UNITED STATES REPORTS VOLUME 122 CASES ADJUDGED IN THE SUPREME COURT OCTOBER TERM, 1886 J. C. BANCROFT DAVIS REPORTEE NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1887 Copyright, 1887, Bi BANKS V BROTHERS. JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MORRISON REMICK WAITE, Chief Justice. SAMUEL FREEMAN MILLER, Associate Justice. STEPHEN JOHNSON FIELD, Associate Justice. JOSEPH P. BRADLEY, Associate Justice. JOHN MARSHALL HARLAN, Associate Justice. STANLEY MATTHEWS, Associate Justice. HORACE GRAY, Associate Justice. SAMUEL BLATCHFORD, Associate Justice. ------ ---------? Associate Justice.* AUGUSTUS HILL GARLAND, Attorney General. GEORGE AUGUSTUS JENKS, Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN GEORGE NICOLAY, Marshal. * Mr. Justice Woods died after the cases reported in this volume were argued, but before the decisions were announced. He heard argument in none of them. TABLE OF CONTENTS. TABLE OF CASES. PAGE Adams v. Collier.....................................382 Allen, Merchants’ Insurance Company v. . . . 376 Andrews, Eames v......................................40 Argentine Mining Co. v. Terrible Mining Co. . . 478 Auffmordt, United States v...........................197 Barnes v. Chicago, Milwaukee and St. Paul Railway . 1 Bartram v. Robertson.................................116 Bean v. Patterson....................................496 Beedle v. Bennett ....................................71 Bennett, Beedle v.....................................71 Benziger v. Robertson . 211 Berney, Drexel v.....................................241 Bickham, Walter v....................................320 Bowen, Shippen v.....................................575 Brown, Wisner v......................................214 Bullard v. Des Moines and Fort Dodge Railroad . 167 Burlington, Cedar Rapids and Northern Railway Com- pany v. Dunn.....................................513 Chicago, Burlington and Kansas City Railroad v. Guffey ..............................................561 Chicago, Milwaukee and St. Paul Railway, Barnes v. . 1 Clinton v. Missouri Pacific Railway .... 469 Collier, Adams v.....................................382 Davis v. Patrick............................138 Denver and Rio Grande Railway v. Harris . . . 597 Des Moines and Fort Dodge Railroad, Bullard v. . 167 Detroit, Grand Haven and Milwaukee Railway, Tuttle v. 189 vi TABLE OF CONTENTS. Table of Cases. PAGB Drexel v. Berney..................................241 Drexel, Struthers v...............................487 Dunn, Burlington, Cedar Rapids and Northern Rail- way Company v. . . . . . . . 513 Durr, Morrison v..................................518 Eames v. Andrews...................................40 Edwards, Travellers’ Insurance Company v. . . .457 Estes v. Gunter...................................450 Fisher v. Perkins ........ 522 Fourth National Bank of St. Louis, McLeod v. . '. 528 Fuller, Thorn Wire Hedge Company v. .... 535 Gandy v. Marble...................................432 Gibson v. Shufeldt ....... 27 Goodlet v. Louisville and Nashville Railroad . . .391 Griswold, Paxton v................................441 Guffey, Chicago, Burlington and Kansas City Railroad v. 561 Gunter, Estes v. ....... . 450 Hanna v. Maas......................................24 Harris, Denver and Rio Grande Railway v. . . 597 Harshman v. Knox County ...... 306 Irvine v. The Hesper..............................256 Kerr Murray Manufacturing Company, Minneapolis Gas- Light Company v...............................300 Knight, St. Louis, Iron Mountain and Southern Railway Company v. ....... 79 Knox County, Harshman v...........................306 Kountz Line, Sun Insurance Co. v..................583 Lewis, Seibert v. ....... 284 Louisville and Nashville Railroad, Goodlet v. . . 391 Maas, Hanna v......................................24 McLeod v. Fourth National Bank of St. Louis . > 528 Manitoba, The. .....................................M TABLE OF CONTENTS. vii Table of Cases. PAGE Marble, Gandy v.............................432 Maus, New Process Fermentation Co. v. . . .413 Maxwell Land-Grant Case . . . . . . 365 Merchants’ Insurance Company v. Allen . . . .376 Merchants’ Insurance Company v. Weeks . . . 376 Minneapolis Gas-Light Company v. Kerr Murray Manu- facturing Company........................360 Missouri Pacific Railway, Clinton v.........469 Moody, Warren v.............................132 Morrison v. Durr........ 518 Muskegon Bank, Northwestern Life Insurance Com- pany v. ........ 501 New Process Fermentation Co. v. Maus . . . 413 Nightingale, Sanger v...............................176 Northwestern Life Insurance Company v. Muskegon Bank............................................501 Parsons v. Robinson.............................112 Patrick, Davis v................................138 Patterson, Bean v...............................496 Paxton v. Griswold..............................441 Pendleton, Western Union Telegraph Co. v. . . . 347 Pennsylvania, Philadelphia and Southern Steamship Com- pany v......................................326 Perkins, Fisher v...............................522 Philadelphia and Southern Steamship Company u Penn- sylvania ........ 326 Pittsburg Bessemer Steel Co. (Limited), Porter v. . . 267 Porter v. Pittsburg Bessemer Steel Co. (Limited) . 267 Rice v. United States...........................611 Robertson, Bartram v............................116 Robertson, Benziger -y. . . . . . .211 Robinson, Parsons v.............................112 Runkle v. United States ....... 543 Runkle, United States v.........................543 viii TABLE OF CONTENTS. Table of Cases. PAGE St. Louis, Iron Mountain and Southern Railway Com- pany v. Knight ....... 79 St. Louis, Iron Mountain and Southern Railway v. Vickers. ........ 360 St. Louis Rail-Fastening Company, State Bank v. . . 21 Sanger v. Nightingale......................... 176 Seeligson, Texas Transportation Co. v. . . . .519 Seibert v. Lewis ........ 284 Shepherd v. Thompson . . . . . . .231 Shippen v. Bowen................................575 Shufeldt, Gibson v. . . . . . . . .27 Sibley, Simonton v. ...... 220 Simonton v. Sibley ........ 220 State Bank v. St. Louis Rail-Fastening Company . 21 Struthers v. Drexel.............................487 Sun Insurance Co. v. Kountz Line .... 583 Supervisors of Albany, Williams v...... 154 Terrible Mining Co., Argentine Mining Co. v. . . 478 Texas Transportation Co. v. Seeligson . . . .519 The Hesper, Irvine v............................256 The Manitoba. ........ 97 Thompson, Shepherd v. ..... . 231 Thorn Wire Hedge Company v. Fuller .... 535 Topliff v. Topliff..............................121 Topliff, Topliff v. ....... 121 Travellers’ Insurance Company v. Edwards . . 457 Tuttle v. Detroit, Grand Haven and Milwaukee Rail- way . . . . . . . . . .189 Union Depot and Railroad Company, Whitsitt v. . 363 United States v. Auffmordt. . . . . . .197 United States v. Rice...........................611 United States v. Runkle.........................543 United States, Runkle v....... 543 Vickers, St. Louis, Iron Mountain and Southern Railway v. .................................360 TABLE OF CONTENTS. ix Appendix. FAGS Walter v. Bickham................................. 320 Warren -y. Moody....................................132 Weeks, Merchants’ Insurance Company v. . . .376 Western Union Telegraph Co. v. Pendleton . . 347 Whitsitt v. Union Depot and Railroad Company . . 363 Williams v. Supervisors of Albany .... 154 Wisner v. Brown.....................................214 APPENDIX. I. Judgments and Decrees, Interlocutory and Final, at October Term, 1886, not Otherwise Reported. Allen v. Texas and Pacific Railway .... 631 American Iron Company v. Anglo-American Roofing Company......................................640 American Zylonite Company, Celluloid Manufacturing Company v....................................629 Andress, Eagle Lock Company v. . . . . 644 Andrews, Creegan v. . . . . . . . 631 Anglo-American Roofing Company, American Iron Company v.......................................640 Aram, Moline Wagon Company v. . . . . . 646 Arthur w. Barbour...................... . 627,629 Backus Water Motor Company v. Tuerk . . . 634 Baltimore and Ohio Railroad v. Board of Public Works of West Virginia.............................633 Baltimore and Ohio Railroad v. Miller . . . 633 Barber, New v. ‘.................................643 Barbour, Arthur v............................ 627, 629 Barnard and Leas Manufacturing Company v. Milliken . 635 Baxter Mountain Gold Mining Company v. Patterson 641 Belden Mining Company v. Harvey '. . . . 639 Benedict and Burnham Manufacturing Company, White v......................................640 X TABLE OF CONTENTS. Appendix. PAGK Billgery, Raymond v..................................632 Birth v. Birth........................... 648 Birth, Birth v. ........ 648 Bissell v. Plumb.....................................637 Bloch, Saloy v. .....................................646 Blue Ridge v. St. John . . • . . . . 645 Board of Public Works of West Virginia, Baltimore and Ohio Railroad v...................................633 Boston and New York Air Line Railroad, Gates v. . 646 Boughton v. Charter Oak Life Insurance Company . 637 Boyce, Stockwell v...................................629 Brewer, Union Pacific Railroad v.....................647 Briscoe, Upshur v....................................628 Brown v. McConnell...................................648 Brunet v. Clement ....... 641 Bullock v. Farwell................................. 642 Burke v. Wood . . . . . . . . 631 Burlington, Cedar Rapids and Northern Railway v. Dunn ......... 632 Bush u United States.................................641 Butchers’ Union Slaughter House and Live Stock Land- ing Company, Crescent City Live Stock Landing and Slaughter House Company v....................636 Camden v. Mayhew . 649 Carr, Post v....................................642 Causten v. Young................................625 Celluloid Manufacturing Company v. American Zylonite Company ......... 629 Celluloid Manufacturing Company v. S. C. Noyes & Co. 629 Centennial Mutual Life Association, Eggleston v. . 635 Central Construction Company v. Paul . . . 640 Central Railroad and Banking Company of Georgia v. McKenzie..........................................649 Charter Oak Life Insurance Company, Boughton v. .637 Chase v. Reed . '...................................633 Chesapeake and Ohio Railway v. White .... 625 Cissel v.-Dutch......................................638 TABLE OF CONTENTS. xi Appendix. PACT Clement, Brunet v....................................641 Coghlan v. South Carolina Railroad .... 649 Cole, Gauthier v.....................................642 Commissioners of Grant County v. Kimball . . 649 Continental Insurance Company v. Johnson . . . 641 Continental Life Insurance Company, First National Bank of Washington Court House v. . . . 642 Continental Life Insurance Company v. Pumphrey . 626 Corbin, Davies v.....................................639 Corbin, Gaines v.....................................639 Creegan v. Andrews...................................631 Crescent City Live Stock Landing and Slaughter House Company v. Butchers’ Union Slaughter House and Live Stock Landing Company ..... 636 Crosnoe, St. Louis, Iron Mountain and Southern Rail- way v.......................................628 Dauphin v. Times Publishing Company .... 645 Davies v. Corbin ........ 639 Dayton, Gilson v.....................................638 Denver, South Park & Pacific Railway v. Fitzgerald . 625 Detroit City Railway v. Detroit......................645 Detroit, Detroit City Railway u . . . .' , 645 Dickerhoff, Harwood v................................647 District of Columbia v. O’Hare.......................640 District of Columbia, Strong v.......................647 Dodge v. The Supreme Court of the District of Columbia. 638 Drusmore, St. Louis, Fort Scott and Wichita Rail- road v...........................................636 Dubois, Wright v.....................................637 Duffy, Louisville and Nashville Railroad Co. v. . 645 Dunn, Burlington, Cedar Rapids and Northern Rail- way v............................................632 Dunton v. Smedley....................................633 Dutch, Cissel v......................................638 Eagle Lock Company v. Andress ..... 644 Eastman v. Ecker.....................................627 xii TABLE OF CONTENTS. Appendix. PAGE Ebbinghaus v. Killian................................629 Ecker, Eastman v............................... .627 Eggleston v. Centennial Mutual Life Association . 635 Ellsworth, Hukill Mining Company v...................644 Ely v. Mitchell......................................628 Evansville v. Portland Savings Bank . . . .6 48 Everett, Hale v......................................627 Ex parte : In the matter of George K. Grove . . 649 Farwell, Bullock v...................................642 Fazende v. Mayor of Houston..........................648 Ficklin, Tarver v....................................631 First National Bank of Cobleskill v. Wabash, St. Louis and Pacific Railway..............................645 First National Bank of Washington Court House v. Con- tinental Life Insurance Company .... 642 Fitzgerald, Denver, South Park & Pacific Railway v. 625 F. J. Schreiber, German-American Hail Insurance Com- pany v...........................................635 Foster, Joliet v.....................................639 Fowle r. Hay.........................................628 Fowler, Lees v. . 646 Frank, Trayer v......................................625 Furst and Bradley Manufacturing Company, Manny v. 642 Gaines v. Corbin.....................................639 Gates Boston and New York Air Line Railroad . 646 Gatling Gun Company, Palmer v........................644 Gauthier v. Cole.....................................642 George K. Grove, Ex parte : In the matter of . . 649 German-American Hail Insurance Company v. F. J. Schreiber........................................635 Gibson v. Shufeldt ........ 634 Gill Car Manufacturing Company, Hurd v.. . . 634 Gilson v. Dayton.....................................638 Goodrich v. Schoeffer................................628 Hale v. Everett . 627 Hamlin, Santa Anna v.................................633 TABLE OF CONTENTS. xiii Appendix. PAGB Hargett, Newark Machine Company y. 645 Harvey, Belden Mining Company y. . . . . 639 Harwood v. Dickerhoff............................647 Hay, Fowle v.....................................628 Hayes v. Seton...................................626 Helena Bridge Company v. King....................634 Herman, Jeffries v...............................634 Hewett v. Western Union Telegraph Company . . 648 Hobart, Louisville and Nashville Railroad v. . . 647 Holmes, Seale v..................................635 Home Insurance Company v. New York . . . 636 Huiskamp v. Moline Wagon Company .... 631 Hukill Mining Company v. Ellsworth .... 644 Hurd v. Gill Car Manufacturing Company . . . 634 Hyde, Maag v......... 632 Jeffries y. Herman...............................634 Jennings, Kibbie v...............................640 Johnson, Continental Insurance Company v. . . . 641 Joliet v. Foster.............. . . • 639 Kelly v. Watson..................................633 Kibbie v. Jennings...............................640 Killian, Ebbinghaus v............................629 Kimball, Commissioners of Grant County y. . . 649 King, Helena Bridge Company y....................634 Klein y. Spalding. , ..........................628 Lake Shore and Michigan Southern Railroad v. Schofield .............................638 Lanier y. Nash............................ 630, 637 La Rue y. Winter ........ 648 Lawrence v. Reed.................................632 Lees v. Fowler ......... 646 Levine v. Wilson ........ 627 Louisiana Sugar Refining Company v. Todd et al. . . 625 Louisville and Nashville Railroad y. Hobart . . 647 Louisville and Nashville Railroad Co. y. Duffy . . 645 xiv TABLE OF CONTENTS. Appendix. PAGB Maag v. Hyde.........................................632 McConnell, Brown v...................................648 McCoy, Morrison v....................................643 McGowan, Poage v.....................................641 McKenzie, Central Railroad and Banking Company of Georgia v. . . ...... 649 Madison, Seale v.....................................634 Manny v. Furst and Bradley Manufacturing Company . 642 Manny v. Oyler......................................641. Manny v. St. Louis Malleable Iron Company . . . 642 Matheson, Robertson v...........................639 Mayhew, Camden v.....................................649 Mayor of Houston, Fazende v.....................648 Meeker, Winthrop Iron Company v......................635 Memphis and Little Rock Railroad (as reorganized) v. Smith............................................643 Merchant, Spencer v.............................637 Miller, Baltimore and Ohio Railroad v................633 Miller v. Union Pacific Railway.................626 Milliken, Barnard and Leas Manufacturing Company v. 635 Missouri Pacific Railway v. Snoddy .... 628 Mitchell, Ely v......................................628 Moline Wagon Company v. Aram .... 646 Moline Wagon Company, Huiskamp v.....................631 Morrison v. McCoy...............................643 Morrison v. Withers..................................644 Moses v. Wooster................................640 Mound City Land and Water Association, Phillips v. . 630 Mutual Life Insurance Company of New York v. Wack- erle........................................626 Nash, Lanier v................................. 630, 637 National Life Insurance Company v. Scheffer . . 629 New v. Barber........................................643 Newark Machine Company v. Hargett . . . 645 Newcastle Northern Railroad v. Simpson . . . 634 New Orleans v. Shepherd.........................627 New York, Home Insurance Company v. . . . 636 TABLE OF CONTENTS. xv Appendix. PASS New York and Colorado Mining and Milling Company, Schindelholz w...................................627 New York Mutual Gas Light Company v. Thorp . . 626 North Bloomfield Gravel Mining Company v. Woodruff 629 Odell, Webster Electric Company v...................643 O’Hare, District of Columbia v......................640 Ormsby v. Webb ........ 630 Oyler, Manny v......................................641 Pacific Railway Improvement Company v. Von Hoff- man ......... 631 Palmer v. Gatling Gun Company.......................644 Parker, Wells -y. ....... . 644 Patterson, Baxter Mountain Gold Mining Company v. . 641 Paul, Central Construction Company v. . . . 640 Pennsylvania, Powell v.............................'647 Phillips v. Mound City Land and Water Association . 630 Pile v. Wilson......................................642 Plumb, Bissell v....................................637 Poage v. McGowan....................................641 Portland Savings Bank, Evansville v.................648 Post v. Carr........................................642 Powell v. Pennsylvania..............................647 Pumphrey, Continental Life Insurance Company v. . 626 Raymond -y. Billgery................................632 Rea -y. The Steamer Eclipse.........................635 Reed, Chase v.......................................633 Reed, Lawrence v....................................632 Robertson v. Matheson...............................639 St. John, Blue Ridge v. ...... 645 St. Louis, Fort Scott and Wichita Railroad v. Drusmore 636 St. Louis, Iron Mountain and Southern Railway v. Cros- noe..............................................628 St. Louis Malleable Iron Company, Manny -y. . . 642 Saloy v. Bloch......................................646 Sanford, Urbana v...................................637 xvi TABLE OF CONTENTS. Appendix. PAGB Santa Anna v>. Hamlin..........................633 Scheffer, National Life Insurance Company v. . . 629 Schindelholz v. New York and Colorado Mining and Mill- ing Company................................627 Schoeffer, Goodrich v. ...... . 628 Schofield, Lake Shore and Michigan Southern Railroad v. 638 S. C. Noyes & Co., Celluloid Manufacturing Company v. 629 Seale v. Holmes ........ 635 Seale v. Madison...............................634 Seeligson v. Texas Transportation Company . . . 644 Seton, Hayes v.................................626 Shepherd, New Orleans v. ..... 627 Shufeldt, Gibson v. ,.................... . 634 Simpson, Newcastle Northern Railroad v. . . 634 Smedley, Dunton v. ....... 633 Smith, Memphis and Little Rock Railroad (as reorgan- ized) v. ........ 643 Smith, Vicksburg, Shreveport and Pacific Railroad v. . 638 Snell, Wasatch and Jordan Valley Railroad v. . . 626 Snoddy, Missouri Pacific Railway v.............628 South Carolina Railroad, Coghlan v.............649 Spalding, Klein ?;.............................628 Spencer v. Merchant............................637 Stockwell v. Boyce.............................629 Strong v. District of Columbia.................647 Sun Mutual Insurance Company v. The Kountz Line . 632 Tarver v. Ficklin..............................631 Texas and Pacific Railway, Allen v. ... . 631 Texas Transportation Company, Seeligson v. . . 644 The Kountz Line, Sun Mutual Insurance Company v. . 632 The Selma, Rome and Dalton Railroad Company v. The United States..............................636 The Steamer Eclipse, Rea v. . . . , . . . 635 The Supreme Court of the District of Columbia, Dodge v. 638 The United States, The Selma, Rome and Dalton Rail- road Company v. ....... 636 Thorp, New York Mutual Gas Light Company v. . 626 TABLE OF CONTENTS. xvii Appendix. PAGE Thurber v. Woodward............................... 636- Times Publishing Company, Dauphin v. . . . 645 Todd et al., Louisiana Sugar Refining Company v. . . 625 Traver v. Frank ........ 625 Tuerk, Backus Water Motor Company -y. 634 Union Metallic Cartridge Company v. United States Car- tridge Company...................................644 Union Pacific Railroad v. Brewer . . . . .617 Union Pacific Railway, Miller v. .... 626 United States, Bush v...............................641 United States v. White.............647 United States Cartridge Company, Union Metallic Car- tridge Company v.................................644 United States ex rel. William W. Warden v. William E. Chandler, Secretary of the Navy .... 643 Upshur v. Briscoe...................................628 Urbana v. Sanford ..................................637 Vicksburg, Shreveport and Pacific Railroad v. Smith . 638 Von Hoffman, Pacific Railway Improvement Company v. 631 Wabash, St. Louis and Pacific Railway, First National Bank of Cobleskill v.............................645 Wackerle, Mutual Life Insurance Company of New York v................... . . . . 626 Wasatch and Jordan Valley Railroad v. Snell . . 626 Watson, Kelly v. . . . . . . . . 633 Webb, Ormsby v. ....... 630 Webster Electric Company v. Odell . . . . 643 Wells v. Parker................................... 644 Western Union Telegraph Company, Hewett v. . . 648 White v. Benedict and Burnham Manufacturing Company 640 White, Chesapeake and Ohio Railway v. 625 White, United States v..............................647 William E. Chandler, Secretary of the Navy, United States ex rel. William W. Warden v. 643 Wilson, Levine v....................... . 627 B xviii TABLE OF CONTENTS. Appendix. PAGl Wilson, Pile v........................... . . . 642 Winter, La Rue v....................................648 Winthrop Iron Company v. Meeker .... 