, in the State of New York, and that in such undertaking and agreement the portion of the services rendered or to be rendered within the State of Illinois was not apportioned separate from such entire service; that the action is founded solely upon the supposed authority of an Act of the Legislature of the State of Illinois, approved April 7, 1871; and that said act does not control or affect or relate to undertakings to transport freight from the State of Illinois to the State of New York, which falls within the operation and is wholly controlled by the terms of the third clause of Section 8 of Article I. of the Constitution of the United States, 'which the defendant sets up and relies upon as a complete defence and protection in said action. This question of whether the statute of Illinois, as applied to the case in hand, is in violation of the Constitution of the United States, as set forth in the plea, was also raised on the trial by a request of the defendant, the railroad company, that the court should hold certain propositions of law on the same subject, which propositions are as follows: The court holds as law, that as the tolls or rates of com- WABASH, &c., RAILWAY CO. v. ILLINOIS. 563 Opinion of the Court. pensation charged and collected by the defendant, in the instance in question, were for transportation service rendered in transporting freight from a point in the State of Illinois to a point in the State of New York, under an entire contract or undertaking to transport such freight the whole distance between such points; that the Act of the General Assembly of the State of Illinois, approved May 2d, 1873, entitled ‘An Act to prevent extortion and unjust discrimination in the rates charged for the transportation of passengers and freight on railroads in this State, and to punish the same, and prescribe a mode of procedure and rules of evidence in relation thereto, and to repeal an act entitled “An Act to prevent unjust discrimination and extortion in the rates to be charged by the different railroads in the State for the transportation of freight on said roads,” approved April 7, 1871,’ does not apply to or control such tolls and charges, nor can the defendant be held liable in this action for the penalties prescribed by said act. “ The court further holds as law, that said act in relation to extortion and unjust discrimination cannot apply to transportation service rendered partly without the State, and consisting of the transportation of freight from within the State of Illinois to the State of New York, and that said act cannot operate beyond the limits of the State of Illinois. “ The court further holds as matter of law, that the transportation in question falls within the proper description of ‘ commerce among the States,’ and as such can only be regulated by the Congress of the United States under the terms of the third clause of Section eight of Article one of the Constitution of the United States.” All of these propositions were denied by the court, and judgment rendered against the defendant, which judgment was affirmed by the Supreme Court on appeal. The matter thus presented, as to the controlling influence of the Constitution of the United States over this legislation of the State of Illinois, raises the question which confers jurisdiction on this court. Although the precise point presented by this case may not have been heretofore decided by this court, the general subject of the power of the State legislatures to 564 OCTOBER TERM, 1886. Opinion of the Court. regulate taxes, fares, and tolls for passengers and transportation of freight over railroads within their limits has been very much considered recently:—State Freight Tax Case, 15 Wall. 232; Munn v. Illinois, 94 IT. S. 113; Chicago, Burlington de Quincy Railroad v. Iowa, 94 U. S. 155 ; Peik v. Northwestern Railway, 94 IT. S. 164; Stone Farmerd Loan and Trust Co., 116 IT. S. 307 ; Gloucester Ferry Co. v. Pennsylvania, 114 IT. S. 196,' 204; Pickard v. Pullman Southern Car Co., 117 IT. S. 34 :— and the question how far such regulations, made by the States and under State authority, are valid or void, as they may affect the transportation of goods through more than one State, in one voyage, is not entirely new here. The Supreme Court of Illinois, in the case now before us, conceding that each of these contracts was in itself a unit, and that the pay received by the Illinois Railroad Company was the compensation for the entire transportation from the point of departure in'the State of Illinois to the city of New York, holds, that while the statute of Illinois is inoperative upon that part of the contract which has reference to the transportation outside of the State, it is binding and effectual as to so much of the transportation as was within the limits of the State of Illinois, The People v. The Wabash, St. Louis & Pacific Railway, 104 Ill. 476; and, undertaking for itself to apportion the rates charged over the whole route, decides that the contract and the receipt of the money for so much of it as was performed within the State of Illinois violate the statute of the State on that subject. If the Illinois statute could be construed to apply exclusively to contracts for a carriage which begins and ends within the State, disconnected from a continuous transportation through or into other States, there does not seem to be any difficulty in holding it to be valid. For instance, a contract might be made to carry goods for a certain price from Cairo to Chicago, or from Chicago to Alton. The charges for these might be within the competency of the Illinois Legislature to regulate. The reason for this is that both the charge and the actual transportation in such cases are exclusively confined to the limits of the territory of the State, and is not commerce WABASH, &c., RAILWAY CO. v. ILLINOIS. 565 Opinion of the Court. among the States, or interstate commerce, but is exclusively commerce within the State. So far, therefore, as this class of transportation, as an element of commerce, is affected by the statute under consideration, it is not subject to the constitutional provision concerning commerce among the States. It has often been held in this court, and there can be no doubt about it, that there is a commerce wholly within the State which is not subject to the constitutional provision, and the distinction between commerce among the States and the other class of commerce between the citizens of a single State, and conducted within its limits exclusively, is one which has been fully recognized in this court, although it may not be always easy, where the lines of these classes approach each other, to distinguish between the one and the other. The Daniel Ball, 10 Wall. 557; Hall n. De Cuir, 95 IT. S. 485; Telegraph Co. n. Texas, 105 IT. S. 460. It might admit of question whether the statute of Illinois, now under consideration, was designed by its framers to affect any other class of transportation than that which begins and ends within the limits of the State. The Supreme Court of Illinois having in this case given an interpretation which makes it apply to what we understand to be commerce among the States, although the contract was made within the State of Illinois, and a part of its performance was within the same State, we are bound, in this court, to accept that construction. It becomes, therefore, necessary to inquire whether the charge exacted from the shippers in this case was a charge for interstate transportation, or was susceptible of a division which would allow so much of it to attach to commerce strictly within the State, and so much more to commerce in other States. The transportation, which is the subject-matter of the contract, being the point on which the decision of the case must rest, was it a transportation limited to the State of Illinois, or was it a transportation covering all the lines between Gilman in the one case and Peoria in the other in the State of Illinois, and the city of New York in the State of New York ? The Supreme Court of Illinois does not place its judgment 566 OCTOBER TERM, 1886. Opinion of the Court. in the present case on the ground that the transportation and the charge are exclusively State commerce, but, conceding that it may be a case of commerce among the States, or interstate commerce, which Congress would have the right to regulate if it had attempted to do so, argues that this statute of Illinois belongs to that class of commercial regulations which may be established by the laws of a State until Congress shall have exercised its power on that subject; and to this proposition a large part of the argument of the Attorney-General of the State before us is devoted, although he earnestly insists that the statute of Illinois which is the foundation of this action is not a regulation of commerce within the meaning of the Constitution of the United States. In support of its view of the subject the Supreme Court of Illinois cites the cases of Munn n. Illinois, Chicago, Burlington d? Quincy Railroad v. Iowa, and Peak v. Northwestern Railway, above referred to. It cannot be denied that the general language of the court in these cases, upon the power of Congress to regulate commerce, may be susceptible of the meaning which the Illinois court places upon it. In Munn v. Illinois, 94 U. S. 113, 135, the language of this court upon that subject is as follows: “We come now to consider the effect upon this statute of the power of Congress to regulate commerce. It was very properly said, in the case of the State Tax on Railway Gross Receipts, 15 Wall. 293, that ‘it is not everything that affects commerce that amounts to a regulation of it, within the meaning of the Constitution.’ The warehouses of these plaintiffs in error are situated and their business carried on exclusively within the limits of the State of Illinois. They are used as instruments by those engaged in State as well as those engaged in interstate commerce, but they are no more necessarily a part of commerce itself than the dray or the cart by which, but for them, grain would be transferred from one railroad station to another. Incidentally they may become connected with interstate commerce, but not necessarily so. Their regulation is a thing of domestic concern, and certainly, until Congress acts in reference to their interstate relations, the WABASH, &c., RAILWAY CO. v. ILLINOIS. 567 Opinion of the Court. State may exercise all the powers of government over them, even though in so doing it may indirectly operate upon commerce outside its immediate jurisdiction. We do not say that a case may not arise in which it will be found that a State, under the form of regulating its own affairs, has encroached upon the exclusive domain of Congress in respect to interstate commerce, but we do say that, upon the facts as they are represented to us in this record, that has not been done.” In the case of The Chicago, Burlington c& Quincy Railroad n. Iowa, 94 IT. S. 155, 163, which directly related to railroad transportation, the language is as follows: “ The objection, that the statute complained of is void, because it amounts to a regulation of commerce among the States, has been sufficiently considered in the case of Munn v. Illinois. This road, like the warehouse in that case, is situated within the limits of a single State. Its business is carried on there, and its regulation is a matter of domestic concern. It is employed in State as well as in interstate commerce, and, until Congress acts, the State must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in doing so those without may be indirectly affected.” But the strongest language used by this court in these cases is to be found in Peik v. Chicago & Northwestern Railway, 94 IT. S. 164, 177-8, as follows: “ As to the effect of the statute as a regulation of interstate commerce. The law is confined to State commerce, or such interstate commerce as directly affects the people of Wisconsin. Until Congress acts in reference to the relations of this company to interstate commerce, it is certainly within the power of Wisconsin to regulate its fares, etc., so far as they are of domestic concern. With the people of Wisconsin this company has domestic relations. Incidentally, these may reach beyond the State. But certainly, until Congress undertakes to legislate for those who are without the State, Wisconsin may provide for those within, even though it may indirectly affect those without.” 568 OCTOBER TERM, 1886. Opinion of the Court. These extracts show that the question of the right of the State to regulate the rates of fares and tolls on railroads, and how far that right was affected by the commerce clause of the Constitution of the United States, was presented to the court in those cases. And it must be admitted that, in a general way, the court treated the cases then before it as belonging to that class of regulations of commerce which, like pilotage, bridging navigable rivers, and many others, could be acted upon by the States in the absence of any legislation by Congress on the same subject. By the slightest attention to the matter it will be readily seen that the circumstances under which a bridge may be authorized across a navigable stream within the limits of a State, for the use of a public highway, and the local rules which shall govern the conduct of the pilots of each of the varying harbors of the coasts of the United States, depend upon principles far more limited in their application and importance than those which should regulate the transportation of persons and property across the half or the whole of the continent, over the territories of half a dozen States, through which they are carried without change of car or breaking bulk. Of the members of the court who concurred in those opinions, there being two dissentients, but three remain, and the writer of this opinion is one of the three. He is prepared to take his share of the responsibility for the language used in those opinions, including the extracts above presented. He does not feel called upon to say whether those extracts justify the decision of the Illinois court in the present case. It will be seen, from the opinions themselves, and from the arguments of counsel presented in the reports, that the question did not receive any very elaborate consideration, either in the opinions of the court or in the arguments of counsel. And the question how far a charge made for a continuous transportation over several States, which included a State whose laws were in question, may be divided into separate charges for each State, in enforcing the power of the State to regulate the fares of its railroads, was evidently not fully considered. These three cases, with others concerning the same subject, were argued at WABASH, &c., RAILWAY CO. v. ILLINOIS. 569 Opinion of the Court. the same time by able counsel, and in relation to the different laws affecting the subject, of the States of Illinois, Iowa, Wisconsin, and Minnesota; the main question in all the cases being the right of the State to establish any limitation upon the power of the railroad companies to fix the price at which they would carry passengers and freight. It was strenuously denied, and very confidently, by all the railroad companies, that any legislative body whatever had a right to limit the tolls and charges to be made by the carrying companies for transportation. And the great question to be decided, and which was decided, and which was argued in all those cases, was the right of the State within which a railroad company did business to regulate or limit the amount of any of these traffic charges. The importance of that question overshadowed all others; and the case of Jlunn v. Illinois was selected by the court as the most appropriate one in which to give its opinion on that subject, because that case presented the question of a private citizen, or unincorporated partnership, engaged in the warehousing business in Chicago, free from any claim of right or contract under an act of incorporation of any State whatever, and free from the question of continuous transportation through several States. And in that case the court was presented with the question, which it decided, whether any one engaged in a public business, in which all the public had a right to require his service, could be regulated by acts of the legislature in the exercise of this public function and public duty, so far as to limit the amount of charges that should be made for such services. The railroad companies set up another defence, apart from denying the general right of the legislature to regulate transportation charges, namely, that in their charters from the States they each had a contract, express or implied, that they might regulate and establish their own fares and rates of transportation. These two questions were of primary importance; and though it is true that, as incidental or auxiliary to tfcese, the question of the exclusive right of Congress to make such regulations of charges as any legislative power had the right to make, to the exclusion of the States, was presented, it 570 OCTOBER TERM, 1886. Opinion of the Court. received but, little attention at the hands df the court, and was passed, over with the remarks in the opinions of the court which have been cited. The case of the State Freight Tax, 15 Wall. 232, which was decided only four years before these cases, held an act of the Legislature of Pennsylvania void, as being in conflict with the commerce clause of the Constitution of the United States, which levied a tax upon all freight carried through the State by any railroad company, or into it from any other State, or out of it into any other State, and valid as to all freight the carriage o’f which was begun and ended within the limits of the State, because the former was a regulation of interstate commerce, and the latter was a commerce solely within the State which it had a right to regulate. And the question now under consideration, whether these statutes were of a class which the legislatures of the States could enact in the absence of any act of Congress on the subject, was considered and decided in the negative. It is impossible to see any distinction in its effect upon commerce of either class, between a statute which regulates the charges for transportation, and a statute which levies a tax for the benefit of the State upon the same transportation; and, in fact, the judgment of the court in the State Freight Tax Case rested upon the ground that the tax was always added to the cost of transportation, and thus was a tax in effect upon the privilege of carrying the goods through the State. It is also very difficult to believe that the court consciously intended to overrule the first of these cases without any reference to it in the opinion. At the very next term of the court after the delivery of these opinions, the case of Hall v. De Cuir, 95 U. S. 485, was decided, in which the same point was considered, in reference to a statute of the State of Louisiana which attempted to regulate the carriage of passengers upon railroads, steamboats, and other public conveyances, and which provided that no regulations of any companies engaged in that business should make any discrimination on account of race or color. This statute by its terms was limited to persons engaged in that class of WABASH, &a, RAILWAY CO. v. ILLINOIS. 571 Opinion of the Court. business within the State, as is the one now under consideration, and the case presented under the statute was that of a person of color who took passage from New Orleans for Hermitage, both places being within the limits of the State of Louisiana, and was refused accommodations in the general cabin on account of her color. In regard to this the court declared that, “ for the purposes of this case, we must treat the Act of Louisiana of February 23, 1869, as requiring those en-, gaged in interstate commerce to give all persons travelling in that State, upon the public conveyances employed in such business, equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color. ... We have nothing whatever to do with it as a regulation of internal commerce, or as affecting anything else than commerce among the States.” And, speaking in reference to the right of the States in certain classes of interstate commerce to pass laws regulating them, the opinion says: “ The line which separates the powers of the States from this exclusive power of Congress is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not unfrequently differ in their reasons for a decision in which they concur. Under such circumstances it would be a useless task to undertake to fix an arbitrary rule by which the line must, in all cases, be located. It is far better to leave a matter of such delicacy to be settled in each case upon a view of the particular rights involved. But we think it may safely be said that State legislation which seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress. The statute now under consideration, in our opinion, occupies that position. It does not act upon the business through the local instruments to be employed after coming within the State, but directly upon the business as it comes into the State from without, or goes out from within. While it purports only to control the carrier when engaged within the State, it must necessarily influence his conduct to some extent in the management of his 572 OCTOBER TERM, 1886. Opinion of the Court. business throughout his entire voyage. ... It was to meet just such a case that the commercial clause in the Constitution was adopted. The river Mississippi passes through or along the borders of ten different States, and its tributaries reach many more. The commerce upon these waters is immense, and its regulation clearly a matter of national concern. If each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship. Each State could provide for its own passengers and regulate the transportation of its own freight, regardless of the interests of others. Nay, more, it could prescribe rules by which the carrier must be governed within the State in respect to passengers and property brought from without. On one side of the river or its tributaries he might be required to observe one set of rules, and on the other, another. Commerce cannot flourish in the midst of such embarrassments.” The applicability of this language to the case now under consideration, of a continuous transportation of goods from New York to Central Illinois, or from the latter to New York, is obvious, and it is not easy to see how any distinction can be made. Whatever may be the instrumentalities by which this transportation from the one point to the other is effected, it is but one voyage, as much so as that of the steamboat on the Mississippi River. It is not the railroads themselves that are regulated by this act of the Illinois Legislature so much as the charge for transportation, and, in language just cited, if each one of the States through whose territories these goods are transported can fix its own rules for prices, for modes of transit, for times and modes of delivery, and all the other incidents of transportation to which the word “ regulation ” can be applied, it is readily seen that the embarrassments upon interstate transportation, as an element of interstate commerce, might be too oppressive to be submitted to. “ It was,” in the language of the court cited above, “ to meet just such a case that the commerce clause of the Constitution was adopted.” It cannot be too strongly insisted upon that the right of con- WABASH, &c., RAILWAY CO. v. ILLINOIS. 573 Opinion of the Court. tinuous transportation from one end of the country to the other is essential in modern times to that freedom of commerce from the restraints which the State might choose to impose upon it, that the commerce clause was intended to secure. This clause, giving to Congress the power to regulate commerce among the States and with foreign nations, as this court has said before, was among the most important of the subjects which prompted the formation of the Constitution. Cook v. Pennsylvania, 97 U. S. 566, 574; Brown v. Maryland, 12 Wheat. 419, 446. And it would be a very feeble and almost useless provision, but poorly adapted to secure the entire freedom of commerce among the States which was deemed essential to a more perfect union by the framers of the Constitution, if, at every stage of the transportation of goods and chattels through the country, the State within whose limits a part of this transportation must be done could impose regulations concerning the price, compensation, or taxation, or any other restrictive regulation interfering with and seriously embarrassing this commerce. The argument on this subject can never be better stated than it is by Chief-Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 195-6. He there demonstrates that commerce among the States, like commerce with foreign nations, is necessarily a commerce w’hich crosses State lines, and extends into the States, and the power of Congress to regulate it exists wherever that commerce is found. Speaking of navigation as an element of commerce, which it is, only, as a means of transportation, now largely superseded by railroads, he says: “ The power of Congress, then, comprehends navigation within the limits of every State in the Union, so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several States, or with the Indian tribes.’ It may, of consequence, pass the jurisdictional line of New York and act upon the very waters [the Hudson River] to which the prohibition now under consideration applies,” p. 197. So the same power may pass the line of the State of Illinois and act upon its restriction upon the right of transportation extending over several States, including that one. In the case of Telegraph Co. v. Texas, 105 U. S. 460, 465, 574 OCTOBER TERM, 1886. Opinion of the Court. the court held that “ a telegraph company occupies the same relation to commerce as a carrier of messages that a railroad company does as a carrier of goods,” and that “ both companies are instruments of commerce, and their business is commerce itelf.” And relying upon the case of The State Freight Tax, 15 Wall. 232, already referred to, the court said that a tax by the State of Texas upon all messages carried within its borders was forbiden by the commerce clause of the Constitution, as being a tax upon commerce among the States; and observed that “ the tax is the same on every message sent, and because it is sent, without regard to the distance carried or the price charged. . . . Clearly, if a fixed tax for every two thousand pounds of freight carried is a tax on the freight, or for every measured ton of a vessel a tax on tonnage, or for every passenger carried a tax on the passenger, or for the sale of goods a tax on the goods, this must be a tax on the messages. As such, so far as it operates on private messages sent out of the State, it is a regulation of foreign and interstate commerce and beyond the power of the State. That is fully established by the cases already cited.” In the case of Welton v. Missouri, 91 IT. S. 275, 280, it was said: “ It will not be denied that that portion of commerce with foreign countries and between the States which consists in the transportation and exchange of commodities is of national importance, and admits and requires uniformity of regulation. The very object of investing this power in the general government was to insure this uniformity against discriminating State legislation.” And in County of Mobile v. Kimball, 102 IT. S. 691, 702, the same idea is very clearly stated in the following language: “Commerce with foreign countries and among* the States, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities. For the regulation of commerce as thus defined there can be only one system of rules, applicable alike to the whole country; and the authority which can act for the whole country can alone adopt such a system. Action upon WABASH, &c., RAILWAY CO. v. ILLINOIS. 575 Opinion of the Court. it by separate States is not, therefore, permissible. Language affirming the exclusiveness of the grant of power over commerce as thus defined may not be inaccurate, when it would be so if applied to legislation upon subjects which are merely auxiliary to commerce.” In the case of Gloucester Ferry Co. n. Pennsylvania, 114 IT. S. 196, 204, decided two years ago, the court declared without dissent that, “ It needs no argument to show that the commerce with foreign nations and between the States, which consists in the transportation of persons and property between them, is a subject of national character and requires uniformity of regulation,” and still later, in the case of Pickard v. Pullman Southern Car Co., 117 IT. S. 34, the whole subject is very fully re-examined; and a tax of the State of Tennessee upon sleeping-cars of that company, which were used in carrying passengers through the State, and into it and out of it, was held void as a regulation of commerce among the States. The case of Stone v. The Farmers' Loan and Trust Co., 116 IT. S. 307, argued at the same term as the present, while it does not decide the latter, evidently does not support the construction placed by the Supreme Court of Illinois upon the case of Munn v. Illinois, and the other cases on which the court relies. We must, therefore, hold that it is not, and never has been, the deliberate opinion of a majority of this court that a statute of a State whiph attempts to regulate the fares and charges by railroad companies within its limits, for a transportation which constitutes a part of commerce among the States, is a valid law. Let us see precisely what is the degree of interference with transportation of property or persons from one State to another which this statute proposes. A citizen of New York has goods which he desires to have transported by the railroad companies from that city to the interior of the State of Illinois. ₓ A continuous line of rail over which a car loaded with these goods can be carried, and is carried habitually, connects the place of shipment with the place of delivery. He undertakes to make a contract with a person engaged in the carrying business at the end of this route from whence the goods are to 576 OCTOBER TERM, 1886. Opinion of the Court. start, and he is told by the carrier, “ I am free to make a fair and reasonable contract for this carriage to the line of the State of Illinois, but when the car which carries these goods is to cross the line of that State, pursuing at the same time this continuous track, I am met by a law of Illinois which forbids me to make a free contract concerning this transportation within that State, and subjects me to certain rules by which I am to be governed as to the charges which the same railroad company in Illinois may make, or has made, with reference to other persons and other places of delivery.” So that while that carrier might be willing to carry these goods from the city of New York to the city of Peoria at the rate of fifteen cents per hundred pounds, he is not permitted to do so because the Illinois railroad company has already charged at the rate of twenty five cents per hundred pounds for carriage to Gilman, in Illinois, which is eighty six miles shorter than the distance to Peoria. So, also, in the present case, the owner of corn, the principal product of the country, desiring to transport it from Peoria, in Illinois, to New York, finds a railroad company willing to do this at the rate of fifteen cents per hundred pounds for a car-load, but is compelled to pay at the rate of twenty five cents per hundred pounds, because the railroad company has received from a person residing at Gilman twenty five cents per hundred pounds for the transportation of a car-load of the same class of freight over the same line of road from Gilman to New York. This is the result of the statute of Illinois, in its endeavor to prevent unjust discrimination, as construed by the Supreme Court of that State. The effect of it is, that whatever may be the rate of transportation per mile charged by the railroad company from Gilman to Sheldon, a distance of twenty three miles, in which the loading and the unloading of the freight is the largest expense incurred by the railroad company, the same rate per mile must be charged from Peoria to the city of New York. The obvious injustice of such a rule as this, which railroad companies are by heavy penalties compelled to conform to, in regard to commerce among the States, when applied to trans- WABASH, &c., RAILWAY CO. v. ILLINOIS. 577 Dissenting Opinion: Waite, C.J., Bradley, Gray, JJ. portation which includes Illinois in a long line of carriage through several States, shows the value of the constitutional provision which confides the power of regulating interstate commerce to the Congress of the United States, whose enlarged view of the interests of all the States, and of the railroads concerned, better fits it to establish just and equitable rules. Of the justice or propriety of the principle which lies at the foundation of the Illinois statute it is not the province of this court to speak. As restricted to a transportation which begins and ends within the limits of the State it may be very just and equitable, and it certainly is the province of the State legislature to determine that question. But when it is attempted to apply to transportation through an entire series of States a principle of this kind, and each one of the States shall attempt to establish its own rates of transportation, its own methods to prevent discrimination in rates, or to permit it, the deleterious influence upon the freedom of commerce among the States and upon the transit of goods through those States cannot be overestimated. That this species of regulation is one which must be, if established at all, of a general and national character, and cannot be safely and wisely remitted to local rules and local regulations, we think is clear from what has already been said. And if it be a regulation of commerce, as we think we have demonstrated it is, and as the Illinois court concedes it to be, it must be of that national character, and the regulation can only appropriately exist by general rules and principles, which demand that it should be done by the Congress of the United States under the commerce clause of the Constitution. The judgment of the Supreme Court of Illinois is therefore Reversed, and the case remanded to that court for further proceedings in conformity with this opinion. Mr. Justice Bradley, with whom concurred The Chief Justice and Mr. Justice Gray, dissenting. The Chief Justice, Mr. Justice Gray, and myself dissent from the opinion and judgment of the court in this case, and I am authorized to state the reasons upon which our dissent is founded. vol. cxvni—37 578 OCTOBER TERM, 1886. Dissenting Opinion: Waite, C.J., Bradley, Gray, JJ. The Wabash, St. Louis and Pacific Railway Company, an Illinois corporation, plaintiff in error, was sued by the State of Illinois to recover a penalty for the breach of its laws, passed “to prevent extortion and unjust discrimination in the rates charged for the transportation of passengers and freight on railroads in the State.” The law sued on was originally passed in 1871, and revised in 1873, and the material portions of its most important section are in the following words, to wit: “ If any such railroad corporation shall charge, collect, or receive for the transportation of any passenger or freight of any description, upon its railroad, for any distance, within this State, the same or a greater amount of toll or compensation than is at the same time charged, collected, or received for the transportation, in the same direction, of any passenger or like quantity of freight, of the same class, over a greater distance of the same railroad; . . . or if it shall charge, collect, or receive from any person or persons, for the use and transportation of any railroad car or cars upon its railroad, for any distance, the same or a greater amount of toll or compensation than is at the same time charged, collected, or received from any other person or persons, for the use and transportation of any railroad car of the same class or number, for a like purpose, being transported in the same direction, over a greater distance of the same railroad ; ... all such discriminating rates, charges, collections, or receipts, whether made directly or by means of rebate, drawback, or other shift or evasion, shall be deemed and taken, against any such railroad corporation, as prima facie evidence of unjust discrimination, prohibited by the provisions of this act; . . . Provided, however, that nothing herein contained shall be so construed as to prevent railroad corporations from issuing commutation, excursion, or thousand-mile tickets, as the same are now issued by such corporations.” A penalty of not less than $1000 and not more than $5000 for the first offence is imposed for the violation of the law; and it was for this penalty that the company was sued in the Ford County Circuit Court. The declaration alleged, in substance, that the company WABASH, &c., RAILWAY CO. v. ILLINOIS. 579 Dissenting Opinion: Waite, C.J., Bradley, Gray, JJ. charged certain parties fifteen cents per hundred pounds for carrying a load of freight from Peoria, in the State of Illinois, to New York, one hundred and nine miles of the distance being in Illinois, whilst at the same time it charged certain other parties twenty five cents per hundred pounds for carrying a like load of the same class of freight from Gilman, also in the State of Illinois, to New York, twenty three miles of the distance being in Illinois, both places being on the line of the road. This allegation was substantially admitted, and judgment was finally rendered in favor of the State, and was sustained by the Supreme Court of the State, to which the present writ of error was directed. The main point insisted on by the railway company in its defence was, that the law on which the action was founded is unconstitutional in its application to their case, as being a regulation of interstate commerce. They also contended that a gross charge from Peoria or Gilman to New York was no evidence of any particular charge within the State of Illinois. The construction given to the law by the Supreme Court of Illinois is to be received by us, on a writ of error brought for the purpose of questioning its constitutionality. That construction is clearly exhibited in the following announcement of the opinion of that court when the case was brought before it a second time. The court says: “We see no reason to depart from the conclusion reached in this case when it was here before. See People v. W., St. L. & P. Railway Co., 104 Ill. 476. But to avoid misapprehension, we deem it desirable to state explicitly that we disclaim any idea that Illinois has authority to regulate commerce in any other State. We understand and simply hold that, in the absence of anything showing to the contrary, a single and entire contract to carry for a gross sum from Gilman, in this State, to the city of New York, implies necessarily that that sum is charged proportionately for the carriage on every part of that distance; and that a single and entire contract to carry for a gross sum from Peoria, in this State, to the city of New York, implies the same thing; and that, therefore, when it is shown that there is charged for carriage upon the‘same line 580 OCTOBER TERM, 1886. Dissenting Opinion : Waite, C. J., Bradley, Gray, JJ. less from Peoria to New York (the greater distance) than from Gilman to New York (the less distance), and nothing is shown to the effect that such inequality in charge is all for carriage entirely beyond the limits of this State, a prvma facie case is made out of unjust discrimination under our statute occurring within this State. We hold that the excess in the charge for the less distance presumably affects every part of the line of carriage between Gilman and the State line proportionately with the balance of the line. The judgment is affirmed.” Wabash, St. Louis & Pacific Railway n. Illinois, 105 Ill. 236. We have no doubt that this view of the presumed equal distribution of the charge to every part of the route is correct. If one-tenth, or any other proportion, of the whole route of transportation was in Illinois, the clear presumption is, if nothing be shown to the contrary (as nothing was shown), that the like proportion of the whole charge was made for the transportation in that State. The principal question in this case, therefore, is whether, in the absence of congressional legislation, a State legislature has the power to regulate the charges made by the railroads of the State for transporting goods and passengers to and from places within the State, when such goods or passengers are brought from, or carried to, points without the State, and are, therefore, in the course of transportation from another State, or to another State. It is contended that as such transportation is commerce between or among different States, the power does not exist. The majority of the court so hold. We feel obliged to dissent from that opinion. We think that the State does not lose its power to regulate the charges of its own railroads in its own territory, simply because the goods or persons transported have been brought from or are destined to a point beyond the State in another State. The case before us is not embarrassed by any allegation of a contract between the State and the company ; it is a question of the power to regulate, pure and simple. The State has never contracted away or attempted to contract away this power. WABASH, &c., RAILWAY CO. v. ILLINOIS. 581 Dissenting Opinion : Waite, C.J., Bradley, Gray, JJ. It is also unembarrassed by any Federal legislation on the subject. No one disputes that Congress might, if it saw fit, under its power to regulate commerce among the several States, regulate the matter under consideration ; but it has not done so. The question rests solely and entirely upon the power of the State, when unrestrained by any contract, or by any action of the legislative department of the United States. Does it follow, then, that because Congress has the power to regulate this matter (though it has not exercised that power), therefore the State is divested of all power of regulation ? That is the question before us. We had supposed that this question was concluded by the previous decisions of this court: that all local arrangements and regulations respecting highways, turnpikes, railroads, bridges, canal’s, ferries, dams, and wharves, within the State, their construction and repair, and the charges to be made for their use, though materially affecting commerce, both internal and external, and thereby incidentally operating to a certain extent as regulations of interstate commerce, were within the power and jurisdiction of the several States. That is still our opinion. It is almost a work of supererogation to refer to the cases. They are legion. A few only will be selected and referred to. The first great case On the subject was that of Willson v. The Blackbird Creek Co., 2 Pet. 245, 252, where the State of Delaware had authorized a dam in a navigable tide-water creek of that State, communicating with Delaware Bay; and Chief Justice Marshall, delivering the unanimous opinion of the court, said : “ The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution or a law of the United States, 582 OCTOBER TERM, 1886. Dissenting Opinion : Waite, C.J., Bradley, Gray, JJ. is an affair between the government of Delaware and its citizens, of which this court can take no cognizance. The counsel for the plaintiff in error insist that it comes in conflict with the power of the United States ‘ to regulate commerce with foreign nations and among the several States.’ If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control State legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the Middle and Southern States, we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States; a power which has not been so exercised as to affect the question. We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.” This case was, in all things, affirmed by the later case of Gilman v. Philadelphia, 3 Wall. 713. The Legislature of Pennsylvania authorized the city of Philadelphia to erect a permanent bridge across the Schuylkill River (a navigable water), at the foot of Chestnut Street. It was sought to restrain the erection of this bridge on the same grounds which had been urged in the Blackbird Creek case ; but the Circuit Court of the United States refused to interfere, and dismissed a bill for an injunction. The decision was sustained by this court, which held that it was for Congress to determine when its full power to regulate commerce should be brought into activity, and as to the regulations and sanctions which should be provided; and that, until the dormant power of the Constitution is awakened and made effective by appropriate legislation, the reserved power of the States is plenary, and its exercise in good faith cannot be made the subject of review by this court. WABASH, &c., RAILWAY CO. v. ILLINOIS. 583 Dissenting Opinion: Waite, C.J., Bradley, Gray, JJ. These principles are reaffirmed in the still more recent case of Escanaba Company v. Chicago, 107 U. S. 678, 683. In that case the authorities of Chicago, under the powers conferred upon them by the Legislature of Illinois, regulated the times for opening and closing the draws in the bridges crossing the Chicago River, so as to accommodate the local travel across them at certain times, and to allow the passage of vessels at others. This operated as a regulation of the commerce on the river, including interstate and foreign, as well as domestic commerce. But there being no legislation of Congress to the contrary, this court held that the power was constitutionally exercised. Commerce was affected; commerce was even incidentally regulated; but the jurisdiction of the State, and of the city acting under State authority, was unhesitatingly recognized by the court. Mr. Justice Field, delivering the opinion of the court, said : “ The Chicago River and its branches must, therefore, be deemed navigable waters of the United States, over which Congress under its commercial power may exercise control to the extent necessary to protect, preserve, and improve their free navigation. But the States have full power to regulate within their limits matters of internal police, including in that general designation whatever will promote the peace, comfort, convenience, and prosperity of their people. This power embraces the construction of roads, canals, and bridges, and the establishment of ferries, and it can generally be exercised more wisely by the States than by a distant authority. . . . Nowhere could the power to control the bridges in that city, their construction, form, and strength, and the size of their draws, and the manner and times of using them, be better vested than with the State, or the authorities of the city upon whom it has devolved that duty. When its power is exercised so as to unnecessarily obstruct the navigation of the river or its branches, Congress may interfere and remove the obstruction. . . . But until Congress acts on the subject, the power of the State over bridges across its navigable streams is plenary.” The doctrines announced in these cases apply not only to dams in, and bridges over, navigable streams, but to all struct- 584 OCTOBER TERM, 1886. Dissenting Opinion : Waite, C.J., Bradley, Gray, J J. ures and appliances in a state which may incidentally interfere with commerce, or which may be erected or created for the furtherance of commerce, whether by water or by land. It is matter of common knowledge that from the beginning of the government the States have exercised almost exclusive control over roads, bridges, ferries, wharves, and harbors. No one has doubted their right to do so. It is recognized in the great case of Gibbons v. Ogden, 9 Wheat. 1, where Chief Justice Marshall, after enumerating some of the powers reserved to the States, says: “ They form a portion of that immense mass of legislation which embraces everything within the territory of a State, not surrendered to the general government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass.” And he adds (what is very pertinent to this discussion): “No direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given.” The case of Transportation Co. v. Parkersburg, 107 U. S. 691, 701, related to wharves. The city of Parkersburg had built certain wharves for the accommodation of vessels, principally steamboats, navigating the Ohio River. The Transportation Company, being the owner of several steamboats plying on that river, complained of the wharfage charges as being extortionate, and an unconstitutional interference with the commerce of the Ohio River. It was shown that the charges were imposed by authority derived from the State laws; and we held that, until Congress interfered, the charges for wharfage was a matter. of State law and of State jurisdiction. We then said: “Wharves, levees, and landing-places are essential to commerce by water, no less than a navigable channel and a clear river. But they are attached to the land; they are private WABASH, &c., RAILWAY CO. v. ILLINOIS. 585 Dissenting Opinion : Waite, C.J., Bradley, Gray, JJ. property, real estate; and they are primarily, at least, subject to the local State laws. . . . Until Congress has acted, the courts of the United States cannot assume control over the subject as a matter of Federal cognizance. It is Congress, and not the judicial department, to which the Constitution has given the power to regulate commerce with foreign nations and among the several States. The courts can never take the initiative on this subject.” There is a class of subjects, it is true, pertaining to interstate and foreign commerce, which require general and uniform rules for the whole country, so as to obviate unjust discriminations against any part, and in respect of which local regulations made by the States would be repugnant to the power vested in Congress, and, therefore, unconstitutional; but there are other subjects of local character and interest which not only admit of, but are generally best regulated by, State authority. This distinction is pointed out and enforced in the case of Cooley n. The Port Wardens of Philadelphia, 12 How. 299. In that case it was held that the pilotage regulations of the different ports of the country belong to the latter class, and are susceptible of State regulation. This case has been approved in several subsequent decisions. Gilman v. Philadelphia, ubi supra y Crandall v. Nevada, 6 Wall. 35, 42; Ex parte McNeill, 13 Wall. 236; Osborne v. Mobile, 16 Wall. 479, 482; Railroad Co. v. Fuller, 17 Wall. ‘560, 569; The Lot-tawanna, 21 Wall. 558, 581, 582; Packet Co. v. Keokuk, 95 U. S. 80, 88 ; Pound v. Turck, 95 U. S. 459; Hall v. De Cuir, 95 U. S. 485, 488; Wilson v. McNamee, 102 U. S. 572, 575; Mobile v. Kimball, 102 U. S. 691, 698; Packet Co. v. Catlettsburg, 105 U. S. 559, 562. It is hardly necessary to argue that, in reference to this rule, railroads, canals, turnpikes, bridges, ferries, and wharves belong to the category of local subjects, local means, and local aids of commercial intercourse. Congress may establish national roads, canals, and bridges, it is true; but we speak of those (hitherto the most part) which are constructed and established under State authority; and, in reference to these, it seems to us very clear that, in the absence of congressional 586 OCTOBER TERM, 1886. Dissenting Opinion : Waite, C. J.; Bradley, Gray, JJ. legislation to the contrary, they are not only susceptible of State regulation, but properly amenable to it, irrespective of other considerations to which we shall refer. The highways in a State are the highways of the State. Convenient ways and means of intercommunication are the first evidence of the civilization of a people. The highways of a country are not of private but of public institution and regulation. In modern times, it is true, government is in the habit, in some countries, of letting out the construction of important highways, requiring a large expenditure of capital, to agents, generally corporate bodies created for the purpose, and giving to them the right of taxing those who travel or transport goods thereon, as a means of obtaining compensation for their outlay. But a superintending power over the highways, and the charges imposed upon the public for their use, always remains in the government. This is not only its indefeasible right, but is necessary for the protection of the people against extortion and abuse. These positions we deem to be incontrovertible. Indeed, they are adjudged law in the decisions of this court. Railroads and railroad corporations are in this category. Now, since every railroad may be, and generally is, a medium of transportation for interstate commerce, and affects that commerce; and since the charges of fare and freight for such transportation affect and incidentally regulate that commerce; and since the railroad could not be built, and the charges upon it could not be exacted, without authority from the State, it follows as a necessary consequence that the State, in the exercise of its undoubted functions and sovereignty, does, in the establishment and regulation of railroads, to a certain and a very material extent, not only do that which affects but incidentally regulates commerce. It does so by the very act of authorizing the construction of railroads and the collection of fares and freights thereon. No one doubts its powers to do this. The very being of the plaintiffs in error, the very existence of their railroad, the very power they exercise of charging fares and freights, are all derived from the State. And yet, according to the argument of the plaintiffs in error, pursued to its legitimate consequences, the act of the State in doing all this ought to be WABASH, &c., RAILWAY CO. v. ILLINOIS. 587 Dissenting Opinion: Waite, C.J., Bradley, Gray, JJ. regarded as null and void because it operates as a regulation of commerce among the States. Not only does the right to charge fares and freights at all come to a railroad company from the grant of the State, but the amount of such charges is also regulated by the State law, either by the charter of the company, or by legislative regulations, or by the general law that the charges shall be reasonable—and that is State law, and not United States law. Where else but from the laws of the State does the railroad company get its right to charge any fares or freight at all ? And since its being, its franchises, its powers, its road, its right to charge, all come from the State, and are the creation of State law, how can it be contended that the State has no power of regulation over those charges, and over the conduct of the company in the transaction of its business whilst actino- within the State and using- its railroad lying-within the bounds of the State ? Omne majus continet in se minus. If the State created the company and its franchises, it surely may make regulations as to the manner of using them. It is evident from what has been said, that the dealing of a State with a railroad corporation of its own creation, in authorizing the construction and maintenance of its road and the charge of fares and freights thereon, is, in its purpose, a matter entirely aside from that kind of regulation of commerce which is obnoxious to the provisions of the Constitution. There is not a particle of doubt that it was the right of the State to prescribe the route of the plaintiff’s road—it might be in a direction north and south, or east and west; it might be by one town, or by a different town; it was its right to prescribe how the road should be built, what means of locomotion should be used on it, how fast the trains might run, at what stations they should stop. It was its right to prescribe its charges, and to declare that they should be uniform, or, if not uniform, how otherwise: this certainly was the right of the State at the inception of the charter, and every one of these things would most materially affect commerce, not only internal but external; and yet not one of them would be repugnant to the power of Congress to regulate commerce within the meaning of the Constitution. 588 OCTOBER TERM, 1886. Dissenting Opinion: Waite, C.J., Bradley, Gray, J J. Suppose the original charter of the railroad company in this case had contained precisely the provision against discriminating charges which is contained in the general law now complained of, could the company disregard the conditions of its charter, and defy the authority of the State ? We think it clear that it could not. But if the State had the power to impose such a condition in the original charter, it must have the same power at any time afterwards ; for the exercise of the power in the original grant would be just as repugnant to the Constitution, and no more, as the exercise of it at a subsequent period. The regulation of charges is just as unconstitutional in a charter as in a general law. To sum up the matter in a word : we hold it to be a sound proposition of law, that the making of railroads and regulating the charges for their use is not such a regulation of commerce as to be in the remotest degree repugnant to any power given to Congress by the Constitution, so long as that power is dormant, and has not been exercised by Congress. They affect commerce, they incidentally regulate it ; but they are acts in relation to the subject which the State has a perfect right to do, subject, always, to the controlling power of Congress over the regulation of commerce when Congress sees fit to act. It is only for the sake of convenience that the State lets out its railroads to private corporations. It might construct them itself. Suppose it had done so in this case : could not the State have instituted such rates of freight and fare as it pleased ? Certainly it could. It might have made them uniform, as the present law requires them to be, or it might have made them discriminative between different places, and no one could have called it to account. Instructions in the form of laws, or in the form of orders made by a State board, might have been given to the superintendents of the road, acting in behalf of the State, to adopt the one course or the other. Could the agents of the State, acting under such instructions, have been interfered with by the judicial department on the ground of unconstitutionality ? Certainly not ; certainly not, unless discriminations were made to the prejudice of the citizens of other States, or of the products of other States. WABASH, &c., RAILWAY CO. v. ILLINOIS. 589 Dissenting Opinion : Waite, C.J., Bradley, Gray, JJ. The State of New York built and owns the Erie Canal. Did any court ever attempt to control that State in its regulation of tolls on the canal, even though made for the purpose of affecting. the relative movement of goods on the canal and the railroads of the State ? We presume that no such attempt was ever made, or would be successful if made. It is true, and this we concede, that if the laws of a State discriminate adversely to the citizens or products of other States, whether the railroads belong to the State or to private corporations, the courts might interfere on the ground of the repugnancy of such regulations to that freedom of commerce which Congress by its non-action on the subject has indicated shall exist. This has been frequently decided. Welton v. Missouri, 91 U. S. 275, 282 ; Brown v. Houston, 114 IT. S. 622, 631, and cases there cited. But no such discrimination is made by the law in question. We also concede that any taxes, duties, or impositions upon interstate commerce (that is, upon the commerce itself), carried on over the railroads of the State, would interfere with the freedom of such commerce, and would be repugnant to the presumed intention of Congress. This has frequently been decided. Crandall v. Nevada, 6 Wall. 35 ; State Freight Tax Cases, 15 Wall. 232 ; Coe n. Errol, 116 IT. S. 517 ; and the authorities cited in the latter case. But the present is not a case of that kind, and has no semblance of likeness to it. All such discriminations, taxes, duties, and impositions are direct regulations and burdens upon the commerce itself, and come fairly within the exclusive prerogatives of Congress. The distinction between such burdens and charges for service rendered is well explained in the case of The Gloucester Ferry Co. v. Pennsylvania, 114 IT. S. 196, 217, where Mr. Justice Field, delivering the unanimous opinion of the court, in relation to ferries, says : “ It is true that, from the earliest period in the history of the government, the States have authorized and regulated ferries, not only over waters entirely within their limits, but over waters separating them ; and it may be conceded that in many respects the States can more advantageously manage such interstate ferries than the general govern- 590 OCTOBER TERM, 1886. Dissenting Opinion: Waite, C.J., Bradley, Gray, J J. ment; and that the privilege of keeping a ferry, with a right to take toll for passengers and freight, is a franchise grantable by the State, to be exercised within such limits and under such regulations as may be required for the safety, comfort, and convenience of the public. Still the fact remains that such a ferry is a means, and a necessary means, of commercial intercourse between the States bordering on their dividing waters, and it must, therefore, be conducted without the imposition by the States of taxes or other burdens upon the commerce between them. Freedom from such impositions does not, of course, imply exemption from reasonable charges, as compensation for the carriage of persons, in the way of tolls or fares, or from the ordinary taxation to which other property is subjected, any more than like freedom of transportation on land implies such exemption. Reasonable charges for the use of property, either on water or land, are not an interference with the freedom of transportation between the States secured under the commercial power of Congress. . . . That freedom implies exemption from other charges than such as are imposed by way of compensation for the use of the property employed, or for the facilities afforded for its use, or as ordinary taxes upon the value of property.” This subject in many of its aspects was considered by this court in the case of Railroad Company n. Maryland, 21 Wall. 456, 471-3. In that case, in a charter for constructing and operating a railroad from Baltimore to Washington, authority was given to the company to charge two dollars and a half for each passenger, and it was stipulated that the company should pay to the State one-fifth of the whole amount received for the transportation of passengers on the road. The company sued for a return of the sums paid on this account, as being exacted by an unconstitutional law. It was insisted that the reservation was equivalent to the imposition of a tax on passengers, and, therefore, a restriction of free intercourse and traffic between different States—much of the travel being that of passengers coming from, or going to, other States. The argument that the reservation of one-fifth of the passagemoney necessitated an increased charge upon the passenger WABASH, &c., RAILWAY CO. v. ILLINOIS. 591 Dissenting Opinion: Waite, C.J., Bradley, Gray, J J. was met by this court as follows: “ Had the State built the road in question, it might to this day, unchallenged and unchallengeable, have charged two dollars and fifty cents for carrying a passenger between Baltimore and Washington. So might the railroad company under authority from the State, if it saw fit to do so. . . . This unlimited right of the State to charge, or to authorize others to charge, toll, freight, or fare for transportation on its roads, canals, and railroads, arises from the simple fact that they are its own works, or constructed under its authority. It gives them being. It has a right to exact compensation for their use. It has a discretion as to the amount of that compensation. That discretion is a legislative—a sovereign—discretion, and in its very nature is unrestricted and uncontrolled. . . . The exercise of [this] power on the part of a State is very different from the imposition of a tax or duty upon the movements or operations of commerce between the States. Such an imposition, whether relating to persons or goods, we have decided the States cannot make, because it would be a regulation of commerce between the States in a matter in which uniformity is essentia] to the rights of all, and, therefore, requiring the exclusive legislation of Congress. Crandall v. Nevada, 6 Wall. 42 ; State Freight Tax Cases, 16 Wall. 232, 279. It is a tax because of the transportation, and is, therefore, virtually a tax on the transportation, and not in any sense a compensation therefor, or for the franchises enjoyed by the- corporation that perform it. . . . The question is practically reduced to this : What amounts to a regulation of commerce between the States ? This is often difficult to determine. In view, however, of the very plenary powers which a State has always been conceded to have over its own territory, its highways, its franchises, and its corporations, we cannot regard the stipulation in question as amounting to either of these unconstitutional acts. It is not within the category of such acts. It may incidentally affect transportation, it is true; but so does every burden or tax imposed on corporations or persons engaged in that business. Such burdens, however, are imposed diverse intuitu, and in the exercise of an undoubted power.” 592 OCTOBER TERM, 1886. Dissenting Opinion: Waite, C.J., Bradley, Gray, JJ. But it is needless to multiply citations which establish or recognize the principles which govern the present case. The very point in question has been already expressly decided by this court. We refer to the case of Peik v. The Chicago Northwestern Railway, 94 U. S. 164, 175, 177-8. That was a bill filed by the bondholders of the company to restrain the Railroad Commissioners of Wisconsin from enforcing a law of that State limiting the rate of charges for transporting passengers and freights on the railroads of the State. The bill, amongst other things, complained that the classes of freight established by § 3 of the act were different from those established by the laws of Illinois, Iowa, and Minnesota, for the transportation of freight upon the railroads of the same company in those States, and rendered it practically impossible to carry on the business of transporting freight from Wisconsin to either of those States; and that the 18th section (limiting the rates) was a regulation of interstate commerce. The act excepted from its operation the case of freight or passengers carried from one State to another State entirely through or across the State of Wisconsin. It did operate on freight and passengers carried from another State to any point within the State of Wisconsin, or from any such point to another State. The Chief Justice, in delivering the opinion of the court, states the precise question to be decided, as follows: “These suits present the single question of the power of the Legislature of Wisconsin to provide by law for a maximum of charge by the Chicago and Northwestern Railway Company for fare and freight upon the transportation of persons and property carried within the State, or taken up outside the State and brought within it, or taken up inside and carried without.” He then, after disposing of certain other questions relating to the consolidation of the company with an Illinois company, disposes of the main question as follows: “As to the effect of the statute as a regulation of interstate commerce. The law is confined to State commerce, or such interstate commerce as directly affects the people of Wisconsin. Until Congress acts in reference to the relations of this company to interstate commerce, it is certainly within the power of Wisconsin to regu- WABASH, &c., RAILWAY CO. v. ILLINOIS. 593 Dissenting Opinion: Waite, C.J., Bradley, Gray, JJ. late its fares, &c., so far as they are of domestic concern. With the people of Wisconsin this company has domestic relations. Incidentally, these may reach beyond the State. But certainly, until Congress undertakes to legislate for those who are without the State, Wisconsin may provide for those within, even though it may indirectly affect those without.” The law was sustained, and the bill of complaint was dismissed. We do not see how this case can be distinguished from that now under consideration. Thé fact that in Peik’s case there was a classification of freights and a limitation of charges, and in the present case a prohibition of discrimination in the charges, is a distinction without a difference. The opinion is brief, it is true, but all the principles involved in it were so fully discussed in the cases immediately preceding, beginning with that of Munn v. Illinois, that no extended discussion of Peik’s case was deemed necessary. All the justices who concurred in the opinion were entirely satisfied with it. The cases were all argued at the same time, or in reference to each other, and were considered together. But there stands the judgment of the court, and, in our apprehension, the judgment in the present case is directly opposed to it. We have omitted to cite a number of cases corroborating the views we have expressed. The case of State Tax on Railway Gross Receipts, 15 Wall. 284, is weighted with arguments and considerations in this direction. We would also refer to the cases of Osborne v. Mobile, 16 Wall. 479 ; Railroad Co. v. Fuller, 17 Wall. 560 ; Railroad Commission Cases, 116 U. S. 307, 334, 335. It is supposed that the decision in Hall v. De Cuir, 95 IT. S. 485, 488-9, supports the contention of the plaintiffs in error. We think not. What was that case ? A statute of Louisiana, as construed by its courts, prohibited those engaged in the business of carrying passengers, in that State (including those engaged in interstate commerce), from making any discrimination on account of race or color in the use of the accommodations of their conveyances—a direct regulation of commerce, and within the reason of the tax cases before referred to. A steamer which regularly plied between New Orleans and vol. cxvin—38 594 OCTOBER TERM, 1886. Dissenting, Opinion: Waite, C.J., Bradley, Gray, JJ. Vicksburg had a cabin specially set apart for white persons, and De Cuir, a colored person, being refused admission to that cabin, sued for damages. We held that the law (as above suggested) was a direct regulation of commerce and a burden upon it. It compelled the steamboat proprietor to place colored persons travelling from one place to another in Louisiana in the cabin set apart for white persons, many of whom were bound to another State; and, therefore, in its operation was a regulation of interstate commerce. It was against the rule that, in the absence of action by Congress, commerce must remain free and untrammelled. By that rule the proprietor of the vessel was at liberty to adopt such reasonable rules and regulations for the disposition and comfort of passengers upon his boat, while pursuing its voyage, as seemed to him most for the interest of all concerned. The statute took away from him this power so long as he was within Louisiana. We especially distinguished the case from Munn v. Illinois, Peik v. Railway Co., and the cognate cases, as belonging to a different category, and governed by different considerations; and the difference between them seems to us very apparent. The Chief Justice, in delivering the opinion of the court, said: “ There can be no doubt but that exclusive power has been conferred upon Congress in respect to the regulation of commerce among the several States. The difficulty has never been as to the existence of this power, but as to what is to be deemed an encroachment upon it; for, as has been often said, ‘ legislation may in a great variety of ways affect commerce and persons engaged in it without constituting a regulation of it within the meaning of the Constitution.’ Sherlock v. Alling, 93 U. S. 103; State Tax on Railway Gross Receipts, 15 Wall. 284. Thus, in Munn v. Illinois, 94 U. S. 113, it was decided that a State might regulate the charges of public warehouses, and, in Chicago, Burlington c& Quincy Railroad v. Iowa, 94 U. S. 155, of railroads situate entirely within the State, even though those engaged m commerce among the States might sometimes use the warehouses or the railroads in the prosecution of their business.” After referring to the cases of dams and bridges over navigable waters, and of turnpikes and ferries, the WABASH, &c., RAILWAY CO. v. ILLINOIS. 595 Dissenting Opinion: Waite, C.J., Bradley, Gray, JJ. Chief Justice continued : “ By such statutes the States regulate, as a matter of domestic concern, the instruments of commerce situated wholly within their own jurisdictions, and over which they have exclusive governmental control, except when employed in foreign or interstate commerce. As they can only be used in the State, their regulation for all purposes may properly be assumed by the State, until Congress acts in reference to their foreign or interstate relations. When Congress does act, the State laws are superseded only to the extent that they affect commerce outside the State as it comes within the State.” He then added : “ But we think it may safely be said that State legislation which seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress. The statute now under consideration, in our opinion, occupies that position. It does not act upon the business through the local instruments to be employed after coming within the State, but directly upon the business as it comes into the State from without, or goes out from within.” The distinction here taken seems to us sound, and to distinguish the present case from that of De Cuir. In the Peik case, and others of like character, the State regulated the charges made upon an instrument of commerce (a railroad) situated within the State and under its jurisdiction—such charges being made by virtue of the State’s authority; in the De Cuir case it attempted, as the law operated, to regulate the manner of carrying passengers on an instrument of commerce having no fixed location, but plying on navigable waters within and without the State; in other words, it attempted to regulate interstate commerce itself, directly, in a matter in which it had no special prerogative to legislate. Other cases are referred to by the plaintiffs in error in support of their contention; but we think that no case can be found which is not clearly distinguishable from the present on some or one of the grounds already referred to. The inconveniences which it has been supposed in argument would follow from the execution of the laws of Illinois, we think have been greatly exaggerated. But if it should be found to present any real difficulty in the modes of transacting 596 OCTOBER TERM, 1886. Syllabus. business on through lines, it is always in the power of Congress to make such reasonable regulations as the interests of interstate commerce may demand, without denuding the States of their just powers over their own roads and their own corporations. LITTLE & Others v. GILES & Another. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA. Submitted October 19, 1886.—Decided November 1, 1886. A suit in a State court against several defendants, some of whom are citizens of the same State with the plaintiff, charging all as joint contractors or joint trespassers, cannot be removed into a Federal court by defendants who are citizens of another State, although they allege in their petition for removal that they are not jointly interested or liable with the other defendants, and that their controversy with the plaintiff is a separate one. When it appears that the interest of a nominal party to a suit is simulated and collusive, and created for the purpose of giving jurisdiction to a court of the United States, the court should dismiss the suit under the provisions of § 5, Act of March 3, 1875, 18 Stat. 472. Fa/rmington v. Pillsbury, 114 U. S. 138, affirmed. After removal of a cause in equity from a State court to a court of the United States, a motion was made under § 5, Act of March 3,1875, to remand it, on the ground that the title of one of the parties had been collusively acquired for the purpose of removal from the State court. A suit at law involving the same subject-matter was then pending in the Federal court. The same issue of collusion had been made in that cause by a plea in abatement, and the parties stipulated that the issue on the plea in abatement should be tried and that the decision thereon should be taken ’ and entered of record as the decision in the action at law, and also of the issues in the suit in equity as far as they were the same. The trial of the issues on the plea resulted in a finding that the plea had not been sustained, and this, together with all the evidence, being incorporated into the equity suit, the motion to remand the latter was denied : Held, That there was nothing in the stipulation to deprive this court of the power of reviewing the action of the court below in denying the motion. The case is stated in the opinion of the court. LITTLE v. GILES. 597 Opinion of the Court. J/k «7. JZ. Marquett, Mr. N. 8. Harwood, Mr, John H. Ames, and Mr. Walter J. Lamb, for appellants. Mr. L. C. Burr and Mr. J. M. Woolworth, for appellee Giles. Mr. Justice Bradley delivered the opinion of the court. The original bill in this case was filed in January, 1882, in the District Court of Lancaster County, in the State of Nebraska, to quiet the title of the complainants, some seventy in number, to certain lots of land in and about the town of Lincoln in that State, severally owned by them (as they allege), and derived under conveyances in fee from one Edith J. Dawson. The bill alleges that Jacob Dawson died seized of the lands in 1869, and by his will, dated June 15 of that year, gave to his wife, the said Edith, all his real and personal estate, to be and remain hers, with full power, right, and authority to dispose of the same as to her should seem meet and proper, so long as she should remain his widow, upon the express condition that if she should marry again then that all the estate, or whatever might remain, should go to the testator’s surviving children, share and share alike ; and appointed his wife executrix ; that she duly proved the will, and afterwards, in order to raise money to pay the debts of her deceased husband, and advance her children, made the conveyances referred to, pretending to be, and the defendants represented that she was, authorized by the power given her in the will to convey the property in fee. The bill states these conveyances, and alleges that the complainants, or their grantors, had severally erected expensive buildings and made valuable improvements on the lands. The bill further states that the said Edith afterwards, on the 15th of November, 1879, was reputed to have intermarried with one Pickering, and that, upon this marriage, the children and heirs of the said Jacob Dawson, namely, William R. Dawson, Albert L. Dawson, and others named in the bill, claimed to be seized in fee under the said will, and fraudulently conspired with one Highland H. Wheeler and one Lionel C. Burr, attorneys, to cloud and encumber the titles of the com- 598 OCTOBER TERM, 1886. Opinion of the Court. plainants by various suits at law, and to extort money from them; and that for this purpose the said heirs, without any consideration, but for the pretended consideration of $75,000, executed and delivered to said Wheeler and Burr a pretended deed or deeds for said lands, in consideration whereof it was agreed that the latter should pay and deliver to said heirs one-fourth part of whatever they could extort from the complainants, and retain the balance for themselves; and that further to carry out this fraudulent scheme, Wheeler and Burr, on the 27th of April, 1880, for the purpose of prosecuting complainants in the United States courts, and for no other consideration whatever, executed a pretended deed for said lands to one Ezekiel Giles, father-in-law of said Burr, a man of no property or means, who resided in Iowa; and that they have already commenced several vexatious suits in ejectment in said courts against the complainants, and threaten to commence others. The bill makes Giles, Wheeler, and Burr, and the Dawson heirs defendants, and prays against all of them an injunction, a decree to quiet title, and to cancel the fraudulent conveyances made by Dawson’s heirs to Wheeler and Burr, and by Wheeler and Burr to Giles, to establish the complainants’ title, and for further relief. Wheeler and Burr and three of the heirs of Dawson, namely, Albert L. Dawson, M. S. Dawson, and Melita C. D. Tillman, filed a disclaimer of any right, title, or interest in the property ; and affidavits were filed by thirty one of the co-com-plainants, denying that they had authorized their names to be used in the bill, and repudiating all connection with it. Giles then, on the 28th of February, 1882, presented a petition to remove the cause, as against him, to the Circuit Court of the United States for the District of Nebraska, alleging that he was and is a citizen of Iowa, and that the complainants (those of them who had not repudiated the proceedings) were citizens of Nebraska and other States ; that there were as many different controversies as there were complainants, each claiming a separate parcel of the land; and that the several controversies were wholly between each individual plaintiff and himself, and were capable of being fully determined between LITTLE v. GILES. 599 Opinion of the Court. them without the others being parties; that the several matters in dispute exceed the value of $500, &c. An order to remove the cause was made accordingly. On the 1st of March, 1882, a motion was made by the complainants in the Circuit Court to remand the cause, on the ground, amongst other things, that it appeared by the pleadings that Giles is not the real party in interest, but that Wheeler and Burr, and the heirs of Jacob Dawson, are the really interested parties, and that the action is brought in this court (the Circuit Court) for their benefit; that all these parties are residents of Nebraska, except Giles, who is a mere nominal defendant. The motion to remand was not granted, although no action of the court on the subject at this time appears in the record ; but it does appear afterwards, as will be shown hereafter, that the motion to remand was refused. On the 5th of April, 1882, Giles filed his answer and a crossbill. The answer denies the charge of fraud, but admits that the only consideration of the deed from Dawson’s heirs to Wheeler and Burr was $200, and an agreement to pay the heirs one third of the proceeds which Wheeler and Burr might recover; it denies that the deed to Giles was made for the purpose of suing in the courts of the United States. It states the marriage of the widow, Edith, and insists that her deeds conveyed only an estate during her widowhood ; and that the title derived by Giles from the heirs of Jacob Dawson is valid. It sets out the proceedings in various suits brought against some of the complainants, particularly one in which the judgment was brought to this court, by which the will of Dawson was construed in favor of Giles and against the title of complainants. Giles v. Little, 104 U. S. 291. The cross-bill is filed against all the complainants who did not repudiate the suit. It describes the different tracts held by the several complainants, alleges that they took with full knowledge of the will; that they have received large amounts of rents and profits; that their pretensions are a cloud on Giles’s title, and prays for a construction of the will, a decree to quiet title, an account of rents and profits, an injunction, a receiver, &c. The complainants answered the cross-bill, amongst other 600 OCTOBER TERM, 1886. Opinion of the Court. things denying that Giles had any real interest, and again raising the question of jurisdiction. It is unnecessary to notice the other pleadings in the cause. The parties went to proofs, and, on the final hearing, the original bill was dismissed in June, 1883, and an account of the improvements erected by the complainants, and of the rents and profits received by them, was ordered to be taken under the cross-bill, and in September, 1884, a decree was rendered in favor of Giles, directing a surrender of the property held by the complainants respectively, on payment of the difference, in each case, between the value of the improvements erected and the rents and profits received. An appeal was taken from each of these decrees. The first question to be considered is the jurisdiction of the Circuit Court to hear and determine the case. The complainants contested that jurisdiction from the time of the filing of the petition of removal, and a great deal of evidence was taken in reference to the charge that the deed to Giles was col-lusivelymade for the purpose of making a case for the Federal courts. But before examining that matter, there is another aspect of the question which presents itself on the face of the pleadings as they stood when the petition for removal was filed. The bill charged the defendants as co-conspirators in a scheme to raise a cloud on the title of the complainants, and to defraud them of their property. According to the allegations of the bill, the deed to Giles was a link in the chain of fraudulent acts charged. We have repeatedly held that a suit brought against several defendants, some of whom are citizens of the same State with the plaintiff, charging them all as joint contractors or joint trespassers, cannot be removed into the United States court by those who are citizens of another State, although they allege in their petition for removal that they are not jointly interested or liable with the other defendants, and that their controversy with the plaintiff is a separate one. We think that the present case is one of that kind. The bill, as we have said, charges the defendants jointly. Giles could not, by merely making contrary averments in his petition for re- LITTLE v. GILES. 