635 Withers, Morrison v.................................644 Wood, Burke v.......................................631 Woodruff, North Bloomfield Gravel Mining Company v. 629 Woodward, Thurber v.................................636 Wooster, Moses v....................................640 Wright v. Dubois....................................637 Young, Causten v....................................625 II. Cases Dismissed in Vacation Pursuant to Rule 28. Allen v. Hickling...................................652 Beard, The Steam Tug E. Luckenback -y. . . 652 Call v. Northwestern Mutual Life Insurance Company . 651 Chandler, Westham Granite Co. v. • . . . 651 Curry v. McCauley ..... . . . 653 Dempsey v. Manistee River Improvement Company . 652 Ferguson, Pennsylvania Company v...................651 Hickling, Allen v...................................652 John T. Noye Manufacturing Company, Kehlor Milling Company v.......................................652 Kehlor Milling Company v. John T. Noye Manufactur- ing Company.................................652 Louisiana, ex rel. The New Orleans Gas Light Company v. New Orleans..............................651 McCauley, Curry u ............653 Manistee River Improvement Company, Dempsey v. .652 New Orleans, Louisiana, ex rel. The New Orleans Gas Light Company -y............................. 651 New York Belting and Packing Company v. Sibley . 653 Northwestern Mutual Life Insurance Company, Cali v. 651 Pennsylvania Company -y. Ferguson .... 651 Rubber and Celluloid Hamess Trimming Co., Thebe- rath v..........................................652 St. Louis, Iron Mountain and Southern Railway v. Southern Express Co. ...........................652 TABLE OF CONTENTS. six Appendix. PAOB Sibley, New York Belting and Packing Company v. . 653 Southern Express Co., St. Louis, Iron Mountain and Southern Railway v..............................652 Theberath v. Rubber and Celluloid Harness Trimming Co. . . . . . . ... . 652 The Steam Tug E. Luckenback v. Beard . . . 652 Westham Granite Co. v. Chandler . . . . 651 III. Assignments to Circuits for 1887. . . * 655 Index ..............................................657 Table of Cases cited in Opinions . . . xxi Table of Statutes cited in Opinions . . . xxvii TABLE OF CASES CITED IN OPINIONS. PAGE Adams v. Crittenden, 106 U. S. 576 36 Addleman v. Masterson, 1 Penn. (P. & W.) 454 449 Alfonso v. United States, 2 Story, 421 204 Amy v. Manning, 144 Mass. 153 515 Andrews v. Carman, 13 Blatehford, 307 47, 53, 76, 77 Andrews v. Cone, 5 McCrary, 181 47 Andrews v. Cregan, 19 Blatehford, 113 47 Andrews v. Cross, 19 Blatehford, 294 47, 55, 76, 78 Andrews v. Cross, 8 Fed. Rep. 209 70 Andrews v. Eames, 15 Fed. Rep. 109 47, 70 Andrews v. Hovey, 5 McCrary, 181 47, 56 Andrews v. Long, 2 McCrary, 57 47 Andrews v. Long, 12 Fed. Rep. 871 70 Andrews r. Wright, 13 Off. Gaz. 969 47 Ann Caroline (The), 2 Wall. 538 102 Anonymous, 1 Gallison, 22 266 Arthur v. Sussfield, 96 U. S. 128 213 Baker & wife v. Bush, 25 Ga. 594; S. C. 71 Am. Dec. 193 185 Baltimore & Ohio Railroad, Er parte, 106 U. S. 5 31, 33 Baltimore & Ohio Railroad r. Wilkens, 44 Maryland, 11 87 Barry c. Edmunds, 116 U. S. 550 609 Bartram v. Robertson, 21 Blatch- ford, 211 117 Bell v. Morrison, 1 Pet. 351 236 Blake v. United States, 103 U. S. 227 _ 558 Bostwick v. Brinkerhoff, 106 U. S. 8 116 Boyce’s Executors v. Grundy, 3 Pet. 210 252 Bradstreet, Ex parte, v. Thomas, 4 Pet. 102 143 PAGE Bradstreet Co. Higgins, 112 U. S. 227 29 Bronson v. Kinzie, 1 How. 311 294 Bronson v. La Crosse Railroad Co., 1 Wall. 405; S. C. 2 Wall. 283 17 Brooks v. Adams, 11 Pick. 441 556 Brown v. Houston, 114 U. S. 622 346 Brown v. Keene, 8 Pet. 112 556 Brown v. Maryland, 12 Wheat. 419 337, 341, 342, 346 Bruce v. Manchester & Keene Rail- road, 117 U. S. 514 29 Buckmaster v. Russell, 10 C. B. (N. S.) 745 239 Burien v. Shannon, 99 Mass. 200 318 Butler r. Shaw, 21 Fed. Rep. 321, 439 Butterworth v. Hoe, 112 U. S. 50 439 Cape Girardeau County Court v. Hill, 118 U. S. 68 291 Cape Girardeau &c. County v. Den- nis, 67 Missouri, 438 . 316 Carson ». Dunham, 121 U. S. 421 516 Carson v. Hyatt, 118 U. S. 279 515 Cassidy v. Hall, 97 N. Y. 159 151 Cawley v. Furnell, 12 C. B. 291 238 Cedar Rapids Railroad v. Des Moines Navigation Co., 17 Wall. 144 176 Chambers v. Mifflin, 1 Penn. (IP. & W.) 74 448 Chapman v. Murch, 19 Johns. 290; C. 10 Am. Dec. 227 581 Charles Morgan (The), 115 U. S. 69 267 Chatfield v. Boyle, 105 U. S. 231 36 Chicago r. Sheldon, 9 Wall. 50 131 Chicago & Burlington Railroad v. Iowa, 94 U. S. 155 346 Chicago, Burlington &c. tlailroad Co. v. Guffey, 120 U. S. 569 569 I Chouteau?;. Alien, 70 Missouri, 290 316 Clark ?> Barnwell, 12 How. 272 85 i Clark v. Wooster, 119 U. S. 322 76 When a case is reported in the American Decisions, the volume and page of that series w given. . XXII TABLE OF CASES CITED. PAGE Clayton v. Brown, 17 Geo. 217 390 Clayton v. Brown, 30 Geo. 490 390 Clemenston v. Williams, 8 Cranch, 72 235, 236 Clifton v. Shelden, 23 How. 481 32 Cochrane v. Deener, 94 U. S. 780 ■427, 428 Coe v. Errol, 116 U. S. 517 346 Cohn v. United States Corset Co., 93 U. S. 366 66 Commissioners v. Bolles, 94 U. S. 104 283 Confiscation Cases, 20 Wall. 92 557 Conkling et al. v. Westbrook, 81 Penn. St. 81 446, 447 Connemara (The), 103 U. S. 754 32, 38 Connemara (The), 108 U. S. 352 265 Cook v. Moseley, 13 Wend. 277 581 Cook v. Pennsylvania, 97 U. S. 566 345 Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299 339, 357 Cooper v. Sullivan County, 65 Missouri, 542 571 Corning v. Burden, 15 How. 252 427 Coughlin v. District of Columbia, 106 U. S. 7 143, 240 County of Mobile v. Kimball, 102 U. S. 691 357 Cox v. Bruce, 18 Q. B. D. 147 86 Cox v. Hickman, 8 H. L. Cas. 268 151 Crandall v. Nevada, 6 Wall. 35 339, 357 Cromwell v. County of Sac, 94 U. S. 351 317 Davies v. Corbin, 112 U. S. 36 38 Davis v. Crouch, 94 U. S. 514 527 Day v. Woodworth, 13 How. 363 609 Dickerson v. Colgrove, 100 U. S. 578 253 Dillon v. Barnard, 21 Wall. 430 283 Downer v. Dana, 17 Vt. 518 254 Downton v. Yeager Milling Co., 108 U. S. 466 66 Dubuque & Pacific Railroad Co. v. Litchfield, 23 How. 66 171, 174, 175, 176 Dubuque & Sioux City Railroad v. Des Moines Valley Railroad, 109 U. S. 329 176 Duffield v. Smith, 3 S. & R. 590 556 Dunham v. Railway Co., 1 Wall. 254 283 Dushane v. Benedict, 120 U. S. 630 582 Dynes v. Hoover, 20 How. 65 556 Eames v. Andrews, 122 U. S. 40, 76, 78 Edwards v. Kearzey, 96 U. S. 595 294 Eldridge v. Phillipson, 58 Miss. 270 455 PAGE Elgin v. Marshall, 106 U. S. 578 29 Estes v. Gunter, 121 U. S. 183 39 Everett v. Robertson, 1 El. & El. 16 238 Ewell v. Daggs, 108 U. S. 143 184 Fargo v. Michigan, 121 U. S. 230 346 Farmers’ Bank of Alexandria v. Hooff, 7 Pet. 168 29 Farmers’ Loan & Trust Co. v. Waterman, 106 U. S. 265 37 Field v. Bigelow, 5 Wall. 211 35 Fort Scott v. Hickman, 112 U. S. 150 238 Fosdick v. Schall, 99 U. S. 235 283 Fourth National Bank v. Stout, 113 U. S. 684, 37 Freeman v. Dawson, 110 U. S. 264 34. Friend v. Wise, 111 U. S. 797 38 Galveston Railway v. Cowdrey, 11 Wall. 459 283 George v. Gardner, 49 Geo. 441 184 Gifford v. Helms, 98 U. S. 248 219 Gifford v. The Republican Valley & Kansas Railroad, 20 Neb. 538 476, 477 Gifford V. -Thorn, 9 N. J. Eq. (18 Stockton) 702 318 Gilman v. Philadelphia, 3 Wall. 713 357 Gloucester Ferry Co. v. Pennsyl- vania, 114 U. S. 196 342, 357 Gordon v. Longest, 16 Pet. 97 515 Graham v. Railroad Co., 3 Wall. 704 14, 17 Grand Chute v. Winegar, 15 Wall. 273 252 Grant v. Norway, 10 C. B. 665 86 Grant v. Phoenix Insurance Co., 106 U. S. 429 114 Green v. French, 11 Fed. Rep. 591 47 Green v. Humphreys, 26 Ch. D. 474; S. C. 53 Law Journ. (N. S.) Ch. 625 239 Greene v. Darling, 5 Mason, 201 253 Gregory v. McVeigh, 23 Wall. 294 526 Gresham v. Potsan, 2 Car. & P. 540 583 Grim v. Weissenberg School Dis- trict, 57 Penn. St. 433 164 Guy v. Baltimore, 100 U. S. 434 345 Hadden v. Collector, 5 Wall. 107 409 Hall v. De Cuir, 95 U. S. 485 357 Harris v. Elliott, 10 Pet. 25 23 Harris v. Gray, 49 Geo. 585 184 Hart v. Henderson, 17 Mich. 218 164 Hassall v. Wilcox, 115 U. S. 598 37 Hauselt v. Harrison, 105 U. S. 401 391 Hawkins v. Berry, 5 Gilman (Ill.) 36 581 Hawley v. Fairbanks, 108 U. S. 543 . 38,298 Hayden v. Smithville Man. Co., 29 Conn. 548 194 TABLE OF CASES CITED. xxiii PAGE Henderson v. Mayor of New York, 92 U. S. 259 357 Henderson v. Wadsworth, 115 U. S. 264 38 Henshaw v. Robbins, 9 Met. 83; C. 43 Am. Dee. 367 581 Herbert v. Butler, 97 U. S. 319 26 Hesper (The), 18 Fed. Rep. 696 265 Hillman v. Wilcox, 30 Maine, 170 583 Hilton v Dickinson, 108 U. S. 165 29 Hine v. Wahl, U. S. S. C. Oct. Term, 1882. 47 Homestead Co. v. Valley Railroad, 17 Wall. 153 176 House v. Fort, 4 Blackford, 293 582 llowcutt v. Bonser, 3 Exch. 491 238 Indianapolis, &c., Railroad v. Horst, 93 U. S. 291 363, 510 Inman Steamship Co. v. Tinker, 94 U. S. 238 357 Insurance Co. v. Foley, 105 U. S. 350 512 Insurance Co. v. Lanier, 95 U. S. 171 26 Insurance Co. v. Sea, 21 Wall. 158 26, 27 Iron Mountain & Helena Railroad v. Johnson, 119 U. S. 608 607 James v. Railroad Co., 6 Wall. 752 14 Jay v. Welchel, Sup. Ct. Georgia, April, 1887 390 Jessie Williamson (The), 108 U. S. 305 29 Jones v. Clifton, 101 U. S. 225 499 Kelly v. Jackson, 6 Pet. 622 510 Kimball v. Evans, 93 U. S. 320 527 King v. Cornell, 106 U. S. 395 209 King v. Riddle, 7 Cranch, 168 235 Laber v. Cooper, 7 Wall. 565 510 Labette County Commissioners v. Moulton, 112 U. S. 217 320 Lasseter v. Ward, 11 Iredell Law, 443 582 Lockwood v. Morey, 8 Wall. 230 63 Lottimer v. Lawrence, 1 Blatch- ford, 613 213 Louisiana v. New Orleans, 102 U. S. 203 295 Lucille (The), 19 Wall. 73 267 Lynch v. Bailey, 110 U. S. 400 38 McComb v. Commissioners of Knox County, 91 U. S. 1 527 McGregor v. Penn, 9 Yerger, 74 581 Mamie (The), 105 U. S. 773 32 Market Co. v. Hoffman, 101 U. S. 112 34 Mattingly v. District of Columbia, 97 U. S. 687 164 Maxwell Land Grant Case, 121 U. • S. 363 „ 371 I PAOX Memphis & Charleston Railroad Co. v. Alabama, 107 U. S. 681 404 Miller v. Hannibal & St. Joseph Railroad, 90 N. Y. 430 87 Mills v. Martin, 19 Johns. 7 555, 556 Milwaukee Railroad Co. v. Soutter, 2 Wall. 440 ; S. C. 2 Wall. 510 17 Milwaukee Railroad Co. v. Soutter, 5 Wall. 660 17 Milwaukee & St. Paul Railway v. Arms, 91 U. S. 489 609 Mining Co. r. Tarbet, 98 U. S. 463 485 Missouri Pacific Railway v. Humes, 115 U. S. 512 609 Mitchell’s Case, L. R. 6 Ch. 822 238 Mobile v. Kimball, 102 U. S. 691 343, 346 Moll wo v. Court of Wards, L. R. 4 P. C. App. 419 151 Montclair v. Ramsdell, 107 Ü. S. 147 283 Moore v. Bank of Columbia, 6 Pet. 86 237 Moore v. Page, 111 U. S. 117 499 Moran v. New Orleans, 112 U. S. 69 346 Morgan v. Rowlands, L. R. 7 Q. B. 493 238 Müller v. Ehlers, 91 U. S. 249 143 Munn v. Illinois, 94 U. Si 113 346 Murdoch v. City of Memphis, 20 Wall. 590 209 Musselman v. Logansport, 29 Ind. 533 164 Myers v. Fenn, 5 Wall. 211 35 National Bank v. Graham, 100 U. S. 699 608 Nesmith v. Sheldon, 6 How. 41 23 Nevada (The), 106 U. S. 154 31 New Jersey Steamboat Co. v. Brackett, 121 U. S. 637 608 New Jersey Zinc Co. v. Trotter, 108 U. S. 564 29 New Process Fermentation Co. v. Maus, 20 Fed. Rep. 725 423 Norris v. Crocker, 13 How. 429 209 North Star (The), 106 U. S. 17 110 Nudd v. Burrows, 91 U. S. 426 363 Ohio & Mississippi Railroad Co. v. Wheeler, 1 Black, 286 401, 403 Oliver v. Alexander, 6 Pet. 143 30, 33, 35 Oneida M’f’g Society v. Lawrence, 4 Cow. 440 581 Opelika v. Daniel, 109 U. S. 108 29 Osgood v. Lewis, 2 Harr. & Gill. 495; S. C. 18 Am. Dec. 317 581, 583 Otts r. Alderson, 10 Sm. & Marsh, 476 581 Ouachita Packet Co. v. Aiken, 121 U. S. 444 346 xxiv TABLE OF CASES CITED. PAGE I Packet Co. v. Catlettsburg, 105 U. S. 55Ö 346 Packet Co. v. Keokuk, 95 U. S. 80 346 Packet Co. v. St. Louis, 100 U. S. 423 346 Pana v. Bowler, 107 IT. S. 529 209 Parker v. Irvin, 47 Geo. 405 184 Paul v. Virginia, 8 Wall. 168 343 i Paving Co. v. Mulford, 100 U. S. 147 37 | Peik v. Chicago & Northwestern Railway, 94 U. 8. 164 346 Pennsylvania Co. v. St. Louis, Alton, &c., Railroad Co., 118 U. S. 290 405 Pensacola Telegraph Co. v. West- ern Union Telegraph Co., 96 U. S. 1 357 I Peyton r. Robertson, 9 Wheat. 527 29 j Philadelphia, Wilmington, &c., Rail- road v. Quigley,21 How. 202 607, 609 j Philips v. Philips, 3 Hare, 281 239 I Phoenix Insurance Co., Ex parte, 117 U. S. 367 38 Phoenix Insurance Co. v. Doster, 106 U. S. 30 411 Pickard v. Pullman Co., 117 U. S. 34 346 Pirie r. Tvedt, 115 U. S. 41 543 Pitman’s Administratrix v. Elder, et al., Georgia Sup. Ct. March, 1886 183 Pollard v. Vinton, 105 U. S. 7 87, 96 Pomeroy r. Bank of Indiana, 1 Wall. 592 26 ' Porter v. Pittsburg Steel Co., 120 U. S. 649 280 j Pratt v. Curtis, 2 Lowell, 87 138 Railroad Commission Cases, 116 U. S. 307 346 Railroad Companies v. Chamber- lain, 6 Wall. 748 17 j Railroad Company v. Harris, 12 Wall. 65 402 Railroad Company v. Husen, 95 U. S. 465 345 , Railroad Company v. James, 6 Wall. 750 17 I Railroad Company v. James et al., 6 Wall. 752 17 Railroad Company v. Koontz, 104 U.S. 5 516 j Railroad Company v. Soutter, 13 Wall. 517 15 Railroad Company v. Swasey, 23 | Wall. 405 114 Railroad Company r. Vance, 96 U. S. 450 403 Railway Company v. Heck, 102 U. S. 120 26 Railway Company v. McCarthy, 96 U. S. 258 510 Railway Company v. Ramsey, 22 Waif. 322 515 PAGE Ralls County v. United States, 105 U. S. 733 318, 319 Randall v. Baltimore & Ohio Rail- road, 109 U. S. 478 194,411 Randon v. Toby, 11 How. 493 237 Reinhard v. Bank of Kentucky, 6 B. Mon. 252 456 Republican Valley Railroad v. Mc- Pherson, 12 Neb. 480 477 Rich v. Lambert, 12 How. 347 31, 33, 35 Richards r. Rough, 53 Mich. 212 194 Riggs v. Johnson County, 6 Wall. 166 318 Rio Grande (The), 19 Wall. 178 32 Roarer (The), 1 Blatehford, 1 267 Robbins v. Shelby Taxing District, 120 U. S. 489 336, 346, 357 Rodd v. lleartt, 17 Wall. 354 33 Root r. Railway Co., 105 U. S. 189 75 Ross v. Prentiss, 3 How. 771 29 Routledge r. Ramsay, 8 Ad. & El. 221 ; N. C. 3 Nev. & Per. 319 238 Russell v. Dodge, 93 U. S. 460 63 Russell c. Stansell, 105 U. S. 303 36 Salt Lake City v. Hollister, 118 U. S. 256 608 Saratoga (The) v. 438 Bales of Cotton, 1 Woods, 75 267 Scarborough v. Pargoud, 108 U. S. 567 365 Schooner Freeman (The) v. Buckingham, 18 How. 182 87 Sehuchardt r. Allens, 1 Wall. 359 582 Schvved v. Smith, 106 U. S. 188 36, 38 Scott v. Lloyd, 9 Pet. 418 26 Seaver v. Bigelows, 5 Wall. 208 34, 35, 36, 38 Sexton v. Wheaton, 8 Wheat. 229 499 Seymour v. Osborne, 11 Wall. 516 66 Sheppard r. Wilson, 6 How. 260 143 Shields r. Thomas, 17 How. 3 32, 33, 38 Sloane v. Anderson, 117 U. S. 275 543 Smith v. Felton, 43 N. Y. 419 254 Spear v. I lace, 11 How. 522 32 Squire, Ex parte, 3 Ban. & Ard. 133 439 Stanley v. Supervisors of Albany, 121 U. S. 535 163 Stanmore (The), 10 P. D. 135 109 Starr v. Bradford, 2 Penn. (P. & W.) 384 449, 450 State r. Garroute, 67 Missouri, 445 299 State r. Hannibal & St. Joseph Railroad, 87 Missouri, 236 298 State v. Morris & Essex Railroad, 23 N. J. Law (2 Zabriskie) 369 607 State v. Rainey, 74 Missouri, 229 318 State ex ret. Cramer r. Judges of the County Court of Cine Girardeau County, 8 West. Rep. 626 298 TABLE OF CASES CITED. XXV PAGE State ex rel. St. Joseph, &c., Rail- road Co. v. Sullivan County, 51 Missouri, 522 571 State Freight Tax, 15 Wall. 232 338, 340, 345 State Tax on Railway Gross Re- ceipts, 15 Wall. 284 338, 340, 342 Stewart v. Dunham, 115 U. S. 61 37, 39 Stewart v. Platt, 101 U. S. 731 391 Stiinpson v. West Chester Railway Co., 3 How. 553 26 Stone v. South Carolina, 117 U. S. 430 515, 516 Stoomvaart Maatschappy Neder- land i>. Peninsular & Oriental Steam Nav. Co., 7 App. Cas. 795 111 Stratton v. Jarvis, 8 Pet. 4 32 Strauch v. Shoemaker, 1 W. & S. 166 449 Stuart v. Wilkins, Doug. 18 582 Supervisors v. Durant, 9 Wall. 415 318 Suydam v. Williamson, 20 How. 427 27 Tameling v. United States Free- hold Co , 93 U. S. 644 371 Telegraph Co. v. Texas, 105 U. S. 460 356, 357 Thompson v. First National Bank of Toledo, 111 U. S. 529 594 Thompson r. Riggs, 5 Wall. 663 26 Thompson v. United States, 103 U. S. 480 318 Tilghtnan v. Proctor, 102 U. S. 707 427 Tornado (The), 109 U. S. 110 266 Transportation Co. v. Parkers- burg, 107 U. S. 691 346, 357 Trice v. Cockran, 8 Grattan, 442 ; 5. C. 53 Am. Dec. 151 583 Tupper Wise, 110 U. S. 398 38 Turner a. Yates, 16 How. 14 26 Unite ! States v. Boutwell, 17 Wall. 6)9 628 Unite I States v. Breitling, 20 How. 252 143 Unite I States v. Briggs, 5 How. 208 23 Unitel States v. Claflin, 97 U. S. 516 209 United States v. County of Macon, 99 U. S. 582 316 United States v. Eliason, 16 Pet. , ²⁹1 557 United States v. Farden, 99 U. S. „¹⁰ 557 I United States r. New Orleans Rail- road, 12 Wall. 362 283 ! PAGE United States v. Tyler, 105 U. S. 244 558 United States v. Tynen, 11 Wall. 88 209 Vicksburg & Meridian Railroad v. Putnam, 118 U. S. 545 363 Von Hoffman v. City of Quincy, 4 Wall. 535 294 Wabash; &c., Railroad v. Knox, 110 U. S. 304 29 Wabash, St. Louis, &e., Railroad v. Illinois, 118 U. S. 557 346, 357 Wade c. Leroy, 20 How. 34 608 Wallace v. Penfield, 106 U. S. 260 390 Walling v. Michigan, 116 U. S. 446 346 Walsh v. Mayor, 111 U. S. 31 237 Walton v. United States, 9 Wheat. 651 143 Wanata (The), 95 U. S. 600 102 Warren v. Moody, 122 U. S. 132 391 Waterville v. Van Slyke, 115 U. S. 290 618 Waterville v. Van Slyke, 116 U. S. 699 23 Watkins, Ex parte, 3 Pet. 193 556 Waugh v. Carver, 2 H. Black. 235 593 Webber r. Virginia, 102 U. S. 344 345 Weed r. Davis, 25 Geo. 684 390 Welton r. State of Missouri, 91 U. S. 275 341, 343, 357 Wetzell v. Bussard, 11 Wheat. 309 236, 237 Whipple v. Miner, 15 Fed. Rep. 117 439 Whitsitt v. Railroad Co., 103 U. S. 770 364 Wilcox v. Jackson, 13 Pet. 498 557 Williams v. Baker, 17 Wall. 144 173, 176 Williamson v. Allison, 2 East, 446 582 VYilliamsport Bank V. Knapp, 119 U. S. 357 23 Wilson v. Berg, 88 Penn. St. 167 456 Winona & St. Peter Railroad v. Blake, 94 U. S. 180 346 Wise v. Withers, 3 Cranch, 331 556 Wolcott v. Des Moines Co., 5 Wall. 681 173, 176 Wolsey v. Chapman, 101 U. S. 755 176, 557 Yeatpian v. Savings Institution, 95 U. S. 764 391 Yeaton v. United States, 5 Cranch 281 ‘ 266 Young v. Martin, 8 Wall. 354 26 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. Tag® 1789, Sept. 24, 1 Stat. 73, Judiciary. Removals......................... 515 1799, March 2, 1 Stat. 677, Customs duties.........................202, 204 1806, April 10, 2 Stat. 367, Articles of war . 555 1823, March 1, 3 Stat. 730, Customs duties 204, 205 1839, March 3, 5 Stat. 353, Patents for inventions 76, 77 1846, Aug. 8, 9 Stat. 77, Grant of land to territory of Iowa.... 169, 171, 172, 174 1856, May 15, 11 Stat. 9, Grant of land to state of Iowa, 171, 172, 173 1861, March 2, 12 Stat. 251, Lands of United States on Des Moines River.................................172, 174 1862, July 12, 12 Stat. 543, Grant of lands to state of Iowa, 172, 175, 176 1863, March 3, 12 Stat. 737, Customs duties..........203, 205, 210 1866, July 26, 14 Stat. 251, Public lands.......................... 485 1867, March 2, 14 Stat. 522, Bankruptcy............................... 137 1870,. July 8, 16 Stat. 201, Patents for inventions....56, 59, 76 1870, July 14, 16 Stat. 262, Customs duties........................ 119 1870, Dec. 22, 16 Stat. 397, Customs duties............................ 119 1872, May 10, 17 Stat. 91, Mineral lands......................... 485 1874, June 22, 18 Stat. 188, Customs duties.........203, 204, 206, 207, 208, 209, 210 1875, Feb. 16, 18 Stat. 316, Appeals to Supreme Court 28, 29, 266 1875, Feb. 18, 18 Stat. 319, Errors in Revised Statutes corrected, 209, 210 1875, March 3, 18...................................Stat. 470, Removal of causes from State to Federal Courts.............................................. 517, 520, 522 1875, Aug. 15, 19 Stat. 200, President given authority to issue pro- clamation in relation to treaty with Hawaiian Islands......................117, 119 1876, Sept. 9, 19 Stat. 666, Proclamation by President in relation to treaty with Hawaiian Islands.... 119 1887, March 3, 24 Stat. 552, Removal of causes from State to Federal Courts............................................................ 517 Revised Statutes. § 639. Removal of causes from State to Federal Courts..514, 618 § 709. Judgments and decrees of state courts on writ of error . 525 § 782. Oath of marshals and deputy marshals......................... 325 § 914. Practice and procedure in other than equity and admiralty causes ................................................. 96 xxviii TABLE OF STATUTES CITED. Revised Statutes (cont.), pagh § 953. Bill of exceptions............................................ 26 § 1008. Time within which appeal to Supreme Court to be taken. 364 § 2320. Mineral lands................................................ 485 § 2499. Customs duties....................... 1..................... 213 § 2504. Customs duties.............................................. 211 § 2839. Customs duties. Forfeiture...................202, 204, 206 § 2841. Customs duties. Oaths to accompany invoice................ 204 § 2845. Customs duties. Oath of manufacturer...................... 205 § 2854. Customs duties. Declaration to accompany invoice..205 §2864. Customs duties. Punishment for making false invoice.. 202, 203, 204, 206, 207, 208, 209. 21'» §4233. Navigation. Rules for preventing collisions.... 104, 105, 10» § 4283. Liability of ship-owner not to exceed his interest.... 101, 104 §4284. General average losses................................... 101, 104 §4285. Transfer of interest of owner to trustee..................101, 104 § 4286. When charterer is deemed owner...........................101, 104 § 4887. Patents for inventions previously patented abroad.... 413 § 4894. Patents for inventions. Limitation............438,439,440 § 4911. Patents. Appeal to Supreme Court of District of Columbia .................................................... 440 §4915. Patents obtainable by bill in equity... .’.................... 440 § 5046. Bankruptcy. What property vests in assignee................. 137 § 5047. Bankruptcy. Right of action of assignee..................... 137 § 5057. Bankruptcy. Time of commencing suits..............219, 389 § 5063. Bankruptcy. Sale of disputed property................... 218, 388 § 5595. What Revised Statutes embrace............................... 208 § 5601. What acts not affected..............................208 (B.) Treaties. 1826, April 26, 8 Stat. 340. Denmark....................................... 118 1858, Jan. 12, 11 Stat. 719. Denmark........................................ 118 1875, Jan. 30, 19 Stat. 625. Hawaiian Islands............................118, 119 (C.) Statutes of the States and Territories. Georgia, 1869, March 16. Limitation of actions........................ 184 Code 1868,§ 1942. Acts void against creditors............... 390 §2620. Gifts void against creditors,...... 390 Illinois, Rev. Stat.(Hurd) ) Denial of execution or assignment of Pract. Act., §34. > instrument in writing.................. 96 Indiana, Rev. Stat. 1881, ( , __ .. «„ aao ’ ’ > Execution, redemption, &c............... 2oZ §§ 770-776. ) ₓ toco t. an ( Keokuk, Fort Des Moines, and Minne- lowa, 1858, March 22.1 __ ( sota Railroad Company.... 1/25 „ . . ₁O,A , - ( Louisville and Nashville Railroad Com- Kentucky, 1850, March 5. ? J 1 pany...................................406,407 ioE-1 ■»< i on i Louisville and Nashville Railroad Com-1851, March 20. I pany........................ 406, 407 TABLE OF STATUTES CITED. xxix Kentucky (cont.), pagb 1882, April 22, 1 T • a- *• to * * * i ’ r > /-Jurisdiction of Court of Appeals.... 526 §§ 5, 7. ) Maryland, 1715, April, 1 Limitations of actions........................234 c. 23, § 2. 1 Minnesota, Gen. Stat. 1878, ) Eₓₑcᵤtion. Intervention.............541, 542 c. 66, § 131. ) S 154 i Claim of property by third persons... 