601 Opinion of the Court. moval, and setting up a case inconsistent with the allegations of the bill, segregate himself from the other defendants, and thus entitle himself to remove the case into the United States court. This matter has been fully considered in the following cases : Louisville & Nashville Railroad Co. n. Ide, 114 U. S. 52; Farmington v. Pillsbury, 114 U. S. 138; Pirie v. Tvedt, 115 U. S. 41 ; Crump v. Thurber, 115 U. S. 56 ; Starin v. New York, 115 U. S. 248 ; Sloan v. Anderson, 117 U. S. 278 ; Insurance Co. v. Huntington, 117 U. S. 280; Core v. Vinal, 117 U. S. 347 ; Mining Co. v. Canal Co., 118 U. S. 264. In Louisville <& Nashville Railroad Co. n. Ide, the suit was originally brought by Ide in the Supreme Court of New York against several railroad companies forming a continuous line, including the plaintiff in error, to recover damages for the loss of cotton shipped at one end of the line and destined to the other. The Louisville and Nashville Company separated in pleading, and denied that the loss had occurred on its road, and removed the case, as to itself, to the Circuit Court of the United States, alleging in the petition for removal that the controversy with it was a separate one. The Circuit Court remanded the case, and on a writ of error we affirmed the order to remand. In delivering the opinion of the court, the Chief Justice said : “ The claim of right to a removal is based entirely on the fact that the Louisville and Nashville Company, the petitioning defendant, has presented a separate defence to the joint action by filing a separate answer tendering separate issues for trial. This, it has been frequently decided, is not enough to introduce a separate controversy into the suit, within the meaning of the statute. Hyde v. Ruble, 104 U. S. 407 ; Ayres v. IVis-wall, 112 U. S. 187, 192. Separate answers by the several defendants sued on joint causes of action may present different questions for determination, but they do not necessarily divide the suit into separate controversies. A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. Smith v. Rines, 2 Sumner, 348. A separate defence may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject- 602 OCTOBER TERM, 1886. Opinion of the Court. matter of the controversy, and that is for all the purposes of the suit whatever the plaintiff declares it to be in his pleadings.” In Pirie v. Twedt, 115 U. S. 41, the case was one of malicious prosecution, and, of course, by the common law, the defendants could be sued jointly or severally. But the plaintiff had elected to sue them jointly, as being jointly concerned in the prosecution complained of. The Chief Justice delivered the opinion of the court, and, after citing and reaffirming the case of The Louisville & Nashville Railroad Co. v. Ide, he said: “ The cause of action is several, as well as joint, and the plaintiffs might have sued each defendant separately, or all jointly. It was for the plaintiffs to elect which course to pursue. They did elect to proceed against all jointly, and to this the defendants are not permitted to object. The fact that a judgment in the action may be rendered against a part of the defendants only, does not divide a joint action in tort into separate parts any more than it does a joint action on contract.” The present case is clearly within the rule established by these and the other cases referred to. But we are also satisfied that the other ground is well taken —that the deed to Giles wascollusively made for the mere purpose of giving jurisdiction to the courts of the United States; and that for this reason the case should have been remanded to the State court. We have examined the evidence on this subject with some care, and have come to that conclusion. Whether, under the former practice of the court, the deed to Giles, being binding between him and his grantors, Wheeler and Burr, would have been deemed sufficient to give jurisdiction to the Circuit Court, although made for the purpose of such jurisdiction, it is not necessary to inquire. We are satisfied that, by the Act of 1875, Congress intended to introduce a rule that shall put a stop to all collusive shifts and contrivances for giving such jurisdiction. The language of the fifth section of that act is as follows: “ That if, in any suit commenced in a Circuit Court, or removed from a State court to a Circuit Court of the United States, it shall appear to the satisfaction of the said Circuit Court, at any time after such suit LITTLE v. GILES. 603 Opinion of the Court. has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require.” 18 Stat. 472. Here the words “ really ” and “ substantially,” and the expression “ improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable,” are very suggestive, and show that, by giving the Circuit Courts authority to dismiss or remand the cause at once, if these things are made to appear, it was the intent of Congress to prevent and put an end to all collusive arrangements made to give jurisdiction, where the parties really interested are citizens of the same State. Of course, where the interest of the nominal party is real, the fact that others are interested who are not necessary parties, and are not made parties, will not affect the jurisdiction of the Circuit Court ; but when it is simulated and collusive, and created for the very purpose of giving jurisdiction, the courts should not hesitate to apply the wholesome provisions of the law. In Farmington n. Pillsbury, 114 U. S. 138, where certain bonds of a municipal corporation were declared void by a State court, as issued under an unconstitutional act, and thereupon the holders of some of the coupons cut them off and transferred them to a citizen of another State, at much less than their face value, and took his note therefor, with an agreement that he should give them one half of what he might recover, and the transferee then brought suit in the Circuit Court of the United States, we held that this was a collusive transfer, and within the provisions of the fifth section of the Act of 1875. The Chief Justice, in delivering the opinion of the court, after showing that the question of colorable transfers to create a case for the Federal courts was formerly presented for the most part in writs for the recovery of real property, and could only be raised 604 OCTOBER TERM, 1886. Opinion of the Court. by plea in abatement; and that if the transfer was shewn to be fictitious and colorable such plea would be sustained, added : ⁴⁴ Such was the condition of the law when the Act of 1875 was passed, which allowed suits to be brought by the assignees of promissory notes negotiable by the law merchant, as well as of foreign and domestic bills of exchange, if the necessary citizenship of the parties existed. This opened wide the door for frauds upon the jurisdiction of the court by collusive transfers, so as to make colorable parties and create cases cognizable by the courts of the United States. To protect the courts as well as parties against such frauds upon their jurisdiction, it was made the duty of a court, at any time when it satisfactorily appeared that a suit did not ⁴ really and substantially involve a dispute or controversy ’ properly within its jurisdiction, or that the parties ⁴ had been improperly or collusively made or joined . . . for the purpose of creating a case cognizable ’ under that act, ⁴ to proceed no further therein,’ but to dismiss the suit, or remand it to the State court from which it had been removed. . . . The old rule established by the decisions, which required all objections to the citizenship of the parties, unless shown on the face of the record, to be taken by plea in abatement before pleading to the merits, was changed, and the courts were given full authority to protect themselves against the false pretences of apparent parties. This is a salutary provision which ought not to be neglected. It was intended to promote the ends of justice, and .is equivalent to an express enactment by Congress that the Circuit Courts shall not have jurisdiction of suits which do not really and substantially involve a dispute or controversy of which they have cognizance, nor of suits in which the parties have been improperly or collusively made or joined for the purpose of creating a case cognizable under the act.” An examination of the evidence in the present case shows conclusively, as it seems to us, that it is one of the kind referred to by the Chief Justice. The widow, Edith J. Dawson, was married to her second husband, Pickering, November 15,1879. Pickering was sworn as a witness, and says that the marriage was delayed some time LITTLE v. GILES. 605 Opinion of the Court. on the suggestion of Mrs. Dawson that she must first sell her property, and give her children a chance to make a contract with Wheeler and Burr. She denies this, it is true ; but the facts seem to corroborate Pickering’s story. She certainly did dispose of most of the lands before the marriage at prices based upon the supposition that she could convey a fee; and, in evident anticipation of the: marriage—for it was on the tapis for a considerable time—on the 15th of September, 1879, the heirs conveyed their interest in the property to Wheeler and Burr; and on the 10th of November, only five days before the marriage, Wheeler and Burr executed an agreement with the heirs that whenever they (Wheeler and Burr) should come into possession and be seized in fee simple absolute of the estate, or any part thereof, they would quitclaim to the heirs one undivided third interest, or pay them the value of such third in cash. This agreement was really the whole consideration of the conveyance. The next thing done was the making of the deed from Wheeler and Burr to Giles, dated April 27,1880, for the nominal consideration of $75,000, but really for no consideration at all except an agreement between them, of the same date as the deed, by -which Wheeler and Burr agreed to prosecute all suits against claimants, at the expense of Giles, for the possession of the premises, and to render or procure all necessary legal assistance for such purpose; and Giles agreed to pay all expenses of such suits; and, in the event of final success of any such suits, to pay Wheeler and Burr the value of one third of the lands recovered, and to assume and discharge all indebtedness arising by reason of the contract of November 10, 1879, made with the Dawson heirs. A little later Giles gave Burr (who was his son-in-law) a full power of attorney to act for him in the matter; to sue, recover possession, sell, lease, mortgage, and otherwise dispose of the lands, and execute deeds, and other instruments to that end, and to manage and control the property. But it nowhere appears that Giles ever advanced any money or did anything in the matter. Now, who was Giles, who entered into this large speculation in real estate in Lincoln, amounting in value to over 606 OCTOBER TERM, 1886. Opinion of the Court. $75,000, and in the hands of adverse claimants, against whom suits would have to be brought to get possession ? He was a poor farmer, living in Clay County, Iowa, two hundred and fifty or three hundred miles from Lincoln. He had never seen the property; he did not know its value; he had never been at Lincoln: and when, some time after the deed was made to him, he was told that the property was worth $75,000, he seemed greatly surprised. He further admitted, that he had never had the deed in his possession, and had never seen it. The record has a large mass of evidence on the subject, pro and con, which it is unnecessary to repeat. The contemporary declarations of Burr are equally suggestive. He is proved to have admitted that the deed was made to Giles in order that suit might be brought in the United States Court. In July, 1880, he wrote a long and urgent letter to William R. Dawson, one of the heirs, in which he speaks of the case as his case and theirs, and that, if properly managed, it would make all of them rich. Amongst other things, this is what he says : “Your letter of late date was received, and I want to reply to some things relating to the suit of the Dawson Heirs v. Bacon et al. I have but very little doubt in my mind but • what I shall within four years from to-day win this suit and get you heirs all this property back again, and thereby not only make myself, but all of you heirs, independently. rich. Of course it is a long and tiresome and expensive suit, but I expect and know that, now, while commencing the same. Yet you heirs are all interested with me, and must help me all you can, as the men I must fight are rich and numerous, and will do all they can to delay and hurt my prospects to win the case. Galey is already helping them all he can, by saying that he saw the will about one year after it was put in court; that your father at the time of his death was heavily in debt, to the full extent of his property, viz., $10,000, etc., and that H. S. Jennings drew the will.” This evidence might not be admissible against Giles if it did not appear (as it does) that they were all concerned and implicated together in carrying out the general scheme, Burr being the alter ego of Giles, and Giles of Burr. LITTLE v. GILES. 607 Opinion of the Court. Much more evidence to the same purport is contained in the record; and although counter-evidence was adduced by the defendants, we think that the weight of it all is decidedly to the effect that Giles really had no interest in the matter, and that the deed to him was made for the sole purpose of giving the Circuit Court jurisdiction. Being of this opinion, we think that the court was in error in not remanding the case to the State court. It is contended by the appellees, however, that the decision of the judge in the case at law of Giles against Owens and al., upon the plea in abatement in that case, in which the issue was whether the deed to Giles was collusively made for the purpose of bringing suit in the United States court, concludes the appellants on that point. A stipulation was entered into between the parties in this case that the issue on said plea in abatement should be tried, and that the decision thereon should be taken and entered of record as the decision upon the pleas filed in four other actions at law against other parties, and also of the issues in this suit as far as they are the same. All that this stipulation amounts to, so far as it affects this case, is, that the trial and decision in the law case should be regarded as the decision in this. It is the same as if an issue had been directed by the Circuit Court, and a verdict had been rendered. The decision of the judge was adverse to the appellants and in favor of Giles; and, so far as this case is concerned, that decision, by virtue of the stipulation, is to be considered as the decision of the Circuit Court, and nothing more. But all the evidence taken on that trial is incorporated into this case, and is now before us. If we are satisfied that the whole evidence in the case, taken together, including that before the judge, does not support the decision, we are not bound by it. We have already stated our conclusion. The stipulation above referred to, and the adoption thereby of the judge’s decision in the case at law as the decision of the Circuit Court, obviates another objection made by the appellee, to wit, that no decision of the Circuit Court was ever made on the motion to remand the cause. 608 OCTOBER TERM, 1886. Argument for the Motion. The decrees of the Circuit Court are Reversed and the cause remanded, with directions to remand the same to the District Court of Lancaster County, from which it was removed. NEW YORK ELEVATED RAILROAD v. FIFTH NATIONAL BANK. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Submitted October 12,1886.—Decided November 1, 1886. The value of the matter in dispute in this court is determined by the amount of the judgment below, without regard to the amount of the verdict. Jurisdiction of a cause having once attached in this court, cannot be defeated by plaintiff below waiving or releasing enough of the judgment to bring it within the jurisdictional amount. This was a motion to dismiss on the ground that the matter in dispute did not exceed the sum or value of $5000. The suit was brought by the Fifth National Bank of the City of New York against the New York Elevated Railroad Company, to recover damages for injuries to real estate. Atrial was had, which resulted in a verdict against the railroad company, on the 9th of June, 1886, for $5000. At the time of the rendition of the verdict the railroad company moved for a new trial. This motion was denied on the 10th of August, and, on the 26th of the same month, a judgment was entered for $5068.33, that being the amount of the verdict, with interest added to the date of the judgment. The claim now made was, that the value of the matter in dispute was to be determined by the verdict, without the interest. Mr. William F. McRae, for the motion. I. The subject-matter involved in this appeal, exclusive of N. Y. ELEVATED RAILROAD v. FIFTH NAT. BANK. 609 Opinion of the Court. costs, is only $5000, and the Supreme Court is therefore, under the statute, without jurisdiction to hear this appeal, and the writ of error should be dismissed. Walker v. United States, 4 Wall. 163 ; Western Union Telegraph Co. v. Rogers, 93 IT. S. 565; Railroad Co. v. Trook, 100 IT. S., 112 ; Merrill v. Petty, 16 Wall, 338; Hilton v. Dickinson, 108 IT. S. 165. II. The subject “ matter in dispute ” is the amount of the verdict, and that being only $5000, no review by the Supreme Court will lie. It can make no difference that interest has accrued in the meantime, and been added in the judgment. The “ matter in dispute,” the subject of grievance, is the verdict, and not the interest, and jurisdiction depends on that; and that being only $5000, exclusive of costs, the Supreme Court obtains no jurisdiction. Knapp v. Banks, 2 How. 73 ; Walker n. United States, supra. And see Josuez v. Conner, 75 N. Y. 156. III. Defendant in error has a right to waive or release any part of the judgment, and, as it releases or waives the accrued interest between the time of the rendition of the verdict and the time of the entry of the judgment, the subject, or matter in dispute, must necessarily only be $5000, exclusive of costs, and consequently there is no jurisdiction to review. Defendant in error waiving this interest, plaintiff in error cannot allege that it is in dispute. First National Bank of Omaha v. Reddick, 110 IT. S. 224; Brown v. Sigourney, 72 N. Y. 122. Mr. Henry H. Anderson, Mr. Julien T. Davies, and Mr. Howard Townsend, opposing. Mr. Chjef Justice Waite delivered the opinion of the court. The rule is settled that, when a writ of error is sued out from this court by the defendant below, and no question is presented growing out of a partial defence to the action, or a counter-claim or a set-off, the value of the matter in dispute is fixed by the amount of the judgment. Gordon v. Ogden, 3 Pet. 33 ; Hilton v. Dickinson, 108 IT. S. 165 ; Henderson v. Wadsworth, 115 IT. S. 264, 276. Our jurisdiction cannot be invoked vol. cxvni—89 610 OCTOBER TERM, 1886. Statement of Facts. until after a final judgment, and, until such a judgment has been rendered, the cause remains in the full judicial control of the court in which it is pending. It was because of this that we declined to take jurisdiction in Thompson v. Butler, 95 U. S. 694, where the verdict was for more than $5000, but was reduced to that amount, by leave of the court, before the judgment, which was for the reduced sum.- It is true that our jurisdiction depends on the amount of the judgment, exclusive of interest thereon, Knapp v. Banks, 2 How. 73 ; Western Union Telegraph Co. v. Rogers, 93 U. S. 565, 566; but here the interest accrued before judgment, and not after. In The Pa-tapsco, 12 Wall. 451, jurisdiction was taken in a case where the decree was for $1982, “ and interest from the date of the report,” which made more than $2000 due at the time of the decree, that being then the jurisdictional limit. As the jurisdiction has once attached it cannot be defeated by a waiver or release of the amount in excess of $5000. The motion to dismiss is denied, Mr. Justice Field took no part in this decision. EX PARTE PHENIX INSURANCE COMPANY & Others. ORIGINAL. Argued October 12,1886.—Decided November 1,1886. A District Court of the United States, in Admiralty, has no jurisdiction of a petition by the owner of a steam vessel for the trial of the question of his liability for damage caused to buildings on land by fire alleged to have been negligently communicated to them by the vessel, through sparks proceeding from her smoke-stack, and for the limitation of such liability, if existing, under 4283 and 4284 Rev. Stat. On the 14th of January, 1886, the Goodrich Transportation Company, a Wisconsin corporation, filed, in the District Court EX PARTE PHENIX INSURANCE COMPANY. 611 Statement of Facts. of the United States for the Eastern District of Wisconsin, a petition for a limitation of its liability, as owner of the steamer Oconto, claiming the benefit of the provisions of sections 4283 and 4284 of the Revised Statutes. The substantial matters set forth in the petition are these: The Oconto was on a voyage from Chicago, Illinois, through Lake Michigan and Green Bay, to the city of Green Bay, in Wisconsin, which she approached by entering the mouth of the Fox River. While she was passing up the river, opposite the city, on the 20th of September, 1880, a fire broke out in a planing-mill which the steamer had passed, and it spread to other buildings, about sixty seven being destroyed or injured, causing a damage of not less than $100,000 to the buildings and property in them. Such damage exceeds the value of the steamer, and of her freight pending at the time of the fire, that value being about $12,400. There was insurance against fire on some of the buildings and property. The owners and insurers claimed that the fire was negligently communicated to the planingmill from the steamer, and that the corporation was liable for all the loss and damage occasioned by the fire. Some of the owners sued it in State courts in Wisconsin to recover damages, by six suits, in which the Phenix Insurance Company, as insurer, was joined as a co-plaintiff. One of those suits had been disposed of by a judgment in favor of the corporation. In another, a judgment against the corporation, for $2570 and costs, was rendered in March, 1885. An appeal from it by the corporation to the Supreme Court of Wisconsin is pending. The other four suits are pending. Other persons are threatening to sue the corporation by like suits. It denies its liability for any loss or damage occasioned by the fire, and insists that the fire did not originate from, or was not negligently communicated from the Oconto, but says that, if it is so liable, the fire originated, and the losses and damages were occasioned, without the privity or knowledge of the corporation; and that it desires as well to contest its liability, and the liability of the vessel, for such losses and damages, as also to claim the benefit of §§ 4283, 4284 Rev. Stat., and to limit its liability to the value of the vessel and her freight then pending. It offers to 612 OCTOBER TERM, 1886. Statement of Facts. enter into a stipulation with sureties to pay into court the value of the vessel, and the amount of her pending freight, whenever ordered so to do. The prayer of the petition is for a decree that the corporation may have the benefit of such statutory provisions; that the value of the vessel immediately after the fire, and the amount of her freight then pending, be appraised ; that the corporation may enter into a stipulation to pay such value and amount into court when required; that a monition issue for the proof of claims; that a commissioner be designated before whom claims shall be presented, and before whom the corporation may appear and contest said claims, and its liability on account of any loss or damage occasioned by the fire; that if it shall appear that the corporation was not liable for any such loss or damage it may be so finally decreed, or, otherwise, that the moneys secured by the stipulation be divided pro rata among the claimants; and that the prosecution of all the suits be restrained. On this petition an order to show cause, returnable February 1, 1886, was made. The Phenix Insurance Company and the other plaintiffs in the five pending suits filed an answer, setting forth that, with the exception of the insurance company, they all were, and had been from before the fire, citizens of Wisconsin; that the amount of the insurance the company had made on the property covered by the five suits was $9700; and that the value of the property so insured and uninsured, belonging to the respondents, and partly insured in the insurance company, amounted to $28,000, with interest from the date of the loss. The answer also contained these statements: The property burned was situated on the shore of Fox River, wholly in the body of the city of Green Bay, and at a great distance from any navigable stream or other waters within the jurisdiction of the United States. The negligence of the owner of the steamer in not having on her a contrivance to prevent the escape of sparks and fire from her smoke-stack, and in starting her from her wharf with the exhaust on the inside of her smoke-stack, within the city of Green Bay, caused the fire, the shore being covered with dry wooden buildings, and a heavy wind blowing across the course of the vessel toward the shore, EX PARTE PHENIX INSURANCE COMPANY. 613 Argument against the Petitioner. and her smoke-stack throwing out large quantities of sparks, which were carried by the wind on to the shore and set fire to a planing-mill, from which the flames spread to the other buildings and property. The suits were all of them brought in the fall of 1880. The answer alleged that the court ought not to take jurisdiction of the petition, because the liability, if any, accrued by reason of a tort committed on the land to real estate in the body of a county and a State, and not on any navigable waters of the United States; and that the matters complained of were purely of common-law cognizance, and of right triable by a jury, and not by a commissioner appointed under the admiralty rules applicable to such proceedings. The respondents moved to dismiss the petition for want of jurisdiction, which motion was denied, and the court, on March 15, 1886, made an order appointing appraisers to appraise the value of the steamer as it was on September 20,1880, with the value of her freight earned on the voyage she was on. The Phenix Insurance Company and the other plaintiffs in the five suits presented to this court a petition for a writ of prohibition to the judge of the District Court, prohibiting him from proceeding to give the relief prayed for in the petition of the owner of the vessel. J/?. Robert Rae, for petitioner. J/r. George G. Greene and Jfr. James G. Jenkins, opposing. It is not disputed that the Oconto was a vessel within the act, and that it was not within the exception of § 4289 Rev. Stat. Moore v. American Transportation Co., 24 How. 1; Walker v. Transportation Co., 3 Wall. 150. I. The statute embraces all liability for damage done by the vessel without the knowledge or privity, of the owner, whether consummated on land or on water. Norwich Co. v. Wright, 13 Wall. 104; Prov. c& N. Y. Steamship Co. v. Hill Mf'g Co., 109 U. S. 578; The Scotland, 105 U. S. 24; Moore v. American Transportation Co., 24 How. 1. Maritime commerce is largely carried on by steam vessels. The danger of firing property on shore, and otherwise injuring it, from negli- 614 OCTOBER TERM, 1886. Argument against the Petitioner. gence by or on the vessel is as frequent and imminent as any other danger from such negligence; and the consequences to the owner by reason of liability therefor may be even more disastrous than from negligence in navigation on the water. See Ryan v. N. Y. Central Railway Co., 35 N. Y. 210 ; Pennsylvania Railway Co. v. Kerr, 62 Penn. St. 353. It having been settled that Congress has the constitutional power to limit the common-law liability of the vessel-owner, and Congress having exercised the power, on grounds of public policy, to conserve great public interests, the statute should be liberally construed for the protection of those interests. Tracy n. Troy d? Boston Railway Co., 38 N. Y. 433; Hudler v. Golden, 36 N. Y. 446; Prov. de K. Y. Steamship Co. v. Hill Mf’g. Co., 109 U. S. 578; giving unchecked operation to its language, rather than restricting it. Restricting maxims of interpretation are employed to save cases from the operation of a statute, that are not within its reason ; not to exclude cases that are within both its spirit and letter. Woodworth v. State, 26 Ohio St. 196. We have assumed that the loss or damage specified in the first two specifications of liability in § 4283 was exclusively for maritime tort of admiralty jurisdiction. But it is doubtful wThether a claim for loss of life by collision, where the right of recovery rests wholly on a State statute, is a maritime tort of admiralty jurisdiction. Crapo v. Allen, 1 Sprague, 184; Ex parte Gordon, 104 U. S. 515-519. Such loss or damage, however, has always been held within the limitation of liability. Indeed, the liability for loss of life by marine disaster was one of ■ the principal reasons for the statute. Moore v. American Trans. Co., 24 How. 1; The City of Columbus, 22 Fed. Rep. 460 ; The Amsterdam, 23 Fed. Rep. 112. But whether injury causing death is a marine tort of admiralty jurisdiction or not, it is manifestly within the statute, because within both its letter and reason. Thus, whether we look to the language of the statute, its object, or the effects of its application, its intent embraces the case presented by this petition. II. The statutory rule of limited liability thus construed is a maritime rule or regulation, which courts of admiralty and EX PARTE PHENIX INSURANCE COMPANY. 615 Argument against the Petitioner. maritime jurisdiction have jurisdiction to enforce. It is contended in support of this writ that if Congress has power to limit and has limited the liability of the owner for damage by the vessel done on land as well as on water, without his privity or knowledge, still the District Court has no jurisdiction of this proceeding in admiralty, because the tort, not being maritime, is not of admiralty jurisdiction and cannot be brought within such jurisdiction; and that hence our remedy must be in some other tribunal. But while the Federal courts cannot, under the Constitution, be given jurisdiction in admiralty of cases not inherently of admiralty jurisdiction, the maritime law may be changed by Congress. The Lottawana, 21 Wall. 558; Prov. <& N.Y. Steamship Co. v. Hill Manufacturing Co., 109 U. S. 578, 589. And when a case arises under the maritime law as changed or established by Congress it is a maritime case, although it would not have been before the change, jurisdiction of which belongs to the Federal courts as courts of admiralty and maritime jurisdiction. Norwich Trams. Co. v. Wright, 13 Wall. 104. These citations are made to show not only that the maritime-rule of limited liability, by its language and reason, included liability for all acts of the master and crew, in prosecuting the voyage, but that its maritime character was derived from its object—the protection and promotion of shipping. The rule does not cease to be maritime when applied to liability for an act of the captain and crew on the vessel, because the injury is consummated on the land. Its application to such a case protects shipping just as much as would its application to liability for the same act where the same amount of injury was consummated on the water. The rule being maritime, its enforcement may be in the District Court as a court of admiralty and maritime jurisdiction. See Bogart v. The John Jay, 17 How. 399; The Guiding Star, 18 Fed. Rep. 263; The Brig Wexford, 7 Fed. Rep. 674. Error of the District Court in sustaining the foregoing positions does not warrant a writ of prohibition; but the mistake, if any, must be corrected on appeal. High Ex. Legal Rem., §§ 762, 765, 767, 770, 772; Kinlock n. Harvey, Harper, 508; 616 OCTOBER TERM, 1886. Opinion of the Court. Washburn v. Phillips, 2 Met. (Mass.) 296; Ex parte Greene, 29 Ala. 52. It will be denied in cases of doubt. In re Birch, 15 C. B. 743 ; The Charkieh, L. R. 8 Q. B. 197 ; Wasliburn v. Phillips, above cited. And where there is an adequate remedy by appeal. High Ex. Legal Rem., §§ 771,772; State v. Fourth District Court of .Orleans, 21 La. Ann. 123; People v. Circuit Court Wayne County, 11 Mich. 393; People v. Marine Court New York, 36 Barb. 341; Ex parte Peterson, 33 Ala. 74; Ex parte Warmouth, 17 Wall. 64; Ex parte Gordon., 104 U. S. 515; The Charkieh, L. R. 8 Q. B. 197; Ex parte Smyth, 3 A. & E. 719; State v. District Court Ramsey County, 26 Minn. 233; Ex parte Roundtree, 51 Ala. 42. In this respect it is like mandamus. High Ex. Legal Rem., §§ 188, 189; Ex parte Newman, 14 Wall. 152; State v. Braun, 31 Wis. 600, 606; Ex parte Braudlacht, 2 Hill, 367; Ex parte Smith, 34 Ala. 455. Such being: the office of the writ and the limitations of its use it ought not to be granted on this application. See also Hunt v. Hunt, 72 N. Y. 217; La/nge v. Benedict, 73 N. Y. 12; The Tobias Watkins, 3 Pet. 191, 203 ; Ex parte Parks, 93 U. S. 18; In re Yarbrough, 110 U. S. 651; Bradley v. Fisher, 13 Wall. 335. Mr. Justice Blatchford, after stating the facts as reported above, delivered the opinion of the court. It is provided by § 688 of the Revised Statutes, that this court “ shall have power to issue writs of prohibition to the District Courts, when proceeding as courts of admiralty and maritime jurisdiction.” This provision is taken from § 13 of the Act of September 24,1789,1 Stat. 80. The question to be determined is, therefore, whether the District Court has jurisdiction to entertain the proceeding in this case for the limitation of liability. Sections 4283, 4284, and 4285 of the Revised Statutes provide as follows: “ Sec. 4283. The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for liny act, matter, or thing, loss, damage, or forfeiture, done, oc- EX PARTE PHENIX INSURANCE COMPANY. 617 Opinion of the Court. casioned, or incurred, without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending. Sec. 4284. Whenever any such embezzlement, loss, or destruction is suffered by several freighters or owners of goods, wares, merchandise, or any property whatever, on the same voyage, and the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of them, they shall receive compensation from the owner of the vessel in proportion to their respective losses; and for that purpose the freighters and owners of the property, and the owner of the vessel, or any of them, may take the appropriate proceedings in any court, for the purpose of apportioning the sum for which the owner of the vessel may be liable among the parties entitled thereto. Sec. 4285. It shall be deemed a sufficient compliance on the part of such owner with the requirements of this Title relating to his liability for any embezzlement, loss, or destruction of any property, goods, or merchandise, if he shall transfer his interest in such vessel and freight, for the benefit of such claimants, to a trustee, to be appointed by any court of competent jurisdiction, to act as such trustee for the person who may prove to be legally entitled thereto; from and after which transfer all claims and proceedings against the owner shall cease.” The claim to a limitation of liability in the present case is made under that clause of § 4283 which provides that “ the liability of the owner of any vessel ” “ for any act, matter, or thing, loss, damage or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.” That section does not purport to confer any jurisdiction upon a District Court. Section 4285, in providing for the transfer to a trustee of the interest of the owner in the vessel and freight, provides only that the trustee may “ be appointed by any court of competent jurisdiction,” leaving the question of such competency to depend on other provisions of law. 618 OCTOBER TERM, 1886. Opinion of the Court. Nothing is clearer than that, by the express adjudication of this court, the District Court, as a court of admiralty, would have no jurisdiction of a suit either in rem, or in personam, by any one of the sufferers by the fire, to recover damages from the vessel or her owner. It was so held in The Plymouth, 3 Wall. 20. In that case, a steam vessel anchored beside a wharf, in the Chicago River, in navigable water, took fire, through the negligence of those in charge of her. The flames spread to the wharf and buildings upon it. Their owners sued the owners of the steam vessel in personam, in the District Court for the Northern District of Illinois, in admiralty, for the damage. That court dismissed the libel for want of jurisdiction, and the Circuit Court affirmed the decree. On appeal by the libellant this court affirmed the decree of the Circuit Court. The argument o in favor of the jurisdiction is very fully given in the report. It was urged that the vessel was a maritime thing; that the locality was maritime, because the vessel was moored in navigable water; that the principal thing drew after it the incident, although the damage was suffered on land; and that, under the “ rule of locality,” “ that, in cases of tort, the jurisdiction depends on the locality of the act done, and that it must be done on navigable water,” the locality of the act “ embraced the entire space occupied by the agent and the object, and the spatial distance passed over by the causal influence in accomplishing the effect.” But Mr. Justice Nelson, delivering the unanimous opinion of this court, said that the true meaning of the rule of locality in cases of marine torts was, that the wrong must have been committed wholly on navigable waters, or, at least, the substance and consummation of the same must have taken place upon those waters, to be within the admiralty jurisdiction. In answer to the argument that the vessel which communicated the fire was a maritime instrument, the court said that the jurisdiction did not depend on the wrong having been committed on board the vessel, but on its having¹ been committed on navigable waters; and that the substantial cause of action, arising out of the wrong, must be complete within the locality on which the jurisdiction depended. It added: “ The remedy for the injury belongs to the courts of common law.” EX PARTE PHENIX INSURANCE COMPANY. 619 Opinion of the Court. Under this authoritative decision, as the owners of the burned property could not sue originally in the admiralty for their damages, it is impossible to see how, by the present form of proceeding, the owner of the steamer can give to the Admiralty Court jurisdiction to entertain the suits for the damage, by a practical removal of them into the Admiralty Court. For the petition of the owner of the vessel says that it desires as well to contest its liability for the damage as to claim the benefit of a limitation of liability, and it prays that it may be allowed to contest in the Admiralty Court its liability for the damage, and that, if it is not liable, there may be a decree to that effect. As there is no foundation in the general admiralty jurisdiction of the District Court, for its assumption of jurisdiction in this case, and none in the special provisions of the statute for the limitation of liability, it is sought to uphold the jurisdiction under the Rules in Admiralty promulgated by this court in reference to the limitation of liability. The provisions of the Revised Statutes on the subject of the limitation of liability were taken from the Act of March 3,1851, 9 Stat. 635. There is nothing in that act, nor in the corresponding enactments in the Revised Statutes, in regard to the promulgation of any rules by this court for procedure in the matter. The rules it has made, Rules 54, 55, 56, and 57, are Rules in Admiralty, promulgated May 6,1872,13 Wall. xii. They were announced as “ Supplementary Rules of Practice in Admiralty, under the Act of March 3, 1851, entitled ‘ An Act to limit the liability of shipowners, and for other purposes.’ ” They are authoritatively embodied in, and numbered as part of, the “Rules of Practice for the Courts of the United States in Admiralty and maritime jurisdiction, on the instance side of the court, in pursuance of the Act of the 23d of August, 1842, chapter 188.” The authority given to this court by the Act of 1842, was in § 6, 5 Stat. 518, and was in these words: “The Supreme Court shall have full power and authority, from time to time, to prescribe, and regulate, and alter, the forms of writs and other process to be used and issued in the District and Circuit Courts of the United States, and the forms and modes of fram- 620 OCTOBER TERM, 1886. Opinion of the Court. ing and filing libels, bills, answers, and other proceedings and pleadings, in suits at common law or in admiralty and equity pending in the said courts, and also the forms and modes of taking and obtaining evidence, and of obtaining discovery, and generally the forms and modes of proceeding to obtain relief, and the forms and modes of drawing up, entering and enrolling decrees, and the forms and modes of proceeding before trustees appointed by the court, and generally to regulate the whole practice of the said courts, so as to prevent delays, and to promote brevity and succinctness in all pleadings and proceedings therein, and to abolish all unnecessary costs and expenses in any suit therein.” These provisions, as applied to suits in admiralty in the District Courts, are to be found now, with some variation, in §§ 862 and 917 of the Revised Statutes. In § 862 it is enacted that “ the mode of process in causes ” “ of admiralty and maritime jurisdiction shall be according to rules now or hereafter prescribed by the Supreme Court, except as herein specially provided.” In § 917 the enactment is, that “ the Supreme Court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining discovery, of proceeding to obtain relief, of drawing up, entering and enrolling decrees, and of proceeding before trustees appointed by the court, and generally to regulate the whole practice to be used, in suits in equity or admiralty, by the Circuit and District Courts.” The addition, in § 917, of the words “in any manner not inconsistent with any law of the United States,” not found in § 6 of the Act of 1842, is worthy of note, as bearing on the construction of that section, and of rules to be sustained under its provisions, though not implying that any power existed, under the act of 1842, to make rules inconsistent with a law of the United States. So, too, by § 913 Rev. Stat, it is enacted, that “ the forms of mesne process, and the forms and modes of proceeding in suits of equity, and of admiralty and maritime jurisdiction, in the Circuit and District Courts, shall be according to the principles, rules, and usages which belong to courts of EX PARTE PHENIX INSURANCE COMPANY. 621 Opinion of the Court. equity and admiralty, respectively, except when it is otherwise provided by statute or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition by the said courts, respectively, and to regulation by the Supreme Court, by rules prescribed, from time to time, to any Circuit or District Court, not inconsistent with the laws of the United States.” These words “not inconsistent with the laws of the United States,” are not found in the original statutory provisions from which § 913 was taken. See Providence (È New York Steamship Co. v. Hill Manufacturing Co., 109 U. S. 578, 591-594. In view of the decision made by this court at December Term, 1865, in the case of The Plymouth, it is not to be presumed that the six of the judges upon the bench when it was made who were also upon the bench when the Rules of May 6th, 1872, were promulgated, intended that those rules should contain anything in conflict with the decision in the case of The Plymouth. Nor are those rules capable of any such construction. They are in these words : “ Supplementary Rules of Practice in Admiralty, under the Act of March 3 call published in the Boston Advertiser. On January 12th or 13th he received notice of the assessment of 100 per centum upon the stock of the bank, and, after consultation, was assured by another shareholder and a director of the bank that if this was paid there could be no further assessment made on his stock ; in consequence of which assurances he paid the assessments of $3000 on January 20th and $3000 on January 23d, which were endorsed on the certificates under the dates of payment, being 100 per centum on sixty shares of stock. Upon the trial the intervention of a jury was waived by consent of parties, and the cause submitted to the court, which found the foregoing facts, and rendered judgment September 8, 1885, in favor of the receiver, for the amount claimed. On June 8,1885, the appellant, Delano, filed a bill in equity in the Circuit Court of the United States for the District of Massachusetts, against Linus M. Price, Receiver of the Pacific National Bank, the object and prayer of which were to enjoin the further prosecution of the pending action at law, brought by the said receiver against him for the purpose of enforcing the alleged liability of the appellant on account of the assessment upon his said stock, on the ground that upon the facts as heretofore stated the voluntary payment made by the appellant of the 100 per centum assessed to restore the lost capital of $961,300, and which had been applied to the payment of the creditors of the bank, constituted in equity, if not at law, a complete defence to the claim of the receiver as an extinguishment of his liability upon the assessment sued on. This cause was heard upon the facts as heretofore stated, and a decree rendered dismissing thè bill for want of equity, from which the present appeal was taken and is prosecuted. J/r. George F. Hoar and Hr. Benjamin N. Johnson, for plaintiff in error and appellant. I. The appellant was not a holder of the new stock. He contracted to take new stock in a bank whose capital should be $1,000,000. This agreement imposed no obligation to take shares in a smaller capital. There is a clear distinction in the vol. cxvrn—41 642 OCTOBER TERM, 1886. Argument for Plaintiff in Error and Appellant. statute between the system provided for the original formation of a corporation, and that provided for the increase of its capital. Rev. Stat. §§ 5133-5141, 5168-5180, 5412. The appellant’s subscription, payment, taking the certificate, and the entry upon the books were mere preparation for or anticipation of the assuming the character of stockholder, when the whole amount should be subscribed, and the approval and certificate of the Comptroller obtained. They conferred no right and imposed no duty upon appellant, except to become a stockholder when the increase became valid, and imposed no obligation upon the bank except to admit him as a stockholder when the proceeding was complete. If the Comptroller had withheld his approval altogether, appellant could not have been held as a shareholder, for the single purpose of liability to previous debts and for no other purpose whatever. American Tube Works v. Boston Machine Co., 139 Mass. 5; Reed v. Boston Machine Co., 141 Mass. 454. Acts of stockholders, until the certificate of the Comptroller, are nothing more than propositions among themselves. Charleston v. Peoples Bank, 5 Rich. (S. C)., 103. See also Scovill v. Thayer, 105 U. S. 143, where it is held that in such case aft alleged stockholder is not estopped by receiving certificates, attending corporate meetings, or by the fact that the corporation had held itself out as having increased capital, and so obtained increased credit. Upton v. Tribilcock, 91 U. S. 45; Banger v. Upton, 91 IT. S. 56; Webster v. Upton, 91 IT. S. 65; and Pullman n. Upton, 96 IT. S. 328, deal only with the case of subscriptions obtained by fraud, or stock which the corporation had a right to issue, but issued irregularly, or stock de facto in corporations irregularly organized. The certificate and entry in the stock-book must purport to be shares in some specific capital. If it were essential to our argument, we should respectfully ask the court to reconsider the dictum of Mr. Justice Hunt, in Chubb v. Upton, 95 IT. S. 665, 668, that “ it is not necessary, to sustain the action against a subscriber, that there should have been a subscription for the whole amount named in the articles.” If this be true to any extent, we conceive it can be only true in cases where a cor- DELANO v. BUTLER. 64.3 Argument for Plaintiff in Error and Appellant. poration has begun business lawfully, and might lawfully have limited its increase to the amount actually subscribed without the assent of any other authority, so that the subscriber would become a shareholder in a going concern, and where the circumstances attending the issue of the certificates immediately show that to have been the intent of the parties. See cases collected in 1 Morawetz, Private Corporations, § 142; Rensselaer dk Washington Plank Road v. Wetsel, 21 Barb. 56. But the present case is as if the subscription paper had itself contained the express condition that the bank would not admit the subscriber to the character of stockholder until the whole amount should be subscribed. Troy dk Greenfield Railroad v. Newton, 8 Gray, 596; Worcester dk Nashua Railroad v. Hinds, 8 Cush. 110 ; City Hptel v. Dickinson, 6 Gray, 586; Boston, Barre & Gardner Railroad v. Wellington, 113 Mass. 79 ; Boston dk Albany Railroad v. Pearson, 128 Mass. 445. Creditors, in dealing with corporations, are bound to take notice of the limitations of their charters, and, a fortiori, of the limitations of the general law. Scovill v. Thayer, 105 U. S. 143; Pearce v. Madison & Indianapolis Railroad, 21 How. 441; In re County Life Assurance Co,, L. R., 5 Ch. App. 288. The book produced by the receiver is not a stock register. It is a mere debit and credit account with the stockholder. Worcester Nut. Ins. Co. v. Hastings, 2 Allen, 398. We come then to the action of the directors of December 13, 1881, and the two certificates of the Comptroller, dated December 16, 1881. The bank then was wholly insolvent. Its capital was entirely gone, and its liabilities were more than three million dollars in excess of its capital and assets. It failed to redeem its circulating notes, or to pay debts or depositors in the course of business. Its doors were closed; its officers were excluded from all control of its affairs by the order of the Comptroller. Needham, the bank examiner, although not styled receiver in the order, was in fact executing the functions of receiver, and not of visitor or examiner, so far as his custody and control of the bank were concerned. Rev. Stat. §§ 5240, 5241. This was a clear case of insolvency, and these were clear acts of insolvency within the meaning of Rev. Stat. § 5242. 644 OCTOBER TERM, 1886. Argument for Plaintiff in Error and Appellant. They were due and public notice to every shareholder and creditor that the power of the bank to deal in any manner with its assets, except to preserve them and to redeem bills, was gone. It could make no binding contract; even a seizure and sale of its property on an adversary suit would be void. National Bank v. Colby, 21 Wall. 609. The purpose to violate the provisions of § 5242 would be inferred as matter of law from any payment or transfer of the property under these circumstances, and notice of such purpose be imputed to both parties. Such being the case, the directors had no power to pass the vote fixing the capital at $961,300, and that whether the act be treated as an attempted reduction of the capital, whiph could only be effected by a two thirds vote of the shareholders (§ 5143), or as a new and original attempt to increase. Nor had the certificates of the Comptroller, one declaring that the new stock was all paid in, the other declaring that it was all gone, and directing an assessment, any validity whatever. The Comptroller is not a judicial officer. He cannot bind any citizen by a decree or judgment. It is true, his certificate is conclusive upon the question whether a bank is duly organized, and upon the question how much of the stockholders’ liability needs to be enforced. Kennedy v. Gibson, 8 Wall. 498; Bank v. Kennedy, 17 Wall. 19; Casey v. Galli, 94 IT. S. 673; Sanger v. Upton, 91 IT. S. 56. A person who has become a shareholder in a bank so far submits himself to the Comptroller’s authority; and the enforcement of this submission is necessary for the due protection of the public. But the Comptroller cannot by his certificate impose upon persons the character of shareholders without their consent. Nor can it be doubted, that, if the Comptroller be about to give such certificate illegally or contrary to the fact, any person who would be aggrieved thereby may have judicial process to restrain him. United States v. Knox, 102 IT. S. 422. If, then, the act of the Comptroller be performed under such circumstances that it is impossible to apply for an injunction in advance, it must be that the facts may be shown in defence, especially in cases where no new rights have attached in consequence of reliance on his action. DELANO v. BUTLER. 645 Argument for Plaintiff in Error and Appellant. II. The liability of all shareholders was equitably discharged by the payment of the assessment. The case at bar is totally distinguishable from Scovill v. Thayer, 105 U. S. 141. Here money paid under a supposed liability went directly to reduce the volume of debts, as is expressly found by the court, under an assessment made for that sole purpose. The order by the Comptroller, and the voluntary consent by the supposed shareholder, to pay in 100 per cent, on the supposed capital, were an order and consent to pay that amount to the creditors, and actually accomplished that purpose. It was an actual performance of one obligation by parties who mistakenly supposed they were performing another. In form, it was an attempt to make good the capital. In fact, it was simply a reduction of the volume of debt. The entire deficiency was never paid. Pursuant, therefore, to the notice of the Comptroller of December 16,1881, the receivership therein stated went on. The shareholders paid in voluntarily a sura they were not obliged to pay, with intent that it should be applied to increase a fund to discharge the indebtedness of the bank. It was so applied, and the creditors collectively and individually were thereby in better condition than if the method provided by law had been strictly pursued. Assuming these facts to be established, we submit that on well-established principles of equity such payment will be treated as a discharge of the statute obligation—either as an equitable performance of it, or as an equitable satisfaction, or as a substituted performance, or as an equitable set-off. It is not important to consider carefully the distinction between them. They all rest upon the general principle that equity will not permit double benefits where but one benefit is intended, or impose double burdens where but one obligation is due. The money due from these debtors has reached these creditors, and the substance of their obligations has been fully performed. Tubbs v. Broadwood, 2 Russ. & Myl. 487; Lechmere v. Carlisle, 3 P. Wins. 211; Sowden v. Sowden, 1 Bro. Ch. 582; Wdcocks v. Wilcocks, 2 Vernon, 558; Blandy v. Wid~ more, 1 P. Wms. 324; Deacon v. Smith, 3 Atk. 323; Ex parte Pye, 18 Ves. 140; Hinchcliffe v. Hinchcliffe, 3 Ves. 516; 646 OCTOBER TERM, 1886. ^Opinion of the Court. Thynne v. Glengall, 2 H. L. Cas. 131; Raleigh v. Raleigh, 35 Ill. 512; Tallmadge v. Fishkill Iron Co., 4 Barb. 382 ; Jones v. Wiltbey er, 42 Georgia, 575; Lee v. Lee, 31 Georgia, 26; United States v. Knox, 102 IT. S. 422; Bank of Hindustan n. Alison, L. R., 6 C. P. 54; Marine Bank v. Fulton Bank, 2 Wall. 256; Scammon v. Kimball, 92 IT. S. 370; National Bank v. Insurance Co., 104 IT. S. 54; Patterson v. Lynde, 106 IT. S. 519; Smith v. Hurd, 12 Met. (Mass.) 371. No offer to return the certificates or notice to rescind the transaction was necessary. The transaction never took effect. Nothing ever passed to these alleged stockholders as against the corporation. There was nothing to be avoided or rescinded, and the certificates were of no value so as to need to be returned. Reed v. Boston Machine Co., 141 Mass. 454; American Tube Works n. Boston Machine Co., 139 Mass. 11. Mr. A. A. Ranney, for defendant in error and appellee. Mr. Justice Matthews, after stating the case as reported above, delivered the opinion of the court. Section 5151 of the Revised Statutes provides that “the shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.” The object of the action at law brought by the receiver of the Pacific National Bank of Boston, in which judgment was rendered against the defendant, the plaintiff in error, was to enforce his liability under that section of the statute. The object of the suit in equity, in which Delano was the complainant, was to restrain the prosecution of the action at law on the ground that, if his legal defences failed, he had in equity performed and extinguished his obligation. The questions arising upon the records of these cases in various forms, upon the facts already stated, may be reduced to three, which will be considered and disposed of in their order. DELANO v. BUTLER. 647 Opinion of the Court. The plaintiff in error, in the action at law contends, as grounds for reversing the judgment against him, 1st. That he was not, at the time of the appointment of the receiver, or at any time, the holder of sixty shares of the stock of the Pacific National Bank, but was, in fact and in law, a holder of only thirty shares thereof. He contends that the attempt on the part of the directors and the Comptroller of the Currency, in December, 1881, to fix the capital stock of the bank at $961,300, was contrary to law and void; that the alleged thirty shares of new stock on account of which he is sued never had any legal existence, and that he, by virtue of his subscription in September, 1881, for thirty shares in the then proposed increase of capital from $500,000 to $1,000,000, and by his other acts, never became liable on account of the debts of the Pacific National Bank beyond his liability as the holder of thirty shares of valid stock. 2d. That by his contribution in January, 1882, of an amount equal to the par value of all the stock ever held by him, towards the fund, which was all used in the payment of the debts of the bank, the bank then being insolvent, he in law discharged his liability as a stockholder in said bank, and should, therefore, have judgment in his favor. 3d. As appellant in the suit in equity, Delano alleges, as ground for reversing the decree dismissing his bill, that the contribution made by him on January 23, 1882, of an amount equal to the par value of the stock held by him, towards a fund which was actually used in the payment of the debts of the bank, the bank then being insolvent, constituted in equity a satisfaction and extinguishment of his liability as a stockholder for the debts of the bank, if not at law. It is further contended by him, as an additional ground for equitable relief, that by the payment of the $3000 upon the thirty shares of alleged new stock, which he claimed never had any legal existence, and on which, therefore, he never incurred any liability, he really contributed towards a fund actually used for the payment of the debts of the bank an amount equal to 200 per centum of the stock held by him, which payment, if not available in his favor as a satisfaction 648 OCTOBER TERM, 1886. Opinion of the Court. of his statutory liability technically at law, nevertheless must be regarded in equity as a substantial equivalent, exonerating him from further liability. The first question to be considered is whether there was a valid increase of the capital stock of the Pacific National Bank, of which the plaintiff in error became the owner of thirty shares, so as to be charged with liability thereon as a stockholder. The articles of association of the bank provide that “ the capital may be increased, according to the provisions of section 5142 of the Revised Statutes, to any sum not exceeding ten hundred thousand dollars.” The 11th section of the by-laws of the bank provides as follows : “ Whenever an increase of stock shall be determined upon, it shall be the duty of the board to notify all the stockholders of the same, and cause a subscription to be opened for such increase, and each stockholder shall have the privilege of subscribing for such number of shares of new stock as he may be entitled to subscribe for, in proportion to his existing stock in the bank. If any stockholder should fail to subscribe for the amount of stock to which he may be entitled within a reasonable time, which shall be stated in the notice, the directors may determine what disposition shall be made of the privilege of subscribing for the new stock.” Section 5142 of the Revised Statutes is as follows: “ Any association formed under this Title may, by its articles of association, provide for an increase of its capital from time to time, as may be deemed expedient, subject to the limitations of this Title. But the maximum of such increase to be provided in the articles of association shall be determined by the Comptroller of the Currency; and no increase of capital shall be valid until the whole amount of such increase is paid in, and notice thereof has been transmitted to the Comptroller of the Currency, and his certificate obtained, specifying the amount of such increase of capital stock, with his approval thereof, and that it has been duly paid in as part of the capital of such association.” It is urged on behalf of the plaintiff in error that no increase DELANO v. BUTLER. 649 Opinion of the Court. of the capital stock of the bank was ever proposed by the directors or assented to by the subscribers, except an increase of the full sum of $500,000; that no such increase as that was ever fully paid in, as required by the statute, and that no such increase was approved by the certificate of the Comptroller of the Currency ; that his agreement of subscription was to take thirty shares of a new stock out of the whole sum of $500,000; that that agreement has never been carried into effect, and that he has never consented to any modification of it, and that, consequently, whatever effect would be attributable to the acts of the directors or stockholders of the bank, in conjunction with the Comptroller of the Currency, they are res inter alios actoe, and not binding on him. On looking at the terms of § 5142 of the Revised Statutes, it appears that three things must concur to constitute a valid increase of the capital stock of a national banking association: 1st. That the association, in the mode pointed out in its articles, and not in excess of the maximum provided for by them, shall assent to an increased amount; 2d, That the whole amount of the proposed increase shall be paid in as part of the capital of such association; and 3d, That the Comptroller of the Currency, by his certificate specifying the amount of such increase of capital stock, shall approve thereof, and certify to the fact of its payment. In the present case the association did, in fact, finally assent to an increase of the capital stock, limited to $461,300; that amount was paid in as capital, and the Comptroller of the Currency by his certificate approved of the increase, and certified to its payment; so that there seems little room to question the validity of the proceedings resulting in such increase. All the requisitions of the statute were complied with. The circumstance that the original proposal was for an increase of $500,-000, subsequently reduced to the amount actually paid in, does not seem to affect the question, for the amount of the increase within the maximum was always subject to the discretionary power of the association itself, exerted in accordance with its articles of association, and to the approval and confirmation of the Comptroller of the Currency. 650 OCTOBER TERM, 1886. Opinion of the Court. The question, therefore, seems to be converted into this: Whether the subscription of the plaintiff in error to a proposed increase of $500,000, and his payment thereof, can be held to be a binding agreement to accept thirty shares out of the reduced amount. It will be observed that, without waiting to see what the future action of the association and the Comptroller of the Currency might be on the question of the ultimate amount of the increased stock, the plaintiff in error paid for his shares and accepted his certificate. This he did, in legal contemplation, with knowledge of the law which authorized the association and the Comptroller of the Currency to reduce the amount of the proposed increase to a less sum than that fixed in the original proposal of the directors; and such payment and acceptance of certificates in accordance therewith might amount, under such circumstances, on his part, to a waiver of the right to insist that he should not be bound unless the whole amount of the proposed increase should be subscribed for and paid in. But without insisting upon that point, or deciding it, we think that the subsequent conduct of the plaintiff in error amounts to a ratification, on his part, of the action of the association, and of the Comptroller of the Currency, in fixing the amount of the increased stock at the less sum. After he paid his subscription and received his certificates of stock, he was called upon, as a stockholder, alleged to be the owner of sixty shares of the capital, to pay an assessment voluntarily imposed upon themselves by the stockholders at a regular meeting, at which the transaction of such business was not only legitimate, but necessary, as a condition on compliance with which alone the association was to be permitted to resume and continue its business as a bank. The bank was in a condition of open and notorious insolvency. It was in the actual control of an examiner appointed by the Comptroller of the Currency, so far as lawful, for the express purpose of ascertaining its true condition, in order to determine the question whether it might be permitted, on any conditions, to resume business, or whether it should be required to go into liquidation, by the appointment of a receiver to wind up its affairs. These facts were certainly DELANO v. BUTLER. 651 Opinion of the Court. known to the plaintiff in error, or, at any rate, were so notorious that he cannot be permitted to allege ignorance of them. A regular meeting of the stockholders was called by public notice, given in the usual form, for the election of directors and the transaction of any other business that might be brought before them. At this meeting official communication was made that, according to the determination of the association and of the Comptroller of the Currency, the increased and paid-up capital stock of the bank had been fixed at 8961,300, and that the whole amount of it had been lost ; that it was necessary to replace it by an assessment of one hundred per centum on the par value of all the shares in order to enable it to resume and carry on its business, and that otherwise it would be placed in the hands of a receiver and required to go into liquidation. Section 5205 of the Revised Statutes provides that : “ Every association which shall have failed to pay up its capital stock, as required by law, and every association whose capital stock shall have become impaired by losses or otherwise, shall, within three months after receiving notice thereof from the Comptroller of the Currency, pay the deficiency in the capital stock by assessment upon the shareholders pro rata for the amount of capital stock held by each. ... If any such association shall fail to pay up its capital stock, and shall refuse to go into liquidation, as provided by law, for three months after receiving notice from the Comptroller, a receiver may be appointed to close up the business of the association according to the provisions of section fifty-two hundred and thirty-four.” It was in pursuance of these provisions of the law that notice was given by the Comptroller of the Currency to the stockholders of the bank, at this, their regular annual meeting, that they must either assess themselves and pay in the whole amount of 100 per centum upon their capital stock, fixed at the sum of 8961,300, or, in the alternative, go into liquidation. In pursuance of this notice, in full view of the facts, and with a presumed knowledge of the law, the stockholders, by a vote that was almost unanimous, assented to the first branch of the alternative, and, as a condition for being permitted to resume business, voluntarily voted the required assessment. The 652 OCTOBER TERM, 1886. Opinion of the Court. plaintiff in error, it is true, was not present at this meeting, but he had notice of its proceedings, and in pursuance of its vote paid the full amount of the assessment imposed upon him as the holder of sixty shares of the capital stock of the company. In our opinion, it is not open to him now to say that he made this payment in ignorance of the facts, or in ignorance of the legal right which he now seeks to assert to avoid the obligation. His payment was voluntary; it was made either with actual knowledge of the facts, or with such opportunity and means of knowledge as, by the exercise of common diligence would have made him acquainted with the facts, and the payment made by him in conjunction with his co-stockholders was made upon a distinct consideration, whereby the bank in which he was interested was enabled to undertake anew its regular and active business. Such a course of action on his part must be construed to constitute a complete acquiescence in and ratification of the previous action of the association and the Comptroller of the Currency, in reference to the increase of the capital stock; and he cannot be permitted now to deny that he thereby became, and has continued to be, an owner of sixty shares of the capital stock of the bank fixed at the increased sum. This conclusion is not weakened by the suggestion, made in argument, that these proceedings of the bank took place during the period when its affairs were under the supervision of the Comptroller of the Currency, acting through the examiner. Notwithstanding the suspension of its business while under his control, the association continued its corporate existence, and was competent to exercise corporate functions. The increase of its capital, the vote of the assessment for the purpose of restoring what had been lost, and the acceptance of the alternative proposed by the Comptroller of the Currency to avoid going into liquidation, were all exertions of corporate powers, which, under the circumstances, the statute expressly contemplated and authorized. It is, therefore, not at all to the point that its assets and affairs were subject to the supervision of the bank examiner. Nor is the conclusion affected by the other DELANO v. BUTLER. 653 Opinion of the Court. consideration, also urged in argument, that the attempt to revive the business of the bank by means of the assessment proved unsuccessful and abortive. The association, through its directors and stockholders, undertook the task, and entered upon its accomplishment, and in doing so materially changed its relations to its creditors. The failure to prosecute its business successfully certainly cannot have the operation now claimed for it, of making illegal all that was done in the prosecution of the experiment. The hazard of failure must be presumed to have been in the contemplation of the stockholders when they consented to the risk, and the consequences of failure cannot now be shifted from themselves to their creditors. The second ground of defence to the action at law is, in our opinion, equally untenable. The assessment imposed upon the stockholders by their own vote, for the purpose of restoring their lost capital, as a consideration for,the privilege of continuing business, and to avoid liquidation under § 5205 of the Revised Statutes, is not the assessment contemplated by § 5151, by which the shareholders of every national banking association may be compelled to discharge their individual responsibility for the contracts, debts, and engagements of the association. The assessment as made under § 5205 is voluntary, made by the stockholders themselves, paid into the general funds of the bank as a further investment in the capital stock, and disposed of by its officers in the ordinary course of its business. It may or may not be applied by them to the payment of creditors, and in the ordinary course of business certainly would not be applied, as in cases of liquidation, to the payment of creditors ratably ; whereas under § 5151 the individual liability does not arise, except in case of liquidation and for the purpose of winding up the affairs of the bank. The assessment under that section is made by authority of the Comptroller of the Currency, is not voluntary, and can be applied only to the satisfaction of the creditors equally and ratably. If the claim in the present case were allowed, it would follow that in every case payments made by stockholders, for the purpose of restoring the impaired capital, 654 OCTOBER TERM, 1886. Opinion of the Court. would be considered as credits on the ultimate individual responsibility of shareholders, and the whole efficiency of the provisions of § 5151 for the protection of the creditors of the company at the time of liquidation would be destroyed. The obligations of the shareholders under the two sections are entirely diverse, and payments made under § 5205 cannot be applied to the satisfaction of the individual responsibility secured by § 5151. Scovill v. Thayer, 105 U. S. 143. But, it is said, in the third place, as the ground of relief under the bill in equity, that while this may be the result of a strict application of technical law, there remains to the complainant an equity which entitles him, by some process of substitution, to apply the payment which he has made under. § 5205 to extinguish his liability under § 5151. So far as can be gathered from the allegations of the bill, the facts found, and the argument of counsel, this equity is supposed to rest upon the facts that the money paid by the stockholders under the assessment was in fact applied to the satisfaction of the debts of the bank; that such application was intended by the appellant when the assessment was paid; and that «he paid it in the belief that it would exonerate him from further liability as a stockholder, induced by representations made to him to that effect by others interested in the affairs of the bank. Whatever hardship there may be in the circumstances of the case, we are unable to discover any ground of equitable relief. If the assessment was applied by the officers of the bank to the satisfaction of its debts, there is nothing to show that it was done ratably, as required by § 5151. The assessment was not paid by the stockholders for the purpose of effecting a liquidation of the affairs of the bank, but was understood to be the price paid for the privilege of continuing its business, in the hope of saving their investment. If it was paid under a mistaken supposition that, in the event of future failure, nothing more could be required of them, there is nothing to show that the shareholders were led into the mistake by any misrepresentations either of fact or of law on the part of the creditors for whose benefit the receiver is now acting. The mistake, if any, is one for which each shareholder is alone responsible. WHITNEY v. BUTLER. 655 Syllabus. On the whole, we are constrained to conclude that the defences at law and the alleged ground of relief in equity are alike insufficient, and that the judgment and the decree of the Circuit Court must be Affirmed. Mills v. Butler, Receiver. Taunton Savings Bank v. Butler, Receiver. Charlestown Five-Cent Savings Bank v. Butler, Receiver. Morrison v. Butler, Receiver. Appeals from the Circuit Court of the United States for the District of Massachusetts. Mills v. Butler, Receiver. Taunton Savings Bank v. Butler, Receiver. Charlestown Five-Cent Savings Bank v. Butler, Receiver. Morrison v. Butler, Receiver. In error to the Circuit Court of the United States for the District of Massachusetts. The cases in which Harvey Mills, The Taunton Savings Bank, The Charlestown Five-Cent Savings Bank, and Charles E. Morrison are respectively appellants and plaintiffs in error v. Peter Butler, Receiver of the Pacific National Bank of Boston, depend upon the same facts, and are governed by the decisions in the cases wherein John P. Delano is appellant and plaintiff in error against the same defendant. The judgments and decrees in these cases, respectively, are, consequently, also Affirmed. Mr. George F. Hoar and Mr. Benjamin N. Johnson^ for plaintiffs in error and appellees. Mr. A. A. Ranneg, for defendant in error and appellee. WHITNEY and Others, Executors, v. BUTLER, Receiver. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. Argued October 13,1886.—Decided November 1,1886. A, an owner of shares in the capital stock of a national bank, employed a broker and auctioneer to sell them by public auction. They were bid off by B, who paid the auctioneer for them, and received from him the certificate of stock, with a power of attorney for transfer duly executed in 656 OCTOBER TERM, 1886. Opinion of the Court. blank. The auctioneer paid the purchase-money to A. B was employed by the president of the bank to make this purchase for a customer of the bank, who had made a deposit in the bank for the purpose, and he delivered the certificate and the power of attorney to the president, and received from the bank the money for the purchase. No formal transfer of the stock was made on the transfer-book of the bank. Shortly afterwards the bank became insolvent, and eventually went into the hands of a receiver, who made an assessment on the stockholders under the provisions of Rev. Stat. § 5205, to make up the deficiency in the capital. Until after the stoppage A had no knowledge as to the purchaser, or as to the neglect to formally transfer the stock, and no reason to suppose that the transfer had not been made. In an action against A, by the receiver, to recover the amount of the assessment upon his said stock, Held: That the responsibility of A ceased upon the surrender of the certificates to the bank, and the delivery to its president of a power of attorney sufficient to effect, and intended to effect, as the president knew, a transfer of the stock on the books of the bank. This, like the case last reported, was an action at law by the receiver of the Pacific National Bank of Boston against an alleged stockholder in that bank, to recover an assessment on his stock. The facts in relation to the failure of the bank and the imposition of the assessment by the receiver are the same as those reported in the last case. The material facts upon which the defendant relied to escape liability under the assessment were contained in the “Agreed facts” set forth or referred to in the opinion of the court. J/r. AT. 7?. TToar, for plaintiffs in error. J/r. A. A.ftanney, for defendant in error. Mr. Justice Harlan delivered the opinion of the court. The plaintiffs in error are the personal representatives of Leonard Whitney, who, at the time of his death, held two certificates for fifty shares each of the capital stock of the Pacific National Bank of Boston. That bank suspended on November 18, 1881, and from that date until March 18, 1882, was in charge of an examiner of national banks. On the day last named, with the permission of the Comptroller of the Currency, it resumed business, and so continued until May 20, WHITNEY v. BUTLER. 657 Opinion of the Court. 1882, when, it failed, and was placed by that officer in the hands of a receiver to be wound up. At the time the receiver took possession, as well as when this action was brought, March 14, 1883, the above shares of stock stood in the name of Whitney on the books of the bank. This suit was brought against the executors of Whitney, pursuant to the orders of the Comptroller of the Currency. It is based upon those provisions of the statute which declare that the shareholders of national banking associations shall be individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements, to the extent or amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares; and that estates and funds in the hands of executors of persons holding stock shall be liable, in like manner and to the same extent, as the testator would have been if living. Rev. Stat., §§ 5151, 5152. The assessment by the Comptroller upon shareholders to meet the bank’s debts was for the full amount authorized by the statute. The defendants insist that they were not shareholders of the bank, and did not hold, nor were entitled to hold, any certificates of shares of its capital stock, either at the date of its suspension, or when the receiver was appointed, or when the assessment was made by the Comptroller. This defence was overruled, and the executors of Whitney were adjudged to be liable, the circuit judge observing: “ This being a suit brought by the receiver, who represents the creditors, and it appearing that the stock was not transferred on the books of the company, as provided by the by-laws, we think the defendants liable.” The question before the court is whether, under the statute and the facts specially found, the defendants were liable to be assessed for the contracts, debts, and engagements of the bank. The statute declares that the capital stock of a national bank shall be transferable on its books in such manner as may be prescribed in the by-laws or articles of the association—every person becoming a shareholder by such transfer succeeding, in proportion to his shares, to all the rights and liabilities of the vol. cxvni—43 658 OCTOBER TERM, 1886. Opinion of the Court. prior holder. Rev. Stat. § 5189. The by-laws of this bank provide that its stock should be assignable only on its books, subject to the restrictions and provisions of the statute; that a transfer-book be kept, in which all assignments and transfers of stock should be made; that each certificate should state upon its face that the stock is transferable only on the books of the bank; and that when a transfer is made the certificate shall be returned and cancelled, and a new one issued. Whether these by-laws were so far complied with as to release the defendants as executors from the liability imposed by statute depends upon the effect to be given to certain acts of the executors and of the president of the bank, in connection with the sale of the stock standing in Whitney’s name. It appears from the special finding of facts that Abner Coburn, of Maine, desiring to buy two hundred and fifty shares of the stock of this bank, made a special deposit in it of $25,000 to be applied for that purpose. This fact appears from a letter addressed to him by Benyon, the president of the bank, under date of September 21, 1881, in which the latter said: “ Yours of 20th received, with check $25,000, which we will use pending the purchase of our stock, and will hold on your account, as a special deposit, securities to the same amount, till we succeed in making the purchase. This leaves the amount in your control until invested, and, I tru£t, will be satisfactory to you.” That the stock might be obtained, Benyon secured the services of one Eager, who had a deposit account with the bank; and that the latter might have money with which to buy the stock, Benyon placed to his credit, as a temporary loan, out of the funds of the bank, the exact amount required for the purchase. On November 8, 1881, the defendants—having no reason whatever to believe that the bank was insolvent, or was about to become so; on the contrary, believing it to be solvent, and having no information as to Coburn’s order—placed the certificates held by them in the hands of Day & Co., brokers, with directions to sell the stock. They also placed in their hands a power of attorney in the form usually adopted for transfers of stock. It was blank as to the names of the attorney and the WHITNEY v. BUTLER. 659 Opinion of the Court. purchaser, but was signed by the executors and duly witnessed. It was in these words: “ Know all men by these presents, that, for value received, we, the executors of the estate of Leonard Whitney, of Watertown, do hereby make, constitute, and appoint, irrevocably,----------, true and lawful attorney (with power of substitution), for and in our name and our behalf to sell, assign, and transfer unto---------one hundred shares, now standing in the name of L. Whitney, of Watertown, Mass., in the capital stock of the Pacific National Bank; and said attorney is hereby fully empowered to make and pass all necessary acts for the said assignment and transfer. Witness our hands and seals.” To that power of attorney was appended the following: “For value received, I appoint, irrevocably, ------- as my substitute, with all the powers above given to me. Witness------------ hand and seal, ----------187- -------------- -------. [Seal.] ” The other papers were the two certificates of stock and the certificate from the proper Probate Court, showing the appointment and qualification of the defendants as executors. Each stock certificate contained the following words: “ Transferable only on the books of the said bank, in person or by attorney, on surrender of this certificate.” On November 12, 1881, Day & Co. offered the stock for sale at public auction, and the same was, at Benyon’s request, bought by Eager at the sum of $10,400. Three days thereafter, November 15, 1881, Eager offered to the brokers in payment for the stock his check on the Pacific National Bank. The bank at which the brokers did business declined to take that check in its deposit account. Benyon being informed of that fact, substituted for the check of Eager a cashier’s check on another bank, which last check being paid, Day & Co., with the knowledge of Eager, delivered to Benyon, the .president of the bank, the foregoing certificates of stock, with the power of attorney, the certificate from the Probate Court, and other papers—he thereafter holding the same “ as purporting to be security for, and as representing said loan, awaiting the filling of Coburn’s order, with the design then to have the stock transferred to him as soon as his order had been filled.” On the 16th of November the defendants received from the 660 OCTOBER TERM, 1886. Opinion of the Court. brokers the proceeds of the sale of the Whitney stock. Benyon obtained only fifty additional shares, for the purpose of filling the order of Coburn. All this happened before the bank suspended on November 18, 1881. The executors of Whitney did not know by whom the stock was bought at the auction sale, unless the knowledge of the brokers is to be imputed to them. Believing, in good faith, and having no reason to doubt, that the purchaser had caused the transfer to be made, neither they nor the brokers took steps to ascertain whether it had, in fact, been done. They had no knowledge or information until after the appointment of the receiver as to the purpose for which either Benyon or Eager held the before-mentioned papers or the stock. While the bank did not purchase nor intend to purchase the stock for itself, its president, in execution of Coburn’s order, procured Eager to buy this stock with funds furnished him for that purpose. Coburn did not take it; and the receiver, after he took possession, found the before-mentioned papers in an envelope, purporting to represent a security for a demand loan to Benyon. We do not think that the question arising upon these facts is concluded by any of the cases cited in the opinion of the circuit judge,* or in those cited in the brief for the receiver.! In nearly all of them, where the issue was between the receiver, representing the creditors, and the person standing on the register of the bank as a shareholder, it is said, generally, that the creditors of a national bank are entitled to know who, as shareholders, have pledged their individual liability as security for its debts, engagements, and contracts; that if a person permits his name to appear and remain in its outstanding certificates of stock, and on its register, as a shareholder, he is * Note by the Court.