541, S ’ I 542, 543 S 155 / to be inipleaded with sheriff, 542, “ * I 543 . a oo-r o-r 1 Louisiana and Columbia Railroad Com- Missoun. 1837, Jan. 27. / < pany...........................-.... 571 1847 Feb 16 ) Baⁿⁿ*bal and St. Joseph Railroad ( Company........................... 571 1857 Jan 22 ) J°sePb and Iowa Railroad Com- ’ ( pany...........................571, 574 1865 Feb 20 Missouri and Mississippi Railroad ( Company........................... 316 1868, March 21. Branch Railroads.................... 570 1868 March 23 Taxati°n. Subscription to stock of ’ ’I railroads.... 290, 295, 296, 297, 299, 300 1870, March 24. Railroads................571, 573, 574, 575 1871 March 10 i Paxation- Subscription to stock of ( railroads......................... 291 Gen. Stat. 1865, ₅₁ , c. 63, p. 338. i Gen. Stat. 1866, 1 Rₐᵢₗᵣₒₐdₛ........'.............316,317 c. 63, § 17. > Rev. Stat. 1872,1 c. 39, Art. 2, 1 Railroads. 571 § 57. J Rev. Stat. 1879, 1 Tₐₓₐₜᵢₒₙ...................292,294, 295 § 6798. ) § 6799. Taxation................292, 295, 298, 299 § 6800. Taxation....................292, 293, 299 New York, 1883, April 30. Certain assessments legalized......... 163 Pennsylvania, 1779. Survey of lands..................... 444 1781, April 9. Land office......................... 448 1782, April 5. Survey of lands.................... 448 1784. Survey of lands................. 444, 448 1793, Sept. 4. Survey of lands..................... 449 1866 Feb 23 5 Taxes on gross receipts of railroads, 1879, June 7. Taxation of corporations............ 343 Tennessee, 1845 Dec 11 5 Nashville and Chattanooga Railroad ’ ( Company...................... 408, 409 1850 Feb 1 I Louisville and Nashville Railroad Com- 1 pany.............................. 406 XXX TABLE OF STATUTES CITED. Tennessee (coni.), pagb 1850 Feb 9 ( Nashville and Louisville Railroad Com- l pany............................. 406 1851’D c 4 ( Louisville and Nashville Railroad Com- ( pany..........................406,409 1852 Jan 10 i Louisville and Nashville Railroad Com-( pany......................... 410 1855 Dec 15 J Louisville and Nashville Railroad Com- l pany............................. 410 1858 March 20 i Louisville and Nashville Railroad Com-( pany......................... 410 Code, 1884, ) w § 1298 (1166). ) § 1299 (1167). Railroads........................... 412 § 1300 (1168). Railroads........................... 412 txt. . -lorn T? i o i Railroads: sale on foreclosure.... 4, 9, 12, Wisconsin, 1859, Feb. 8. ■> ⁷ ’ ’ ’ I 16, 17 Rev. Stat. 1858,1 ₙ . ¿¿«an ’ > Railroads....... ,.........4, 5, 6, 8, 9 § 33, c. 79. 1 (D.) District of Columbia. 1868, Laws, p. 284. Limitations of actions........... 234 (E.) Foreign Statutes. Great Britain, 21 Jac. I, c. 16, §3. Limitations of actions........... 234 9 Geo. IV, c. 14. Contract. Limitation of time....... 238 Mexico, 1824. Grants of land...................370, 371 CASES ADJUDGED IN THE SUPREME COURT OP THE UNITED STATES, AT OCTOBER TERM, 1886. BARNES v. CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY. APPF.AT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOB THE EASTERN DISTRICT OF WISCONSIN. Argued March 22, 23, 24,1887. — Decided May 23, 1887. If a decree in equity be broader than is required by the pleadings, it will be so construed as to make its effect only such as is needed for the purpose of the case made by the pleadings, and of the issues which the decree decides. The decree entered in accordance with the opinion of this court in James v. Railroad Co., 6 Wall. 752, when properly construed, invalidated the foreclosure of the mortgage made by the La Crosse and Milwaukee Railroad Company to the plaintiff in error only as to the creditors of the company subsequent to the mortgage who assailed it in that suit, but did not affect it as to the rights of the plaintiff in error or of the bondholders secured by the mortgage, which were acquired under that foreclosure. The consent of bondholders required by the statute of Wisconsin to enable the plaintiff in error to commence proceedings for the foreclosure of the mortgage of the La Crosse and Milwaukee Railroad was duly given; and the outstanding bonds which were not actually surrendered and exchanged for stock were held by persons who, in law, must be regarded as consenting by silence to the proceedings, and the present holders took them with full notice of that fact. The plaintiff in error has no title under which he can maintain a bill in VOL. cxxii—1 2 OCTOBER TERM, 1886. Opinion of the Court. equity to take advantage of alleged frauds or irregularities in the foreclosure of prior liens upon the La Crosse and Milwaukee Railroad; or to recover money paid by the Milwaukee and Minnesota Railroad Company to redeem the Bronson and Soutter mortgage of that railroad. In equity. Decree dismissing the bill. Complainant appealed. The case is stated in the opinion of the court. J/r. Francis Fellowes and J/ir. William Barnes in person for appellant. J/z*. John W. Ca/ry for appellee. Mr. Chief Justice Waite delivered the opinion of the court. This is a suit by William Barnes to foreclose a mortgage made to him, as trustee, by the La Crosse and Milwaukee Railroad Company, hereinafter designated as the La Crosse Company. The record shows that this company was incorporated by the legislature of Wisconsin on the 11th of April, 1852, to build and operate a railroad in that State between La Crosse, on the Mississippi River, and Milwaukee, on Lake Michigan, a distance of about two hundred miles. The road was originally regarded by the company and treated as consisting of two divisions — one, called the Eastern Division, extending from Milwaukee to Portage City, a distance of 95 miles; and the other, called the Western Division, extending from La Crosse to Portage City, a distance of 105 miles. The Eastern Division was incumbered by three mortgages, as follows: 1, the Palmer mortgage, so called, to secure an issue of bonds to the amount of $922,000; 2, a mortgage to Greene C. Bronson and James T. Soutter, to secure bonds to the amount of $1,000,000; and, 3, a mortgage to the city of Milwaukee, to secure about $314,000. The Western Division was likewise incumbered: 1, by a mortgage to Greene C. Bronson, James T. Soutter, and Shepherd F. Knapp, known as the land-grant mortgage, to secure bonds to the amount of $4,000,000; and, 2, by a mortgage to Albert Helfenstein, to secure bonds for $200,000. BARNES v. CHICAGO, &c., RAILWAY. 3 Opinion of the Court. Judgments had also been rendered against the company prior to June 21, 1858, as follows: 1. One in favor of Selah Chamberlain, in the Circuit Court of the United States for the District of Wisconsin, on the 2d of October, 1857, for $629,089.72; 2. Another in the same court, on the 7th of October, 1857, in favor of Newcomb Cleveland for $111,727.31; 3. Another in the Circuit Court of Milwaukee County, in the spring of 1858, in favor of Sebra Howard for $25,000; and 4. Another in the last-named court in favor of the Mercantile Bank of Hartford, Conn., on the 12th of June, 1858, for $25,000. On the 1st of June, 1858, the company, being embarrassed by a large floating debt, and by its obligations to persons who had mortgaged their farms to aid in building its road, determined to issue other bonds to the amount of $2,000,000, and secure them by another mortgage on its entire line of road between La Crosse and Milwaukee, subject to the prior mortgage incumbrances. Accordingly the mortgage now in suit was executed to William Barnes, trustee, on the 21st of June, 1858, to secure such an issue. It covered “all the property, real and personal, of said railroad company to be acquired hereafter, as well as that which has already been acquired, together with all the rights, liberties, privileges, and franchises of said railroad company in respect to said railroad from Milwaukee to La Crosse, except its land grant, but subject to all the prior mortgages above referred to.” Afterwards, on the 11th of August, 1858, a mortgage supplemental to this was executed by way of further assurance. The mortgages thus executed contained a provision that if there should be default in the payment of interest for the space of fifteen days, the principal should become due, and the trustee, on the request of the holders of bonds to the amount of $100,000, should advertise and sell the mortgaged property. Afterwards the following judgments were recovered against the company, namely, 1. One in favor of Edwin C. Litchfield, in the District Court of the United States for the District of Wisconsin, October 5, 1858, for $26,353.51; 2. Another in the same court, April 5, 1859, in favor of Nathaniel S. Bouton 4 OCTOBER TERM, 1886. Opinion of the Court. for $7937.37; 3. Another in favor of Philip S. Justice and others, in the Circuit Court of the county of Milwaukee, for $2035.33; and 4. Another in the last-named court, in favor of E. Bradford Greenleaf, September 10, 1858, for $840.86. At the time when the mortgage to Barnes was executed, the Revised Statutes of Wisconsin, § 33, c. 79, provided that, in case of any sale of a railroad “ on or by virtue of any trust deed, or on any foreclosure of -any mortgage thereupon, the party or parties acquiring the title under any such sale and their associates, successors, [and] assigns, shall have and acquire thereby, and shall exercise and enjoy thereafter all and the same rights, privileges, grants, franchises, immunities, and advantages in and by said mortgage or trust deed enumerated and conveyed which belonged to and were enjoyed by the company,” so far as they relate to the property bought, in all respects the same as “ such company might or could have done therefor had no such sale or purchase taken place; such purchaser or purchasers, their associates, successors, or assignors [assignees], may proceed to organize anew and elect directors, distribute and dispose of stock, take the same or another name, and may conduct their business generally under and in the manner provided in the charter of such railroad company, with such variations in manner and form of organization as their altered circumstances and better convenience may seem to require.” Afterwards, on the 8th of February, 1859, an act supplementary to c. 79 of the Revised Statutes was passed, by which it was provided that in case of any sale of a railroad in the State under a deed of trust, or on a foreclosure, if no one bid an amount equal to seventy-five per cent of the mortgage debt, the trustee might bid that amount or more, in his discretion, to the full amount of the debt and interest due, if competition should make it necessary; and that the estate so acquired by the trustee should “be held in trust for the holders of such outstanding bonds or obligations in the same manner as if they had become the purchasers, in proportion to the amount of such bonds or obligations severally held by them.” Laws of Wisconsin, 1859, c. 10, p. 13. BARNES v. CHICAGO, &c., RAILWAY. 5 Opinion of the Court. On the 11th of the same month of February holders of the bonds secured by the mortgage in favor of Barnes, to the amount of more than one hundred thousand dollars, presented to him their request in writing that he proceed to sell under his trust, and that he purchase the property at the sale for the bondholders at the price of seventy-five per cent of the outstanding bonds and past due interest, and more if necessary, not exceeding the full amount of the debt, principal, and interest. Accordingly he advertised the property for sale pursuant to the provisions of his mortgage, and on the 21st of May, 1859, bought it under the authority of the act of February 8, 1859, and the request which had been made, at the price of $1,593,333.33, for the benefit of the bondholders. Two days afterwards he united with certain persons representing themselves to be the owners of bonds to the amount of $1,302,850 in the organization of the Milwaukee and Minne-sota company, hereafter called the Minnesota company, under § 33, c. 79, of the Revised Statutes, to own and operate the railroad, and by the same instrument he transferred his purchase to the company. The capital stock was fixed at $2,500,000, and the articles of organization contained the following provisions in reference thereto: “ Article IV. The stockholders of the said Milwaukee and Minnesota Railroad Company are the holders of the said bonds, secured by the said mortgages or trust deeds, for whose benefit the said sale and purchase was made by the said William Barnes, and such other persons as .shall hereafter associate themselves with them by subscription to the said capital stock or other proper means. “Each holder of the said bonds, upon surrendering his bonds to the proper officer of the said Milwaukee and Minne-sota Railroad Company, shall be entitled to receive a certificate of stock in the company hereby organized of an equal amount with the principal of the bonds so surrendered by him, subject, nevertheless, to the payment in money of theyw rata share of the costs, charges^ and expenses of the said sale and of the organization, and of carrying the same into effect, being the proportion of the whole of such costs, charges, and ex- 6 OCTOBER TERM, 1886. Opinion of the Court. penses as the amount of stock so to be issued shall bear to two millions of dollars. “ Article V. The payment of the said pro rata share of such costs, charges, and expenses is hereby declared to be a charge and lien upon the stock to which each holder of the said bonds is entitled. And the board of directors of the said Milwaukee and Minnesota Railroad Company shall have power to declare the right to such stock forfeited by the nonpayment of such pro rata share of such costs, charges, and expenses in such manner as the said board of directors shall determine.” On the 5th of December, 1859, a bill was filed in the District Court of the United States for the District of Wisconsin, by Bronson and others, trustees, against the La Crosse company, the Minnesota company, Helfenstein, trustee, and Cleveland and Chamberlain, judgment creditors, to foreclose the land-grant mortgage on the Western Division, and on the 9th of the same month a like bill was filed in the same court against the same parties by Bronson and Soutter, trustees, to foreclose the mortgage to them on the Eastern Division. Under the bill for the foreclosure of the land-grant mortgage the Western Division was sold April 25, 1863, to purchasers who organized themselves, pursuant to § 33, c. 79 of the Revised Statutes, into a corporation by the name of the Milwaukee and St. Paul Railway Company, to which the property so purchased was duly conveyed. This company will be hereafter referred to as the St. Paul company. In the suit for the foreclosure of the mortg’affe on the East-ern Division such proceedings were had, that a receiver was appointed, who took possession of the mortgaged property, under an order of the court, and caused it to be operated by the St. Paul company, in connection with the Western Division. Afterwards, on the 18th of July, 1865, it was adjudged in this suit that the Minnesota company, upon the payment of the amount ascertained to be due on the Bronson and Soutter mortgage for interest, be permitted to redeem and take possession of the Eastern Division and the rolling stock which belonged to it. On the 28th of September, 1865, BARNES v. CHICAGO, &c., RAILWAY. 7 Opinion of the Court. a decree was entered finding due upon the mortgage $1,000,000 of principal and $454,937.39 of interest, and ordering a sale of the mortgaged property for its payment, but saving the right of the Minnesota company to redeem in the manner specified in the order of July 18. On the 3d of January, 1866, this company paid into the registry of the court the amount of money required to make the redemption. Thereupon all further proceedings under this suit for foreclosure were stopped, and on the 20th of January, 1866, the Eastern Division and its rolling stock were handed over by the receiver to the possession of the Minnesota company. On the 18th of April, 1866, Frederick P. James, claiming to be the assignee of the judgment against the La Crosse company in favor of Newcomb Cleveland for $111,727.71, which had been recovered prior to the execution of the mortgage to Barnes, commenced a suit in equity in the Circuit Court of the United States for the District of Wisconsin against the Minnesota company, to enforce the lien of that judgment on the Eastern Division, as being superior to the title acquired by the company through the sale under the Barnes mortgage. Such proceedings were had in this suit that, on the 11th of January, 1867, a decree was entered finding due to James on this judgment $98,801.51, and ordering a sale of the Eastern Division for its payment, subject, however, to the hens of the mortgages prior to that of Barnes and to the hen of the Chamber-lain judgment. Under this decree the property was sold and conveyed to the St. Paul company, March 2, 1867, for $100,920.94, and from that time that company has been in possession, claiming title adversely to the Minnesota company and to the Barnes mortgage. On the 20th of April, 1863, while the suit for the foreclosure of the Bronson and Soutter mortgage was pending, and a few days before the sale of the Western Division under the foreclosure of the land-grant mortgage, Frederick P. James and Abram M. Brewer, claiming to be the assignees of the judgments in favor of Edwin C. Litchfield and Nathaniel S. Bouton against the La Crosse company, which had been recovered after the execution of the Barnes mortgage, and Philip 8 OCTOBER TERM, 1886. Opinion of the Court. S. Justice and others, and E. Bradford Greenleaf, also judgment creditors, brought suit in the Circuit Court of the United States against the La Crosse company, the Minnesota company, and Selah Chamberlain, to set aside the mortgage to Barnes and his foreclosure thereunder, and to have the property sold free of that incumbrance for the payment of their judgments. In that suit a decree was rendered July 9, 1868, in accordance with the prayer of the bill, save only that the mortgage was adjudged to be valid to the extent of the bonds that had been actually negotiated by the company to ~bona fide holders. No further proceedings have been had in that suit, and no attempt has ever been made to carry the decree into execution. Such being the conceded facts, Barnes, as trustee, brought this suit in the Circuit Court of the United States for the Eastern District of Wisconsin, on the 6th of June, 1878, against the St. Paul company, which had changed its name to that of the Chicago, Milwaukee and St. Paul Railway Company, the La Crosse company, and the Minnesota company, for the foreclosure of his mortgage. In his bill he alleges, as to the first foreclosure, 1, that it had been actually adjudged, in the suit of James and others, to have been fraudulent and null and void, and that the St. Paul company is estopped from asserting to the contrary, because that suit was brought by its procurement, and was in fact prosecuted by it and in its behalf, although in the names of James and his associates; and, 2, because the bondholders insist that the deeds of trust, “and the powers in trust conferred thereby, remain unimpaired and as they were before said proceedings for sale were had, . . . because they say: “ 1. The said estate was a trust, and a trust can never be terminated without the consent of the cestuis que trust except by its due execution. “2. Because the powers of sale granted by said deeds to your orator are powers in trust, and, not having been executed in conformity with the requirements of the deeds by which they were granted, remain unexecuted. “ 3. Because the said act, c. 79, being repugnant to the Con- BARNES v. CHICAGO, &c., RAILWAY. 9 Opinion of the Court. stitution of the United States, no proper and legal execution of said powers could be made under its authority. “ 4. Because the terms and conditions prescribed by the act were not complied with, and, therefore, even if the act were valid, the said powers still remain powers in trust unexecuted ; ” and it was insisted “ that no number of bondholders less than the whole number entitled to the estate granted to your orator by said deeds of trust as security could, under § 33 of the statute laws of Wisconsin aforesaid, legally organize a corporation and vest in it the title to said estate, and so deprive bondholders not consenting thereto of their security, and that, inasmuch as bondholders to a large amount did not consent to the said sale and organization, the same were null and void.” As to the proceedings in the suits for the foreclosure of the land-grant mortgage, and for the enforcement of the hen of the Cleveland judgment under which the St. Paul company acquired title, the material averment, in the view we take of the case, is, that “the said Minnesota company, so called, had no title to said estate, called the third mortgage, conveyed to him (Barnes) by said deeds of trust, which could be barred by said decree of foreclosure of said land-grant mortgage, or by said decree of foreclosure, in the name of said James, upon the said Cleveland judgment, and that your orator retaining his title to said estate, and not being a party to said foreclosure sales, the said estate has ever remained, and now remains, in him, for the benefit of said cestuis que trust, said decrees and said pretences of the said defendants notwithstanding.” To this bill the St. Paul company filed a plea, setting up the original foreclosure, “with the knowledge, consent, and approval, and at the request of the bondholders ; ” the purchase at the sale by Barnes in trust for the bondholders, in accordance with the provisions of the act of February 8, 1859 ; the organization of the Minnesota company for the purposes and with the powers above stated ; and the transfer of the property thereto. The plea then proceeds as follows : “ That thereupon said bondholders surrendered their said bonds to said corporation to be cancelled, and the same were 10 OCTOBER TERM, 1886. Opinion of the Court. so cancelled, and the said corporation thereupon issued to said several bondholders in exchange for their said bonds the corporate stock of said Milwaukee and Minnesota Railroad Company to an amount equal to the principal of said bonds so surrendered in pursuance of said articles of organization, and which said stock was so received by said bondholders in full satisfaction and payment of their said bonds, and that all of the bonds issued by said La Crosse and Milwaukee Railroad Company under said mortgages or trust deeds were then, at the organization of said Milwaukee and Minnesota Railroad Company, or subsequently thereto, so surrendered to said corporation to be cancelled, and were cancelled, and stock of said company issued therefor. “ That by the proceedings aforesaid the said mortgages or trust deeds so as aforesaid given to said William Barnes were foreclosed, and the right of redemption theretofore existing in the said La Crosse and Milwaukee Railroad Company to redeem said property from the lien of said mortgages or trust deeds was thereby barred and foreclosed, and the said mortgage interest, so as aforesaid conveyed by said mortgages or trust deeds to said William Barnes, became an absolute estate in fee simple to all of the property covered by said mortgages or trust deeds in the said Milwaukee and Minnesota Railroad Company, subject to the prior hens thereon, and that thereby the trust relation to said property created by said mortgages or trust deeds between the said William Barnes and the holders of the bonds issued under said mortgages or trust deeds ended, and- that no trust relation in respect to said property now exists, or has existed, since the filing of said articles of organization between said William Barnes and said bondholders.” It is then alleged that the Minnesota • company was made a party to the several suits under which the St. Paul company claims title; that it appeared therein and “ was recognized and treated as the owner of the equity of redemption of said property by virtue of the aforesaid proceedings; ” and that, “ by means of the proceedings aforesaid, the said William Barnes ceased to have any right, title, or interest as trustee as afore- BARNES v. CHICAGO, &c., RAILWAY. 11 Opinion of the Court. said in, to, or upon or under the said alleged mortgages or trust deeds, and his said bondholders ceased to have any right, title, or interest in, to, or upon the premises described therein and purporting to be affected thereby, and at the time of filing said bill of complaint the said William Barnes had no right, title, estate, lien, claim, demand, or equity of redemption, as trustee or otherwise, of, in, to, or upon the premises described in the said mortgages or trust deeds.” This plea was set down for argument and sustained by the court, whereupon a replication was filed and proofs taken. After hearing, an interlocutory decree was entered April 21, 1882, finding that $1,010,400 of the bonds had been actually exchanged for stock in the Minnesota company; that $693,000 had either been cancelled by the company before their issue, or had been surrendered by their owners for cancellation, and had actually been cancelled, after being issued; and that $37,400, belonging to the St. .Paul company, were then in court, and for which no claim was made under the trust. The total amount thus accounted for was $1,740,880, and as to these, it was adjudged that they constituted no valid claim against the La Crosse company under the mortgage, and that so far as they were concerned, the plea of the St. Paul company was sustained, and Barnes was entitled to no relief. As to the remaining $259,200 of bonds provided for in the mortgage, a reference was made to a master to inquire and report what, if any, were justly due and in equity entitled to payment out of the mortgage security. Under this reference the master took testimony and reported in favor of the following persons and for the following amounts: 1. Matthew H. Robinson, one bond, $100, on which was due for principal and interest..... • $417 55 2. Frederick Van Wyck, assignee of William H. Sis- son, 2 bonds, $1000, on which was due for prin- cipal and interest........... 4,175 50 3. A. S. Bright and A. C. Gunnison, 22 bonds, $10,900, on which was due for principal and interest.............. 45,512 95 12 OCTOBER TERM, 1886. Opinion of the Court. 4. Andrew J. Riker, 8 bonds, $800, on which was 5. due for principal and interest...... 6. August F. Suelflohn, 4 bonds, $800, on which was 7. due for principal and interest...... 3,340 40 8. M. M. Comstock, 2 bonds, $200, on which was 3,340 40 9. due for principal and interest...... 835 10 Mary Christie Emmons, 2 bonds, $200, on which 835 10 was due for principal and interest..... 26,723 20 Reid & Smith, 19 bonds, $6400, on which was 4,593 05 due for principal and interest...... J. H. Tesch, 11 bonds, $1100, on which was due for principal and interest . ....... In all, bonds $21,500---due .... . $89,773 35 To this report exceptions were filed, which the court, after hearing, “ being of opinion that said claims do not constitute under the mortgages ... a valid lien upon the property,” sustained and dismissed the bill. From a decree to that effect this appeal was taken. The ultimate question for determination is whether Barnes, the trustee, and the bondholders secured by the mortgage to him, are bound by the decrees in the suits for the enforcement of the prior liens, namely, the land-grant mortgage, and the Cleveland judgment, to which the Minnesota company was a party. That depends on the legal effect of what was done by Barnes in 1859, for the purpose of foreclosing his mortgage and organizing the Minnesota company to take the property, under his purchase at that sale, in trust for the bondholders. It is now alleged that this was all null and void: 1, because it has been so adjudged in the suit brought by James and others; and, 2, because the act of February 8, 1859, under which Barnes acted in buying at his own sale and organizing the company, was unconstitutional in its application to his mortgage, which was executed before its passage, and the bonds secured thereby. The claim is, that a purchase by Barnes himself at his own sale, without the payment of his bid in money, could not operate as a foreclosure of the mort- BARNES v. CHICAGO, &c., RAILWAY. 13 Opinion of the Court. gage, except with the consent of all the bondholders, which was never given. The sufficiency of the first of these objections is to be determined by the averments in the bill, taken in connection with the exhibits to which they relate. As to the second, the St. Paul company pleads in substance that Barnes, in foreclosing his mortgage and in organizing the Minnesota company after his purchase, acted “ with the knowledge, consent, and approval, and at the request of the bondholders.” 1. As to the decree in the suit of James and others. The copy of the bill in that suit, which is one of the exhibits in this case, shows that it was filed by certain judgment creditors of the La Crosse company to collect their judgments. It is a creditors’ bill, pure and simple, brought by James and his associates, “on their own behalf, and in behalf of all the creditors of the La Crosse and Milwaukee Railroad Company, who have or claim a lien upon the railroad of said company,” and “who shall come in and seek relief by and contribute to the expenses of this suit,” to obtain a sale of “all of the property, real and personal, franchises and privileges of the La Crosse and Milwaukee Railroad Company, or which was theirs at the time of said sale by Barnes, May 21, 1859,” “subject to the prior claims” described in the mortgage to Barnes, “ and that the proceeds of said sale be brought into court, to be divided according to the legal priorities of your orators and the other claimants thereto.” It alleges, in substance, that the mortgage to Barnes was executed “ for the purpose and with the design of bringing about a speedy sale of said road and its franchises, and cutting off the stockholders in said company, and to hinder, delay, and defraud the creditors of the said La Crosse . . . company, and passing the property in or to the road and its franchises to some of the directors of said company and their friends.” The La Crosse company, although nominally a party to the suit, did not appear, and did not ask relief, and there is no pretence that the complainants either did or could prosecute the suit in behalf of the stockholders. If, as is alleged, the St. Paul company was the promoter as well as the real prose- 14 OCTOBER TERM, 1886. Opinion of the Court. cutor of the suit, it is bound only to the extent it would be if it had been actually the complainant. The most that can be claimed in this behalf is, that it stands in the place of the complainants named in the bill, and is bound as they are bound; no more, no less. The decree — which, with the opinion of Mr. Justice Nelson, announcing the judgment of this court in James v. Railroad Company, 6 Wall. 752, is one of the exhibits in this case — adjudges that the mortgage to Barnes was good and valid “ as a security for the bonds issued under it in the hands of bona fide holders for value, without notice,” which, it was found, did not exceed $200,000; that the foreclosure and sale be “ set aside, vacated, and annulled,” and the Minnesota company be “ perpetually restrained and enjoined from setting up any right or title under it,” because it was made in pursuance of a notice claiming that $2,000,000 of bonds had been issued, and there was default in the payment of $70,000 of interest when less than $200,000 had ever been negotiated to bona fide holders, and the foreclosure proceeding was in other respects irregular and fraudulent; and that all the right, title, interest, and claim which the La Crosse company had in the railroad from Milwaukee to Portage City be sold to pay'the judgments in favor of the complainants, “unless prior to such sale the defendants pay to said complainants” the amounts due thereon. Every decree in a suit in equity must be considered in connection with the pleadings, and, if its language is broader than is required, it will be limited by construction so that its effect shall be such, and such only, as is needed for the purposes of the case that has been made and the issues that have been decided. Graham v. Railroad Company, 3 Wall. 704. Here the suit was by and for creditors to set aside the mortgage to Barnes and the foreclosure thereunder, because made and had to hinder and delay them in the collection of their debts. The decree, therefore, although broader in its terms, must be held to mean no more than that the foreclosure was void as to these creditors, whose claims were inferior in right to that of the mortgage, and that the Minnesota company was restrained BARNES v. CHICAGO, &c., RAILWAY. 15 Opinion of the Court. and enjoined from asserting title as against them; and also that, if they undertook to sell the property to pay their judgments, the mortgage to Barnes should stand only as security for such bonds as had been actually negotiated by the La Crosse company to Itona fide holders. Such also was the judgment of this court in Railroad Company v. Soutter, 13 Wall. 517, which was a suit brought by the Minnesota company, June 4, 1869, to recover back the money it had paid to redeem the mortgage to Bronson & Soutter on the Eastern Division, for the reason that the foreclosure of the mortgage to Barnes was fraudulent, and it had been so adjudged in the James suit. In announcing the opinion of the court, Mr. Justice Bradley said, p. 523: “Who are the complainants? Are they not the very bondholders, self-incorporated into a body politic, who, through their trustee and agent, effected the sale which was declared fraudulent and void as against creditors, and made the purchase which has been set aside for that cause ? . . . But the complainants are wrong in asserting that the property was not theirs. It was theirs. Their purchase was declared void only as against the creditors of the La Crosse and Milwaukee Railroad Company. In other words, it was only voidable, not absolutely void. By satisfying these creditors they could have kept the property, and their title would have been good, as against all the world. The property was theirs; but, by reason of the fraudulent sale, was subject to the incumbrance of the debts of the La Crosse company. This was the legal effect of the decree declaring their title void. Therefore, they were, in fact, paying off an incumbrance on their property when they paid into court the money which they are now seeking to recover back.” This being the extent of the legal effect of the James decree, it follows that, if the proceedings by Barnes in 1859 for the foreclosure of his mortgage were sufficient in form, the Minnesota company represented that mortgage, and the holders of the bonds secured thereby, in the suits to which it was a party brought to enforce the prior liens under which the St. Paul company claims title, and that both Barnes, the trus- 16 OCTOBER TERM, 1886. Opinion of the Court. tee, and the bondholders are bound by the decrees therein. The La Crosse company has never disputed the title of the Minnesota company, and the prior lien holders recognized it as good when they proceeded against the company to enforce their respective rights. The property has been lost, not because the foreclosure was invalid, but because it was all needed to satisfy hens which were prior in right to that of the Barnes mortgage, under which alone the company claims title. When the creditors in the James suit undertake to carry their decree into execution it will be time enough to consider how far they are bound by the decrees in the suits for the enforcement of the prior liens which were all obtained and executed pending their litigation with the company. We are now dealing only with Barnes and the bondholders claiming under him. 2. As to the plea. The bill in effect concedes, as is necessarily true, that if all the bondholders consented to a foreclosure under the act of February 8, 1859, the purchase of the property by the trustee for their benefit, and the transfer of title by him to the Minnesota company as their representative, would be good, even though without such consent it might be bad. The plea alleges such a consent, and also an actual exchange of all the bonds for stock in the company. The material question thus presented is, whether the bondholders consented to what was done by the trustee in their behalf. If they did, it matters not that some have omitted to surrender their bonds for cancellation, and take certificates of stock in exchange. If they assented to what was done they became in law purchasers at the foreclosure sale, and, as such, stockholders in the company which Was organized under the statute in their behalf to take the property from their trustee, and that, too, without any formal surrender of their bonds. Their stock was bound for the payment in money of their respective pro rata shares of the costs, charges, and expenses of the sale, and of the organization of the company and of carrying the same into effect. If they wanted certificates of stock, they were required to surrender their bonds and pay what was due from them on this account, but as bondholders, purchasing BARNES v. CHICAGO, &c., RAILWAY. 17 Opinion of the Court. through their trustee, they became by the express terms of the articles of organization stockholders in the new corporation, with a lien on their shares for their proportion of the expenses, &c. The averment in the plea of an actual surrender of bonds for cancellation, and an issue of stock in exchange therefor, presents an immaterial issue. The voluntary exchange of bonds for stock would show a positive assent to the foreclosure, but a failure to do so would not necessarily imply dissent. The exact issue to be tried, therefore, is whether the necessary consent was actually given. The enabling statute was approved February 8, 1859, and on the 11th of the same month, only three days afterwards, the requisite amount of bondholders presented their request to Barnes that he proceed to foreclose the mortgage and buy the property for the bondholders under the authority thus conferred on him for that purpose. In accordance with this request, he advertised the sale, and made the purchase May 21, 1859. Two days afterwards he organized the company, under the statute, to take the title from him as trustee for those in whose behalf he bought. From that time forward, during all the protracted litigation which ensued, this company claimed to own the property, subject only to the incumbrance of prior liens, and neither Barnes nor any bondholder, so far as this record discloses, ever asserted the contrary until after the James suit was decided, when the St. Paul company was in possession under its purchases upon decrees for the enforcement of the prior liens in suits to which the company was a party. During all this time the Minnesota company was active in asserting its title, and its litigation with the prior incumbrancers was constant and energetic, as the records of this court show in Bronson v. La Crosse Bailroad Co., 1 Wall. 405', 8. C. 2 Wall. 283; Milwaukee Railroad C&r-'V. Soutter, 2 Wall. 440; & C. 2 Wall. 510; Graham v. Railroad Co., 3 Wall. 704; Milwaukee Railroad Co. v. Soutter, 5 Wall. 660; Railroad Companies v. Chamberlain, 6 Wall. 748; Railroad Compa/ny v. James, 6 Wall. 750; Railroad Company v. James et al., 6 Wall. 752. The amount of bonds authorized by the mortgage was vol. cxxn—2 18 OCTOBER TERM, 1886. Opinion of the Court. $2,000,000. The proof is abundant that of this amount $1,010,400 were actually converted into stock, and that $730,400 had either been surrendered for cancellation because they had never been issued, or because the holders made no claim against the La Crosse company on their account. The findings of the court below show the particulars as to the whole of these two amounts, and we are entirely satisfied with the correctness of the conclusions there reached. Some of the holders claim that they were persuaded against their own judgment, and, perhaps, against their will, to make the exchange, but still their bonds were actually surrendered and certificates of stock taken in exchange therefor. They kept silent during all the time the litigation with the Minnesota company was going on, and uttered no complaints until after the James suit was decided against their interest then represented by that company. There remained, however, at the time of the rendition of the interlocutory decree below, $259,200 of bonds unaccounted for, and a reference was made to a master to receive claims therefor, and to take testimony and report thereon. Under this reference bonds to the amount of $21,500 were presented to and allowed by the master. Kone of these bonds had been actually surrendered to the company and exchanged for stock, but after a careful examination of the testimony we have no hesitation in deciding that, at the time of the foreclosure, they were held and owned by parties who in law consented thereto, and that the present holders took them with full notice of that fact. Of the amount allowed by the master, Bright & Gunnison alone represent $17,300, although Reid & Smith have a claim on $6400 thereof for money advanced. Both Bright and Gunnison were officers in the Minnesota company, and at times very active in the management of its affairs. Of the bonds which they represent $7500 were owned by William E. Cramer at the time of the foreclosure, and he signed the request to Barnes that he sell the property and buy it for the bondholders under the statute. These bonds were bought by Bright and Gunnison, or some person whom they represent, after this BARNES v. CHICAGO, &c., RAILWAY. 19 Opinion of the Court. suit was begun, Cramer receiving for them $900. The rest of the bonds which they present were undoubtedly owned by them while they were acting as officers of the company, and as such defending the suits for the enforcement of the prior hens, if not at the time of the original foreclosure by Barnes. Suelflohn, who presents a claim for $800, actually owned his bonds at the time of the foreclosure and signed the request that was presented to Barnes. Robertson, who claims $100, was a clerk in the office of Barnes when the bonds were issued, during the foreclosure, and for many years afterwards. He received his bond for services in connection with this business. Mary Christie Emmons claims $200 for bonds she got from her father, one of the original organizers of the company, and named in the articles of organization as one of the directors^ a position which he occupied for several years afterwards. Maria M. Comstock’s claim is for bonds she got from her father, Leander Comstock, who held them at the time of the foreclosure, and who then did and ever since has resided in Milwaukee, and presumably had knowledge of what was being done. Frederick Van Wyck, who claims $1000, is a son-in-law of Bright, and the bonds he presents were bought by him at the suggestion of his father-in-law from William H. Sisson for a small sum after they had been filed as a claim by Sisson himself. Sisson was a lawyer in Chicago, but whether he owned the bonds or held them for others does not appear. Andrew J. Riker, who claims $800, was a broker in New York at the time of the foreclosure and before and after. He owned the bonds he now presents at that time and must have been familiar then with all that occurred, for he held land-grant bonds also, and says that after the foreclosure of that mortgage he laid them aside as of no value, because he “ thought the thing was all closed up.” John H. Tesch, who claims $1100, held his bonds at the time of the foreclosure. He resided then and since in Milwaukee, and was familiar in a general way with all that was done. He knew of the Barnes foreclosure, though he says: “ I did not know that my bonds had anything to do with it; I did not follow that up; it was a common report mentioned in the newspapers, but did not 20 OCTOBER TERM, 1886. Opinion of the Court. know it concerned me.” But before that he had been informed by his counsel that they were good for nothing and would not be paid. Under these circumstances, we cannot do otherwise than decide, that the silence of the holders of these few bonds, during all the time the Minnesota company was acting in their behalf, is equivalent to actual consent to the sale under which the company got the right to represent their interests in the litigation with the prior lien holders. They are the only persons, so far as the record discloses, who did not actually surrender their bonds and take certificates of stock therefor, and it is now too late for them to say that what their trustee did in their behalf was without authority. There cannot be a doubt that they knew of the foreclosure at or near the time it took place. If the purchase was not made for their benefit under the act of 1879, the trustee was accountable to them in money for their proportion of what he bid for the property. For this they never applied, and it must, therefore, be assumed that he bought for their account, as well as that of the other bondholders, and that they assented thereto. It follows that the plea has been sustained by the evidence, and this necessarily disposes of all the other questions in the case. The sale by Barnes to the company under the foreclosure divested him of title and of his right to bring suit in behalf of bondholders. The decree in the James suit did not dissolve the Minnesota company. It simply established the right of the judgment creditors who brought that suit to redeem the Barnes mortgage, by paying the amount due for bonds that had been actually negotiated by the La Crosse company to T)ona fide holders, and to have the mortgaged property sold subject to such a lien. The company still continued in existence and still owned the property that had been bought, subject only to the inferior liens of the creditors whose rights had been established. Neither can Barnes now take advantage of the alleged frauds or irregularities in the foreclosures of the prior liens. He not only has no title under which he could proceed for that purpose, but all such questions were settled and finally disposed STATE BANK v. ST. LOUIS BAIL CO. 21 Statement of the Case. of in the decrees to which the Minnesota company was a party. So, also, of the claim which was made before the master to recover back the money paid to redeem the Bronson and Sout-ter mortgage. That money was paid by the Minnesota company, and that company alone can sue for its recovery. Such a suit was once brought and a decree rendered against the company. The decree of the Circuit Court dismissing the bill was right, and it is consequently Affirmed. STATE BANK v. ST. LOUIS RAIL FASTENING COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS. Submitted April 22, 1887. — Decided May 23,1887. The question whether, upon