—Davis v. Society of Essex, 44 Conn. 582; Adderly v. Storm, 6 Hill, 624; Anderson v. Philadelphia Warehouse Co., Ill U. S. 479, 483; Johnston v. Laflin, 103 U. S. 800, 804; Turnbull v. Payson, 95 U. S. 418; Brown v. Adams, 5 Bissell, 181. f Note by the Court.—Davis v. Stevens, 17 Blatch. 259; Irons v. Manf. Nat. Bk., 27 Fed. Rep. 591; Bowdell v. Nat. Bk., Brown Nat. Bk. Cas. 146. WHITNEY v. BUTLER. 661 Opinion of the Court. estopped, as between himself and the creditors of the bank, to deny that he is a shareholder; and that his individual liability continues until there is a transfer of the stock on the books of the bank, even where he has in good faith previously sold it and delivered to the buyer the certificate of stock, with a power of attorney in such form as to enable the transfer to be made. Some of the cases hold that the seller is liable as a shareholder even where the buyer agreed to have the transfer made on the books of the bank, but fraudulently or negligently failed to do so. But it will be found, upon careful examination, that in no one of the cases in which these general principles have been announced, as between creditors and shareholders, does it appear that the precaution was taken, after the sale of the stock, to surrender the certificates therefor to the bank itself, accompanied (where such surrender was not by the shareholder in person) by a power of attorney, which would enable its officers to make the transfer on the register. The position of the seller, in such case, is analogous to that of a grantor of a deed deposited in the proper office to be recorded. The general rule is, that the deed is considered as recorded from the time of such deposit. 2 Washburn on Real Prop., B. 3, ch. 4, par. 52. Where the seller delivers the stock certificate and power of attorney to the buyer, relying upon the promise of the latter to have the necessary transfer made, or where the certificate and power of attorney are delivered to the bank without communicating to its officers the name of the buyer, the seller may well be held liable as a shareholder until, at least, he shall have done all that he reasonably can do to effect a transfer on the stock register. In the case before us the personal presence of the defendants at the bank was not required in order to secure their release from liability as shareholders. Besides, the certificates of stock authorized them to act by attorney. Through their agents, the brokers, who sold the stock, and through whom they received the money paid for it, they surrendered the certificates and power of attorney to the president of the bank, he receiving them, with knowledge not only that defendants had parted with all title to the stock and had been paid for it, but, also, 662 OCTOBER TERM, 1886. Opinion of the Court. that it had been purchased at public auction by Eager. He knew equally well that the surrender of the certificates and the delivery of the power of attorney and the certificate from the Probate Court could only have been for the purpose of having it appear, by means of a transfer on the books of the bank, that Whitney’s executors were no longer shareholders. The right to have the transfer made, and thereby secure exemption from further responsibility, was secured to the defendants both by the statute and by the by-laws of the bank. They did all that was required by either as preliminary to such transfer. Nothing remained to be done except for some officer of the bank to make the necessary formal entries on its books. If, when the agents of defendants delivered the certificates and power of attorney to the president of the bank, the latter had given any intimation of a purpose not to make the transfer promptly, or had avowed an intention to postpone action until a sufficient amount of stock was obtained to fill Coburn’s order, it may be that the failure of the defendants to take legal steps to compel a transfer would, in favor of the creditors of the bank, have been deemed a waiver of the right to an immediate transfer on the stock register. But no such intimation was given ; no such avowal was made. No objection was made to the power of attorney, or to the discharge of the defendants from liability. So far as the record shows, nothing was said or done by the bank’s officers to raise a doubt in the minds of the defendants’ agents that the transfer would be made at once. It was suggested in argument that the defendants should have seen that the transfer was made. But we were not told precisely what ought to have been done to this end that was not done by them and their agents. Had anything occurred that would have justified the defendants in believing, or even in suspecting, that the transfer had not been promptly made on the books of the bank, they would, perhaps, have been wanting in due diligence had they not, by inspection of the bank’s stock register, ascertained whether the proper transfer had in fact been made. But there was. nothing to justify such a belief or to excite such a suspicion. Their conduct was HARKNESS v. RUSSELL. 663 Syllabus. under all the circumstances, that of careful, prudent, business men, and it would be a harsh interpretation of their acts to hold (in the language in some of the cases, when considering the general question under a different state of facts) that they allowed or permitted the name of Whitney to remain on the stock register as a shareholder. We are of opinion that, within a reasonable construction of the statute, and for all the objects intended to be accomplished by the provision imposing liability upon shareholders for the debts of national banks, the responsibility of the defendants must be held to have ceased upon the surrender of the certificates to the bank and the delivery to its president of a power of attorney sufficient to effect, and intended to effect, as that officer knew, a transfer of the stock, on the books of the association, to the purchaser. For the reasons stated, the judgment is Reversed, and the cause remanded, with directions to enter a judgment for the defenda/nts. HARKNESS v. RUSSELL. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH. Submitted November 17,1885.—Decided November 8, 1886. In the absence of fraud, an agreement for a conditional sale of personal property accompanied by delivery is good and valid, as well against third persons as against the parties to the transaction. A bailee of personal property, who receives it under an agreement that he may purchase it on the performance of conditions on his part, cannot convey title to it or subject it to execution for his own debts, until performance of the. conditions on which the agreement to sell is made. A, having agreed to sell certain personal property to B on the performance of conditions on his part, delivered it to him, and took from him a promissory note stating the following as the condition of the sale ; “ The express condition of this transaction is such that the title, ownership, or possession of said property does not pass from the said A until this note and interest shall have been paid in full, and the said A has full power to declare this note due and take possession of said engine and saw-mill when he may deem himself 664 OCTOBER TERM, 1886. Statement of Facts. insecure, even before the maturity of this note. In case said property shall be taken back, A may sell the same at public or private sale without notice, or he may without sale endorse the true value of the property on this note, and I agree to pay on the note any balance due thereon after such endorsement, as damages and rental for said machinery.” B entered into possession, and, without performing the conditions of sale, sold the property to C, who knew that it had not been paid for, and that A claimed title to it. At the time of the sale to C, the value of the property was less than the amount due on the note. In an action against C to recover the value of the property, Held: That this transaction was not a mortgage, but was an executory conditional sale; and, being free from fraud, that it was valid. This was an appeal from the Supreme Court of Utah. The action was brought in the District Court for Weber County, to recover the value of two steam-engines and* boilers, and a portable saw-mill connected with each engine. A jury being waived, the court found the facts and rendered judgment for the plaintiff, Russell & Co. The plaintiff is an Ohio corporation, and by its agent in Idaho, on the 2d of October, 1882, agreed with a partnership firm by the name of Phelan & Ferguson, residents of Idaho, to sell to them the said engines, boilers, and saw-mills for the price of $4988, nearly all of which was secured by certain promissory notes, which severally contained the terms of the agreement between the parties. One of the notes (the others being in the same form) was as follows, to wit: “ Salt Lake City, Oct. 2, 1882. “ On or before the first day of May, 1883, for value received in one sixteen-horse portable engine, No. 1026, and one portable saw-mill, No. 128, all complete, bought of L. B. Mattison, agent of Russell & Co., we, or either of us, promise to pay to the order of Russell & Co., Massillon, Ohio, $300, payable at Wells, Fargo & Co.’s bank, Salt Lake City, Utah Territory, with ten per cent, interest per annum from October 1, 1882, until paid, and reasonable attorney’s fees, or any costs that may be paid or incurred in any action or proceeding instituted for the collection of this note or enforcement of this covenant. The express condition of this transaction is such that the title, ownership, or possession of said engine and saw-mill does not HARKNESS v. RUSSELL. 665 Statement of Facts. pass from the said Russell & Co. until this note and interest shall have been paid in full, and the said Russell & Co. or his agent has full power to declare this note due and take possession of said engine and saw-mill when they may deem themselves insecure, even before the maturity of this note; and it is further agreed by the makers hereof, that if said note is not paid at maturity, that the interest shall be two per cent, per month from maturity hereof till paid, both before and after judgment, if any should be rendered. In case said saw-mill and engine shall be taken back, Russell & Co. may sell the same at public or private sale without notice, or they may without sale endorse the true value of the property on this note, and we agree to pay on the note any balance due thereon after such endorsement, as damages and rental for said machinery. As to this debt we waive the right to exempt or claim as exempt any property, real or personal, we now own, or may hereafter acquire, by virtue of any homestead or exemption law, State or Federal, now in force, or that hereafter may be enacted. “ P. O., Oxford, Oneida County, Idaho Territory. “ $300. Phelan & Ferguson.” Some of the notes were given for the price of one of the engines with its accompanying boiler and mill, and the others for the price of the other. Some of the notes were paid; and the present suit was brought on those that were not paid. The property was delivered to Phelan & Ferguson, on the execution of the notes, and subsequently they sold it to the defendant Harkness, in part payment of a debt due from them to him and one Langsdorf. The defendant, at the time of the sale to him, knew that the purchase-price of the property had not been paid to the plaintiff, and that the plaintiff claimed title thereto until such payment was made. The unpaid notes given for each engine and mill exceeded in amount the value of such engine and mill when the action was commenced. The Territory of Idaho has a law relating to chattel mortgages [Act of January 12, 1875], requiring that every such mortgage shall set out certain particulars as to parties, time, amount, &c., with an affidavit attached, that it is bond fide, and 666 OCTOBER TERM, 1886. Opinion of the Court. made without any design to defraud and delay creditors; and requiring the mortgage and affidavit to be recorded in the county where the mortgagor lives, and in that where the property is located; and it is declared that no chattel mortgage shall be valid (except as between the parties thereto) without compliance with these requisites, unless the mortgagee shall have actual possession of the property mortgaged. In the present case no affidavit was attached to the notes, nor were they recorded. The court found that it was the intention of Phelan & Ferguson, and of Russell & Co., that the title to the said property should not pass from Russell & Co. until all the notes were paid. Upon these facts the court found, as conclusions of law, that the transaction between Phelan & Ferguson and Russell & Co. was a conditional, or executory sale, and not an absolute sale with a lien reserved, and that the title did not pass to Phelan & Ferguson, or from them to the defendant; and gave judgment for the plaintiff. The Supreme Court of the Territory affirmed this judgment. This appeal was taken from that judgment. J/r. Parley L. Williams {Mr. James N\ Kimball and Mr. Abbot P. Heywood were with him on the brief), for appellant. Mr. Charles W. Bennett, for appellee. Mr. Justice Bradley, after stating the facts as above reported, delivered the opinion of the court. The first question to be considered is, whether the transaction in question was a conditional sale or a mortgage; that is, whether it was a mere agreement to sell upon a condition to be performed, or an absolute sale, with a reservation of a lien or mortgage to secure the purchase-money. If it was the latter, it is conceded that the lien or mortgage was void as against third persons because not verified by affidavit and not recorded as required by the law of Idaho. But, so far as words and the express intent of the parties can go, it is per- HARKNESS v. RUSSELL. 667 Opinion of the Court. fectly evident that it was not an absolute sale, but only an agreement to sell upon condition that the purchasers should pay their notes at maturity. The language is: “ The express condition of this transaction is such that the title . . . does not pass . . . until this note and interest shall have been paid in full.” If the vendees should fail in this, or if the vendors should deem themselves insecure before the maturity of the notes, the latter were authorized to repossess themselves of the machinery, and credit the then value of it, or the proceeds of it if they should sell it, upon the unpaid notes. If this did not pay the notes, the balance was still to be paid by the makers by way of “ damages and rental for said machinery.” This stipulation was strictly in accordance with the rule of damages in such cases. Upon an agreement to sell, if the purchaser fails to execute his contract, the true measure of damages for its breach is the difference between the price of the goods agreed on and their value at the time of the breach or trial, which may fairly be stipulated to be the price they bring on a re-sale. It cannot be said, therefore, that the stipulations of the contract were inconsistent with, or repugnant to, what the parties declared their intention to be, namely, to make an executory and conditional contract of sale. Such contracts are well known in the law.and often recognized; and when free from any fraudulent intent are not repugnant to any principle of justice or equity, even though possession of the property be given to the proposed purchaser. The rule is formulated in the text-books and in many adjudged cases. In Lord Blackburn’s Treatise on the Contract of Sale, published forty years ago, two rules are laid down as established: (1.) That where by the agreement the vendor is to do anything to the goods before delivery, it is a condition precedent to the vesting of the property. (2.) That where anything remains to be done to the goods for ascertaining the price, such as weighing, testing, &c., this is a condition precedent to the transfer of the property. Blackburn on Sales, 152. And it is subsequently added, that “ the parties may indicate an intention, by their agreement, to make any condition precedent to the vesting of the property, and, if they do so, their intention is fulfilled.” Blackburn on 668 OCTOBER TERM, 1886. Opinion of the Court. Sales, 167. Mr. Benjamin, in his Treatise on Sales of Personal Property, adds to the two formulated rules of Lord Blackburn a third rule, which is supported by many authorities, to wit: (3.) “ Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.” Benjamin on Sales, 2d Ed., p. 236 ; 3d Ed. § 320. The author cites for this proposition Bishop v. Shillito, 2 B. & Aid. 329, note (a); Brandt v. Bowlby, 2 Barn. & Adolph. 932; Barrow v. Coles (Lord Ellenborough), 3 Campbell, 92; Swain n. Shepherd (Baron Parke), 1 Mood. & Rob. 223; M.lres v. Sole-bay, 2 Mod. 243. In the last case, decided in the time of Charles II., one Alston took sheep to pasture for a certain time, with an agreement that if at the end of that time he should pay the owner a certain sum, he should have the sheep. Before the time expired the owner sold them to another person ; and it was held, that the sale was valid, and that the agreement to sell the sheep to Alston, if he would pay for them at a certain day, did not amount to a sale, but only to an agreement. The other cases were instances of sales of goods to be paid for in cash or securities on delivery. It was held that the sales were conditional only, and that the vendors were entitled to retake the goods, even after delivery, if the condition was not performed, the delivery being considered as conditional. This often happens in cases of sales by auction, when certain terms of payment are prescribed, with a condition that if they are not complied with the goods may be re-sold for account of the buyer, who is to account for any deficiency between the second sale and the first. Such was the case of Lamond n. Davall, 9 Q. B. 1030, and many more cases could be cited. In Crawcour v. Robertson, 9 Ch. Div. 419, certain furniture dealers let Robertson have a lot of furniture upon his paying £10 in cash and signing an agreement to pay £5 per month (for which notes were given) until the whole price of the furniture should be paid, and when all the instalments were paid, and not before, the furniture was to be the property HARKNESS v. RUSSELL. 669 Opinion of the Court. of Robertson; but if he failed to pay any of the instalments, the owners were authorized to take possession of the property, and all prior payments actually made were to be forfeited. The .court of appeal held that the property did not pass by this agreement, and could not be taken as Robertson’s property by his trustee under a liquidation proceeding. The same conclusion was reached in the subsequent case of Crawcour v. Salter.) 18 Ch. Div. 30. In these cases, it is true, support of the transaction was sought from a custom which prevails in the places wThere the transactions took place, of hotel-keepers holding their furniture on hire. But they show that the intent of the parties will be recognized and sanctioned where it is not contrary to the policy of the law. This policy, in England, is declared by statute. It has long been a provision of the English bankrupt laws, beginning with 21 James I., c. 19, that if any person becoming bankrupt has in his possession, order, or disposition, by consent of the owner, any goods or chattels of which he is the reputed owner, or takes upon himself the sale, alteration, or disposition thereof as owner, such goods are to be sold for the benefit of his creditors. This law has had the effect of preventing or defeating conditional sales accompanied by voluntary delivery of possession, except in cases like those before referred to; so that very few decisions are to be found in the English books directly in point on the question under consideration. The following case presents a fair illustration of the English law as based upon the statutes of bankruptcy. In Horn v. Balter, 9 East, 215, the owner of a term in a distillery, and of the apparatus and utensils employed therein, demised the same to J. & S., in consideration of an annuity to be paid to the owner and his wife during their several lives, and upon their death the lessees to have the liberty of purchasing the residue of the term and the apparatus and utensils; with a proviso for re-entry if the annuity should at any time be two months in arrear. The annuity having become in arrear for that period, instead of making entry for condition broken, the wife and administrator of the owner brought suit to recover the arrears, which was stopped by the bankruptcy of J. & S. The question then arose whether the 670 OCTOBER TERM, 1886. Opinion of the Court. utensils passed to the assignees of J. & S. under the bankrupt act, as being in their possession, order, and disposition as reputed owners; and the court held that they did; but that if there had been a usage in the trade of letting utensils with a distillery, the case would have admitted a different consideration, since such a custom might have rebutted the presumption of ownership arising from the possession and apparent order and disposition of the goods. This case was followed in Hol-royd v. G wynne, 2 Taunt. 176. This presumption of property in a bankrupt, arising from his possession and reputed ownership, became so deeply embedded in the English law, that, in process of time, many persons in the profession, not adverting to its origin in the statute of bankruptcy, were led to regard it as a doctrine of the common law ; and hence, in some States in this country, where no such statute exists, the principles of the statute have been followed, and conditional sales of the kind now under consideration have been condemned, either as being fraudulent and void as against creditors, or as amounting, in effect, to absolute sales with a reserved lien or mortgage to secure the payment of the purchase-money. This view is based on the notion that such sales are not allowed by law, and that the intent of the parties, however honestly formed, cannot legally be carried out. The insufficiency of this argument is demonstrated by the fact that conditional sales are admissible in several acknowledged cases, and, therefore, there cannot be any rule of law against them as such. They may sometimes be used as a cover for fraud, and, when this is charged, all the circumstances of the case, this included, will be open for the consideration of a jury. Where no fraud is intended, but the honest purpose of the parties is that the vendee shall not have the ownership of the goods until he has paid for them, there is no general principle of law to prevent their purpose from having effect. In this country, in States where no such statute as the English act referred to is in force, many decisions have been rendered sustaining conditional sales accompanied by delivery of possession, both as between the parties themselves and as to third persons. HARKNESS v. RUSSELL. 671 Opinion of the Court. In Hussey v. Thornton, 4 Mass. 404, decided in 1808, where goods were delivered on board of a vessel for the vendee upon an agreement for a sale, subject to the condition that the goods should remain the property of the vendors until they received security for payment, it was held (Chief Justice Parsons delivering the opinion) that the property did not pass, and that the goods could not be attached by the creditors of the vendee. This case was followed in 1822 by that of Marston v. Baldwin, 17 Mass. 606, which was replevin against a sheriff for taking goods which the plaintiff had agreed to sell to one Holt, the defendant in the attachment; but by the agreement the property was not to vest in Holt until he should pay $100 (part of the price), which condition was not performed, though the goods were delivered. Holt had paid $75, which the plaintiff did not tender back. The court held that it was sufficient for the plaintiff to be ready to repay the money when he should be requested, and a verdict for the plaintiff was sustained. In Barrett v. Pritchard, 2 Pick. 512, 515-16, the court said: “ It is impossible to raise a doubt as to the intention of the parties in this case, for it is expressly stipulated that ‘ the wool before manufactured, after being manufactured, or in any stage of manufacturing, shall be the property of the plaintiff until the price be paid.’ It is difficult to imagine any good reason why this agreement should not bind the parties. . . . The case from Taunton, Holroyd v. Gwynne, was a case of a conditional sale; but the condition was void as against the policy of the statute 21 Jac. I., ch. 19, § 11. It would not have changed the decision in that case if there had been no sale; for, by that statute, if the true owner of goods and chattels suffers another to exercise such control and management over them as to give him the appearance of being the real owner, and he becomes bankrupt, the goods and chattels shall be treated as his property, and shall be assigned by the commissioners for the benefit of his creditors. The case of Horn v. Baker, 9 East, 215, also turned on the same point, and nothing in either of these cases has any bearing on the present question.” In Coggill v. Hartford & New Haven Railroad, 3 Gray, 545-547, the rights of a l>ona fide pur- 672 OCTOBER TERM, 1886. Opinion of the Court. chaser from one in possession under a conditional sale of goods were specifically discussed, and the court held, in an able opinion delivered by Mr. Justice Bigelow, that a sale and delivery of goods on condition that the title shall not vest in the vendee until payment of the price, passes no title until the condition is performed, and the vendor, if guilty of no laches, may reclaim the property, even from one who has purchased from his vendee in good faith, and without notice. The learned justice commenced his opinion in the following terms: “It has long been the settled rule of law in this commonwealth that a sale and delivery of goods on condition that the property is not to vest until the purchase-money is paid or secured, does not pass the title to the vendee, and that the vendor, in case the condition is not fulfilled, has a right to repossess himself of the goods, both against the vendee and against his creditors claiming to hold them under attach-ments.” He then addresses himself to a consideration of the rights of a hona fide purchaser from the vendee, purchasing without notice of the condition on which the latter holds the goods in his possession; and he concludes that they are no greater than those of a creditor. He says: “ All the cases turn on the principle that the compliance with the conditions of sale and delivery is, by the terms of the contract, precedent to the transfer of the property from the vendor to the vendee. The vendee in such cases acquires no property in the goods. He is only a bailee for a specific purpose. The delivery which in ordinary cases passes the title to the vendee must take effect according to the agreement of the parties, and can operate to vest the property only when the contingency contemplated by the contract arises. The vendee, therefore, in such cases, having no title to the property, can pass none to others. He has only a bare right of possession; and those who claim under him, either as creditors or purchasers, can acquire no higher or better title. Such is the necessary result of carrying into effect the intention of the parties to a conditional sale and delivery. Any other rule would be equivalent to the denial of the validity of such contracts. But they certainly violate no rule of law, nor are they contrary to sound policy.” HARKNESS v. RUSSELL. 673 Opinion of the Court. This case was followed in Sargent v. Metcalf, 5 Gray, 306; Deshon v. Bigelow, 8 Gray, 159; Whitney v. Eaton, 15 Gray, 225 ; Hirschorn v. Canney, 98 Mass. 149; and Chase v. Ingalls, 122 Mass. 381; and is believed to express the settled law of Massachusetts. The same doctrine prevails in Connecticut, and was sustained in an able and learned opinion of Chief Justice Williams, in the case of Forbes v. Marsh, 15 Conn. 384, decided in 1843, in which the principal authorities are reviewed. The decision in this case was followed in the subsequent case of Hart v. Carpenter, 24 Conn. 427, where the question arose upon the claim of a bona fide purchaser. In New York the law is the same, at least, so far as relates to the vendee in a conditional sale, and to his creditors; though there has been some diversity of opinion in its application to bona fide purchasers from such vendee. As early as 1822, in the case of Haggerty v. Palmer, 6 Johns. Ch. 437, where an auctioneer had delivered to the purchaser goods sold at auction, it being one of the conditions of sale that endorsed notes should be given in payment, which the purchaser failed to give, Chancellor Kent “held that it was a conditional sale and delivery, and gave no title which the vendee could transfer to an assignee for the benefit of creditors ; and he said that the cases under the English bankrupt act did not apply here. The Chancellor remarked, however, that “if the goods had been fairly sold by P. (the conditional vendee), or if the proceeds had been actually appropriated by the assignees, before notice of this suit, and of the injunction, the remedy would have been gone.” In Strong v. Taylor, 2 Hill, 326, Nelson, C. J., pronouncing the opinion, it was held to be a conditional sale where the agreement was to sell a canal-boat for a certain sum to be paid in freighting flour and wheat, as directed by the vendor, he to have half the freight until paid in full with interest. Before the money was all paid the boat was seized under an execution against the vendee; and, in a suit by the vendor against the sheriff, a verdict was found for the plaintiff, under the instruction of the court, and was sustained in banc, upon the authority of the Massachusetts case of Barrett v. Priichard, vol. cxvm—43 6Ì4 OCTOBER TERM, 1886. Opinion of the Court. 2 Pick. 512. In Herring v. Hoppock, 15 N. Y. 409, 411, 414, the same doctrine was followed. In that case there was an agreement in writing for the sale of an iron safe, which was delivered to the vendee and a note at six months given therefor; but it was expressly understood that no title was to pass until the note was paid; and if not paid, Herring, the vendor, was authorized to re-take the safe and collect all reasonable charges for its use. The sheriff levied on the safe as the property of the vendee, with notice of the plaintiff’s claim. The Court of Appeals held that the title did not pass out of Herring. Paige, J., said : “ Whenever there is a condition precedent attached to a contract of sale, which is not waived by an absolute and unconditional delivery, no title passes to the vendee until he performs the condition, or the seller waives it.” Comstock, J., said that if the question were new, it might be more in accordance with the analogies of the law to regard the writing given on the sale as a mere security for the debt, in the nature of a personal mortgage; but he considered the law as having been Settled by the previous cases, and the court unanimously concurred in the decision. In the cases of Smyth v. Lynes, 1 Seld. (5 N. Y.), 41, and Wait v. G-reen, 36 Barb. 585; & C., on appeal, 36 N. Y. 556, it was held that a ~bona fide purchaser, without notice, from a vendee who is in possession under a conditional sale, will be protected as against the original vendor. These cases were reviewed, and, we think, substantially overruled, in the subsequent case of Ballard v. Burgett, 40 N. Y. 314, in which separate elaborate opinions were delivered by Judges Grover and Lott. This decision was concurred in by Chief Judge Hunt and Judges Woodruff, Mason, and Daniels; Judges James and Murray dissenting. In that case Ballard agreed to sell to one France a yoke of oxen for a price agreed on, but the contract had the condition “ that the oxen were to remain the property of Ballard until they should be paid for.” The oxen wrere delivered to France, and he subsequently sold them to the defendant Burgett, who purchased and received them without notice that the plaintiff had any claim to them. The court sustained Ballard’s claim; and subsequent cases in New York are in HARKNESS v. RUSSELL. 675 Opinion of the Court. harmony with this decision. See Cole v. J/ann, 62 N. Y. 1 ; Bean v. Edge, 84 N. Y. 510. We do not perceive that the case of Dows v. Kidder, 84 N. Y. 121, is adverse to the ruling in Ballard v. Burgett. There, although the. plaintiffs stipulated that the title to the corn should not pass until payment of the price (which was to be cash, the same day), yet they endorsed and delivered to the purchaser the evidence of title, namely, the weigher’s return, to enable him to take out the bill of lading in his own name, and use it in raising funds to pay the plaintiff. The purchaser misappropriated the funds, and did not pay for the corn. Here the intent of both parties was that the purchaser might dispose of the corn, and he was merely the trustee of the plaintiff, invested by him with the legal title. Of course the innocent party who purchased the corn from the first purchaser was not bound by the equities between him and the plaintiff. The later case of Parker v. Baxter, 86 N. Y. 586, was precisely similar to Dows v. Kidder j and the same principle was involved in Farwell v. Importer^ and Traders' Bank, 90 N. Y. 483, where the plaintiff delivered his own note to a broker to get it discounted, and the latter pledged it as collateral for a loan made to himself: the legal title passed, and although, as between the plaintiff and the broker, the former was the owner of the note and its proceeds, yet that was an equity which was not binding on the innocent holder. The decisions in Maine, New Hampshire, and Vermont are understood to be substantially to the same effect as those of Massachusetts and New York; though by recent statutes in Maine and Vermont, as also in Iowa, where the same ruling prevailed, it is declared in effect that no agreements that personal property bargained and delivered to another shall remain the property of the vendor, shall be valid against third persons without notice. George v. Stubbs, 26 Maine, 243 ; Sawyer v. Fisker, 32 Maine, 28 ; Brown v. Haines, 52 Maine, 578 ; Boynton v. Libby, 62 Maine, 253 ; Rogers v. Wkitekouse, 71 Maine, 222 ; Sargent v. Gilè, 8 N. H. 325 ; McFarland v. Farmer, 42 N. H. 386 ; King v. Bates, 57 N. H. 446 ; Hefflin v. Bell, 30 Vt. 134; Armington v. Houston, 38 Vt. 448 ; Fades v. Roberts, 676 OCTOBER TERM, 1886. Opinion of the Court. 38 Vt. 503; Duncans v. Stone, 45 Vt. 118; Moseley n. Shattuck, 43 Iowa, 540 ; Thorpe v. Fowler, 57 Iowa, 541. The same view of the law has been taken in several other States. In New Jersey, in the case of Cole v. Berry, 13 Vroom (42 N. J. Law), 308, it was held that a contract for the sale of a sewing-machine to be delivered and paid for by instalments, and to remain the property of the vendor until paid for, was a conditional sale, and gave the vendee no title until the condition was performed ; and the cases are very fully discussed and distinguished. In Pennsylvania the law is understood to be somewhat different. It is thus summarized by Judge Depue, in the opinion delivered in Cole v. Berry,'where he says: “In Pennsylvania a distinction is taken between delivery under a bailment, with an option in the bailee to purchase at a named price, and a delivery under a contract of sale containing a reservation of title in the vendor until the contract-price be paid; it being held that, in the former instance, property does not pass, as in. favor of creditors and purchasers of the bailee, but that, in the latter instance, delivery to the vendee subjects the property to execution at the suit of his creditors, and makes it transferable to bona fide purchasers. Chamb&rlain v. Smith, 44 Penn. St. 431; Rose v. Story, 1 Penn. St. 190 ; Marsh v. Mathiot, 14 S. & R. 214; Ilaak v. Linderman, 64 Penn. St. 499.” But, as the learned judge adds, “ This distinction is discredited by the great weight of authority, which puts possession under a conditional contract of sale and possession under a bailment on the same footing—liable to be assailed by creditors and purchasers for actual fraud, but not fraudulent per seS In this connection see the case of Copland v. Bosquet, 4 Wash. C. C. 588, where Mr. Justice Washington and Judge Peters (the former delivering the opinion of the court) sustained a conditional sale and delivery against a purchaser from the vendee, who claimed to be a bona fide purchaser without notice. In Ohio the validity of conditional sales accompanied by delivery of possession is fully sustained. The latest reported case brought to our attention is that of Call n. Seymour, 40 HARKNESS v. RUSSELL. 677 Opinion of the Court. Ohio St. 670, which arose upon a written contract contained in several promissory notes given for instalments of the purchase-money of a machine, and resembling very much the contract in the case now under consideration. Following the note, and as a part of the same document, is this condition : “ The express conditions of the sale and purchase of the Separator and Horse-Power for which this note is given, is such, that the title, ownership, or possession does not pass from the said Seymour, Sabin & Co. until this note, with interest, is paid in full. The said Seymour, Sabin & Co. have full power to declare this note due and take possession of said Separator and Horse-Power at any time they may deem this note insecure, even before the maturity of the note, and to sell the said machine at public or private sale, the proceeds to be applied upon the unpaid balance of the purchase-price.” The machine was seized under an attachment issued against the vendee, and the action was brought by the vendor against the constable who served the attachment. The case was fully argued, and the authorities pro and con duly considered by the court, which sustained the condition expressed in the contract and affirmed the judgment for the plaintiff. See also Sanders v. Keber, 28 Ohio St. 630. The same law prevails in Indiana: Shireman v. Jackson, 14 Ind. 459; Dunbar v. Rawles, 28 Ind. 225; Bradshaw v. Warner, 54 Ind. 58; Hodson v. Warner, 60 Ind. 214; McGirr v. Sells, 60 Ind. 249. The same in Michigan : Whitney v. McConnell, 29 Mich. 12; Smith v. Lozo, 42 Mich. 6; 'Marquette Manufacturing Co. v. Jefferey, 49 Mich. 283. The same in Missouri: Ridgeway v. Kennedy, 52 Missouri, 24; Wangler v. Franklin, 70 Missouri, 650 ; Sumner v. Cottey, 71 Missouri, 121. The same in Alabama: Fairbanks v. Eureka Co., 67 Ala. 109; Sumner v. Woods, 67 Ala. 139. The same in several other States. For a very elaborate collection of cases on the subject, see Mr. Bennett’s note to Benjamin on Sales, 4th ed., § 320, pp. 329-336 ; and Mr. Freeman’s note to Kanaga v. Taylor, 7 Ohio St. 134, in 70 Am. Dec. 62. 678 OCTOBER TERM, 1886. Opinion of the Court. It is unnecessary to quote further from the decisions; the quotations already made show the grounds and reasons of the rule. The law has been held differently in Illinois, and very nearly in conformity with the English decisions under the operation of the bankrupt law. The doctrine of the Supreme Court of that State is, that if a person agrees to sell to another a chattel on.condition that the price shall be paid within a certain time, retaining the title in himself in the meantime, and delivers the chattel to the vendee so as to clothe him with the apparent ownership, a bona fide purchaser or an execution creditor of the latter is entitled to protection as against the claim of the original vendor. Brundage v. Camp, 21 Ill. 330; McCormick v. Hadden, 37 Ill. 370; March v. Wright, 46 Ill. 487; Mich. Central Railroad v. Phillips, 60 Ill. 190; Lucas v. Campbell, 88 Ill. 447; Van Duzor v. Allen, 90 Ill. 499. Perhaps the statute of Illinois on the subject of chattel mortgages has influenced some of these decisions. This statute declares that “ no. mortgage, trust deed, or other conveyance of personal property, having the effect of a mortgage or lien upon such property, is valid as against the rights and interests of any third person, unless the possession thereof be delivered to and remain with the grantee, or the instrument provide that the possession of the property may remain with, the grantor, and the instrument be acknowledged and recorded.” It has been supposed that this statute indicates a rule of public policy condemning secret liens and reservations of title on the part of vendors, and making void all agreements for such liens or reservations unless registered in the manner required for chattel mortgages. At all events, the doctrine above referred to has become a rule of property in Illinois, and we have felt bound to observe it as such. In the case of Hervey v. Rhode Island Locomotive Works, 93 U. S. 664, 671, where a Rhode Island company leased to certain Illinois railroad contractors a locomotive engine and tender at a certain rent, payable at stated times during the ensuing year, with an agreement that if the rent was duly paid the engine and tender should become the property of the lessees, and possession was delivered to them, this court, being satisfied that the transaction was a HARKNESS v. RUSSELL. 