all the facts specially found by the Circuit Court when a trial by jury has been waived, the plaintiff has the legal right to recover, is not one which can be brought to this court by a certificate of division of opinion. This was an action of assumpsit, brought by a corporation of Missouri against a national bank established in Illinois, to recover the amount of certain checks drawn on the bank in favor of the corporation. Plea, non assumpsit. A jury was duly waived, and the Circuit Court, held by two judges, found and stated in detail certain facts, which may be summed up as follows: About March 1, 1873, the bank was appointed depository for the United States District Court for the Southern District of Illinois, and was informed of the appointment. Shortly afterwards the clerk of that court began to deposit with the bank funds belonging in the registry of the court, and by his direction the bank opened an account with the court. These deposits were at first made to the credit of the particular case 22 OCTOBER TERM, 1886. Statement of the Case. to which the funds belonged, by name and number; but subsequently by the clerk’s direction the name was dropped and only the number was entered on the ticket accompanying each deposit, as well as in the books of the bank and in the clerk’s deposit book, the bank understanding that the numbers referred to the cases in the court. During the years 1879, 1880 and 1881 case No. 2105 was pending on the bankruptcy side of the court, and deposits of moneys realized from the estate of H. Sandford & Co., and belonging in that case, amounting to $38,300, were so made and entered. In May, 1881, four checks, for $2653.41 in all, drawn by the clerk and countersigned by the judge of the District Court, and in the form adopted by the court in its dealings with the bank, were given by the clerk to the plaintiff for dividends on its claims proved in case No. 2105, and were afterwards presented to the bank, and refused payment, and on July 8, 1881, were protested for non-payment. The funds belonging to case No. 2105 that had been deposited with the bank would have been more than sufficient to pay these and all other checks drawn in that case; but the account of the court had been overdrawn to the amount of $43.13, by the bank’s having paid checks in the usual form, including many checks drawn in cases, as indicated by the numbers, in which no deposit had ever been made. The bank always treated the account as an entirety, and paid out of it all the checks drawn against it until the deposits were exhausted. The bank never was furnished with a copy of Rule 28 in bankruptcy, and had no actual knowledge of that rule. The clerk never presented to the court the account and vouchers required by Rev. Stat. § 798, and never made, or was required to make, the monthly report provided for in that rule. The two judges certified to this court that upon these facts they were “ opposed in opinion as to the legal right of the plaintiff to recover on the checks in controversy.” The presiding justice being of opinion that the law of the case was with the plaintiff, judgment was entered accordingly in the Circuit Court, and the defendant sued out this writ of error. STATE BANK v. ST. LOUIS RAIL CO. 23 Opinion of the Court. Hr. Hilton Hay and J/r. Henry S. Greene for plaintiff in error. Hr. C. C. Brown and Hr. George Hunt for defendant in error. Mk Justice Gray, after stating the case as above reported, delivered the opinion of the court. The matter in dispute being less than $5000, the jurisdiction of this court depends upon the certificate of division of opinion, in which the only question certified is whether, upon all the facts found by the court, the plaintiff has the legal right to recover upon the checks in controversy. But the office of a certificate of a division of opinion between two judges in the Circuit Court is to submit to this court one or more points of law, and not the whole case, nor the general question whether upon all the facts, as agreed by the parties in a case stated, or specially found by the court when a trial by jury has been waived, the judgment should be for the one party or the other. In Harris n. Elliott, 10 Pet. 25, one of the questions certified was, “ upon the facts stated, whether the plaintiffs have any right or title to the lands taken for streets, in which the trespass is supposed to have been committed, and can maintain their said action.” This court held that it could express no opinion upon that question, because, as said by Mr. Justice Thompson in delivering judgment, it “ is too general, embracing the merits of the whole case, and does not present any single point or question; and it has been repeatedly ruled in this court, that the whole case cannot be brought here, under the act of 1802, upon such a general question.” The subsequent decisions under the successive acts of Congress upon this subject are uniformly to the same effect. United States v. Briggs, 5 How. 208; Nesmith v. Sheldon, 6 How. 41; Waterville v. Van Slyk.e, 116 U. S. 699; Williamsport Bank v. Knapp, 119 U. S. 357. The necessary conclusion is, that the question certified cannot be answered, and that the Writ of error must l>e dismissed. 24 OCTOBER TERM, 1886. Opinion of the Court. HANNA v. MAAS. EEBOE TO THE CIECUIT COUBT OF THE UNITED STATES FOB THE WESTEEN DISTEICT OF MICHIGAN. Argued April 28,1887. — Decided May 23,1887. No question is presented for the decision of this court by a bill of exceptions which does not state any rulings in matter of law, or any exceptions to such rulings, otherwise than by referring to an exhibit annexed, containing the whole charge of the court to the jury, and notes of a conversation ensuing between the judge and the counsel of both parties as to the meaning and effect of the charge, interspersed with remarks of either counsel that he excepted to that part of the charge which bore upon a certain subject, or to the refusal of the court to charge as orally requested in the course of that conversation. When a bill of exceptions is so framed as not to present any question of law in a form to be revised by this court, the judgment must be affirmed. The case is stated in the opinion of the court. Afr. E. J. Estep for plaintiff in error. J/r. Daniel H. Ball for defendants in error. J/?. A. T. Britton., Air. A. B. Browne and J/r. W. H. Smith were with him on the brief. Mb. Justice Geay delivered the opinion of the court. This action was brought by Maas and others, citizens of Marquette in the State of Michigan, against Hanna and others, commission merchants and citizens of Cleveland in the State of Ohio, upon this contract, signed by the defendants and addressed to the plaintiffs’ agent: “Marquette, Mich., August 22, 1874. We will advance $25.25 per ton on 500 to 1000 tons” (increased by supplemental contract to 2000 tons) “Michigan charcoal pig iron, when delivered at Cleveland.” At the trial the plaintiffs introduced evidence tending to prove that such iron, on which the plaintiffs had advanced $20 a ton, was delivered by them to the defendants on the faith of this contract, and was afterwards sold by the defend- HANNA v. MAAS. 25 Opinion of the Court. ants for less than the amount of the plaintiffs’ advances; and the plaintiffs recovered a verdict for the difference, amounting to $9120.52. A motion by the defendants for a new-trial was overruled, and judgment entered on the verdict, and the defendants sued out this writ of error. The bill of exceptions signed by the presiding judge begins by stating that the parties respectively introduced the evidence shown in an exhibit annexed and marked A. That exhibit appears to contain a report of all the evidence introduced at the trial, with minutes that certain parts of it were objected to. The bill of exceptions then, without even stating that exceptions were taken to the admission of any of the evidence, proceeds and concludes as follows: “And neither party having offered or given further testimony, the cause was argued by counsel; and thereupon the court charged the jury as set forth in the annexed exhibit, marked ‘Charge,’ and refused to charge as therein set forth; to which charges and refusals to charge the defendant at the time excepted, as set forth in said exhibit; and thereupon, after verdict and within the time fixed by the court, the defendant filed his motion for a new trial, which was heard and overruled by the court; to which ruling the defendant at the time excepted, and the court entered judgment upon the said verdict. Thereupon the defendant requested the court to sign and seal this his bill of exceptions, which is here accordingly done within the time limited by the court.” The exhibit marked “ Charge,” in the transcript sent up to this court, consists of three closely printed pages setting forth the whole charge of the judge, followed by as many more pages containing what appear to be a stenographer’s notes of a conversation ensuing between the judge and the counsel of both parties as to the meaning and effect of the charge already given to the jury, but interspersed with remarks of either counsel that he “ excepted,” or “ desired to note ” or “ to preserve” an exception to that part of the charge which bore upon a certain subject, or to the refusal of the court to charge as orally requested by counsel in the course of that conversation. 26 OCTOBER TERM, 1886. Opinion of the Court. The object of a bill of exceptions is to put on record rulings and instructions in matter of law which could not otherwise be a subject of revision in a court of error. The excepting party, in order to entitle himself to such revision, must not only allege exceptions at the trial or hearing, but he must afterwards draw up and hand to the presiding judge those exceptions in writing, stating distinctly and specifically the rulings or instructions of which he complains. 2 Inst. 426; Steph. Pl. (1st Am. Ed.) Ill; Turner v. Yates, 16 How. 14, 29; Insurance Co. v. Sea, 21 Wall. 158. If the exceptions so drawn up by the party in writing are found to be true, they are sealed, or often, in the practice of the federal courts, merely signed by the presiding judge. Herbert v. Butler, U. S. 319; Rev. Stat. § 953. Minutes of the judge or clerk, or notes of a stenographer, cannot take the place of a bill of exceptions, but are only memoranda by the aid of which one may afterwards be drawn up. Pomeroy v. Bwnk of Indiana, 1 Wall. 592; Thomson v. Biggs, 5 Wall. 663; Young v. Hartin, 8 Wall. 354; Insura/nce Co. v. lanier, 95 U. S. 171. The exceptions must be drawn up and settled in proper form in the court below, and cannot be amended or redrafted in this court. Stimpson v. West Chester Railway Co., 3 How. 553. This bill of exceptions has been framed and allowed in disregard of the settled rules of law upon the subject. No ruling upon evidence is open to revision, because none appears to have been excepted to; Scott v. Lloyd, 9 Pet. 418, 442; and the overruling of the motion for a new trial is not a subject of exception. Railway Co. v. Heck, 102 U. S. 120. The bill of exceptions, instead of stating distinctly, as required by law and by the 4th Rule of this court, those matters of law in the charge which are excepted to, and those only, does not contain any part of the charge, or any exception to it, and undertakes to supply the want by referring to exhibits annexed, containing all the evidence introduced at the trial, the whole charge to the jury, and notes of a desultory con ver sation which followed between the judge and the counsel on both sides, leaving it to this court to pick out from those GIBSON v. SHUFELDT. 27 Statement of the Case. notes, if possible, a sufficient statement of some ruling in matter of law. But to assume to do that would be to take upon ourselves the duty of drawing up a proper bill of exceptions, a duty which belonged to the excepting party, and should have been performed before suing out the writ of error. This we are not authorized to do. Our duty and authority are limited to determining the validity of exceptions duly framed and presented. The defendants having failed to reduce their exceptions to such a form that this court can pass upon them, the judgment must be affirmed. Suydain v. Williamson, 20 How. 427; Insurance Co. v. Sea, above cited. Judgment affirmed. GIBSON v. SHUFELDT. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA. Submitted April 11, 1887. — Decided May 23,1887. • In a suit in equity brought in the Circuit Court by two or more persons on several ancl distinct demands, the defendant can appeal to this court as to those plaintiffs only to each of whom more than $5000 is decreed. A debtor having made an assignment of his property to a trustee to secure a preferred debt of more than $5000, other creditors filed a bill in equity in the Circuit Court against the debtor, the trustee, and the preferred creditor; the defendants denied the allegations of the bill, but asked no affirmative relief; and the decree adjudged the assignment to be fraudulent and void as against the plaintiffs, and ordered the property to be distributed among them. Held, that this court had no jurisdiction of an appeal by the defendants, except as to those plaintiffs who had recovered more than $5000 each. This was a motion to dismiss an appeal in equity. The material facts, appearing by the record, were as follows: Jenkins made a deed of assignment of a large amount of property to Watkins, in trust to sell it and to apply the proceeds to the 28 OCTOBER TERM, 1886. Opinion of the Court. payment of his debts, first, to Gibson for more than $20,000, next, to other persons named, and lastly, to his creditors generally. Shufeldt & Co. filed a bill in equity in the Circuit Court against Jenkins, Watkins and Gibson, to have the assignment set aside as fraudulent and void against themselves and other unpreferred creditors of Gibson, and for general relief. The Mill Creek Distilling Company filed a similar bill. The defendants answered severally, denying the allegations of the bills, and praying to be dismissed with costs. By consent of the parties and order of the court, the two bills and intervening petitions of other unpreferred creditors were heard together as one cause. At the hearing upon pleadings and proofs, a receiver was appointed, the assignment was adjudged to be fraudulent and void as to the plaintiffs and petitioners, and the case was referred to a master; and upon the return of his report a final decree was entered for the distribution of the fund in the receiver’s hands, paying $6756.22 to the Mill Creek Distilling Company, $3943.21 to Shufeldt & Co., and a less sum to each of the petitioning creditors. Gibson and Watkins appealed to this court, and the appellees now moved to dismiss the appeal as to all of themselves except the Mill Creek Distilling Company. Mr. Assistant Attorney General Maury (with whom were Mr. William W. Crump and Mr. John A. Coke) for the motion. No one opposing. Me. Justice Geay, after stating the case as above reported, delivered the opinion of the court. The question presented by this motion can hardly be considered an open one. But the subject has been so often misunderstood, that the court has thought it convenient to review the former decisions, and the grounds on which they rest. By the act of February 16, 1875, c. 77, § 3, which differs from earlier laws only in increasing the amount required to give this court appellate jurisdiction from a Circuit Court of the United States, it is necessary that “the matter in dispute GIBSON v. SHUFELDT. 29 Opinion of the Court. shall exceed the sum or value of five thousand dollars, exclusive of costs.” . 18 Stat. 316. The sum or value really in dispute between the parties in the case before this court, as shown by the whole record, is the test of its appellate jurisdiction, without regard to the collateral effect of the judgment in another suit between the same or other parties. Elgin v. Marshall, 106 U. S. 578; Hilton v. Dickinson, 108 U. S. 165; The Jessie Williamson, Jr., 108 U. S. 305; New Jersey Zino Co. v. Trotter, 108 U. S. 564; Opelika v. Da/niel, 109 U. S. 108; Wabash, dec., Railroad v. Knox, 110 U. S. 304; Bradstreet Co. v. Higgins, 112 U. S. 227; Bruce v. Manchester d? Keene Railroad, 117 IT. S. 514. The value of property sued for is not always the matter in dispute. In replevin, for instance, if the action is brought as a means of trying the title to property, the value of the property replevied is the matter in dispute; but if the replevin is of property distrained for rent, the amount for which avowry is made is the real matter in dispute, and the limit of jurisdiction. Peyton v. Robertson, 9 Wheat. 527. When the object of a suit is to apply property worth more, to the payment of a debt for less, than the jurisdictional amount, it is the amount of the debt, and not the value of the property, that determines the jurisdiction of this court. This is well illustrated by two cases, in one of which the appeal was taken by the creditor, and in the other by a mortgagee of the property. In Farmers' Bank of Alexa/ndria v. Hooff, 7 Pet. 168, this court dismissed an appeal from a decree of the Circuit Court for the District of Columbia, dismissing a bill to have land, worth more than $1000, sold for the payment of a debt of less than $1000, which was the limit of jurisdiction, Chief Justice Marshall saying, “ The real matter in controversy is the debt claimed in the bill; and though the title of the lot may be inquired into incidentally, it does not constitute the object of the suit.” In Ross v. Prentiss, 3 How. 771, land worth more, and mortgaged for more, than $2000, was about to be sold on execution 30 OCTOBER TEI^M, 1886. Opinion of the Court. for a debt of a less sum, and a bill by the mortgagee to stay the sale was dismissed. He appealed to this court’ and insisted that its jurisdiction depended on the value of the property and the amount of his interest therein, and that he might lose the whole benefit of his mortgage by a forced sale on execution. But the appeal was dismissed, Chief Justice Taney saying: “ The only matter in controversy between the parties is the amount claimed on the execution. The dispute is whether the property in question is liable to be charged with it or not. The jurisdiction does not depend on the amount of any contingent loss or damage which one of the parties may sustain by a decision against him, but upon the amount in dispute between them; and as that amount is in this case below two thousand dollars, the appeal must be dismissed.” When a suit is brought by two or more plaintiffs, or against two or more defendants, or to recover or charge property owned or held by different persons, (which more often happens under the flexible and comprehensive forms of proceeding in equity and admiralty, than under the stricter rules of the common law,) the question what is the matter in dispute becomes more difficult. Generally speaking, however, it may be said, that the joinder in one suit of several plaintiffs or defendants, who might have sued or been sued in separate actions, does not enlarge the appellate jurisdiction; that when property or money is claimed by several persons' suing together, the test is whether they claim it under one common right, the adverse party having no interest in its apportionment or distribution among them, or claim it under separate and distinct rights, each of which is contested by the adverse party ; that when two persons are sued, or two parcels of property are sought to be recovered or charged, by one person in one suit, the test is whether the defendants’ alleged liability to the plaintiff, or claim to the property, is joint or several; and that, so far as affected by any such joinder, the right of appeal is mutual, because the matter in dispute between the parties is that which is asserted on the one side and denied on the other. In the leading case of Oliver v. Alexander, 6 Pet. 143, upon a libel in admiralty against the owners of a vessel to recover GIBSON v. SHUFELDT. 31 Opinion of the Court. seamen’s wages, and an attachment of the proceeds of the vessel in the hands of assignees, the libellants obtained a decree for the payment out of those proceeds to them respectively of sums less than $1000, but amounting in all to more than $2000, and the assignees appealed. This court, at January term 1832, in a judgment delivered by Mr. Justice Story, dismissed the appeal, for the reasons that the shipping articles constituted a several contract with each seaman to all intents and purposes ; that, although the libel was in form joint, the contract with each libellant, as well as the decree in his favor, was in truth several, and none of the others had any interest in that contract, or could be aggrieved by that decree; that the matter in dispute between each seaman and the owners, or other respondents, was the sum or value of his- own demand, without any reference to the demands of others; that it was very clear, therefore, that no seaman could appeal from the Circuit Court to this court, unless his claim exceeded $2000; “ and the same rule applies to the owners or other respondents, who are not at liberty to consolidate the distinct demands of each seaman into an aggregate, thus making the claims of the whole the matter in dispute; but they can appeal only in regard to the demand of a seaman which exceeds the sum required by law for that purpose, as a distinct matter in dispute.” Upon like reasons, in Rich v. lambert, 12 How. 347, where a libel by several owners of cargo against the ship to recover damages by improper stowage had been consolidated by order of the court with similar libels by other owners of cargo, and a decree entered awarding to the libellants respectively various sums, some more and some less than $2000, but amounting in all to more than $10,000, an appeal by the owner of the ship was dismissed as to all the libellants who had recovered less than $2000 each. Similar decisions were made at October term 1882, in two cases of libels to recover damages to ship and cargo by collision, in one of which the appeal was taken by the libellants, and in the other by the owner of the vessel against which the suit was brought. Ex parte Baltimore & Ohio Railroad, 106 U. S. 5; The Nevada, 106 U. S. 154. See 32 OCTOBER TERM, 1886. Opinion of the Court. also Clifton v. Sheldon, 23 How. 481. In the intermediate case of The Rio Grande, 19 Wall. 178, in which material men joining in a libel in rem had severally recovered in the Circuit Court various sums, a motion by them to dismiss the appeal of the owners of the vessel was not sustained, because the motion was “ to dismiss the appeal ” generally, and not as to those only who had recovered sums insufficient to give this court jurisdiction. The decisions in cases of salvage illustrate the application of the rule to different states of facts. From a decree on a libel for salvage of a ship and cargo, or of several parcels of goods, belonging to different owners, when the salvage demanded against the whole exceeds the jurisdictional Emit, but the amount chargeable on the property of each owner is within it, no appeal lies, either by the salvors or by the owners. Stratton v. Jarvis, 8 Pet. 4; Spear v. Place, 11 How. 522. The reasons for this were summed up by Chief Justice Taney as follows: “ The salvage service is entire ; but the goods of each owner are liable only for the salvage with which they are charged, and have no common liability for the amounts due from the ship or other portions of the cargo. It is a separate and distinct controversy between himself and the salvors, and not a common and undivided one, for which the property is jointly liable.” Shields v. Thomas, 17 How. 3, 6. Because the salvage service is entire, and is the common service of all the salvors acting together, and the salvage awarded is for that service, and the matter in dispute is the amount due the salvors collectively, and it is of no consequence to the owner of the property saved how the money recovered is apportioned among those who have earned it, this court has since decided that the owner of a ship may appeal from a decree against the ship for salvage which exceeds the sum of $5000, although the amount awarded to each salvor is less than that sum. The Connemara, 103 U. S. 754. Upon like grounds, it was held in the case of The Mamie, 105 U. S. 773, that from a decree dismissing a petition to obtain the benefit of the act of Congress limiting the liability of shipowners, the owner of the vessel might appeal, even if GIBSON v. SHUFELDT. 