679 Opinion of the Court. conditional sale, and that, by the law of Illinois, the reservation of title by the lessors was void as against third persons, unless the agreement was recorded (which it was not in proper time), decided that a levy and sale of the property in Illinois, under a judgment against the lessees, were valid, and that the Locomotive Works could not reclaim it. Mr. Justice Davis, delivering the opinion of the court, said: “ It was decided by this court in Green v. Van IVisliirk, 5 Wall. 307, and 7 Wall. 139, that the liability of property to be sold under legal process, issuing from the courts of the State where it is situated, must be determined by the law there rather than that of the jurisdiction where the owner lives. These decisions rest on the ground that every State has the right to regulate the transfer of property within its limits, and that whoever sends property to it impliedly submits to the regulations concerning its transfer in force there, although a different rule of transfer prevails in the jurisdiction where he resides. . . . The policy of the law in Illinois will not permit the owner of personal property to sell it, either absolutely or conditionally, and still continue in possession of it. Possession is one of the strongest evidences of title to this class of property, and cannot be rightfully separated from the title, except in the manner pointed out by the statute. The courts of Illinois say that to suffer, without notice to the world, the real ownership to be in one person, and the ostensible ownership in another, gives a false credit to the latter, and, in this way, works an injury to third persons. Accordingly, the actual owner of personal property creating an interest in another to whom it is delivered, if desirous of preserving a lien on it, must comply with the provisions of the Chattel Mortgage Act. Rev. Stat. Ill. 1874, 711, 712.” The Illinois cases are then referred to by the learned justice to show the precise condition of the law of that State on the subject under consideration. The case of Hervey v. Rhode Island Locomotive Works is relied on by the appellants in the present case as a decision in their favor; but this is not a correct conclusion; for it is apparent that the only points decided in that case were, first, that it was to be governed by the law of Illinois, the place 680 OCTOBER TERM, 1886. Opinion of the Court. where the property was situated ; secondly, that by the law of Illinois thè agreement for continuing the title of the property in the vendors, after its delivery to the vendees, whereby the latter became the ostensible owner, was void as against third persons. This is all that was decided, and it does not aid the appellants, unless they can show that the law as held in Illinois, contrary to the great weight of authority in England and this country, is that which should govern the present case. And this we think they cannot do. We do not mean to say that the Illinois doctrine is not supported by some decisions in other States. There are such decisions ; but they are few in number compared with those in which it is held that conditional sales are valid and lawful, as well against third persons as against the parties to the contract. The appellants, however, rely with much confidence on the decision of this court in Hertford v. Davis, 102 U. S. 235, 243, a case coming from Missouri, where the law allows and sustains conditional sales. But we do not think that this case, any more than that of Hervey v. Rhode Island locomotive Works, will be found to support their views. The whole question in Heryfòrd v. Davis was as to the construction of the contract. This was in the form of a lease; but it contained provisions so irreconcilable with the idea of its being really a lease, and so demonstrable that it was an absolute sale with a reservation of a mortgage lien, that the latter interpretation was given to it by the court. This interpretation rendered it obnoxious to the statute of Missouri requiring mortgages of personal property to be recorded in order to be valid as against third persons. It was conceded by the court, in the opinion delivered by Mr. Justice Strong, that if the agreement had really amounted to a lease, with an agreement for a conditional sale, the claim of the vendors would have been valid. The first two or three sentences of the opinion furnish a key to the whole effect of the decision. Mr. Justice Strong says : “ The correct determination of this case depends altogether upon the construction that must be given to the contract between the Jack-son & Sharp company and the railroad company, against which the defendants below recovered their judgment and obtained HARKNESS v. RUSSELL. Opinion, of the Court. 681 their execution. If that contract was a mere lease of the cars to the railroad company, or if it was only a conditional sale, which did not pass the ownership until the condition should be performed, the property was not subject to levy and sale under execution at the suit of the defendant against the company. But if, on the other hand, the title passed by the contract, and what was reserved by the Jackson & Sharp company was a lien or security for the payment of the price, or what is called, sometimes, a mortgage back to the vendors, the cars were subject to levy and sale as the property of the railroad company.” The whole residue of the opinion is occupied with the discussion of the true construction of the contract, and, as we have stated, the conclusion was reached that it was not really a lease, nor a conditional sale, but an absolute sale, with the reservation of a lien or security for the payment of the price. This ended the case; for, thus interpreted, the instrument inured as a mortgage in favor of the vendors, and ought to have been recorded in order to protect them against third persons. But whatever the law may be with regard to a bona fide purchaser from the vendee in a conditional sale, there is a circumstance in the present case which makes it clear of all difficulty. The appellant in the present case was not a bona fide purchaser without notice. The court below find that at the time of and prior to the sale he knew the purchase-price of the property had not been paid, and that Russell & Co. claimed title thereto until such payment was made. Under such circumstances, it is almost the unanimous opinion of all the courts that he cannot hold the property as against the true owners. But as the rulings of this court have been, as we think, somewhat misunderstood, we have thought it proper to examine the subject with some care, and to state what we regard as the general rule of law, where it is not affected by local statutes or local decisions to the contrary. It is only necessary to add that there is nothing either in the statute or adjudged law of Idaho to prevent, in this case, the operation of the general rule, which we consider to be established by overwhelming authority, namely, that, in the absence of fraud, an agreement for a conditional sale is good and valid, 682 OCTOBER TERM, 1886. Statement of Facts. as well against third persons as against the parties to the transaction ; and the further rule, that a bailee of personal property cannot convey the title, or subject it to execution for his own debts, until the condition on which the agreement to sell was made has been performed. The judgment of the Supreme Court of the Territory of Utah is Affirmed. KANSAS CITY, LAWRENCE, AND SOUTH KANSAS RAILROAD COMPANY u THE ATTORNEY GENERAL. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THÈ DISTRICT OF KANSAS. Argued October 18,19,1886.—Decided November 8,1886. The acts of Congress of March 3, 1863, 12 Stat. 772; July 1, 1864, 13 Stat. 339; and July 26, 1866, 14 Stat. 289, granting lands to the State of Kansas for railroad purposes, are to be construed in pari materia, and as having the one purpose of building a single road from Fort Riley, down the Neosho Valley, to the southern line of that State, and not as distinct grants for different roads, which may come in conflict in the claims under them in regard to the lands granted. The junction of this road with the one from Leavenworth by way of Lawrence, in the direction of Galveston Bay, as provided in the act of 1863, was not required to be on the very crest of the Neosho Valley, as reached by the latter road, but at a convenient point for such crossing in the narrow valley of the Neosho River ; and as this point has been adopted by the companies building both roads, and accepted by the officers of the Land Department in selecting indemnity lands, there is no. sufficient reason to be found in the point of junction to vacate the certification of these lands to the State for the company which has built the road and received the patents of the State. Nor is there any other sufficient reason found in the record in this case for setting aside the evidences of title to these lands issued to the corporation which built the road within the time required by law, to the approval of the officers of the government, whose primary duty it was to certify these lands, and who did so within the scope of their powers. This was a bill in equity brought by the Attorney General of the United States, to quiet the title to certain lands in Kan- KAN. CITY, &c., R. R. CO. v. ATTORNEY GENERAL. 683 Argument for Appellee. sas. The decree below was in favor of the Attorney General, from which the railroad company appealed. The case is stated in the opinion of the court. 3Zr. George W. McCrary, Mr. John F. Dillon and J/?. A. T. Britton (Mr. James Hagerman and Mr. A. B. Browne were with them on the brief), for appellant. Mr. William Lawrence (representing settlers), for appellee, argued the following general propositions: First Proposition.—The claim of title under: (1) The landgrant act of March 3, 1863, 12 Stat. 772 ; (2) The Kansas act of February 9, 1864, accepting the grant of said act of Congress; (3) The patent issued by the Governor of Kansas to the Missouri, Kansas and Texas Company. The defendant, as grantee of the Missouri, Kansas and Texas Company, has no title under these. Second Proposition.—The court cannot support the patent, or any claim of title, by ignoring the statutes and proceedings recited in the patent as the authority for issuing it, and by reference to other statutes or proceedings, dehors, even if by possibility the Secretary of the Interior and the Governor of Kansas might have considered them and made them available to give title, when, in fact, if they considered them, they rejected them, and refused to give title under them. Third, Proposition.—The assignment made March 19, 1866, to the Missouri, Kansas and Texas Railroad Company, by the Atchison, Topeka and Santa Fe Railroad Company, of its right to build the Emporia Branch, with its franchises and land rights connected therewith, and the construction of the Missouri, Kansas and Texas road as made, give no right to any indemnity lands—no authority to make a selection thereof. The resolution of the Legislature of Kansas of February 26, 1867, ratifying said assignment, is void. Fourth Proposition.—If the assignment by the Atchison, Topeka and Santa Fe Company to the Missouri, Kansas and Texas Company is valid, yet the latter company acquired no title under the act of 1863 to the lands in controversy. 684 OCTOBER TERM, 1886. Citations for Appellee. Fifth Proposition.—The Missouri, Kansas and Texas Company never acquired any legal or equitable title to any of the lands now in controversy, under or by virtue of the act of July 26, 1866. Sixth Proposition.—It is submitted that the lands in controversy are not subject to any land grant, because included in the New York Indian Reservation under the treaty of January 15, 1838, never legally revoked. In support of these several propositions Mr. Lawrence cited in his brief Benton v. Woolsey, 12 Pet. 27; United States v. Hughes, 11 How. 552; State v. Vicksburg de Natchez Railroad, 51 Mississippi, 361; Leavenworth, Lawrence c& Galveston Railroad v. United States, 92 IT. S. 733 ; Dubuque Pacific Railroad v. Litchfield, 23 How. 66; Ohio Life Lnsurance c& Trust Co. v. Debolt, 16 How. 416 ; Commonwealth n. Erie & Northeastern Railroad, 27 Penn. St. 339; Charles River Bridge v. Warren Bridge, 11 Pet. 420 ; Nills v. St. Clair County, 8 How. 569 ; Richmond Railroad v. Louisa Railroad, 13 How. 71; Rice v. Railroad Co., 1 Black, 380; United States v. Arredondo, 6 Pet. 691; Binghampton Bridge Case, 3 Wall. 51; L*ar sei v. Barnes, 25 Ark., 261, 272; Green n. Beeson, 31 Ind., 7; State v. Bank of State, 45 Missouri, 528; Andrae v. Redfield, 12 ’Blatchford, 407; S. C., 98 IT. S., 225; Norrill v. Cone, 22 How. 75 ; Carver v. Astor, 4 Pet. 1; Crane v. Norris, 6 Pet. 598; Van Rensselaer v. Kearney, 11 How. 297; White v. Foster, 102 Mass. 375; George n. Kent, 7 Allen, 16; Harris v. Fly, 7 Paige, 421; NcAteer v. NcNullen, 2 Penn. St. 32; LUU v. Simpson, 7 Ves. 152; Sigourney v. Nunn, 7 Conn. 324; Oliver v. Piatt, 3 How. 333 ; Landes v. Bra/nt, 10 How. 348; Lea n. Polk County Copper Co., 21 How. 495 ; Bradish n. Gibbs, 3 Johns. Ch. 550 ; Smelting Co. v. Kemp, 104 IT. S. 636 ; Van Wyck n. Knevals, 106 IT. S. 360; Johnson v. Towsley, 13 Wall. 72; Quinby v. Conlan, 104 IT. S. 420; Steel v. Smelting Co., 106 IT. S. 447; Vance v. Burbank, 101 IT. S. 514; Boardman v. Reed, 6 Pet. 328; Noore n. Robbins, 96 IT. S. 588; Shepley v. Cowan, 91 U. S. 330; Cunningham v. Nacon & Brunswick Railroad, 109 IT. S. 416 ; O’ Brien v. Perry, 1 Black, 132 ; Lindsey v. Hawes, 2 Black, 554; Bagnell v. Broderick, 13 Pet. 436; KAN. CITY, &c., R. R. CO. v. ATTORNEY GENERAL. 685 Opinion of the Court. Minnesota v. Backelder, 1 Wall. 109; United States v. Stone, 2 Wall. 525 ; Hughes n. United States, 4 Wall. 232; Seward n. Hicks, 1 Harr. & Mell. 22; Lord Proprietary v. Jennings, 1 Harr. & McH. 92; Holden v. Joy, 17 Wall. 211; Stoddard v. Chambers, 2 How. 284; Kissell n. St. Louis Public Schools, 18 How. 19 ; Easton v. Salisbury, 21 How. 426; Brown v. Clements, 3 How. 650; Wilcox v. Jackson, 13 Pet. 498 ; Indiana v. Miller, 3 McLean, 151; Jackson v. Lawton, 10 Johns. 23; Bailroad Co. n. Smith, 9 Wall. 95; Poe v. Files, 3 Ala. 47; Hit-tuk-ho-mi v. Watts, 7 S. & M. 363; People v. Living-ston, 8 Barb. (N. Y.), 253; New Orleans v. De Armas, 9 Pet. 224; Marsh v. Brooks, 8 How. 223; Garton v. Canrada, 39 Missouri, 357; Lindsey v. Hawes, 2 Black, 554; Clements v. Warner, 24 How. 391; Garland v. Wynn, 20 How. 6 ; Barnard v. Ashley, 18 How. 43; Gingrich v. Foltz, 19 Penn. St. 38 ; Kansas Pacific Railroad v. Atchison, Topeka de Santa Fe Railroad, 112 U. S. 414 ; St. Paul Rail/road v. Winona Railroad, 112 IT. S. 720; Kansas Pacific Railway v. Dunmeyer, 113 U. S. 629; Rice v. Railroad Co., 1 Black, 358; Coe v. Columbus, Piqua Tndiana Railroad, 10 Ohio St. 372; Bank of Middlebury v. Edgerton, 30 Vt. 182; East Alabama Railway v. Doe, 114 U. S. 340; Comegys v. Vasse, 1 Pet. 193; Carleton n. Leighton, 3 Merivale, 667; Hart v. Gregg, 32 Ohio St. 502; Murray v. Gibson, 15 How. 421; Chew Heong v. United States, 112 U. S. 536 ; McCoal v. Smith, 1 Black, 459 ; United States v. Walker, 22 How. 299 ; Galena v. Army, 5 Wall. 705; Henderson's Tobacco, 11 Wall. 652; Arthur v. Jlomer, 96 U. S. 137; Clearwater v. Meredith, 1 Wall. 25 ; Wabash, St. Louis de Pacific Railroad v. Ham, 114 U. S. 507; State v. Bailey, 16 Ind. 46; Paine v. Lake Erie de Louisville Railroad, 31 Ind. 283 ; Hale v. Ganes, 22 How. 144. Mr. Assistant Attorney General Watson {Mr. Attorney General was with him on the brief), for appellee. Mk. Justice Millee delivered the opinion of the court. This is an appeal from the Circuit Court of the District of Kansas. The suit is brought by B. H. Brewster, Attorney 686 OCTOBER TERM, 1886. Opinion of the Court. General of the United States, for and on behalf of the United States. The object of it is to set aside certain instruments in writing, which, if they are valid, are supposed to convey title from the United States for a considerable quantity of land in southeastern Kansas. An act of Congress, approved July 26, 1866, 14 Stat. 289, granted to the State of Kansas “every alternate section of land or parts thereof designated by odd numbers to the extent of five alternate sections per mile on each side of the road, and not exceeding in all ten sections per mile; . . . for the purpose of aiding the Union Pacific Railroad Company, Southern Branch, the same being a corporation organized under the laws of the State of Kansas, to construct and operate a railroad from Fort Riley, Kansas, or near that military reservation, thence down the valley of the Neosho River to the southern line of the State of Kansas, with a view to an extension of the same through a portion of the Indian Territory to Fort Smith, Arkansas. . . .” There is the usual clause in this grant providing that if “it shall appear that the United States have, when the line of said road is definitely located, sold any section or any part thereof, granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected for the purposes aforesaid, from the public lands of the United States nearest to the sections above specified, so much land as shall be equal to the amount of such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or preemption has attached as aforesaid, which lands, thus indicated by the direction of the Secretary of the Interior, shall be reserved and held for the State of Kansas for the use of said company by the said Secretary, for the purpose of the construction and operation of said railroad, as provided by this act.” This railroad company, for whose benefit the grant was made to the State of Kansas, afterwards changed its name, by KAN. CITY, &c., R. R. CO. v. ATTORNEY GENERAL. 687 Opinion of the Court. a valid procedure, into that of the Missouri, Kansas and Texas Railroad Company. Under this latter name it built the road contemplated by this grant, which was completed in due time, and asserted a claim before the Commissioner of the General Land Office for the lands now in question as indemnity for others lost by the previous sale, appropriation, or other disposition of them under the clause above cited in the act of 1866. These lands were on that demand certified to the State of Kansas, and by the State patented to the railroad company. The Missouri, Kansas and Texas Railroad Company afterwards, for a valuable consideration, conveyed them to the appellant in the present case, the Kansas City, Lawrence and Southern Kansas Railroad Company. The object of this suit is to vacate and declare void the certification of the lands by the Secretary of the Interior to the State of Kansas, as well as the patents issued by that State to the railroad company. There is no allegation of fraud, accident, or mistake, except as the alleged want of authority or power in the officers of the United States to certify these lands to that State may be a mistake in law. Unquestionably, if there was no such power, the government has a right by this proceeding to have those instruments declared void and set aside as a cloud upon its title. The authority of the Commissioner of the General Land Office and the Secretary of the Interior to make this certification of the lands to that State for the benefit of this company depends upon the true construction of this act of 1866, and of certain other statutes on the same subject. Since the railroad company has constructed the road as contemplated by the statute, and has received the patents for the lands found in place along the line of this road, that is to say, every alternate section, of odd numbers, which had not been previously disposed of, and as the officers of the government have certified the lands now in controversy to be properly selected in lieu of such as were not found in place, it would seem to devolve upon the plaintiffs to show some reason why this authority has not been properly exercised, for the statute declares that the Secretary shall indicate these indemnity lands. 688 OCTOBER TERM, 1886. Opinion of the Court. It was his primary duty, and that of the Commissioner of the General Land Office, to ascertain whether any lands, and, if so, what amount, were not found subject to the act by reason of previous disposition under the homestead or preemption laws or reservations, and to select the indemnity lands. They have accordingly, both in the bill and in argument, set up the facts which they suppose to show the invalidity of these transfers. The first of these, and the most important, is, that by an act of March 3, 1863, 12 Stat. 772, and a supplementary act of July 1, 1864, 13 Stat. 339, these lands became appropriated to the building of another road through the same region of country and through the same lands, the grant being to the State of Kansas for the purpose of building that road. It is argued that these grants, instead of being made by Congress in aid of one and the same road, are different and conflicting grants, and that the earlier grants of 1863 and 1864 prevent the M., K. & T. R. R. Co. from realizing the bounty of Congress on that subject, because there is in the grant to the State for the benefit of the Union Pacific Railroad Company, Southern Branch, an express reservation of any lands granted previously for railroad purposes. The language of the act of 1866 on this subject is as follows: “ Provided, that any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby, reserved to the United States from the operations of this act, except so far as it may be found necessary to locate the routes of said road and branches through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the President of the United States.” As the lands granted by the prior acts of 1863 and 1864 had, by the act of the Legislature of Kansas, been granted to the Atchison, Topeka and Santa Fe Railroad Company, a then existing corporation of that State, for the purpose of building a road, with the same general description as to its course down the valley of the Neosho River, which might have run through KAN. CITY, &c., R. R. CO. v. ATTORNEY GENERAL. 689 Opinion of the Court. these same lands if it had been built by the latter company, it is argued with great earnestness that these lands were necessarily reserved, under this clause of the act of 1866, from the grant, as being reserved by the authority of Congress for the purpose of aiding in that object of internal improvement. If the A., T. & S. F. R. R. Co. had built a line of road along the same general course and through the same lands, twenty miles in width, that the M., K. & T. R. R. Co. has occupied with its road, and asserted a claim to these lands, or to any of them, the argument would be almost irresistible. If, at the time that the act of 1866 was passed, the A., T. & S. F. R. R. Co., or any other company than the one to which the grant of 1866 was made, was intending to build a road, or expected to build one, or had any authority from the State of Kansas to build one, under the acts of 1863 and 1864, the argument would have force. But on the 9th day of March, 1866, which was four months prior to the act of 1866, the A., T. & S. F. R. R. Co. entered into an agreement with the IT. P. R. R. Co., Southern Branch (afterwards known as the M., K. & T. R. R. Co.), by which the latter company assumed all the obligations of the former in regard to building the road which that company had assumed in accepting the grant by the State of Kansas, in consideration of which the A., T. & S. F. R. R. Co. assigned to the IT. P. R. .R. Co., Southern Branch, all its right, title, and interest in the lands appropriated to the building of that road by the acts of March 3, 1863, and July 1, 1864, and by the acts of the Kansas Legislature conferring these lands on that company. So that, with the exception of the ratification of this agreement and assignment by the State of Kansas, and so far as the two railroad companies themselves could make such an assignment, the U. P. R. R. Co., Southern Branch, to whom the grant of 1866 was made, had, before the passage of that act, become possessed of all the rights existing under the acts of 1863 and 1864 with regard to • building a railroad down the Neosho valley. It is not to be supposed that Congress was ignorant of this transaction, nor that, if the representatives in Congress of the State of Kansas had been opposed to this transfer, they would vol. cxvni-*-44 690 OCTOBER TERM, 1886. Opinion of the Court. have consented to the passage of the act of 1866. But, as that State did ratify this transfer by the one company to the other within six or eight months after it was made, it is reasonable to suppose that Congress, in legislating upon such an important grant of public lands for public uses, did not intend to have two parallel roads for a long distance within the narrow strip of the Neosho Valley, but did intend by all this legislation to secure one road, and, being aware of the transfer by the A., T. & S. F. R. R. Co. to the IT. P. R. R. Co., Southern Branch, and of the willingness of the State of Kansas, when her legislature could meet, to ratify that transfer, designed by the act of 1866 to place also in the hands of the latter company the same right and the same grant for the same purposes, and for the one road. In support of this view it will be seen that, in the later act of 1866, Congress, departing from the principle of the former acts of making the grant directly to the State without prescribing by what means or by what corporations it should construct the road, declares expressly that the grant is made to the State of Kansas for the benefit of the IT. P. R. R. Co., Southern Branch, and it did this obviously for the purpose of consolidating all' these grants into one grant in the hands of that company, which already had all the rights vested by the other statutes necessary to enable it to build this road down the Neosho Valley. The history of the legislation of Congress and of the State of Kansas on this subject almost conclusively shows that the several statutes are to be taken and construed as in pari materia, and that the only object was the building of one road. By the act of 1866 there was no grant in . aid of any other road but that one. The act of 1863 made the grant to the State of Kansas for the purpose of aiding in the construction of a road from the city of Atchison, by way of Topeka, the capital of the State, to the western line of the State, with a branch from where this road crosses the Neosho, down the valley of that river to the point where a road from Leavenworth and Lawrence south, for which a grant was made in the same act, crosses the Neosho Valley. In this act no corpora- KAN. CITY, &c., R. R. CO. v. ATTORNEY GENERAL. 691 Opinion of the Court. tion is named, but it was left to the State, to which the grant was in terms made, to employ such agency in the way of a corporation, private individuals, or its own officers, for the building of the road, as it might choose. This point of intersection with the Neosho River was some distance south of Fort Riley, through which the main branch of the U. P. R. R., Eastern Division, passed on its way from the Missouri River to the Pacific Coast, and was at or near the town of Emporia. In 1864 Congress passed an act making an additional grant of lands to the State for a railroad from Emporia, by way of Council Grove, to a point near Fort Riley, on the branch Union Pacific Railroad in said State. Both of these acts were accepted by the State of Kansas, and both the lands granted, and the right to build the roads mentioned in these acts of Congress were conferred upon the A., T. & S. F. R. R. Co. by the State. These two pieces of road, if ever they were built, would necessarily constitute one continuous road from Fort Riley down the Neosho Valley to the point where the road should cross the line of the Leavenworth, Lawrence and Fort Gibson Railroad, and this is the road built by the M., K. & T. R. R. Co. under the act of 1866, and under its contract with the A., T. & S. F. R. R. Co. and the grants of the State of Kansas. Now, it is a strained construction of the act of 1866, in the face of all the probabilities of the case, imputing to Congress, in which that State had two Senators and several members of the House of Representatives, great carelessness, to hold that they intended each one of these separate statutes to stand by itself and the claims to be asserted under them to be distinct grants for different railroads. It is much more reasonable and consonant to all we know of the transaction, and in consideration of the almost certainty that Congress had in view the single purpose of building one road down the Neosho Valley, from Fort Riley to the point of intersection with the other road, and that it was aware of the agreement between the A., T. & S. F. R. R. Co. and its grantee in the act of 1866, to hold that it intended by the later act to ratify and make good the right which the U. P. R. R. Co., Southern Branch, 692 OCTOBER TERM, 1886. Opinion of the Court. already had to the same lands for the purpose of building that road. The fact that the act of 1866, while in genera] terms granting these lands to the State of Kansas, declared that that State should hold them for the benefit of the IT. P. R. R. Co., Southern Branch, so far from militating against this view of the subject, tends to confirm it. Intending to ratify, to make good, and add to the force of the title of that company, which it had derived from its agreements with the A., T. & S. F. R. R. Co., it did not leave it even in the power of the State of Kansas to confer these lands upon any other company than this one, and thereby prevented all conflict of claims under these several grants. This view of the subject was taken by Mr. Browning, Secretary of the Interior, in a letter addressed to the Commissioner of the General Land Office, March 25, 1867, directing the withdrawal of the lands along the line of the road from public sale or preemption for the benefit of the IT. P. R. R. Co., Southern Branch, and it has been acted upon by the Land Department and by the various Secretaries of the Interior, from that day to this, as the true construction of the statutes. It is true that when the M., K. & T. R. R. Co. made its application for the lands now in controversy, as indemnity lands, it asserted rights under the acts of 1863 and 1864 by virtue of the assignment of the A., T. & S. F. R. R. Co., and the ratification of that assignment by the State of Kansas, and also under the act of 1866 directly to that company ; and it is true that the Secretary of the Interior, while acknowledging the claim to have been made under all the acts, certified the lands to the State of Kansas in accordance with the terms of the acts of 1863 and 1864, instead of issuing patents directly to the railroad company, as was provided for in the act of 1866. But since that company had all the rights conferred by all three of these statutes, and by the ratification by the State of Kansas of the transfer from the A., T. & S. F. R. R. Co., and since that State, after these lands were certified to it for the benefit of this company, issued to it patents of the State for those lands, it is obvious that the company thus acquired the real owner- KAN. CITY, &c., R. R. CO. v. ATTORNEY GENERAL. 693 Opinion of the Court. ship and the equitable interest in the lands which it had earned by building the road, in accordance with the provisions of all the statutes and all the contracts made upon the subject. If there be any informality in the attempt of the Secretary of the Interior and of the State of Kansas to confer upon the railroad company the legal title to these lands, it is for the company to seek relief and to have those informalities corrected, not for the United States to set aside its solemn instruments in which those rights are evidenced, and under which not only the railroad company then interested, but its grantee, the present appellant, holds these lands or has sold them to innocent purchasers. So far, then, as this objection goes, that one of these acts of Congress nullifies the others, we think it to be untenable. Another objection strongly insisted upon arises out of the language of the act of 1863. That act provided for two roads, with branches to each. The first was a road from the city of Leavenworth, by way of the town of Lawrence, to the southern line of the State, in the direction of Galveston Bay, in Texas. The second was a road from the city of Atchison, by way of Topeka, to the western line of the State, in the direction of Fort Union and Santa Fe, in New Mexico, with a branch from where this last-named road crosses the Neosho River, down the valley of that river to the point where the said first-named road enters the said Neosho Valley. This branch down the Neosho Valley is the road now under consideration, and the grant of lands of 1863 is to the point on its line where the first-named road, the Leavenworth, Lawrence & Fort Gibson, enters the said Neosho Valley. It is said that the road of the M., K. & T. R. R. Co., which we have already held to represent the grant of Congress under this statute, was not constructed to the point where the L., L. & F. G. R. R. entered the Neosho Valley, but that those two roads joined at a point far within the entrance of the L., L. & F. G. R. R. into the valley. The distance is said to be about eight or ten miles, and this is supposed to defeat the right of the company building this road to the lands on each side of it. But we are of opinion that this is too narrow a construction of .694 OCTOBER TERM, 1886. Opinion of the Court. the language describing the point at which the two roads mentioned in the same statute were expected to meet and cross each other. The construction thus asserted requires that the exact point of the high ground on the north of the Neosho River should be ascertained with great precision where the railroad of the other company, coming from the north, enters the valley. It seems to us, however, that the purpose of Congress was to make a grant of lands along the Neosho Valley to the company which should build it to the most appropriate point, wherever that might be, in this narrow valley at which the two roads might chance to come together; and that, as the road has been built and the lands earned, and the officers of the Federal Government having charge of the matter have accepted this place of junction as the proper one to govern the selection of lands for the company building the road, and since neither of those roads make any objection to this decision, and it is impossible to see how any substantial right of any person can be injured by it, that it is the duty of the court to accept the location of the road as a proper location, in accordance with the action of the officers of the Land Department; and that it is not a case for the Government of the United States to interfere to set aside its own action in the matter, under the loose terms employed in the acts of Congress. In support of this view of the subject it must appear to any thinking mind that the grant of lands to the M., K. & T. R. R. Co. would not be defeated if the other road from the north did not build into the valley of the Neosho River at all; and yet, if the strict and literal construction of the phrase, “ where that road enters the valley,” should be adopted, that would be the effect upon the grant. The purpose of Congress being to have these roads cross within the narrow valley of the Neosho River, and the grant of lands to the M., K. & T. R. R. Co. terminate at the point where it came to a junction with the L., L. & F. G. R. R., the latter being continued on to the south, we do not think this objection sufficient to justify a decree setting aside the action of the officers of the government. It is to be observed that this objection is raised under the language of the act of 1863, and that the act of 1866 contains KAN. CITY, &c., R. R. CO. v. ATTORNEY GENERAL. 695 Opinion of the Court. no such requirement as that with reference to the crossing of the roads, it being declared in the latter act that the road is to be built down the valley of the Neosho River to the southern line of the State. Of course, if the act of 1866 is, as we suppose, supplementary to the acts of 1863 and 1864, the description of the route of the road and its terminus in the later act is the one which must govern the grant of lands. Another objection urged to the ownership of the lands by this company under the patents from the State of Kansas is, that the company has received more lands than it was entitled to under the grant. We do not think it necessary to enter into the details of the evidence of how much land was granted, how much was found in place, and how much the road was entitled to as indemnity for lands not so found in place. In the first place, we are not at all satisfied by the evidence in the record that the lands received are in excess of the various grants to this company. In the next place, the issue is not made fairly in the bill, and certainly no particular certificate nor any particular patent from the State of Kansas is pointed out as being the one which contains the excess over the grant, and it is not possible for the court, under any evidence or any pleading, to ascertain which of these certificates and of these patents, or what particular portions of them, should be held void and what valid. United States v. Burlington <& Missouri River Railroad, 98 U. S. 334.. And lastly, while we are not disposed to hold the action of the officers of the Land Department of the government as absolutely conclusive upon such a subject as this, we see no reason why their deliberate action, with careful attention, and all the means of ascertaining what was right, should be set aside in this case. There are other grounds urged for granting the relief sought by the bill, but they are not sufficient to justify such a decree, nor are they important enough to require further discussion here. The decree of the Circuit Court is reversed, and the case remanded to it, with directions to dismiss the bill. APPENDIX. gw NOAH HAYNES SWAYNE, LL.D. Died June 8, 1884. Me. Justice Swayne was born in Culpepper County, Virginia, on the 8th of December, 1804. He was educated at a private academy at Warrenton, Virginia. When a lad of fifteen he commenced the study of medicine; but he soon abandoned it, and entered the office of Messrs. John Scott and Francis P. Brooks of Warrenton, as a student of law. He was admitted to the bar in Virginia in 1823, and at once removed to the State of Ohio. He resided at Zanesville for a year, and in 1825 went to Coschocton, and began practice there. In the first year of his residence there he was appointed the prosecuting attorney for the county. Three years later he became a member of the Legislature of Ohio. In 1830, he was appointed as District Attorney of thé United States for the District of Ohio. This post he held for ten years. Later he was at one time one of three commissioners charged with the management of the State Debt, with a view to the restoration of the failing credit of the State ; at another, a member of a commission for the settlement of the disputed boundary-line between Ohio and Michigan ; and again a member of a committee for inquiry into the condition of the blind. During all this time his practice at the bar was large. On the 24th of January, 1862, he received from President Lincoln a commission as Justice of the Supreme Court of the United States, in the place of Mr. Justice McLean, deceased. He took the oath of office in open court on the 24th of January, 1862, and continued to perform its duties until January, 1881, 700 APPENDIX. when he resigned. His work as a judge will be found reported from 1 Black to 102 U. S. ; 37 volumes, covering a period of nineteen years. In 1832, he was married to Miss Sarah Anne Swayne of Harper’s Ferry, Virginia. After his retirement from the bench he and Mrs. Swayne continued to reside in Washington, until her death, which took place in about a year thereafter. Then he removed to New York, where he died on the 8th day of June, 1884. He was buried in Oak Grove Cemetery, in Washington. On his retirement from the bench, the bar of the Supreme Court, at a meeting which is reported in 103 U. S., Resolved: “ that at the conclusion of his long and honorable career^ the bar deem it alike their duty and their privilege to express their sentiments of sincere respect for Mr. Justice Swayne, which have been inspired by the large capacity, the full and accurate learning, the patient and persistent investigation, the anxious desire to do justice, the genial and benevolent courtesy he has uniformly accorded to members of the bar.” This resolution was presented to the court by Mr. Attorney General Devens, in a speech likewise reported in 103 U. S. In his reply to this speech, The Chief Justice, after a just allusion to the magnitude of the work of the court during the period of Mr. Justice Swayne’s service, added : “ His courtesy of manner on and off the bench will never be forgotten ; and he carries with him, as he leaves the court, the esteem of every one of his associates. It has been his good fortune to be not only a student of the law but of general literature as well. He has always been a welcome guest wherever he has gone, and we hope he may live long to enjoy the reputation he has won, thé society of his friends, and the pleasure of his books.” Mr. Justice Swayne left five children : four sons, three of whom are lawyers, and one married daughter. .gu WARD HUNT, LL.D. Died March 24, 1886. * Mr. Justice Hunt was born in Utica, Oneida County, New York, on the 14th of June, 1810. After studying for a while at Hamilton College, he entered Union College at the age of seventeen, and graduated thence in 1828. After attending the lectures of Judge Gould at his law school in Litchfield, Connecticut, Mr. Hunt read law in the office of Hiram Denio, Esq., at Utica, with whom he became associated in business after his admission to practice. In 1838 he was chosen as a representative of Oneida County in the Assembly of the State of New York. In 1844 he was elected Mayor of Utica. In 1865 he was elected a Judge of the Court of Appeals of New York, on the retirement of his early associate in business, Judge Denio ; and by the death of Judge Wright and the resignation of Judge Porter, he soon became the Chief Judge of that court. On the reconstruction of that court under the amendments to the State Constitution, he became a Commissioner of Appeals. On the 11th day of December, 1872, on the retirement of Mr. Justice Nelson, he was commissioned by President Grant as an Associate Justice of the Supreme Court of the United States, and on the 9th of January, 1873, he took the oath of office in open court. His first opinion is found in 15 Wall. 355, Grand Chute v. Vinegar his last, in Little Rock v. National Bank, 98 U. S. 308. Early in January, 1878, he became disabled, and after that time never sat upon the bench again. On the 27th of January, 1882, the President approved an 702 APPENDIX. act of Congress extending to Mr. Justice Hunt the provisions of Section 714 of the Revised Statutes, authorizing a retirement upon full pension; and on the same day he resigned and his successor was appointed. After that date he continued to spend his winters in Washington, and died there on the 24th of March, 1886. His remains were taken to Utica for interment. Mr. Justice Hunt married for his first wife a daughter of Chief Justice Savage, by whom he left two children, a son bearing his name and following his profession, and a married daughter, surviving. In 1853 he married for his second wife a daughter of James Taylor, Esq., of Albany, who survives him. When he retired from the bench his associates addressed to-him a letter, printed in 105 U. S., from which the following is an extract: “We have none of us forgotten how faithfully you labored, while health permitted, to perform your full share of the work that was constantly pressing upon us, and we cannot but feel that if you had been more careful of your strength, and less determined to do all of what you conceived to be your duty, the necessity for this separation would not have existed. Your absence from the bench has not taken from us the recollection of your conscientious service while there, nor of your uniform kindness and courtesy everywhere and on all occasions.” gw Wemamm. DAVID DAVIS, LL.D. Died June 26, 1886. Me. Justice Davis was born in Cecil County, Maryland, on the 9th day of March, 1815. He was fitted for college at an academy in Newark, Delaware, and was graduated from Kenyon College, in Ohio, in 1832. He read law in the office of Henry W. Bishop, Esq., in Lenox, Massachusetts, and then attended lectures in the Law School of Yale College. Having been admitted to practice, he opened an office for practice first at Pekin, in Illinois; but he soon removed to Bloomington, in that State, which he made his home for the residue of his life. In 1842 he was elected to the Senate of the State of Illinois. In 1847 he was a member of the Convention for reforming the Constitution of the State. In 1848, after the adoption of the new Constitution, he was chosen to be one of the nine Circuit Judges which it provided for. He was re-elected in 1855, and again in 1861, each time without opposition. On the 9th day of December, 1862, he was appointed by President Lincoln to be an Associate Justice of the Supreme Court of the United States, to fill one of the then existing vacancies, and took the oath of office in open court on the 10th day of December, 1862. Having been chosen by the Legislature of Illinois to be one of the Senators in Congress from that State, he resigned his seat upon the bench, and represented Illinois in the Senate for the six years commencing on the 4th day of March, 1877. In 1883 he retired to private life, and died at Bloomington on the 26th day of June, 1886. Me. Justice Davis was twice married: first, in 1838, at T04 APPENDIX. Lenox, Massachusetts, to Miss Sarah W. Walker, by whom he left two children, a son and a married daughter, surviving him ; and secondly, on the 14th March, 1883, at Tokay, near Fayetteville, North Carolina, to Miss Adeline E. Burr, of North Carolina, who survives him. When Mr. Justice Davis retired from the bench his associates addressed him a letter, in which they said: “ During the fifteen years in which you have been a member of this court, questions of the gravest character have come before it for adjudication, and you have borne your full share of the labor and responsibility which their decision involved. We shall miss in the conference-room your wise judgment and your just appreciation of facts; in the reception-room your kind and courteous greeting.” The bar, at a meeting called for the purpose of expressing their regret at his retirement, Resolved: “ That they desire to record their high sense of the learning, the ability, the love of justice, and the fearless independence which that eminent magistrate brought to the discharge of his official duties, and their grateful appreciation of the courtesy which he habitually extended to them.” These resolutions were communicated to the court by the Attorney General. An account of the proceedings is printed in 94 IT. S. Mr. Justice Davis’s first opinion is to be found in Chicago v. Robbins, 2 Black, 418. His last judicial work is in 94 IT. S. gu Wtmoriam. CHESTER ALAN ARTHUR, LL.D. Died November 18, 1886. SUPREME COURT OF THE UNITED STATES, October Term, 1886. Friday, November 19, 1886. Mr. Attorney General addressed the court as follows : The President of the United States has by official proclamation announced to the country the sad intelligence of the death of Ex-President Chester A. Arthur, and pursuant to that proclamation the executive branches of the government will be closed on the day of the funeral, Monday next, the 22d inst.; and in my official capacity as Attorney General, I make this announcement that the court may pay a fitting tribute of respect to this eminent citizen, and I therefore suggest to the court the propriety of now adjourning until Tuesday next. The Chief Justice replied as follows : The court receives with sorrow the sad intelligence, and in compliance with your suggestion will now adjourn until Tuesday next, at 12 o’clock. vol. cxvin—45 INDEX ABANDONMENT. See Limited Liability, 1 (8). ABANDONMENT OF PATENT. See Patent for Invention, 7, 8. ACTION. See Corporation, 3. ACTION ON THE CASE. See Damages. ANNUITY TABLES. See Evidence, 5. APPEAL BOND. The discretion which is reposed in the judge below, as to the security to be taken on appeal, extends not only to the amount of the security but to the number of sureties to be required; and when a bond has been taken below with one surety, where the law provides that two shall be required, this court will not require a new bond to be furnished for that reason only, if the original bond is not invalidated thereby. Mexican Co. v. Reusens, 49. ARIZONA. The County Court in the County of Cochise, created and established by the Legislature of Arizona by the act of March 12, 1885, is an inferior court within the meaning of Rev. Stat. § 1908, which provides that: “The judicial power of Arizona shall be vested in a Supreme Court and such inferior courts as the legislative council may by law prescribe;” and the act of March 12, 1885, is valid. Ex parte Lotkrop, 118. T08 INDEX. ASSIGNMENT. See Jurisdiction, B, 1, 2. ASSIGNMENT FOR BENEFIT OF CREDITORS. See Partnership, 1. ATTORNEY’S FEES. See Tax and Taxation, 4. ATTORNEY GENERAL. See Evidence, 2. BANKRUPTCY. A shareholder in a railroad corporation is a party to proceedings in involuntary bankruptcy against the' corporation, and, therefore, cannot collaterally impeach the proceedings. His remedy is to apply to the bankruptcy court, or to seek a review in the Circuit Court, Graham v. Boston, Hartford & Erie Railroad Co., 161. See Laches. CASES AFFIRMED OR APPROVED. 