33 Opinion of the Court. the value of the thing surrendered was less than $5000, when the claims against it were for much more than twice that sum in the aggregate, though for only $5000 each; because, as explained in Ex pa/rte Baltimore & Ohio Railroad, 106 U. S. 5, the matter in dispute was the owner’s right to surrender the vessel, and to be discharged from all further liability, and if that right was established, he had nothing to do with the division of the fund thus created among those having claims against it. To the same class may perhaps be assigned Rodd v. Jleartt, 17 Wall. 354, where the appeal, which the court declined to dismiss, was by many creditors, secured by one mortgage for more than $5000, from a decree in rem, postponing that mortgage to claims of material men upon the vessel; but the report, both of the facts and the opinion, is so brief, that it is difficult to ascertain exactly upon what ground the court proceeded. In equity, as in admiralty, when the sum sued for is one in which the plaintiffs have a joint and common interest, and the defendant has nothing to do with its distribution among them, the whole sum sued for is the test of the jurisdiction. The earliest case of that class is Shields v. Thomas, 17 How. 3, in which this court held that an appeal would lie from a decree in equity, ordering a defendant, who had converted to his own use property of an intestate, to pay to the plaintiffs, distributees of the estate, a sum of money exceeding $2000, and apportioning it among them in shares less than that sum. The case was distinguished from those of Oliver v. Alexander and Rich v. La/mbert, above cited, upon the following grounds: “The matter in controversy,” said Chief Justice Taney, “ was the sum due to the representatives of the deceased collectively; and not the particular sum to which each was entitled, when the amount due was distributed among them, according to the laws of the State. They all claimed under one and the same title. They had a common and undivided interest in the claim; and it was perfectly immaterial to the appellant how it was to be shared among them. He had no vol. cxxn—3 34 OCTOBER TERM, 1886. Opinion of the Court. controversy with either of them on that point; and if there was any difficulty as to the proportions in which they were to share, the dispute was among themselves, and not with him. “ It is like a contract with several to pay a sum of money. It may be that the money, when recovered, is to be divided between them in equal or unequal proportions. Yet, if a controversy arises on the contract, and the sum in dispute upon it exceeds two thousand dollars, an appeal would clearly lie to this court, although the interest of each individual was less than that sum.” To the same class belongs Freeman v. Dawson, 110 IT. S. 264, in which the only matter in dispute was the legal title to the whole of a fund of more than $5000, as between a judgment creditor and the grantee in a deed of trust, no question arose of payment to or distribution among the cestuis que trust, and this court therefore took jurisdiction of an appeal by the trustee from a decree in favor of the judgment creditor. In Market Co. n. Hoffman, 101 U. S. 112, in which, upon the bill of a number of occupiers of stalls in a market, a perpetual injunction was granted to restrain the market company from selling the stalls by auction, the reason assigned by this court for entertaining the appeal of the company was that “ the case is one of two hundred and six complainants suing jointly, the decree is a single one in favor of them all, and in denial of the right claimed by the company, which is of far greater value than the sum which, by the act of Congress, is the limit below which an appeal is not allowable.” But in equity, as in admiralty, when several persons join in one suit to assert several and distinct interests, and those interests alone are in dispute, the amount of the interest of each is the limit of the appellate jurisdiction. In Seawer v. Bigelows, 5 Wall. 208, a bill in equity by two judgment creditors for less than $1000 each, against their debtor and a person alleged to have fraudulently obtained possession of a fund of more than $2000 in value, to compel satisfaction of the debts out of that fund, was dismissed, and the plaintiffs appealed. This court dismissed the appeal for lack of jurisdiction, Mr. Justice Nelson saying: “ The judgment cred- GIBSON v. SHUFELDT. 35 Opinion of the Court. itors who have joined in this bill have separate and distinct interests, depending upon separate and distinct judgments. In no event could the sum in dispute of either party exceed the amount of their judgment, which is less than $2000. The bill being dismissed, each fails in obtaining payment of his demands. If it had been sustained, and a decree rendered in their favor, it would only have been for the amount of the judgment of each.” “ It is true, the litigation involves a common fund, which exceeds the sum of $2000, but neither of the judgment creditors has any interest in it exceeding the amount of his judgment. Hence, to sustain an appeal in this class of cases, where separate and distinct interests are in dispute, of an amount less than the? statute requires, and where the joinder of parties is permitted by the mere indulgence of the court, for its convenience, and to save expense, would be giving a privilege to the parties not common to other litigants, and which is forbidden by law.” In that case, indeed, the whole amount of both debts did not exceed $2000. But the opinion, as appears by the reasoning above quoted, and by the reference in it to Oliver v. Alexander and Rich v. Lambert, above cited, was evidently framed to cover two other cases, argued and decided contemporaneously with Seamer v. Bigelows, which do not appear in the official reports, except in this brief note: “ Similar decree made for the same reason in the case of Field v. Bigelow, and in one branch of Myers v. FennP 5 Wall. 211, note. The opinions of Mr. Justice Kelson in those two cases, remaining on file, and published in the edition of the Lawyers’ Cooperative Publishing Company, (Bk. 18, p. 604,) show the following facts: In Field v. Bigelow, the whole amount of debts sued for was more, although each debt was less, than $2000, and Mr. Justice Nelson said, “No one of the three separate and distinct classes of creditors held a judgment exceeding $2000. Neither judgment creditor, therefore, is entitled to an appeal to this court within the statute, as decided in the case of Seaver v. Bigelow.” In Myers n. Fenn, the appeal was dismissed, on the authority of Seaver v. Bigelows, as to creditors whose claims were severally less, but not as to those whose claims were severally more, than that sum. 36 OCTOBER TERM, 1886. Opinion of the Court. So in Russell n. Stansell, 105 U. S. 303, where all the lands within a particular district were assessed to pay a decree against the levee board of the district, and the amount assessed to each owner was less than $5000, and a bill filed by them jointly for an injunction against the collection of the assessment was dismissed, it was held that they could not appeal, because, as observed by the Chief Justice, “their object was to relieve each separate owner from the amount for which he personally, or his property, was found to be accountable,” and “ although the amount due the appellee from the levee district exceeds $5000, his claim on the several owners of property is only for the sum assessed against them respectively.” See also Chatfield v. Boyle, 105 IT. S. 231; Adams v. Crittenden, 106 U. S. 576. The same rule has been applied in many recent cases where the appeal has been taken by the party who had been ordered by the decree below to pay several distinct claims amounting together to more than $5000. In Schwed v. Smith, 106 IT. S. 188, property worth more than $5000 having been taken on execution upon a judgment confessed by the owners in favor of one Heller for more than $5000, subsequent attaching creditors, whose claims were jointly more, but severally less, than that sum, filed a bill in equity against the debtors, Heller and the sheriff, and obtained a decree declaring Heller’s judgment void as against the plaintiffs. An appeal by the defendants was dismissed on motion for want of jurisdiction, the Chief Justice saying, “ It is impossible to distinguish this case in principle from Seaver v. Bigelows, 5 Wall. 208.” “If the decree is several as to the creditors, it is difficult to see why it is not as to their adversaries. The theory is, that, although the proceeding is in form but one suit, its legal effect is the same as though separate suits had been begun on each of the separate causes of action.” “ Although the effect of the decree is to deprive Heller in the aggregate of more than $5000, it has been done at the suit of several parties on several claims, who might have sued separately, but whose suits have been joined in one for convenience and to save expense.” GIBSON v. SHUFELDT. 37 Opinion of the Court. In Farmer^ Loan <& Trust Co. v. Waterman, 106 U. S. 265, the purchasers of a railroad subject to the debts of intervening petitioners appealed from a decree ordering them to pay various sums to the petitioners respectively, amounting in all to more than $5000, and the appeal was dismissed as to those petitioners whose debts were severally less than that sum. And in Hassall v. Wilcox, 115 U. S. 598, a similar decision was made upon an appeal by the trustee in a railroad mortgage from a decree in favor of several creditors claiming prior liens. In Fourth, National Bank, v. Stout, 113 U. S. 684, the court dismissed the appeal of a bank from a decree adjudging that it held property of another corporation in trust for the creditors of the latter, (one of whom had filed the bill, and the others had intervened by leave of court pending the suit,) and directing the bank to pay to the creditors severally sums of less than $5000, amounting in all to more than $5000. In Stewart v. Dunham, 115 U. S. 61, upon a* bill in equity in behalf of judgment creditors, (including some who came in pending the suit,) against their debtor and one to whom he had made a conveyance of property alleged to be fraudulent and void as against his creditors, by the decree below the conveyance was adjudged to have been made to hinder, delay and defraud creditors, with the knowledge and connivance of the grantee, and was cancelled, set aside, and declared to be null and void, and the defendants were ordered to pay out of the property to the plaintiffs respectively various sums, one of which was more and the others less than $5000; and the defendants took an appeal, which was dismissed as to all the creditors except the one to whom more than $5000 had been awarded. Upon the same principle, neither party can appeal from a decree upon a bill by a single plaintiff to enforce separate and distinct liabilities against several defendants, if the sum for which each is alleged or found to be liable is less than the jurisdictional amount. For instance, it was decided in Paving Co. v. Mulford, 100 U. S. 147, that the plaintiff could not appeal from the dismissal of a bill to assert a right against two 38 OCTOBER TERM, 1886. Opinion of the Court. defendants in two distinct certificates of indebtedness, held by them severally, for sums severally less, though together more, than that amount; and in Ex pa/rte Phoenix Ins. Co., 117 U. S. 367, that four insurance companies could not appeal from a decree that each of them should pay $3000 to the plaintiff. In the less frequent instances in which similar questions have arisen in proceedings at common law, the same distinctions have been maintained. Where a writ of mandamus was issued to compel a county clerk to extend upon a tax-collector’s books a sum sufficient to pay several distinct judgments held by different persons, it was held that the case was like Seaver v. Bigelows and Schwed v. Smith, above cited, and the defendant’s right of appeal was determined by the amount of each judgment. Hawley v» Fairbanks, 108 U. S. 543. But where the writ commanded a collector to collect a tax of one per cent upon the property of a county, - which had already been levied for the joint .benefit of all the relators, it was held that the case was like Shields v. Thomas and The Connemara, above cited, and that the right of appeal depended upon the whole amount of the tax. Davies v. Corbin, 112 U. S. 36. In ejectment against two defendants for two parcels of land, if each defendant claims only one parcel, the value of each parcel is the limit of appellate jurisdiction. Tupper v. Wise, 110 IT. S. 398 ; Lynch v. Bailey, 110 IT. S. 400. But if both defendants jointly claim both parcels, the value of both is the test. Friend v. Wise, 111 IT. S. 797. In Henderson v. Wadsworth, 115 IT. S. 264, 276, where, in an action against heirs upon a debt of their ancestor, separate judgments were rendered against them for their proportionate shares, it was held that no one who had been thus charged with less than $5000 could appeal; and Mr. Justice Woods, in delivering judgment, referred to many of the cases above cited, and declared it to be well settled that “ where a judgment or decree against a defendant, who pleads no counterclaim or set-off, and asks no affirmative relief, is brought by him to this court by writ of error or appeal, the amount m GIBSON v. SHUFELDT. 39 Opinion of the Court. dispute on Which the jurisdiction depends is the amount of the judgment or decree which is sought to be reversed,” and that « neither co-defendants nor co-plaintiffs can unite their separate and distinct interests for the purpose of making up the amount necessary to give this court jurisdiction upon writ of error or appeal.” The true line of distinction, as applied to cases like that now before us, is sharply brought out by the recent decisions of Stewart v. Dunham, 115 U. S. 61, and Estes v. Gunter, 121 U. S. 183, in each of which a preferred creditor for more than $5000 was on one side, and general creditors for less than $5000 each were on the other. In Stewart v. Dunham, the suit being brought by the general creditors against the debtor and the preferred creditor to whom the debtor had made the conveyance alleged to be fraudulent, and the latter seeking no affirmative relief, the matter in dispute as between the defendants and each of the plaintiffs was the amount of the claim of that plaintiff; but in Estes v. Gunter, the suit being brought by the preferred creditor against the trustee in the deed of assignment by which he was preferred, and the general creditors being summoned in as defendants, and themselves asking no affirmative relief, the matter in dispute was the value of the debt preferred and of the property assigned to secure the preference. The case at bar is exactly like Stewa/rt v. Dunham. The suit is by the general creditors, only one of whose debts amounts to $5000; the trustee and the preferred creditor appear as defendants only, file no cross bill, and ask no affirmative relief; and the decree sets aside the fraudulent conveyance so far only as it affects the plaintiffs’ rights. The sole matter in dispute, therefore, is between the defendants and each plaintiff as to the amount which the latter shall recover; and the motion to dismiss the appeal of the defendants as to all the plaintiffs except the one whose debt exceeds $5000 must be granted. This result, as we have seen, is in accordance with a long series of decisions of this court, extending over more than half a century. During that period Congress has often legislated 40 OCTOBER TERM, 1886. Statement of the Case. on the subject of our appellate jurisdiction, without changing the phraseology which had received judicial construction. The court should not now unsettle a rule so long established and recognized. Motion gromted. EAMES v. ANDREWS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CONNECTICUT. Argued January 6, 7, 1887. — Decided May 23, 1887. The reissued letters-patent, No. 4372, issued to Nelson W. Green, May 9, 1871, for an improved method of constructing artesian wells, are for the process of drawing water from the earth by means of a well driven in the manner described in the patent, and are for the same invention described and claimed in the original letters-patent issued to Green, January 14, 1868. It is a reasonable inference from the language employed in the original description that the tube, in the act of being driven into the earth to and into a water-bearing stratum, would form an air-• tight connection with the surrounding earth, and that the pump should be attached to it by an air-tight connection. The changes made in the amended specification did not enlarge the scope of the patent, or describe a different invention; but only supplied a deficiency in the original description, by describing with more particularity and exactness the means to be employed to produce the desired result. The omission in the second claim of the words, “where no rock is to be penetrated,” which are found in the first claim, did not change the obvious meaning of the original claim. The reissued letters-patent, No. 4372, to Nelson W. Green, were not for the same subject as the letters-patent issued to James Suggett, March 29, 1864; or those issued to John Goode in England in 1823; nor was the invention patented in them anticipated in any publication referred to in the opinion of the court within the rule as to previous publications laid down in Seymour v. Osborne, 11 Wall. 516; Cohn v. United States Corset Co., 93 U. 8. 366; and Downton v. Yeager Milling Co., 108 U. S. 466. The evidence shows a clear case of infringement on the part of the defendant in error. Bill in equity to restrain an infringement of letters-patent for a driven well. Decree for a perpetual injunction, from which respondent appealed. The case is stated in the opinion of the court. EAMES v. ANDREWS. 41 Opinion of the Court. Mr. C. R. Ingersoll for appellant. Hr. A. Q. Keasbey for appellees. Mr. J. C. Clayton filed a brief for same. Me. Justice Matthews delivered the opinion of the court. This is an appeal from the decree of the Circuit Court of the United States for the District of Connecticut upon a bill in equity filed by the appellees to restrain the alleged infringement of reissued letters-patent No. 4372, issued to Nelson W. Green, on May 9, 1871, for an improved method of. constructing artesian wells. The original letters-patent, No. 73,425, were issued to the patentee January 14, 1868. The defences relied on were that the defendants did not infringe; that the patent was void for want of novelty in the invention; and that the reissued patent was void because it was not for the same invention as that described and claimed in the original patent. The controversy relates to what is commonly known as the “ driven well patent.” As one of the defences is, that the reissued patent is void, as covering more than was described and claimed in the original patent, it becomes necessary to compare the two, and for that purpose they are here printed in parallel columns, the drawings being the same in both: Specification forming part of Specification forming pa/rt of Letters-Patent No. 73,425, Letters-Patent No. 73,425, dated Ja/nuary 14, 1868. dated Ja/nua/ry 14, 1868; Reissue No. 4372, dated May 9, 1871. ORIGINAL. REISSUE. Be it known that I, Nelson Be it known that I, Nelson W. Green, of Cortland, in the W. Green, of Amherst, in the county of Cortland, and state county of Hampshire, and of New York, have invented state of Massachusetts, have a new and useful improvement invented a new and improved in the manner of sinking and method of constructing arte- constructing artesian or driven sian wells; and I do hereby 42 OCTOBER TERM, 1886. Opinion of the Court. wells where no rock is to declare that the following is a be penetrated, and of raising full, clear and exact descrip- Fig. 1. Tig. 3. water therefrom; and I do tion of the same, reference hereby declare the following being had to the accompany- to be a full, clear, and exact ing drawings, forming part of description of the same, refer- this specification. EAMES v. ANDREWS. 43 Opinion of the Court. ence being had to the accom- My invention is particularly panying drawings, making a intended for the construction part of this specification, in of artesian wells in places which --- where no rock is to be pene- trated. Fig. 1 represents a portion The methods of construct- of the rod which is driven or ing wells previous to this in- forced into the ground to form vention were what have been the opening or hole for the in- known as “sinking” and “bo- sertion of the tube that forms ring,” in both of which the hole the casing or lining of the well or opening constituting the and the avenue through which well was produced by taking the water is raised to or above away a portion of the earth the surface of the ground, and or rock through which it was Fig. 2 represents a portion of made. the tube. My invention consists in This invention consists in driving or forcing an iron or producing the well by driving a wooden rod with a steel or or forcing down an instrument iron point into the earth until into the ground until it reaches it is projected to or into the the water, the hole or opening water, and then withdrawing being thus made by a mere dis- the said rod and inserting in its placement of the earth, which place a tube of metal or wood is packed around the instru- to the same depth, through ment and not removed upward which and from which the from the hole, as it is in water may be drawn by any boring. of the usual well-known forms The instrument to be em- of pumps. ployed in producing such a well, which, to distinguish it from “ sunk ” or “ bored ” wells, may be termed a “driven” well, may be any that is capa- ble of sustaining the blows or pressure necessary to drive it into the earth; but I prefer to 44 OCTOBER TERM, 1886. Opinion of the Court. employ a pointed rod, which after having been driven oi forced down until it reaches the water, I withdraw ant replace by a tube made air tight throughout its length except at or near its lowe] end, where I make openings or perforations for the admis sion of water, and througl and from which the watei may be drawn by any well known or suitable form o: pump. In certain soils the use of i rod preparatory to the inser tion of a tube is unnecessary as the tube itself, througl which the water is to b( drawn, may be the instru ment which produces the wel by the act of driving it inte the ground to the requisite depth. To enable others skilled in To enable others to make the art to make and use my and use my invention, I wil invention, I will proceed to proceed to describe it with describe the same with refer- reference to the drawings, in ence to the drawings. which --- Figure 1 represents a por tion of the pointed rod above mentioned, and Fig. 2 a por- tion of the tube which forms the casing or lining of the well. The driving-rod A I con- The driving-rod A I con- struct of wood or iron, or struct of wood or iron or other metal, or of parts of other metal, or of parts oi EAMES v. ANDREWS. 