1. Bostwick v. Brinkerhoff, 106 U. S. 3, affirmed and applied. Benjamin v. Dubois, 46. 2. The decision in Dobson v. Hartford Carpet Co., 114 U. S. 439, as to the rule of damages in a suit in equity for the infringement of a patent for a design for a carpet, affirmed. Dobson v. Doman, 10. 3. Hobbs v. McLean, 117 U. S. 567, affirmed. United States v. Central Pa- cific Railroad Co., 235. 4. Jefferson v. Driver, 117 U. S. 272, affirmed and applied. Cambria Iron Co. v. Ashburn, 54. 5. Jerome v. McCarter, 21 Wall. 17, applied to this case. Mexican Co. v. Reusens, 49. 6. Pirie v. Tvedt, 115 U.«S. 41, and Sloane v. Anderson, 117 U. S. 278, af- firmed and applied. Plymouth Mining Co. v. Amador Canal Co., 264. 7. Philadelphia, Wilmington & Baltimore Railroad Co. y. Quigley, 21 How. 202, affirmed. Salt Lake City v. Hollister, 256. 8. Provident Savings Society v. Ford, 114 U. S. 635, affirmed. Oakley v. Goodnow, 43. 9. Railroad Co. v. Mississippi, 102 U. S. 185, affirmed and applied. South- ern Pacific Railroad Co. v. Calif ornia, 109. 10. Starin v. New York, 115 U. S. 248, affirmed and applied. Southern Pacific Railroad Co. v. California, 109. INDEX. 709 11. Stone v. South Carolina., 117 U. S. 430, affirmed. Carson v. Hyatt, 279. 12. Thomas v. Railroad Co., 101 U. S. 70, reaffirmed. Pennsylvania Co. v. St. L., Alton <& T. H. Railroad Co., 290. 13. Farmington v. Pillsbury, 114 U. S. 138, affirmed. Little v. Giles, 596. CASES DISTINGUISHED. 1. The case distinguished, as to the effect of the pardon, from Ex parte Garland, 4 Wall. 333; Armstrong's Foundry, 6 Wall. 766 ; United States v. Padelford, 9 Wall. 531 ; United States v. Klein, 13 Wall. 128, and Carlisle v. United States, 16 Wall. 147, 151. Hart v. United States, 62. 2. United States v. Fisher, 109 U. S. 143 ; and United States v. MitcheU, 109 U. S. 146, distinguished. United States v. Langston, 389. CASES EXAMINED. See Constitutional Law, 15 (4). CHINESE SUBJECTS. See Constitutional Law, 8. CIRCUIT COURTS OF THE UNITED STATES. See Interest, 1, 2. Jurisdiction, B. CITIZEN. See Railroad, 5. COAL LANDS. See Equity, 4. Mineral Land, 1, 2, 3. COLLISION. See Limited Liability, 1, 3, 4. CONFLICT OF LAW. See Court and Jury. CONSTITUTIONAL LAW. A. Of the United States. 1. Section 1512 of the Code of Georgia, which provides that “any person, 710 INDEX. master, or commander of a ship or vessel bearing toward any of the ports or harbors of this State, except coasters in this State, and between the ports of this State and those of South Carolina, and between the ports of this State and those of Florida, who refuses to receive a pilot on board, shall be liable, on his arrival in such port in this State, to pay the first pilot who may have offered his services outside the bar, and exhibited his license as a pilot, if demanded by the master, the full rates of pilotage established by law for such vessel,” conflicts with the Constitution of the United States, and is annulled and abrogated by the provision in Rev. Stat. § 4237, that “no regulations or provisions shall be adopted by any State which shall make any discrimination in the rate of pilotage or half-pilotage between vessels sailing between the ports of one State and vessels sail-ing between the ports of different States, or any discrimination against vessels propelled in whole or in part by steam, or against national vessels of the United States ; and all existing regulations or provisions making any discrimination are annulled and abrogated.” Spraigue v. Thompson, 90. 2. A vessel owned in Philadelphia and running between Philadelphia and Savannah was licensed as-a coastwise steam-vessel. The master held a license as pilot under Title LIL Rev. Stat. The owners employed S ( a Savannah pilot, also licensed under the laws of the United States to conduct vessels over Tybee Bar and up the Savannah River), as their regular pilot to conduct the vessel through those waters, with pay from the time of leaving Philadelphia. T, licensed as a pilot under the laws of Georgia, spoke the vessel off Cape Romain, before any other pilot spoke it, and tendered his services to conduct it over the bar and up the river, and they were refused. Subsequently S met the vessel under the general arrangement and piloted it over the , bar and up the river. Held, That pursuant to the provisions of Rev. Stat. §§ 4401, 4444, the vessel, both when T tendered his services, and when it passed over the bar and up the river, was under the lawful control and direction of a pilot licensed under the laws of the United States, and could not be required to take a pilot licensed under the , provisions of the laws of Georgia. Tb. 3. When the legislature of a State enacts laws for the government of its courts while exercising their respective jurisdictions, which, if followed, will furnish parties the necessary constitutional protection of life, liberty, and property, it has performed its constitutional duty : and if one of its courts, acting within its jurisdiction, makes an erroneous decision in this respect, the State cannot be deemed guilty of violating the constitutional provision that no State shall deprive a person of life, liberty, or property without due process of law. Arrowsmith v. Har-moning, 194. 4. In a suit brought to this court from a State court, which involves the constitutionality of ordinances made by a municipal corporation in INDEX. 711 this State, this court will, when necessary, put its own independent construction upon the ordinances. Yick Wo v. Hopkins, 856. 5. A municipal ordinance to regulate the carrying on of public laundries within the limits of the municipality violates the provisions of the Constitution of the United States, if it confers upon the municipal authorities arbitrary power, at their own will, and without regard to discretion in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying, or the propriety of the place selected, for the carrying on of the business. Ib. 6. An administration of a municipal ordinance for the carrying on of a lawful business within the corporate limits violates the provisions of the Constitution of the United States, if it makes arbitrary and unjust discriminations, founded on differences of race, between persons otherwise in similar circumstances. Ib. 7. The guarantees of protection contained in the Fourteenth Amendment to the Constitution extend to all persons within the territorial jurisdiction of the United States, without regard to differences of race, of color, or nationality. Ib. 8. Those subjects of the Emperor of China who have the right to tempo- rarily or permanently reside within the United States, are entitled to enjoy the protection guaranteed by the Constitution and afforded by the laws. Ib. 9. The defendant corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids à State to deny to any person'within its jurisdiction the equal protection of the laws. Santa Cla/ra County v. Southern Pacific Railroad, 394. 10. The system of quarantine laws established by statutes of Louisiana is a rightful exercise of the police power for the protection of health, which is not forbidden by the Constitution of the United States. Morgan v. Louisiana, 455. 11. While some of the rules of that system may amount to regulations of commerce with foreign nations or among the States, though not so designed, they belong to that class which the States may establish until Congress acts in the matter by covering the same ground or forbidding State laws. Lb. 12. Congress, so far from doing either of these things, has, by the act of 1799 (ch. 53, Rev. Stat.) and previous laws, and by the recent act of 1878, 20 Stat. 37, adopted the laws of the States on that subject, and forbidden all interference with their enforcement. Ib. 13. The requirement that each vessel passing a quarantine station shall pay a fee fixed by the statute for examination as to her sanitary condition, and the ports from which she came, is a part of all quarantine systems, and is a compensation for services rendered to the vessel, and is not a 712 INDEX. tax within the meaning of the Constitution concerning tonnage tax imposed by the States. Ib. 14. Nor is it liable to constitutional objection as giving a preference for a port of one State over those of another. That section (nine) of the first article of the Constitution is a restraint upon powers of the general government and not of the States, and can have no application to the quarantine laws of Louisiana, lb. 15. A statute of Illinois enacts that, if any railroad company shall, within that State, charge or receive for transporting passengers or freight of the same class, the same or a greater sum for any distance than it does for a longer distance, it shall be liable to a penalty for unjust discrimination. The defendant in this case made such discrimination in regard to goods transported over the same road or roads from Peoria in Illinois and from Gilman in Illinois to New York; charging more for the same class of goods carried from Gilman than from Peoria, the former being eighty-six miles nearer to New York than the latter, this difference being in the length of the line within the State of Illinois. Held, (1.) This court follows the Supreme Court of Illinois in holding that the statute of Illinois must be construed to include a transportation of goods under one contract and by one voyage from the interior of the State of Illinois to New York. (2.) This court holds further that such a transportation is “commerce among the States,” even as to that part of the voyage which lies within the State of Illinois, while it is not denied that there may be a transportation of goods which is begun and ended within its limits and disconnected, with any carriage outside of the,State, which is not commerce among the States. (3.) The latter is subject to regulation by the State, and the statute of Illinois is valid as applied to it. But the former is national in its character, and its regulation is confided to Congress exclusively, by that clause of the Constitution -which empowers it to regulate commerce among the States. (4.) The cases of ' Munn v. Illinois, 94 U. S. 113; Chicago, Burlington & Quincy Railroad Co. v. Iowa, 94 U. S. 155; and Peik v. Chicago & Northwestern Railway, 94 U. S. 164, examined in regard to this question, and held, in view of other cases decided near the same time, not to establish a contrary doctrine. (5.) Notwithstanding what is there said, this court holds now, and has never consciously held otherwise, that a statute of a State, intended to regulate or to tax or to impose any other’ restriction upon the transmission of persons or property or telegraphic message from one State to another, is not within that class of legislation which the States may enact in the absence of legislation by Congress; and that such statutes are void even as to that part of such transmission which may be within the State. (6.) It follows that the statute of Illinois, as construed by the Supreme Court of the State, and as applied to the transaction under consideration, is forbidden by the Constitution of the United States, and the judgment of that INDEX. 713 court is reversed. Wabash, St. Louis <& Pacific Railway v. Illinois, 557. See Indian, 3, 4, 5. Removal of Causes, 2. Statute A, 2. B. Of the States. See Local Law, 2, 3, 6. Municipal Corporation, 2. Statute, A, 4, 5. C. Generally. An unconstitutional act is not a law ; it confers no rights ; it imposes no duties ; it affords no protection ; it creates no office ; it is, in legal contemplation, as inoperative as though it had never been passed. Norton v. Shelby Country, 425. CONTRACT. 1. H offered to the Secretary of the Navy by letter to construct new boil- ers for certain vessels of the navy. The offer was accepted at the Navy Department, by letter, and he was also thereby informed that the drawings and specifications would be furnished as soon as possible. A few days later he was notified to discontinue all work contracted for by him with the department. On a suit brought in the Court of Claims for damages for non-performance of the contract: Held, That the letters did not constitute a contract with the United States under the provisions of Rev. Stat. §§ 3744-3749. South Boston Iron Co. v. United States, 37. 2. When a contract is open to two constructions, the one lawful and the other unlawful, the former must be adopted. United States v. Central Pacific Railroad Co., 235. 3. A railroad company, in aid of whose road Congress grants land upon condition that it shall transport mails at such price as Congress may direct, and that until the price be thus fixed the Postmaster-General shall have power to determine the same, is (in thè absence of contracts with the department for special service with unusual facilities or for determined periods) bound to transport mails (until Congress directs the rates) at such reasonable compensation as the Postmaster-General may from time to time prescribe ; and the continuance by . such company to transport mails after the expiration of the term of a written contract neither implies that it is, after the Postmaster-General has otherwise directed, to be paid the same rates for transportation which it was paid under the written contract, nor that the contract is renewed for any specific term for which contracts of the 714 INDEX. Post-office Department may usually be made. Jacksonville, Pensacola, &c. Railroad v. United States, 626. See Corporation, 2. CORPORATION. 1. A meeting in one of several States of the stockholders of a corporation chartered by all those States is valid in respect to the property of the corporation in all of them, without the necessity of the repetition of the meeting in any other of those States. Graham v. Boston, Hartford & Erie Railroad Co., 161. 2. A corporation is responsible for acts done by its agent, whether in con- tractu or in delicto, in the course of its business and of their employment, as an individual is responsible under similar circumstances. Salt Lake City v. Hollister, 256. 3. The distinction pointed out between actions arising on contracts made by a corporation in excess of its corporate powers, and actions against corporations for injuries caused by tortious acts done by its agents in the course of its business and of their employment, in excess of their powers. Ib. See Bankruptcy. Municipal Corporation. Internal Revenue, 2. Railroad, 2, 5-12. COSTS. See Interest, 1, 2. Patent for Invention, 6. COURT AND JURY. At a trial by jury in a court of the United States the judge may express his opinion upon the facts; the expression of such an opinion, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, cannot be reviewed by writ of error; and the powers of the courts of the United States in this respect are not controlled by State statutes forbidding judges to express any opinion upon the facts. Vicksburg & Meridian Railroad v. Putnam, 545. See Practice, 4. COURT OF CLAIMS. See Jurisdiction, D. I COURTS OF TERRITORIES. See Arizona. INDEX. ns COURTS OF THE UNITED STATES. See Interest, 1. Jurisdiction, A, B, C, D. DAMAGES. In an action for a personal injury, the plaintiff is entitled to recover compensation, so far as it is susceptible of an estimate in money, for the loss and damage caused to him by the defendant’s* negligence, including not only expenses incurred for medical attendance, and a reasonable sum for his pain and suffering, but also a fair recompense for the loss of what he would otherwise have earned in his trade or profession, and has been deprived of the capacity of earning, by the wrongful act of the defendant. Vicksburg & Meridian Railroad v. Putnam, 545. See Interest, 2. Patent for Invention, 4, 5. DEED. 1. If a deed of land is in fee, with a covenant of warranty, and there is no defeasance, either in the conveyance or in a collateral paper, parol evidence, that it was intended to secure a debt and to operate only as a mortgage, must be clear, unequivocal, and convincing, or the presumption that the instrument is what it purports to be must prevail. Cadman v. Peter, 73. 2. A deed by a father, fqr the benefit of his illegitimate child, is upon a good and sufficient consideration; and if it contains a remainder to the mother of the child, and the child dies in the lifetime of the father, the conveyance is good as against the legitimate children of the grantor. Conley n. Nailor, 127. 3. In order to cause a will or deed to be set aside on the ground of fraud and undue influence, it must be established to the satisfaction of the court that the party making it had no free will, but stood in vinculis. Ib. 4. When a married man, with a wife living, and a family of legitimate children, lives apart from them in illegal intercourse with another woman, by whom he has an illegitimate child, and makes a conveyance of real estate for the benefit of that child with remainder to the mother, and another conveyance to the mother for her own benefit, and the child dies, and it is not shown that the grantor was incapable of making the deeds, either by reason of the weak state of his intellect or by reason of intoxication at the time of execution, or that there was fraud or undue influence, a court of equity will, after the death of the grantor, sustain the conveyances in favor of the mother as against the legitimate children. Ib. 5. When a conveyance of land is made to two or more persons, and the 716 INDEX. deed is silent as to the interest which each is to take, the presumption will be that the interests are equal. This rule applies to two or more cestuis que trust, beneficiaries under a common deed of trust, and prevails in Michigan. Loring v. Palmer, 321. See Equity, 2. DE FACTO AND DE JURE. • See Officer. DISTRICT COURTS OF THE UNITED STATES. See Interest, 1. Jurisdiction, C. DOMICIL. See Jurisdiction, A, 2. DOWER. See Partnership, 3. EQUITY. 1. A bill quia timet to remove a cloud from a legal title cannot ordinarily be brought in the courts of the United States by one not in possession of the real estate in controversy; but when a local statute of the State authorizes a bill in equity in such case, the remedy allowed in State courts may also be enforced in Federal courts; and when a cloud upon the title to real estate prevents the enforcement of a lien at law to secure the payment of money, then the creditor may have his bill to remove the cloud. United States v. Wilson, 86. 2. In equity, each case to set aside a deed for incapacity of the grantor, or intoxication at the time of execution amounting to incapacity, must be decided on its own merits, without regard to previous decisions, in cases differing in the facts. Conley v. Nailor, 127. 3. On the voluminous facts in this case, which are referred to at length in the opinion of the court, it was held that the complainant had failed to establish that he was entitled to the relief against the appellants which was prayed for in his bill and was granted by the court below. Hunt v. Oliver, 211. 4. The United States can maintain a suit in equity in its own name, to va- cate the selection and listing of coal lands to the State of California, by the proper authority of the government under the act of March 3, 1853, 10 Stat. 244: and, upon its appearing that the lands so listed were coal lands and were known to be such at the time of the listing and selection by those for whose benefit the listing was made, a decree INDEX. m should be entered vacating the title of the State and of those claiming under it. Mullan v. United States, 271. 5. A bill in equity which alleges that complainant, a citizen of Florida, is part owner with other parties named, citizens of Louisiana, of a steam pilot-boat, on which are employed branch pilots duly licensed; that respondents had confederated together to destroy said business and property by publications in newspapers, by instituting suits, by seeking injunctions, and in divers other ways; and that they had agreed together not to do business as branch pilots with any persons other than those included in the “confederation”—and which prays for a perpetual injunction to restrain the defendant from interfering wTith the rights of the complainant, his pilot-boat and his business—furnishes no ground for the interposition of a court of equity, as complainant has adequate remedies at law for each and all the acts complained of. Francis n. Flinn, 385. See Deed, 3, 4, 5. Evidence, 1. Mortgage, 3. Railroad, 6, 12. EQUITY PLEADING. See Laches. ESTOPPEL. See Removal of Causes, 6. EVIDENCE. 1. When the complainant in a bill in equity neither demands nor waives an .answer under oath, and the respondent answers under oath, the answer is evidence on behalf of the respondent, conclusive if not contradicted. Conley v. Nailor, 127. 2. When the authority of the Attorney General of the United States to commence proceedings to vacate a patent for public lands does not appear on the face of the bill, it may be shown in this court if the bill is objected to here for want of it. Mullan v. United States, 271. 3. In an action against a railroad corporation by a passenger, for a personal injury caused by a car being thrown off the track in consequence of a worn-out rail, the admission of evidence that the general condition of that portion of the road which included the place of the accident had long been bad, and that the rails had been in use a great many years, affords the defendant no ground of exception. Vicksburg & Meridian Railroad v. Putnam, 545. 4. The official reports of the superintendent of a railroad to the board of directors are competent evidence, as against the corporation, of the condition of the road. Ib. 718 INDEX. 5. In an action against a railroad corporation by a passenger, for personal injuries impairing his capacity to earn his livelihood, standard life and annuity tables are competent evidence for the consideration of the jury, but not absolute guides to control their decision. Ib. See Municipal Corporation, 1. EXCEPTION. See Practice, 4. FRAUD. See Bankruptcy. Laches. Deed, 2, 3, 4. Mortgage, 2. Equity, 2. Partnership, 1. INDIAN. 1. The provisions in Article VII. of the Treaty of June 24, 1862, with the Ottawa Indians of Blanchard’s Fork and Roche de Boeuf, 12 Stat. 1237, limiting the power of alienating granted lands, apply to the grants authorized by Article III. of the Treaty to be made to chiefs, councilmen, and head men of the tribe ; and deeds made in violation of that limitation (as it was incorporated by the Land Office into patents for lands allotted to chiefs, councilmen, or head men), are void. Libby v. Clark, 250. 2. The ninth section of the Indian Appropriation Act of March 3, 1885, 23 Stat. 385, is valid and constitutional in both its branches ; namely, that which gives jurisdiction to the courts of the Territories of the crimes named (murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny), committed by Indians within the Territories, and that which gives jurisdiction in like cases to the courts of the United States for the same crimes committed on an Indian reservation within a State of the Union. United States v. Kagama, 375. 3. While the Government of the United States has recognized in the In- dian tribes heretofore a state of semi-independence and pupilage, it has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress ; they being within the geographical limit of the United States, and being necessarily subject to the laws which Congress may enact for their protection and for the protection of the people with whom they come in contact. Ib. 4. The States have no such power over them as long as they maintain their tribal relations. Ib. 5. The Indians owe no allegiance to a State within whieh their reserva- tion may be established, and the State gives them no protection. Ib. See Limitation, Statutes of. ÍNDEX. 719 INFERIOR COURTS. See Arizona. INSOLVENCY. See Partnership, 1. INSPECTION. See Ships and Vessels. INSURANCE. See Limited Liability, 1, 2, 5. INTEREST. • 1. The Circuit Court is not bound to allow interest on costs awarded by the District Court, although such costs are included in the decree of the Circuit Court. The Scotland, 507. 2. The allowance of interest by way of damages in cases of collision and other cases of pure damage, as well as the allowance of costs, is in the discretion of the court. Ib. See Tax and Taxation, 4. INTERNAL REVENUE. 1. After the act of March 1, 1879, amending the laws relating to internal revenue, took effect, collectors of internal revenue were entitled to compensation as follows : (1) to salaries graded according to the asnount of their annual collections, the minimum salary being $2000 and the maximum $4500 ; (2) in addition to the salary, to a commission of one half of one per cent, on taxes on spirits collected by sales of tax-paid stamps, provided the total net compensation should not be more than $4500 ; (3) to such further allowance as the Secretary of the Treasury might make, provided the limitation of $4500 as the total net compensation was not exceeded. United States v. Landram, 81. 2. A municipal corporation engaged in the business of distilling spirits is subject to internal revenue taxation under the laws of the United States, whether its acts in that respect are or are not ultra vires. Salt Lake Cityx. Hollister, 256. JUDGMENT. See Interest, 1, 2. Jurisdiction, A, 2. 720 INDEX. JURISDICTION. A. Jurisdiction of the Supreme Court. 1. When the right of removal of a cause from a State court to a Circuit Court of the United Statesis denied by a State court, this denial raises a Federal question, within the jurisdiction of this court. Oakley v. Goodnow, 43. 2. A will having been proved in Missouri, a copy thereof and of the pro- bate were admitted to record in the District of Columbia, and letters testamentary granted. In subsequent proceedings respecting the distribution of property found in the District, a question arose as to the domicil of the testator. After hearing testimony, the Supreme Court of the District decided at special term that “his domicil was in the city of Washington,” and “this court has original jurisdiction in the matter of his estate,” which was on appeal affirmed. Held, That this was not a final judgment within the meaning of the acts of Congress giving this court jurisdiction on appeals or writs of error. Benjamin v. Dubois, 46. 3. In an action in the Circuit Court of the United States, submitted by stipulation of the parties, in accordance with the practice prevailing in the State where the court is held, to the decision of the judge “as referee,” the only matter reviewable by this court is error of law in the judgment of the court upon the facts found by the referee. Paine v. Central Vt. Railroad Co., 152. 4. This court has jurisdiction in error over a judgment of the Supreme Court of a State, when it necessarily involves the decision of the question, raised in that appellate court for the first time, and not noticed in its opinion, whether a statute of the State conflicts with the Constitution of the United States. Arrowsmith v. Harmoning, 194. 5. This court has jurisdiction to review a judgment of a State court con- victing a person of a criminal offence, when the defendant sets up at the trial specially an immunity from a second trial for the same offence by reason of the Fifth Amendment to the Constitution of the United States. Bohanan v. Nebraska, 231. 6. This court has no jurisdiction over a case brought from the Supreme Court of a Territory without a writ of error, appeal, or citation, or an appearance by defendant or respondent. United States v. Hailey, 233. 7. There is no provision of law under which this court can review a judg- ment of the Supreme Court of a Territory, on a conviction on an indictment for cohabiting with more than one woman, under § 3 of the act of March 22, 1882, 22 Stat. 31. Snow v. United States, 346. 8. The value of the matter in dispute in this court is determined by the amount of the judgment below, without regard to the amount of the verdict. N. T. Elevated Railroad v. Fifth Nat. Bank, 608. 9. Jurisdiction of a cause having once attached in this court cannot be INDEX. T21 defeated by plaintiff below waiving or releasing enough of the judgment to bring it within the jurisdictional amount. Ib. See Practice, 6. B. Jurisdiction of Circuit Courts of the United States. 1. The Circuit Courts of the United States have no power to take jurisdic- tion of a case by removal from a State court, when a colorable assignment has been made to prevent such removal; but resort can only be had to the State courts for protection against the consequences of such an encroachment on the rights of a defendant. Oakley v. Goodnow, 43. 2. On the facts stated in the opinion of the court, it is held that the as- signment of the cause of action to the plaintiff in error was collusively made for the purpose of creating a case cognizable by the Circuit Court of the United States, and that the controversy is really and substantially between one of the counties of California and citizens’of California, and is not properly within the jurisdiction of the Circuit Court. Cashman v. Amador Canal Co., 58. See Interest, 1, 2. Limited Liability, 7. Removal of Causes. C. Jurisdiction of District Courts of the United States. See Limited Liability, 1 (9), 7. D. Jurisdiction of the Court of Claims. Under § 7 of the act of June 25, 1868, ch. 71, 15 Stat. 76, the Secretary of War transmitted a claim against the United States to the Court of Claims. That court found the claimant to be a person who had “sustained the late rebellion,” and that the claim accrued before April 13, 1861; and as the payment of such a claim was forbidden by joint resolution No. 46, approved March 2, 1867, 14 Stat. 571, it decided that it had no jurisdiction to proceed to judgment on the reference made, but could only find the facts and dismiss the petition : Held, No error. The act of 1868 did not extend to claims covered by the joint resolution. Hart v. United States, 62. LACHES. A bill to set aside the foreclosure of a railroad mortgage, and also proceedings in bankruptcy against a corporation being filed fourteen years after the making of the mortgage, ten years after the commencement of the bankruptcy proceedings, nine years after the entry of the decree of foreclosure, and seven years after the foreclosure became absolute, and vol. cxvni—46 Ï22 INDEX. the road was conveyed to a new corporation formed by the holders of bonds secured by the mortgage, a demurrer to the bill for laches was sustained. Graham v. Boston, Hartford & Erie Railroad Co., 161. LIMITATION, STATUTES OF. The statute of limitations of a State does not run against the right of action of the United States upon negotiable bonds and coupons of a railroad corporation, purchased by the United States before maturity, as an investment of money received from the sale of lands ceded by an Indian tribe, and held in trust for the tribe, under a treaty. United States v. Nashville, Chattanooga & St. Louis Railway, 120. See Partnership, 2, 3. LIMITED LIABILITY. 1. In a case of collision occasioned by the negligence of the officers or hands of one of the vessels, without any neglect, privity, or knowledge of her owner, and where said vessel took fire and sank, with loss of cargo, and never completed her voyage nor earned any freight, but was afterwards raised and repaired, and was then libelled and seized on behalf of the owners of her cargo, and claimed and bonded at her then value by her owner, who filed an answer and a petition for limited liability; and where it further appeared that the owner received certain moneys for insurance of the ship against loss by fire: Held, 1. That the owner was entitled to a limitation of liability to the value of his interest in the ship and freight under the act of 1851. § § 4282-4287 Rev. Stat. 2. That the point of time at which the amount or value of the owner’s interest in ship and freight is to be taken for fixing his liability is the termination of the voyage on which the loss or damage occurs. 3. That if the ship is lost at sea, or the voyage be otherwise broken up before arriving at her port of destination, the voyage is then terminated for the purpose of fixing the owner’s liability. 4. That in the present case the voyage was terminated when the ship had sunk, and that her value at that time was the limit of the owner’s liability; and that the subsequent raising of the wreck and repair of the ship, giving her an increased value, had nothing to do with the liability of the owner. 5. That no freight except what is earned is to be estimated in fixing the amount of the owner’s liability. 6. That insurance is no part of the owner’s interest in the ship or freight within the meaning of the law, and does not enter into the amount for which the owner is held liable. INDEX. Ï23 7. That the limitation of liability is applicable to proceedings in rem against the ship as well as to proceedings in ¡personam against the owner; the limitation extends to the owner’s property as well as to his person. 8. That the right to proceed for a limitation of liability is not lost or waived by a surrender of the ship to underwriters. 9. In this case, although an application for limitation of liability had been originally overruled by the District Court, and an interlocutory decree had been rendered in favor of the libellants for their entire damage, with a reference for proofs and a report by the master; yet the court, after the decision of this court in Norwich Co. v. 13 Wall. 104, relating to the same collision, and the promulgation of the additional rules adopted by this court, received a new petition and ordered a new appraisement to ascertain the value of the ship whilst lying sunk; and made a decree limiting the liability of the owner to the value at that time: Held, That the District Court had jurisdiction to receive such new petition and to take such proceedings. The City of Norwich, 468. 2. The decision in the previous case of The City of Norwich repeated, on the question relating to the time when the value of ship and freight is to be taken for fixing the liability of the owner, and on the question of insurance. The Scotland, 507. 3. Where a collision occurred by which the offending ship and her cargo were sunk at sea, but strippings from the ship were rescued before she went down, from which the owners afterwards realized several thousand dollars: Held, That in awarding damages against the owners, limited to the amount of their interest in the ship, the court is not bound to allow interest on the proceeds of the wreck or strippings; but may, in its discretion, allow interest or not. Ib. 4. The decision in The City of Norwich, in relation to the time when the value of the owner’s interest in the ship is to be taken for fixing the amount of his liability, applied to a case where the offending ship did not sink in consequence of the collision, but was afterwards sunk and wrecked in- the same voyage by the negligent navigation of those in charge of her; this sinking being held to be the termination of the voyage. The Great Western, 520. 5. The decision in the same case as to insurance repeated. Ib. 6. Limited liability may be claimed, 1st, merely by way of defence to an action; or, 2d, by surrendering the ship or paying her value into court. The latter method is only necessary when the ship-owner desires to bring all the creditors claiming damage into concourse for distribution. Ib. 7. A District Court of the United States, in admiralty, has no jurisdiction of a petition by the owner of a steam-vessel for the trial of the question of his liability for damage caused to buildings on land by fire alleged to have been negligently communicated to them by the vessel, 724 INDEX. through sparks proceeding from her smoke-stack, and for the limitation of such liability, if existing, under §§ 4283 and 4284 Rev. Stat. Ex parte Phenix Ins. Co., 610. LOCAL LAW. 1. The act of the legislature of Missouri of May 10, 1871, amending the act of March 23, 1868, entitled “An act to facilitate the construction of railroads in the State of Missouri, ” was not repealed by the failure of the legislature to incorporate it into the Revision of 1879. Cape Girardeau County v. Hill, 68. 2. The provision in the Louisiana Constitution of 1879, that the general assembly of the State should enact appropriate legislation to liquidate the indebtedness of the city of New Orleans and apply its assets to the satisfaction thereof, contemplated that provision should be made for the payment of the entire debt, whether bonded or floating, and was in harmony with the previously settled law of the State. New Orleans v. Hart, 136. 3. The holders of the floating debt of the city of New Orleans, existing at the time of the passage of the act of the legislature of Louisiana of April 10, 1880, known as No. 133 of that year, who have established the validity of their claims by judicial proceedings, are protected by the provisions of the Constitution of Louisiana adopted in 1879 from being excluded from sharing in the proceeds of the property and fund, which, by that act, were in terms appropriated to purchase and retire the bonds of the city. Ib. 4. The legislation of the State of Louisiana respecting the indebtedness of the city of New Orleans reviewed. Ib. 5. In Louisiana a gratuitous donee of land bought by the donor on credit at a sheriff’s sale on execution, and still subject to the judgment and liable to an execution either on that judgment or on the bond given for the purchase-money, who is liable for the charges on the land but is not in possession, is not entitled to the delay and formalities of the hypothecary action. Evans v. Pike, 241. 6. Under the constitution and laws of California, relating to taxation, fences erected upon the line between the roadway of a railroad and the land of coterminous proprietors are not part of “the roadway,” to-be included by the State Board in its valuation of the property of the corporation, but are “improvements” assessable by the local authorities of the proper county. Santa Clara County v. Southern Pacific Railroad, 394. 7. Following the decision of the highest court of the State of Tennessee in Pope v. Phifer, 3 Heiskell, 691, and other cases, this court holds that the Board of Commissioners of Shelby County, organized under the act of March 9, 1867, had no lawful existence ; that it was an unauthorized and illegal body ; that its members were usurpers of the INDEX. 725 functions and powers of the justices of peace of the - county; that ' their action in holding a county court was void; and that their acts in subscribing to the stock of the Mississippi Railroad Company and issuing bonds in payment therefor were void. Norton v. Shelby County, 425. See Arizona.. Equity, 1. Constitutional Law, A, 1, 2, 10-14. Mortgage, 3. Court and Jury. Promissory Note, 2. Deed, 5. • Trust, 1, 2. MANDAMUS. See Tax and Taxation, 1. MINERAL LAND. 1. Under sections 2320, 2322, and 2324 of the Revised Statutes, the sur- face side lines of a mining location on a mineral vein, lode, or ledge, extended downward vertically, determine the extent of the claim, except when, in its descent, the vein passes outside of such surface side lines, and then the outside portions of the vein must lie between vertical planes drawn downward through the end lines of the surface location and continued in their own direction; and the parallelism of such end lines is essential to the existence of any right in the locator to follow the vein outside of vertical planes drawn through the side lines. Iron Silver JUining Co. v. Elgin Mining Co., 196. 2. Coal lands are mineral lands within the meaning of that term as used in the statutes regulating the disposition of the public domain. Mullan v. United States, 271. 