45 Opinion of the Court. each, with a sharp point, Z>, of each, with a sharp point, 6, steel, or otherwise, to pene- of steel or otherwise, to pene- trate the earth, and a slight trate the earth, and a slight swell, a, a short distance above swell, a, a short distance above the point, to make the hole the point, to make the hole slightly larger than the gen- slightly larger than the gen- eral diameter of the rod. This eral diameter of the rod. This rod I drive, by a falling weight rod I drive, by a falling weight or other power, into the earth or other power, into the earth until its point passes suffi- until its point passes suffi- ciently far into the water to ciently far into the water to procure the desired supply. procure the desired supply. I I then withdraw the rod and then withdraw the rod and insert in its place the iron or insert in its place the air-tight wooden tube B, which may iron or wooden tube B, which be slightly contracted at its may be slightly contracted at lower end to insure its easy its lower end to insure its easy passage to its place. In gen- passage to its place. In gen- eral, this tube B I make of eral, this tube B I make of iron, and of a thickness that iron, and of a thickness that will bear a force applied at its will bear a force applied at its upper extremity sufficient to upper extremity sufficient to drive or force it to its place; drive or force it to its place; and where a large or continu- and where a large or continu- ous flow of water is desired, ous flow of water is desired I I perforate this lower end of perforate this tube near its the tube to admit the water lower end to admit the water more freely to the inside. more freely to the inside. The perforations c may be The perforations c may be about one-half of an inch in about one-half of an inch in diameter, less or more, and diameter, less or more, and from one to one and a half from one to one and a half inches apart; and the perfo- inches apart, and the perfora- rations may extend, from the tions may extend, from the bottom of the tube upward, bottom of the tube upward, from one to two feet. The from one to two feet. The di- diameter of the tube should ameter of the tube should be be somewhat smaller than the somewhat smaller than the 46 OCTOBER TERM, 1886. Opinion of the Court. diameter of the swell a on the diameter of the swell a on the drill end of the driving-rod A. drill end of the driving-rod A. In localities where the water In localities where the water is near the surface of the is near the surface of the ground, and the well is for ground, and the well is for temporary use only, as in the temporary use only, as in the case of a moving army, or for case of a moving army or for temporary camps, lighter and temporary camps, lighter and thinner material than iron thinner materials than iron may be used for making the may be used for making the tubes---as, for instance, zinc, tubes --- as, for instance, zinc, tin, copper, or sheet metal of tin, copper, or sheet metal of other kind, or even wood, may other kind, or even wood, may be used. The rod may be of be used. any suitable and practical size The rod may be of any suit- that can be readily driven or able and practical size that forced into the ground, and can be readily driven or forced may be from one to three into the ground, and may be inches in diameter. from one to three inches in diameter. Any suitable well-known In some cases the water will pump may be applied to raise flow out from the top of the the water up through the tube tube without the aid of a to the surface or above it. pump. In other cases the aid of a pump to draw the water from the well may be neces- sary. In the latter cases I at- tach to the tube, by an air- tight connection, any known form of pump. I am aware of James Sug- gett’s patent of March 29, 1864, and I disclaim all se- cured to him therein. Having thus fully described What I claim as my inven- my invention, what I claim tion, and desire to secure by and desire to secure by letters- letters-patent, is--- patent is--- EAMES v. ANDREWS. 47 Opinion of the Court. The herein-described process The process of constructing of sinking wells where no rock wells by driving or forcing an is to be penetrated, viz.: by instrument into the ground driving or forcing down a rpd until it is projected into the to and into the water under water without removing the ground, and withdrawing it earth upward, as it is in bo- and inserting a tube in its place ring, substantially as herein to draw the water through, described. substantially as herein de- The attempts judicially to enforce the rights-claimed under this patent have met with determined resistance, and given rise to extensive litigation, in the course of which the original and reissued patents have been subjected to great scrutiny and criticism. The first reported case is that of Andrews v. Car-mam, 13 Blatchford, 307, decided by Judge Benedict in 1876. That has been followed by Andrews v. Wright, before Judges Dillon and Nelson, 13 Off. Gaz. 969; Hine v. Wahl, before Judge Gresham; Andrews v. Cross, before Mr. Justice Blatchford, then Circuit Judge, 19 Blatchford, 294; Green v. French, before Judge Nixon, 11 Fed. Rep. 591; Andrews v. Creegan, before Judge Wheeler, 19 Blatchford, 113; Andrews n. Long, before Judge McCrary, 2 McCrary, 577; the present case before Judge Shipman, 15 Fed. Rep. 109 ; and Andrews v. Cone, and Andrews v. Hovey, heard before Judges Love, Shiras, and Nelson, 5 McCrary, 181. The case of Hine v. Wahl was argued in this court on appeal at October Term, 1882, the decree below being affirmed by a divided court. The patent has been sustained against all defences made in the cases just mentioned, except in those of Andrews v. Cone and Andrews v. Hovey, 5 McCrary, 181, which are now pending on appeal in this court. The extent of this litigation attests at least the utility of the process supposed to be described in the patent, as it shows and measures the extent of the public demand for its use. This is further shown by the statement of one of the complainants ¹¹¹ the present cause when examined as a witness, who says 48 OCTOBER TERM, 1886. Opinion of the Court. that large numbers of wells constructed according to the process described in the patent are in use in the New England States, New York, Pennsylvania, and most of the Western States, as well as in New Jersey, and probably in every state in the Union; and that from estimates made by agents, welldrivers, and others having an opportunity of knowledge in the matter, it is believed that the number of driven wells throughout the United States is somewhere between five hundred thousand and a million. The wells in general use prior to the date of this patent were of two kinds: 1st, the open, common, dug well, usually walled or boarded or otherwise lined, from which the water which collected in the well was usually lifted by means of a bucket and windlass, or by a pump; and 2d, artesian wells, bored frequently to a great depth by means of drills, chisels, augers, and other such tools, whereby the opening was made into the earth to the water supply. In both kinds the process used was to make an excavation, removing the material through the opening. It was usual in making artesian bored wells to drive down a wooden or iron pipe, open at both ends, having a sharp edge around the circumference of its lower extremity, the earth being taken out from within it. As the driving proceeds, and after it reaches the rock, chisels, drills, and other tools are used to disintegrate the rock, which is taken to the surface through the tube so driven. In the latter case, the tube is inserted into the hole bored for the purpose of preventing the caving in of the sides of the opening. Through that tube the water is drawn, if necessary, by a pump, or otherwise flows in consequence of pressure from the head. The manner in ’which the water is obtained and supplied, by means of these two descriptions of wells, is thus stated, as we suppose correctly, by an expert witness in this case. He says: “Water is supplied to open dug wells only by the force of gravity, and, when the water is pumped from them by the ordinary suction pump, the pressure of the atmosphere is the same on the surface of the water in the well as it is upon the water in the earth surrounding it, and the result is, that EAMES v. ANDREWS. 49 Opinion of the Court. the water in the well itself, being in free space, is more readily forced by the pressure of the atmosphere into the suction pipe of the pump than the surrounding water, which is retarded by friction through the earth, and in consequence the continued operation of the pump soon exhausts the water in the well, which supply can only be replenished by the action of gravity, the pressure of the atmosphere to retard its flow into the well being equal to and counterbalancing the pressure exerted by the atmosphere upon the surface of the water in the earth, and the operation of the pump has no effect upon the water in the surrounding earth to force it into the well; hence the supply to the open dug well is due to and produced only by the action of gravity. “ In the artesian well the same principles govern in regard to the means of supply, when they are not flowing wells, but in consequence of such wells being usually inserted down into rock or like substance until they meet with open fissures in the rock, through which water flows more freely and readily than it does through ordinary compacted earth, sand, &c., which form the water-bearing strata above the rock, a much larger quantity of water is obtained therefrom in proportion to their diameter than is usually obtained from the dug well, unless, as in some cases, the dug wells are carried down into a rock stratum and strike a similar seam in the rock. When artesian wells are flowing wells, the generally received opinion is, that their supply of water comes from a water-bearing stratum lying beneath a stratum practically impervious to water, but which lower stratum extends beyond and crops out at the surface of the earth at a greater or less distance from the well itself, (often many miles away,) and at a considerably higher elevation than the surface of the earth at the well.” The same witness describes the invention, which he supposes to be embodied in the driven well and covered by the patent in suit, as follows: “ I understand the invention to be founded upon the discovery by Colonel Green, that if a pipe which is air-tight throughout its length, except at its upper end and at or near its lower end, where are openings for the admission of water, be inserted vol. cxxn—4 50 OCTOBER TERM, 1886. Opinion of the Court. into the earth, down and into a water-bearing stratum, the pipe within the water-bearing stratum being surrounded and in close contact with the earth, and having a pump of any ordinary construction attached by an air-tight connection to its upper end, thus forming a well, air-tight from its upper end, into and below the surface of the water in the earth, that upon operating the pump so attached and removing the pressure of the atmosphere from the well, the pressure of the atmosphere through thfe earth upon the surface of the water within the earth would force the water into the body of the well with a velocity due to the pressure of the atmosphere, and that the supply of the water to the well directly from the earth surrounding it would be continuous and lasting, so long as water was contained in the stratum of earth with which the lower end of the pipe was in communication, and that the water contained in that stratum could be made directly tributary to the well without regard to the distance to which said wTater-bearing stratum might extend. In other words, that unlike the previously known open wells, either dug or bored, into which the water from the surrounding earth was forced by the action of gravity alone, he could control the delivery of water to a well by this pressure of the atmosphere, which he discovered acted as effectually, through the earth, to force water from the earth into a well from which the pressure of the atmosphere had been removed, as if no earth existed above the surface of the water. “ To utilize this discovery he proposed a method of making a well by simply driving a tube down through the earth into a water-bearing stratum, by which means he secured a close contact of the lower end of his tube with the earth of the water-bearing stratum.” The differences between the wells previously in common use and the driven wells are stated by the same witness as follows: “The distinguishing characteristics of a driven well, as it differs from the dug well, is, that when the pressure is relieved from the interior of the tube which itself forms the body of the well, not only does the force of gravity act to supply it EAMES v. ANDREWS. 51 Opinion of the Court. with water directly from the earth, but there being no intervening body of water between the wall of the well itself and the earth surrounding it, upon which the atmosphere can act directly and with greater effect to force it into the well (as it can and does in the open well), the water is supplied directly to it from the earth surrounding it in a direct inverse ratio to its distance from the well, and the friction of the water through the earth being directly as the square of its velocity, as the distance from the well increases the water moves very much slower than it does immediately next to the well itself; but the area of the source of supply being increased exactly in the ratio of the square of its distance from the well, and the friction being increased exactly as the square of the velocity (in any given stratum), the one exactly counterbalancing the other, it follows that, from natural laws, the surface of the water in the earth surrounding the well is and must be maintained practically at a given level; whereas, in the open well, supplied by gravity only, the water in the earth inclines from the natural surface of the stratum in the earth to the bottom of the well, the angle of that decline decreasing as the supply is taken from the well, and, unless pumping is stopped and time allowed for a resupply, the lowering of the water in the earth extends to a continually increasing distance and a longer time is required to obtain the original quantity in the well, while the supply to the driven well is continuous and steady and practically inexhaustible, the supply in a given time being proportioned in any given soil to the size of the pipe forming the well, having openings proportionate to its size, different wells varying m the supply according to the nature of the soil in which they are inserted, but remaining virtually constant at all times in the same soil. It is not claimed, nor is it a fact, that water can be pumped from a driven well, in any given stratum, with greater ease than from an open well sunk into the same stratum, but the great advantages are that a much larger and more extended supply of water is controlled, and, in consequence of the passage of the water through the earth, under the pressure of the atmosphere, a constant filtration is secured, thus securing both a greater supply and better water. And 52 OCTOBER TERM, 1886. Opinion of the Court. where large and continuous supplies are obtained by unintermitted pumping, for days and weeks at a time, experience has shown that the quantity of water has gradually but perceptibly improved, as in the case of the wells at Belleville, heretofore mentioned, where an amount of water is emptied largely exceeding the rainfall upon the entire territory not shut out from the valley by outcropping rocks upon three sides and open to salt water upon the fourth, and no practical diminution of the height of the water is observed. “ One peculiar characteristic of a driven well, as distinguished from the bored artesian well, is that the driven well is for use in soil where no rock is to be penetrated, and where the pressure of the atmosphere is free to act upon the surface of the water in the earth surrounding it; while the artesian well is usually, if not always, bored into a rock stratum, and is supplied with water through fissures in the rock instead of through the earth itself surrounding the entrance or opening to the well.” In describing the mode of constructing a driven well under the patent, the same witness states that the pipes in general use, which are driven into the ground, have openings for the admission of water into them near the lower end, usually extending up around the sides of the pipe from fifteen inches, sometimes, up to several feet. These holes are about three-eighths of an inch square, over which upon raised rings is placed a screen of perforated brass, having openings of a size giving from one hundred and fifty to three hundred to the square inch. When the pump is first applied to such a pipe, a small amount of mud or sand is at first usually brought up, coming from a greater or less distance from the outside of the tube, but not leaving an open space around the perforations, as these are not large enough to admit of but the smaller particles near the tube. It leaves interstices between the coarser particles in it, and through which the water flows, and which are constantly filled with water. The swell on the point of a driven well tube, shown in the drawing and marked a, is made larger in diameter than the tube itself, or the coupling to the tube, for the reason, as stated, that there is a certain elasticity in the soil, which, EAMES v. ANDREWS. 53 Opinion of the Court. after driving a certain sized instrument into it, causes the hole to contract after the point passes, and it was thus found necessary to make the point somewhat larger than even the couplings of the pipe, for the purpose of partially relieving the pipe and couplings from the great friction resulting from their passage through the hole thus contracted. After reaching a waterbearing stratum of the earth, the earth at once settles around the point and tube, even more rapidly and effectually than it does above the water stratum, and the hole made by driving an instrument into a water-bearing stratum and withdrawing it will remain intact but a very short time, unless that stratum is composed of gravel and similar substances, thus leaving the entrance to the pipe in close contact with the earth and effectually protecting the entrance from the admission of air or free water standing between the pipe and the earth surrounding it. The effect, therefore, of this feature of the tube is more effectually to make air-tight the point or lower part of the tube. The scientific theory stated by the expert witness on behalf of the complainants, as an explanation of the principle according to which the patented process operates in furnishing a supply of water by means of a driven well, is not contradicted or qualified by any opposing testimony, and, so far as we can know, is not inconsistent with accepted scientific knowledge. The general introduction and use of driven wells since the date of the patent, both in this country and abroad, strongly corroborates the supposition that their construction and operation is based upon the application of some natural force not previously known or used. It appears from the evidence in this cause, that the process of making driven wells was subjected to experimental tests by the best authorities in England, and found so successful that it was used to great advantage in the supply of water to British troops in the Abyssinian expedition under General Napier, in 1867. In view of these premises, Judge Benedict, in Andrews v. Carman, 13 Blatchford, 307, 311, construed the patent in suit according to the following extracts from his opinion in that case: {The difference between the new process under consideration and the old is, that the pressure of the atmosphere. 54: OCTOBER TERM, 1886. Opinion of the Court. which, in the ordinary well, operates at the sides and bottom of the well pit to maintain an equally distributed atmospheric pressure upon the water, whereby the flow of water into the well is made dependent upon the force of gravity, in the new process is removed from within the well pit, and ceases there to operate against the inward flow of water, so that the pressure of the atmosphere operates with its full power to force the water in the earth from the earth into the well pit, and without any opposition caused by meeting, in its flow, the pressure of the atmosphere at the sides or bottom of the pit. This process involves a new idea, which was put to practical use when the method was devised of fitting tightly in the earth, by the act of driving without removing the earth upwards, a tube, open at both ends, but otherwise air-tight, and extending down to a water-bearing stratum, to which is attached a pump, a vacuum in the well pit, and at the same time in the waterbearing stratum of the earth, being necessarily created by the operation of a pump attached to a pipe so driven. ***** “ The novelty of the process under consideration does not he in a mechanical device for sinking the shaft or raising the water to the surface, but in the method whereby water, by the use of artificial power, is made to move with increased rapidity from the earth into the shaft, whence it results, that a tube but a few inches in diameter, driven down tightly to a waterbearing stratum of the earth, affords an abundant supply of water to a pump attached thereto, and constitutes a practical and productive well. Such an invention is without the field of mechanical contrivance. It consists in the new application of a power of nature, by which new application a new and useful result is attained. There is no new product, but an old product — water — is obtained from the earth in a new and advantageous manner. * * * * * “ In the specification we find stated more clearly the distinguishing feature of the process, wherein it differs from any process before adopted for procuring a supply of water from the earth; for the specification says that an instrument is to EAMES v. ANDREWS. 