3. As coal lands were excepted from the grants to California of sections 16 and 36, in § 6 of the act of March 3, 1853, 10 Stat. 244, 246, the State could not under the provisions contained in § 7 of that act, Ib. 247, select coal lands in lieu of such sections 16 and 36 as might be occupied before survey, or reserved for public uses, or taken by private claims. Ib. MORTGAGE. 1. The invalidity of some of the bonds secured by the mortgage of a rail- road cannot affect the validity,of the mortgage or the validity of proceedings for its foreclosure. Graham v. Boston, Hartford & Erie Railroad Co., 161. 2. The mortgage of a railroad having been duly foreclosed under pro- ceedings in a suit to which the corporation was a party, and the suit being still pending, a shareholder in the corporation cannot, by a bill in equity in another court, attack the foreclosure proceedings for fraud in conducting them. His remedy is by an application in the foreclosure suit. Ib. 726 INDEX. 3. In. Louisiana, as in the States where the common law prevails, a person having an interest in mortgaged premises sold under a foreclosure, who was not made a party to the proceedings, cannot obtain a judgment dispossessing the purchaser without redeeming or offering to redeem the property by paying the mortgage debt ; and the proper remedy in such case (if any) for such person, suing in the courts of the United States in that district, is a bill in equity to redeem the property, and not an action at law. Evans v. Pike, 241. See Deed, 1. Laches. Railroad, 3. MOTION TO DISMISS. See Practice, 2. MOTION TO REINSTATE. The court does not find, in the affidavits submitted with the motion to reinstate, proof that the value of the property in dispute is sufficient to give it jurisdiction of the causes. Wells v. Wilkins, 230. See Practice, 1. MUNICIPAL CORPORATION. 1. Evidence that the plan on which a sewer has been constructed by municipal authorities had not been judiciously selected is inadmissible to support an action against the municipality by the owner of land injured by the overflow of water from the sewer. Johnston v. District of Columbia, 19. 2. The action of a minority of the justices of the peace of the County Court of Shelby County, Tennessee, prior to May 5, 1870, did not operate as a ratification by the County Court of the previously invalid subscription of the county to stock in the Mississippi River Railroad Company : and on and after that day, on which the new Constitution of Tennessee took effect, no ratification could be made without previous assent of three fourths of the voters of the county. Norton v. Shelby County, 425. See Internal Revenue, 2. Pléading. Local Law, 7. Tax and Taxation, 1. MUNICIPAL ORDINANCES. See Constitutional Law, A, 4, 5, 6. INDEX. W NATIONAL BANK. 1. In September, 1881, A held, thirty shares of stock in a National Bank ■whose capital was $500,000, with a right to increase it to $1,000,000. In that month the directors voted to increase the capital to $1,000,000, the persons then holding stock to have the right to take new stock at par in equal amounts to that then held by them. A then subscribed, for thirty additional shares, paid for it three days later, and subsequently took out a certificate of stock for it. The amount of increased capital subscribed and paid for was $461,300, instead of $500,000, but A had no knowledge of this deficiency until after the payment of said, subscription, and of the assessment hereinafter referred to. On the 18th November, 1881, the bank became insolvent, and an examiner was placed in charge of it by the Comptroller of the Currency. In December, 1881, the directors cancelled the increase of stock above said sum of $461, 300, and requested the Comptroller to issue a certificate for the increase as so reduced, which he did. No- vote of the stockholders was taken either on the increase or decrease. The Comptroller then, under § 5205 Rev. Stat., called upon the bank for an assessment of 100 per centum on the holders of stock, to pay the deficiency in the capital stock. In January, 1882, the annual meeting of the stockholders was held, at which it was voted to levy the assessment so called for, whereupon the Comptroller permitted the directors to resump control of the bank. A, being notified of this assessment, paid the amount assessed upon his sixty shares, upon being assured by one of the directors of the bank that there would be no other assessment. On the twentieth day of the following May the bank ceased to do business, and the directors thereupon voted to go into liquidation. The Comptroller then appointed a receiver of the bank. In November, 1882, the Comptroller, under Rev. Stat., § 5151, made an assessment on the shareholders of 100 per cent, of the stock held by them respectively. A declining to pay, the receiver brought an action at law against him to recover that amount on the sixty shares standing in his name. A thereupon filed a bill in equity to restrain the prosecution of the action. Held, (1) That the increase of the capital stock of the company to $961,300 was valid. (2) That this increase was binding on A to the extent to which he paid for and. received certificates of increased stock. (3) That the payments made in January, 1882, could not be applied, either at law or in equity, to the discharge of the assessments made by the Comptroller in the final liquidation of the bank. (4) That the payment was not made by A under a mistake against which equity can relieve him. Delano v. Butler, 634. 2. A, an owner of shares in the capital stock of a National Bank, employed , a broker and auctioneer to sell them by public auction. They were bid off by B, who paid the auctioneer for them, and received from Y28 INDEX. him the certificate of stock with a power of attorney for transfer duly executed in blank. The auctioneer paid the purchase-money to A. B was employed by the president of the bank to make this purchase for a customer of the bank, who had made a deposit in the bank for the purpose, and he delivered the certificate and the power of attorney to the president, and received from the bank the money for the purchase. No formal transfer of the stock was made on the transfer, book of the bank. Shortly afterwards the bank became insolvent, and eventually went into the hands of a receiver, who made an assessment on the stockholders, under the provisions of Rev. Stat. § 5205, to make up the deficiency in the capital. Until after the stoppage A had no knowledge as to the purchaser, or as to the neglect to formally transfer the stock, and no reason to suppose that the transfer-had not been made. In an action against A by the receiver, to recover the amount of the assessment upon his said stock, Held: That the responsibility of A ceased upon the surrender of the certificates to the bank, and the delivery to its president of a power of attorney sufficient to effect, and intended to effect, as the president knew, a transfer of the stock on the books of the bank. Whitney v. Butler, 655. NEW ORLEANS DEBT. See Local Law, 2, 3, 4. OFFICER. While acts of a de facto incumbent of an office lawfully created by law and existing are often held to be binding, from reasons of public policy, the acts of a person assuming to fill and perform the duties of an office which does not exist de jure can have no validity whatever in law. Norton v. Shelby County, 425. See Statute, A, 3. PARDON. Although, before the joint resolution of March 2, 1867, forbidding the payment of claims like his, was passed, the claimant had received from the president a pardon “for all offences committed by him arising from participation, direct or implied, in the rebellion,” the pardon did not authorize the payment of the claim, nor did the joint resolution take away anything which the pardon had conferred. Hart v. United States, 62. See Cases Distinguished, 2. Jurisdiction, D. INDEX. 729 PARTIES. See Bankruptcy. Mortgage, 2. Partnership, 2. PARTNERSHIP. 1. A sole surviving partner of an insolvent firm, who is himself insolvent, may make a general assignment of all the firm’s assets, for the benefit of all joint creditors, with preferences to some of them: and such assignment is not invalidated by the fact that the assignor fraudulently withheld from the schedules certain partnership property for his own benefit, without the knowledge of the assignee or of the beneficiaries of the trust. Emerson v. Senter, 3. 2. The surviving partner of a partnership, after payment of the partner- ship debts, may retain the partnership property until the indebtedness oi the firm to him is paid, if no proceedings are taken against him to enforce a settlement; in such case, if the statute of limitations runs against anybody, it is against the representatives of the deceased partner. Clay v. Freeman, 97. 3. A and B became partners in .1855 for the purpose of carrying on a plantation in Mississippi owned by them jointly as partners. B furnished the larger part of the capital, and received the firm’s notes for the amount advanced by him in excess of A’s advances. A died in 1859, and his administrator and B carried on the partnership business until the outbreak of the. war, without a settlement. In July, 1867, B died, having been for some time administrator of A (but without receiving any property or filing any account), and leaving surviving his sole heir and daughter P, who became of age in November, 1869. On the death of B, C was appointed administrator of each estate, and obtained a decree of court for sale of the real estate. It was struck off at the sale to P, in December, 1869; the amount of the purchasemoney was credited on the partnership notes; and P entered into possession; but the whole proceeding subsequently proved to be illegal and invalid, and the supposed sale and transfer to be void. In 1876 dower in the estate was allotted to the widow of A in a proceeding in which P contested her right to it. In 1880 the widow began suit, which is still pending, to recover damages for dower, and about the same time the heir at law of A, having come of age, sued to recover an undivided half-interest in the real estate, claiming that the partnership debts were outlawed. P then brought this bill in equity to settle the partnership business, and to charge all the real estate, including the undivided interest of the heir at law of A therein, and the interest of the widow, with the partnership debts. Held, That the statute of limitations could not be set up by the heir 730 INDEX. at law of A or by the widow against P; that P was the proper party to bring the suit; that the cancellation of the sale restored P to her rights as partnership creditor; and that while the court would not set aside the assignment of dower, no further exaction for detention would be enforced. J&. PATENT FOR INVENTION. 1. The specification of letters-patent for a design for a carpet, which is accompanied by a photographic illustration, and merely states that the nature of the design is fully represented in such illustration, and claims “the configuration of the design hereunto annexed, when applied to carpeting,” sets forth a sufficient description and claim, and the patent is valid. Dobson v. Doman, 10. 2. An interlocutory decree which awards a recovery for profits and dam- ages for the infringement of a patent for a design for a carpet, and orders an account of the profits from infringing by the manufacture, use, and sale of carpeting bearing the design, and of the damages by reason of the infringement, is not open to the objection that it awards the profits and damages resulting from the making and selling of the carpeting, instead of those resulting from the use of the design. Ib. 3. On the question of the infringement of a patent for a design for carpet- ing, in a suit in equity, where exhibits of carpets containing the patented and the infringing designs were produced in the Circuit Court, and it decided the question of infringement against the defendant, by the aid of ocular inspection of those exhibits, and, on an appeal by him, those exhibits were not produced in this court, and there was, in the record, testimony tending to show infringement, this court held, that, although there was contradictory testimony, it could not, in the absence of ocular inspection, say that the Circuit Court erred in finding infringement. Ib. 4. The plaintiff must show what profits or damages are attributable to the use of the infringing design. Ib. 5. The defendant made no profits on the manufacture and sale of carpets containing the infringing design. The plaintiff made a certain percentage of profit on the manufacture and sale of carpets containing the patented design. The defendant’s carpets were far inferior in quality and market value to those of the plaintiff. The Circuit Court presumed that the defendant’s carpets displaced those of the plaintiff, to the extent of the defendant’s sales, and held that the entire profit which the plaintiff would have received, at such percentage, from the sale of an equal quantity of his own carpets of the same pattern, was the proper measure of his damages. There was no satisfactory evidence that those who bought the defendant’s cheap carpets would have bought the plaintiff’s higher-priced ones, INDEX. T31 or that the design added anything to the defendant’s price, or promoted his sale of the particular carpet; and none to show what part of the defendant’s price was to be attributed to the design: Held, That the Circuit Court was in error. Ib. 6. The decree was reversed, and the case remanded, with direction to disallow the award of damages, and to award six cents damages, and to allow the defendant a recovery of his costs after interlocutory decree, and to the plaintiff a recovery of his costs to and including interlocutory decree. Ib. 7. The decision of the Commissioner of Patents, granting an application for a patent, a former application for which has been rejected or withdrawn, is not conclusive upon the question of abandonment of the invention in a suit brought for the infringement of the patent. U. S. Rifle Co. v. Whitney Arms Co., 22. 8. An inventor, whose application for a patent has been rejected by the Patent Office and withdrawn by him, and who, without substantial reason or excuse, omits for eight years to reinstate or renew it, during which time many patents embodying the substance of the invention are granted to other persons, must be held to have abandoned the invention. Ib. 9. When the defendant in a suit for the infringement of a patent sets up a prior publication of a machine anticipating the patented invention, and it appears that there are obvious differences between the two machines in the arrangement of the separate parts, in the relation of the parts to each other, and in their connection with each other in performing the functions for which the machine is intended, and experts differ upon the questions whether these differences are material to the result, and whether they required the faculty of invention, those questions are questions of fact to be left to the determination of the jury, under proper instructions from the court. Keyes v. Grant, 25. 10. Claim of reissued letters-patent No. 9094, granted to William Gardner, Oliver L. Gardner, and Jane E. Gardner, February 24, 1880, for anim-provement in chair-seats (the original patent, No. 127,045, having been granted to George Gardner and Gardner & Gardner, as assignees of George Gardner, as inventor, May 21, 1872, and having been reissued as No. 7203, to George Gardner, William Gardner, and Jane E. Gardner July 4, 1876), namely, “2. A chair-seat made of laminae of wood glued together, with the grains in one layer crossing those of the next, concave on the upper surface, convex on the lower surface, and perforated, as a new article of manufacture, substantially as set forth, ” does not claim any patentable invention. Gardner v. Hertz, 180. 11. A patent cannot be taken out for an article, old in purpose and shape and mode of use, when made for the first time out of an existing material, and with accompaniments before applied to such an article, 732 INDEX. merely because the idea has occurred that it would be a good thing to make the article out of that particular old material. Ib. 12. The suggestion in the second reissue, that “the seat is adapted to be secured to any chair-frame, as it is easily-cut and fitted to the same,” is not found in the original patent, or in the first reissue, and is new matter, so far as anything in it can be invoked to confer patentability on the article. Ib. 13. The question as to whether the thing patented amounts to a patentable invention may be raised by a defendant in a suit for infringement, independently of any statutory permission so to do. Ib. 14. Under the Constitution and the statute, a thing, to be patentable, must not only be new and useful, but it must amount to an invention or discovery. Ib. See Cases Affirmed or Approved, 2. PENALTY. See Tax and Taxation, 4. PILOT. See Constitutional Law, A, 1, 2. PLEADING. In an action upon a negotiable bond issued by a town authorized by the public laws of the State to issue such bonds for certain purposes only, a declaration alleging that the defendant is a municipal corporation, existing under the laws of the State, with full power and authority pursuant to those laws to execute negotiable commercial paper, and that pursuant to those laws it executed the bond sued on—without showing for what purpose the bond was made—is bad on demurrer. Hopper n. Covington, 148. See Removal of Causes, 4, 6. POST-OFFICE DEPARTMENT. See Contract, 3. PRACTICE. 1. The cause was submitted, under Rule 20, January 7, 1886. The court finding nothing from which it could be inferred that the value of the matter in dispute exceeded $5000, dismissed the case for want of jurisdiction, January 19, 1886. On the 26th April, 1886, the plaintiffs in error moved to reinstate the cause, accompanying the motion with affidavits in its support. Held, That the motion was too late. John-son v. Wilkins, 228. INDEX. 733 2. The court will not consider the merits of the question involved in a case, on a motion to dismiss unaccompanied by a motion to affirm. Bohanan v. Nebraska, 231. 3. The proper way to bring here for review a cause tried before a jury in a Territory is by writ of error. United States v. Hailey, 233. 4. A charge to the jury which, though incorrect, does no injury to the ex- cepting party, is not sufficient ground for setting aside the judgment. Evans v. Pike, 241. 5. When the same cause is brought to this court by appeal and by writ of error, on the same record, it is not necessary to docket it twice. Plymouth Mining Co. v. Amador Canal Co., 264. 6. As the court has no jurisdiction in this case, 116 U. S. 55, and it was decided at the present term, the judgment is vacated, the mandate recalled, and the writ of error dismissed. Cannon v. United States, 355. See Evidence, 2. Jurisdiction, A, 6, 7. . PRINCIPAL AND AGENT. See Corporation, 2, 3. PROBATE. See Jurisdiction, A, 2. PROMISSORY NOTE. 1. A promissory note payable on demand, with interest, was made by a railroad corporation to a stockholder for money lent, and with the understanding that assessments to be laid on his shares should, w’hen payable, be considered as payments upon the note. Assessments to a greater amount than the note afterwards became payable, and the difference only was paid by him. Held, That the note was paid as between the corporation and the payee, and as against a subsequent endorsee taking the note when overdue. Paine v. Central Vt. Railroad Co., 152. 2. By the Statutes of Massachusetts and of Vermont, promissory notes payable on demand are overdue in sixty days after date. Ib. See Pleading. PUBLIC LAND. 1. The acts of Congress of March 3, 1863, July 1, 1864, and July 26,1866, granting lands to the State of Kansas for railroad purposes, are to be construed in pa/ri materia, as having the one purpose of building a single road from Fort Riley, dowrn the Neosho Valley, to the southern line of that State, and not as distinct grants for different roads, which 734 INDEX. may come in conflict in the claims under them in regard to the lands granted. Kansas City, &c. Railroad v. The Attorney General, 682. 2. The junction of this road with the one from Leavenworth by way of Lawrence, in the direction of Galveston Bay, as provided in the act of 1863, was not required to be on the very crest of the Neosho Valley, as reached by the latter road, but at a convenient point for such crossing in the narrow valley of the Neosho River ; and as this point has been adopted by the companies building both roads, and accepted by the officers of the Land Department in selecting indemnity lands, there is no sufficient reason to be found in the point of junction to vacate the certification of these lands to the State for the company which has built the road and received the patents of the State. Tb. 3. Nor is there any other sufficient reason found in the record in this case for setting aside the evidences of title to these lands issued to the corporation which built the road within the time required by law, to the approval of the officers of the government, whose primary duty it was to certify these lands, and who did so within the scope of their powers. Ib. See Equity, 4. • Evidence, 2. Mineral Land. QUARANTINE. See Constitutional Law, A, 10-14. QUIA TIMET. See Equity, 1. RAILROAD. 1. The Boston, Hartford & Erie Railroad Company became a corporation of the State of New York, by virtue of the act of the legislature of that State, passed April 25, 1864, Laws of New York, 1864, ch. 385, p. 884, it being already a corporation of Connecticut, Massachusetts, and Rhode Island. Graham v. Boston, Hartford & Erie Railroad, 161. 2. A railroad corporation, which, though made up of distinct corporations, chartered by the legislatures of different States, has a capital stock which is a unit, and only one set of shareholders, who have an interest, by virtue of their ownership of shares of the stock, in all of its property everywhere, has a domicil in each State, and the corporation or shareholders can, in the absence of any statutory provision to the contrary, hold meetings and transact corporate business in any one State, so as to bind the corporation as to its property everywhere. Ib. 3. The Berdell mortgage, executed by the Boston, Hartford & Erie Rail- road Company, March 19, 1866, was valid originally, and the proceedings of the company whereby the mortgage was made were ratified INDEX. 735 by the legislatures of the four States above named, which included the holding in the city of New York of the meeting of the shareholders which authorized the making of the mortgage. Ib. 4. The act of July 1, 1862, “ to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean,” 12 Stat. 489, and the act of July 2, 1864, 13 Stat. 356, amending the same, and the act of May 7, 1878, 20 Stat. 56, commonly called the Thurman Act, are in pari materia and to be construed together ; and so construed, the act of May 7, 1868, restores provisions of the act of 1862 respecting retention of compensation for services performed by the railroads for the United States, which had been changed by the amendment of 1864, and requires the Treasury to withhold all payment for services performed on the roads constructed by the aid of government grants, but not on roads owned or operated by the same companies which were not constructed with such aid. United States v. Central Pacific Railroad Co., 235. 5. In the case of an existing railroad corporation organized under the laws of one State, which is authorized by the laws of another State to extend its road into the latter, it does not become a citizen of the latter State by exercising this authority, unless the statute giving this permission must necessarily be construed as creating a new corporation of the State which grants this permission. Pennsylvania Co. v. St. L., Alton & T. H. Railroad Co., 290. 6. Where a lease of a railroad for ninety-nine years contained covenants for the payment of monthly instalments of rent, to keep the road in repair, and to keep-accounts of all matters connected with its business, as affecting the amount of rent to be paid, which covenants were guaranteed by other parties than the lessee, a bill which shows failure to pay rent, depreciation of the road, and combination of the guarantors and lessee to divert the earnings of the road to the benefit of the guarantors, presents a case of equitable jurisdiction when it prays for specific performance of the obligations of the lease. In such a case a suit at law on each instalment of rent as it falls due is not an adequate remedy. Ib. 7. Unless specially authorized by its charter, or aided by some other legislative action, a railroad company cannot by lease or other contract turn over to another company for a long period of time its road and all its appurtenances, the use of its franchises, and the exercise of its powers, nor can any other railroad company, without similar authority, make a contract to run and operate such road, property, and franchises of the first corporation. Such a contract is not among the ordinary powers of a railroad company, and is not to be inferred from the usual grant of powers in a railroad charter. Ib. 8. The act of the Illinois legislature of February 12, 1855, is a sufficient authority on the part of the St. Louis, Alton & Terre Haute Company to make the lease sued on in this case. Ib. 736 INDEX. 9. But if the other party to the contract, the Indianapolis and St. Louis Company, had no such authority, the contract is void as to it; and if the other companies had no power to guarantee its performance, it is void as to them, and cannot give a right of action against them. Ib. 10. An examination of the statutes of Indiana and of the decisions of its courts fails to show, in the one or the other, any authority for an Indiana railroad company to make such a contract as that between the principal contracting companies in this case. Ib. 11. Nor is any authority found in the charters of any of these guaranteeing companies, or of the laws of the States under which they are organized, to guarantee the performance of such a contract as this; the parties to it and the road which it relates to being outside the limits of these States, and having no direct connection with their roads. Ib. 12. The doctrine is sound that when acts have been done and property has changed hands under void contracts which have been fully executed, courts will not interfere; but relief in such cases must be based on the invalidity of the contract, and not in aid of its enforcement. While the plaintiff in this case might recover in an appropriate action the rental value of the use of its road against the lessee company, the other defendants who had received nothing, but had been paying out money under a void contract, cannot be compelled to pay more money under the same contract. Ib. 13. No authority is found in the statutes of Indiana for the lease of an entire railroad, property, and franchise for a period of ninety-nine years. The court adheres to its views on the other questions involved in this case. Ib. 630. See Constitutional Law, 15. Evidence, 3, 4, 5. Contract, 3; Mortgage, 2. Damages. Public Land. RATIFICATION. See Municipal Corporation, 2. REBELLION. See Cases Distinguished, 1. Jurisdiction, D. Pardon. REMOVAL OF CAUSES. 1. The removal of a cause from a State court on the ground of local prejudice can be had only where all the parties to the suit on one side are citizens of different States from those on the other ; and the provision as to the removal of a separable controversy under the second INDEX. 737 subdivision of Rev. Stat., § 639, has no application to removals under the third subdivision. Cambria Iron Co. v. Ashburn, 54. 2. The question whether a State has power to tax franchises of a corpora- tion derived from acts of Congress, and property used in connection therewith ; and the question whether a statute of California, under the operation of which the railroad of the Southern Pacific Railroad Company is subjected to taxation in California without deduction of its mortgage encumbrances, while in the valuation of the property of other corporations, not railroad corporations, and of individuals, for taxation in the State, the mortgage encumbrances are deducted, is repugnant to the Fourteenth Amendment to the Constitution—are questions arising under the Constitution and laws of the United States, which, when properly raised in a suit at law or in equity of a civil nature, pending in a State court, authorize its removal into a Circuit Court of the United States ; and this although other issues, not Federal, are raised by the pleadings in the case. Southern Pacific Kailroad Co. v. California, 109. 3. A suit brought by the State of California in one of its own courts against the Southern Pacific Railroad Company, to recover an amount claimed to be due for taxes, is a suit at law, of a civil nature, within . the meaning of the removal clauses in the act of March 3, 1875. Ib. 4. A complaint or declaration charging a corporation, and individuals who are its agents and servants, with polluting a stream of water belonging to the plaintiff and rendering it unfit for use, and seeking a remedy against the defendants jointly, does not present a controversy separable for the purposes of removal from a State court, although the defendants answer separately, setting up separate defences. Plymouth Mining Co. v. Amador Canal Co., 264. 5. When a complaint or declaration in an action in a State court sets up a joint cause of action in tort against several defendants, for injuries done jointly to plaintiff, separate answers of the defendants, setting up that the acts complained of were committed under direction of one of them, and were justified by a contract between plaintiff and that particular defendant, and that the acts complained of as done by the other defendants were done by them as his servants and under his directions, do not necessarily change the controversy between the plaintiff and that defendant into a separate controversy, removable to the courts of the United States under the removal acts ; and allegations in the petition for removal that thé agents were joined as defendants in order to prevent the removal of the cause to the Circuit Court of the United States are of no avail, if not proved. Ib. 6. An action was commenced in a court of the State of South Carolina against plaintiff in error and other defendants. Plaintiff in error, after an answer prepared and verified by counsel had been filed, in which it was stated that she was a citizen of New York, petitioned for its removal to the Circuit Court of the United States on the von. cxvni—47 738 INDEX. ground of a separable controversy, alleging that she was a citizen of Massachusetts, that plaintiffs below were citizens of New York, except one, a citizen or subject of Spain, and that the other defendants below were citizens of different States named other than Massachusetts. The State court disallowed the petition for removal, on the ground that it appeared from the answer that plaintiff in error was a ♦ citizen of New York : Held, That this question was one of fact to be determined by the Circuit Court of the United -States, and not by the State court ; that plaintiff in error was not estopped by the answer from setting up that she was a citizen of New York ; and that, as a case for removal was made out on the face of the petition, the petition was improperly denied. Carson v. Hyatt, 279. 7. On the proof the court is satisfied that plaintiff in error was, when the suit was commenced, and continued to be, a citizen of Massachusetts ; and that on her petition the cause should have been removed to the Circuit Court of the United States. Ib. 8. The court also holds, on an examination of the record and the proof and the Code of South Carolina, that the petition for the removal in this case was made ‘‘ at the term at which the cause could first be tried,’’ according to the meaning of that phrase as construed in Babbitt v. Clark, 103 U. S. 606; and Pullman Palace Car Co. v. Speck, 113 U. S. 84. Ib. 9. A suit in a State court against several defendants, some of whom are citizens of the same State with the plaintiff, charging all as joint contractors or joint trespassers, cannot be removed into a Federal court by defendants who are citizens of another State, although they allege in their petition for removal that they are not jointly interested or liable with the other defendants, and that their controversy with the plaintiff is a separate one. Little n. Giles, 596. 10. When it appears that the interest of a nominal party to a suit is simulated and collusive, and created for the purpose of giving jurisdiction to a court of the United States, the court should dismiss the suit, under the provisions of § 5, Act of March 3, 1875, 18 Stat. 472. Ib. 11. After removal of a cause in equity from a State court to a court of the United States, a motion was made under § 5, Act of March 3, 1875, to remand it on the ground that the title of one of the parties had been collusively acquired for the purpose of removal from the State court. A suit at law involving the same subject-matter was then pending in the Federal court. The same issue of collusion had been made in that cause by a plea in abatement, and the parties stipulated that the issue on the plea in abatement should be tried and that the decision thereon should be taken and entered of record as tlie decision in the action at law, and also of the issues in the suit in equity as far as they were the same. The trial of the issues on the plea resulted in a finding that the plea had not been sustained, and this, together with all the evidence, being incorporated into the equity suit, the INDEX. 739 motion to remand the latter was denied : Held, That there was nothing in the stipulation to deprive this court of the power of reviewing the action of the court below in denying the motion. 11). See Jurisdiction, A, 1 ; B. SALARY. See Statutes, A, 3. SALE. 1. In the absence of fraud an agreement for a conditional sale of personal property, accompanied by delivery, is good and valid, as well against third persons as against the parties to the transaction. Harkness v. Russell, 663. 2. A bailee of personal property, who receives it under an agreement that he may purchase it on the performance of conditions on his part, cannot convey title to it or subject it to execution for his own debts, until performance of the conditions on which the agreement to sell is made. 11). 3. A, having agreed to sell certain personal property to B on the perform- ance of conditions on his part, delivered it to him, and took from him a promissory note stating the following as the condition of the sale: “The express condition of this transaction is such that the title, ownership, or possession of said property does not pass from the said A until this note and interest shall have been paid in full, and the said A has full power ,to declare this note due and take possession of said engine and saw-mill when he may deem himself insecure, even before the maturity of this note. In case said property shall be taken back, A may sell the same at public or private sale without notice, or he may without sale endorse the true value of the property on this note, and I agree to pay on the note any balance due thereon after such endorsement, as damages and rental for said machinery.” ₜ B entered intopossession, and, without performing the conditions of sale, sold the property to C, who knew that it had not been paid for, and that A claimed title to it. At the time of the sale to C the value of the property was less than the amount due on the note. In an action against C to recover the value of the property : Held, That this transaction was not a mortgage, but was an executory conditional sale ; and, being free from fraud, that it was valid. lb. SECRETARY OF THE NAVY. See Contract, 1. SHIPS AND VESSELS. The Repauno was a wooden vessel 37 feet in length at the water line, 8 feet 740 INDEX. beam, 3 feet 9 inches depth of hold, 2 feet 1 inch draught, with a small engine and boiler ; could carry 25 persons in smooth water, and was used to transport her owner and superintendent, and occasionally some workmen, across the Delaware, between Thompson’s Point and Chester : Held, That, although it is sometimes difficult to draw the line between vessels so small and insignificant that they do not come within the inspection law’s, and larger vessels which do come within them, the Repauno was liable to inspection under the statutes of the United States. Hartranft v. Du Pont, 223. See Limited Liability. STATUTE. A. Construction of Statutes. 11 Where the meaning of the Revised Statutes is plain, the court cannot recur to the original statutes to see if errors were committed in revising them, but it may do so when necessary to construe doubtful language used in the revision. Cambria Co. v. Ashburn, 54. 2. If a clause in a statute which violates the Constitution of the United States cannot be rejected without causing the statute to enact what the legislature never intended, the whole clause must fall. Spraigue v. Thompson, 90. 3. A statute which fixes the annual salary of a public officer at a designated sum, without limitation as to time, is not abrogated or suspended by subsequent enactments appropriating a less amount for his services for a particular fiscal year, but containing no words which expressly or impliedly modify or repeal it. United States v. Langston, 389. 4. This court follows the decisions of the highest court of a State, in con- struing the Constitution and laws of the State, unless they conflict with or impair the efficacy of some principle of the Federal Constitution, or of a federal statute, or a rule of commercial or general law. Norton n. Shelby County, 425. 5. The decisions of State courts on questions relating to the existence of its subordinate tribunals, and the eligibility and election or appointment of their officers, and the passage of its laws, are conclusive upon federal courts, lb. See Constitutional Law, A, 4; C. Mineral Land, 2. Railroad, 4. B. Statutes of the United States. See N&tloak. See Limited Liability, 1 (1), 7. Constitutional Law, A, 1,2,12. Mineral Land, 1, 2, 3. Contract, 1. Pardon. Equity, 4. Public Land. Indian, 1, 2. Railroad, 4. Internal Revenue, 1. Removal of Causes, 1,3,8,10,11. Jurisdiction, A, 7; D. Ships and Vessels. INDEX. 741 C. Statutes of States and Territories. Arizona. See Arizona. California. See Local Law, 6. Tax and Taxation, 3, 4. Connecticut. See Railroad, 1. Georgia. See Constitutional Law, A, 1. Illinois. See Constitutional Law, 15 Railroad, 8. Indiana. See Railroad, 10. Louisiana. See Constitutional Law, 10. Local Law, 3, 4. Massachusetts. See Promissory Note, 2. Railroad, 1. Michigan. See Trust, 1, 2. Missouri. See Local Law, 1. New York. See Railroad, 1. Rhode Island. See Railroad, 1. Tennessee. See Local Law, 7. Vermont. See Promissory Note, 2. STATUTE OF FRAUDS. See Trust, 1, 2. SUPREME COURT. See Jurisdiction, A. Statute, A, 4, 5. TAX AND TAXATION. 1. A statute authorizing a municipal corporation to create a debt, re- quired a tax to be levied on real estate to pay it. After the debt was contracted, an amendment to the act authorized the levy for that purpose to be made on personal property also. The debt not being paid, and both acts being in force, the creditor acquired by due proceedings the right to a writ of mandamus, directing the levy of a tax in order to pay his debt. Held, That he was entitled to a writ commanding the levy on both species of property. Cape Girardeau County v. Hill, 68. 2. An assessment of a tax is invalid, and will not support an action for the recovery of the tax, if, being laid upon different kinds of property as a unit, it includes property not legally assessable, and if the part of the tax assessed upon the latter property cannot be separated from the other part of it. Santa Clara County v. Southern Pacific Railroad, 394. 3. The State Board of Equalization of California was required by law to assess the franchise, roadway, &c., of all railroads operated in more than one county, and apportion the same to the different counties in 742 INDEX. proportion to the number of miles of railway in each. They made such assessment of the Southern Pacific Railroad, improperly including therein the fences between the roadway and the conterminous proprietor, and apportioned it and returned it as required to the different counties. In a suit by one of the counties to recover its proportion of the tax levied in accordance with such apportionment and return, the court below, at the trial, found that ‘ ‘ said fences were valued at $300 per mile,” which was the only finding on the subject; and it did not appear that the county, plaintiff, offered to take judgment for a sum excluding the rate on the'value of the fences within the county at that valuation. Held, (1) That the finding was too vague and indefinite to serve as a basis for estimating the aggregate valuation of the fences included in the assessment, or the amount thereof apportioned to the respective counties ; (2) that, under the circumstances, the court could not assume that the State Board included the fences in their assessment at the rate of $300 per mile for every mile of -the railroad within the State, counting one or both sides of the roadway; and could not, after eliminating that amount from the assessment, give judgment for the balance of the tax, if any. Ih. 4. This case differs from Santa Clara County v. Southern Pacific Railroad Company, ante, 394, only in this—that after entry of judgment defendant below paid the taxes claimed under a stipulation that the payment should be “without prejudice to the right of the plaintiff in the case to proceed for penalties, interest, and attorney’s fees claimed. ” Held, That, as the plaintiff would not have been entitled to judgment for the taxes originally claimed, it could not have judgment in its favor for penalty, interest, and attorney’s fees. San Bernardino County v. Southern Pacific Railroad, 417. See Local Law, 6, 7. • Removal of Causes, 2, 3. TRESPASS ON THE CASE. See Corporation, 2. Municipal Corporation, 1. TRUST. 1. A series of letters and agreements passing between the parties interested, all relating to the same property, which, when read together, show a purpose in all the parties to create a trust respecting it, and which express and define that trust and the parties and their respective interests, creates a trust fully expressed and clearly defined within the meaning of the statute of the State of Michigan which enacts that “express trusts” may “be created” “for the beneficial interest of any person or persons, when such trust is fully expressed and clearly defined on the face of the instrument creating it.” Loring v. Palmer, 321. INDEX. 743 2.. The statute of Michigan which enacts that “ every disposition of land ” shall be directly to the person in whom the right to the possession and the profits shall be intended to be vested, and not to any other, to the use of or in trust for such person; and if made to one or more persons, in trust for or to the use of another, no estate legal or equitable shall vest in the trustee,” does not apply to a trust not expressed in the deed, but created by an independent instrument or instruments, executed at a different time, or times, from the execution of the deed. Ib. See Deed, 5. Limitation, Statutes of. • ULTRA VIRES. . See Corporation, 3. Internal Revenue, 2. Railroad, 7, 9, 10, 11, 12, 13. UNITED STATES. See Contract, 1. Equity, 4.. Limitation, Statutes of. Statutes, B. WILL. See Deed, 3. Jurisdiction, A, 2.