65 Opinion of the Court. be driven into the ground until it reaches water, having the earth tightly packed around it. It is by means of this packing of the earth tightly around the tube that the force developed by the creating of the vacuum in the well pit is brought to bear directly upon the water lying in the water-bearing stratum, to force it into the well pit ; and this driven tube forms the well pit of the new invention, for, as stated, it is to be a tube made airtight throughout its length, except at its lower end, where are to be perforations for the admission of water, and through and from which the water may be drawn by a pump. The specification also mentions the vacuum, and points out where it is to be created, for a vacuum must of necessity be formed in the well pit and in the water-bearing stratum, by operating a pump attached to such a tube, so driven into the earth. ***** “ I therefore understand this patent to be a patent for a process, and that thé element of novelty in this process consists in the driving of a tube tightly into the earth, without removing the earth upwards, to serve as a well pit, and attaching thereto a pump, which process puts to practical use the new principle of forcing the water in the water-bearing strata of the I earth from the earth into a well pit, by the use of artificial power applied to create a vacuum, in the manner described.” Assuming this construction of the patent to be correct, it is, however, now contended on behalf of the appellant that the reissue is void because the invention described in it is not con-i tained in the original patent. It is to be observed that the scientific theory and principle, the application of which is supposed to constitute the invention of Colonel Green, are not set forth either in the original or reissued patents. This feature was commented upon by Mr. I Justice Blatchford in Andrews v. Cross, 19 Blatchford, 294, I 305, as follows : “ It may be that the inventor did not know what the scientific principle was, or that, knowing it, he I omitted, from accident or design, to set it forth. That does I not vitiate the patent. He sets forth the process or mode of I operation which ends in the result, and the means for working I out the process or mode of operation. The principle referred 56 OCTOBER TERM, 1886. Opinion of the Court. to is only the why and the wherefore. That is not required to be set forth. Under § 26 of the act of July 8, 1870, 16 Stat. 201, under which this reissue was granted, the specification contains a description of the invention and of ⁱ the manner and process of making, constructing, compounding, and using it,’ in such terms as to enable any person skilled in the art to which it appertains to make, construct, compound, and use it; and, even regarding the case as one of a machine, the specification explains the principle of the machine, within the meaning of that section, although the scientific or physical principle on which the process acts when the pump is used with the air-tight tube, is not explained. An inventor may be ignorant of the scientific principle, or he may think he knows it and yet be uncertain, or he may be confident as to what it is, and others may think differently. All this is immaterial, if by the specification the thing to be done is so set forth that it can be reproduced.” The particulars relied on to establish the proposition that the reissued patent describes a different invention from that contained in the original are as follows: 1st. It is said that it is essential to the success of the process that the end of the tube should form an air-tight connection with the surrounding earth; that the tube itself should be air-tight, and attached to a pump with an air-tight connection; which elements are set out in the reissued patent, and are not contained in the original. Upon this point, speaking of the original patent, Judge Shiras, in the Circuit Court for the Southern District of Iowa, in Andrews v. Hovey, 5 McCrary, at page 195, said: “He describes a driving-rod, having a swell thereon, which is to be driven into the ground and then withdrawn, and a tube of a diameter somewhat smaller than the diameter of the swell of the drill-rod is to be inserted in the hole thus made. In no part of the description is it said, either expressly or by fair implication,.that the tube, when inserted, must fit so closely into the opening made by the rod that no air can pass down on the outside of the tube to the water, nor is it stated that the pump must be attached by an air-tight connection to the EAMES v. ANDREWS. 57 Opinion of the Court. top of the tube. A person can follow with exactness all the instructions therein given, and yet it would not necessarily follow that he had excluded the air from the lining of the well, or from the water-bearing stratum at the place where the tube penetrated the same. In other words, the description of the means to be employed, as set forth in these specifications, does not show that one of the results arrived at is to render the lining of the well air-tight, and to have attached thereto a pump by an air-tight connection. The description of the means to be employed can be carried out in practice without making an air-tight lining or tube, and hence without forming a vacuum around the bottom of the tube, or in it. This being true, it follows that it cannot, from the description of the means employed, be inferred that Colonel Green then intended to claim, as part of his discovery or invention, the application of the principle that by creating a vacuum in and about the tube, the same having been made air-tight, the flow of water would be largely increased. He did not claim it in express words, and the description of his invention, and the means to be used in carrying the same into practical use, fail to show that such was the main or even a necessary part of his invention.” To this view there are two sufficient answers. 1st. We think it is a reasonable inference, from the language employed in the specification of the original patent, that the tube, in the act of being driven into the earth, to and into a water-bearing stratum, would form an air-tight connection with the surrounding earth, and that the pump should be attached by an air-tight connection. This inference reasonably follows from the fact, shown in the evidence, that the mere act of driving the tube, as distinguished from boring, usually results in making an air-tight connection with the surrounding earth. The necessary effect of driving the tube is to displace the earth laterally by compressing it; and the elasticity of the earth is such as to cause it to cling and contract around the tube so as to exclude the air, so that any one following the directions in the specification of the original patent would in fact usually so drive the tube as to make the necessary air- 58 OCTOBER TERM, 1886. Opinion of the Court. tight connection, whether he consciously intended to do so or not. As the object of applying a pump to the upper orifice of the tube was to draw the water flowing into its lower end, it would equally follow, as a matter of common knowledge, both that the tube itself should be air-tight, and that it should be attached to the pump with an air-tight connection, because a vacuum in the tube is necessary to raise the water in all cases where it does not flow out in consequence of the superior height of its source, and the consequent pressure of the head. The precise objection to the reissued specification is, that it states that the tube which is to replace the driven rod is “ made air-tight throughout its length,” and also that in cases where the aid of a pump to draw the water from the well may be necessary, the patentee attaches “ to the tube by an air-tight connection any known form of pump; ” and that the original specification does not state that the tube is made air-tight throughout its length, nor that the pump is to be attached to the tube by an air-tight connection, but only states that “ any suitable well-known pump may be applied to raise the water up through the tube to the surface or above it.” It appears, however, in evidence, that the patentee, when applying for his reissue, with the text of the specification reading as it does now, applied to have granted to him a second claim in these words: “ I also claim, in combination with a tube driven well, an attachment of a pump to the tube by an airtight connection substantially as herein set forth;” that the Patent Office rejected this second claim, assigning its reasons in these words: “ The second clause is for a pump attached to a tube by an air-tight connection. This is indispensable to the operation of a pump, and a universal right. Whenever a supply of water is found, a pump may be applied without new invention; ” that, in a subsequent communication by the Patent Office to the patentee, the office, in speaking of this proposed second claim, said: “ This device is of universal use in artesian well tubes and other connections, and is a necessity in the relation of pumps to well tubes; ” and that the patentee afterwards withdrew the proposed second claim. As the air-tight connection was indispensable to the opera EAMES v. ANDREWS. 59 Opinion of the Court. tion of a pump, it was implied of necessity in the original specification, as much so as if it had been expressed, and there was no enlargement of the invention in stating the fact in the reissued specification. In view of all this, it is also fairly to be implied, from the entire language of the original specification, that the tube was intended to be air-tight throughout its length. As that specification states that the water is to be raised up through the tube to the surface by the pump, and as an air-tight connection at the junction of the pump with the tube was “ indispensable to the operation of the pump,” so it was equally a necessity to the perfect operation of the apparatus that the tube should be air-tight throughout its length, these facts being both of them common knowledge in the art. 2d. But even if this were not so, the case would be simply that of a specification defective for not containing a full and perfect description of the process intended to be patented. It presents the very case of the right secured to a patentee by § 53 of the act of July 8,1870, which provides, “ that whenever any patent is inoperative or invalid by reason of a defective or insufficient specification, ... if the error has. arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, the Commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a new patent for the same invention, and in accordance with the corrected specification, to be issued to the patentee,” &c. If the amended specification does not enlarge the scope of the patent by extending the claim so as to cover more than was embraced in the original, and thus cause the patent to include an invention not within the original, the rights of the public are not thereby narrowed, and the case is within the remedy intended by the statute. Those cases in which this court has held reissues to be invalid were of a different character, and were cases where by the reissued patent the scope of the original was so enlarged as to cover and claim as a new invention that which was either not in the original specification, as a part of the invention described, or, if described, was, by 60 OCTOBER TERM, 1886. Opinion of the Court. not being claimed, virtually abandoned and dedicated to public use. Such is not the present case. Here the amended specification does not enlarge the scope of the original invention as described in the original specification. It simply, in this respect, supplies a deficiency, by describing with more particularity and exactness the means to be employed to produce the desired result. It is thus said, in the specification of the reissued patent, that “this invention consists in producing the well by driving or forcing down an instrument into the ground, until it reaches the water, the hole or opening being thus made by a mere displacement of the earth, which is packed around the instrument, and not removed upward from the hole as it is in boring; ” and “ I prefer to employ a pointed rod, which, after having been driven or forced down until it reaches the water, I withdraw, and replace by a tube made air-tight throughout its length, except at or near its lower end, where I make openings or perforations for the admission of water, and through and from which the water may be drawn by any well-known or suitable form of pump; ” and “ In certain soils the use of a rod preparatory to the insertion of a tube is unnecessary, as the tube itself, through which the water is to be drawn, may be the instrument which produces the well by the act of driving it into the ground to the requisite depth; ” and “ In some cases the water will flow out from the top of the tube without the aid of a pump. In other cases, the aid of a pump to draw the water from the well may be necessary. In the latter cases, I attach to the tube, by an air-tight connection, any known form of pump. ” There is nothing in these additions and amendments which either was not virtually contained by reasonable implication in the original description, or, if new, amounted to more than specific and exact directions to supplement those contained in the original. The invention is not differently described, and is not described so as to be a different invention, nor is the claim enlarged. In the second place, however, under this head, a material alteration from the original, in the amended specification, is EAMES v. ANDREWS. 61 Opinion of the Court. said to have been made in the following respect: The original specification starts out with a declaration that the patentee has “ invented a new and useful improvement in the manner of sinking and constructing artesian or driven wells, where no rock is to be penetrated, and of raising water therefrom; ” and the claim is stated to be “ the herein described process of sinking wells where no rock is to be penetrated,” &c. In the specification of the reissued patent, he says: “ My invention is particularly intended for the construction of artesian wells in places where no rock is to be penetrated; ” and the claim is for “ the process of constructing wells by driving or forcing an instrument into the ground until it is projected into the water, without removing the earth upward, as it is in boring, substantially as herein described; ” from which, it will be observed, are omitted the words “ where no rock is to be penetrated.” It is, therefore, contended, that the effect of this amendment to the specification and claim is to enlarge the scope of the patent, so as to cover by the reissued patent the process of constructing driven wells, whether rock is to be penetrated or not, while the original patent was expressly limited to cases where no rock was to be penetrated. We do not, however, so understand either the reason or the effect of these amendments. It is perfectly evident, from the nature and description of the invention, that a driven well cannot be made where, through its whole course, the formation is rock, or where the supply of water to be utilized is found in the fissure of a rock formation. This is so for the reason that the tube cannot be driven through rock. Rock must be bored by drills, augurs, chisels, and other similar instruments for perforating it and withdrawing the comminuted particles. So, where the supply of water which must he utilized consists of a flowing stream, or a pool, found in a rock formation, the point of the driven rod or tube cannot be inserted by driving, as described in the patent, so as to foijm the air-tight connection necessary to the successful operation of the principle on which the process of the patent depends. Therefore, it follows from the amended specification and the claim of the reissued patent, by the necessity of the case, as expressly declared in the original, that a driven well cannot be constructed in a rock formation. 62 OCTOBER TERM, 1886. Opinion of the Court. On the other hand, it does not follow, either from the amended or the original patent, that a driven well, according to the process described, may not be constructed and operated, notwithstanding in its construction some rock has to be penetrated. There may be a layer of rock on the surface; when this is removed or cut through, a driven well may then be constructed in the space thus uncovered from the obstruction. So, if a stratum of rock is met in the course of driving the rod or tube, that layer may be penetrated, not by driving the rod or tube through it, but by other usual means of boring and drilling. After it is passed, the rod or tube having been inserted in the opening made through the rock, may then be driven in the usual manner through the remainder of its course until it reaches a water-bearing stratum of earth, as if no rock had been met in its passage. The object and purpose of the amendments to the specification obviously were to meet a possible construction of the original, whereby the patentee would be precluded from the use of his process where it was evidently intended to be applied, simply because one or more strata of rock had to be penetrated in the process of driving. Such, in our opinion, is not the meaning of the original patent. Its true meaning is, that, so far as it may be necessary to penetrate a rock in the course of constructing a well, the process of driving cannot be used to overcome the obstacle presented by the rock, but that otherwise the tube may be driven until it reaches the proper supply of water, and then operate as a driven well. The only effect of the amendments contained in the new specification and claim is to make that intention clear. So far as, in the course of constructing a well, rock must be penetrated, the driven well process cannot be used in the perforation of the rock, but in every other part of its course it may be applied. Such, in our judgment, is the legal effect of both the original and the reissued patents. In our opinion, therefore, the grounds on which it is sought to invalidate the reissued patent, as being for a different invention from that described in the original, cannot be sustained. EAMES v. ANDREWS. 63 Opinion of the Court. This conclusion is not in conflict with anything said in Russell v. Dodge, 93 U. S. 460, 463. Mr. Justice Field, in delivering the opinion of the court in that case, referring to the provisions of the statutes in reference to reissues, said: “According to these provisions a reissue could only be had where the original patent was inoperative or invalid, by reason of a defective or insufficient description or specification, or where the claim of the patentee exceeded his right; and then only in case the error committed had arisen from the causes stated. And as a reissue could only be granted for the same invention embraced by the original patent, the specification could not be substantially changed, either by the addition -of new matter or the omission of important particulars, so as to enlarge the scope of the invention as originally claimed. A defective specification could be rendered more definite and certain so as to embrace the claim made, or the claim could be so modified as to correspond with the specification; but, except under special circumstances, such as occurred in the case of Lockwood v. Morey, 8 Wall. 230, where the inventor was induced to limit his claim by the mistake of the Commissioner of Patents, this was the extent to which the operation of the original patent could be changed by the reissue. The object of the law was to enable patentees to remedy accidental mistakes, and the law was perverted when any other end was secured by the reissue.” And this is in harmony with all that has since been said by this court on the subject of reissued patents. It is further contended on the part of the appellant that the reissued patent in suit is void for want of novelty: 1. Under this head, it is first alleged that it is anticipated by a patent granted to James Suggett, March 29, 1864. In the specification of the original patent of Green, of January 14,1868, he says: “ I am aware of James Suggett’s patent of March 29, 1864, and I disclaim all secured to him therein.” The reissued patent omits that disclaimer. After the application for the reissued patent, as appears by the contents of the file wrapper, an interference was declared, to which the parties were Byron Mudge, for a reissue of his patent for a mode of 64 OCTOBER TERM, 1886. Opinion of the Court. constructing wells, and the above named patent of James Sug-gett, for putting down and operating bored wells, and the application of Colonel Green. The matter was carried by appeal from the decision of the Commissioner of Patents to the Supreme Court of the District of Columbia. The judgment of that court was, that Suggett was entitled to priority of invention in regard to what was claimed by him in his patent, and that Colonel Green was also entitled to have a patent issued to him according to his amended specification. The decision of the judge of the Supreme Court of the District of Columbia says: “ I am clearly of opinion that Green first put into practice the conception of making a driven well, and is entitled, therefore, to his patent for the broad claim of sinking wells by driving down the pump or rod without removing the dirt upward, and that Suggett was entitled to a patent for the perforated pipe and point for sinking wells, and I therefore affirm the decision of the Commissioner.” Suggett’s patent, on the face of his specification, is for a “ new and improved method of putting down and operating bored wells,” and all that his claim covers is the apparatus consisting of the perforated pipe with a pointed end, constructed as a drill, and united with a pump. The subjects of the two patents are quite different, and do not necessarily conflict, even on the supposition that Suggett’s patent is in force, although, as testified in this case, it has been judicially declared to be invalid for want of novelty. 2. An anticipation of the driven-well patent is also alleged by reason of an English patent granted to John Goode, August 20, 1823. That patent, however, like that of Suggett’s, does not profess to be a patent for a process of raising water from the earth by means of wells of any particular construction or mode of operation, but merely for “ certain tools of various formation for the purpose of boring the earth, and certain apparatus for the purpose of raising water,” which the patentee says “ constitute my certain improvements as aforesaid.” 3. It is further contended that the driven-well patent is anticipated by having been previously described in numerous printed publications. Of these there were introduced in evi- EAMES v. ANDREWS. 65 Opinion of the Court. deuce in this cause by the appellant those enumerated in the following list : 1. An extract from vol. 4, “ Repertory of Patent Inventions,” published in London in 1827, by T. & G. Underwood, p. 113, which, however, merely contains a detailed description of the machinery, tools, and apparatus for boring the earth, described in John Goode’s patent of August 20, 1823. 2. Extract from “Dictionary of Arts, Manufactures, and Mines,” by Andrew Ure, published in New York in 1847, by D. Appleton & Co., p. 63, under the head of “ Artesian Wells.” 3. Extract from p. 388 of “ MacKenzie’s 5000 Receipts in All the Useful and Domestic Arts,” first published in 1840. 4. Extract from “ Rees’ Cyclopædia,” vol. 40, published at Philadelphia by Samuel F. Bradford, about 1819, title “Well in Rural Economy.” 5. Extract from “ Journal of the Franklin Institute,” third series, published at Philadelphia, by the Franklin Institute, in 1844, vol. 7, p. 128. 6. Extract from “ Brande’s Encyclopaedia, or Dictionary of Science, Literature, and Art,” published by Harper Bros., New York, in 1843, vol. 3, page 1333, under article “Well.” 7. Extract from “ Rees’ Cyclopaedia,” vol. 33, title “ Spring Draining Pump.” 8. Extract from “London Encyclopaedia,” published by Thomas Tegg, London, 1829, vol. 22, p. 593. 9. Extract from “ Mechanics’ Magazine,” published by Knight & Lacey, London, 1824, vol. 2, pp. 15 and 16. 10. Extract from “ Harper’s New Monthly Magazine,” September, 1851, p. 540. 11. Extract from “ De L’Art du Fontenier Sondeur et des Puits Artésiens,” published in Paris, France, in 1822, p. 99, §19. 12. Extract from “ Bulletin du Musée de l’industrie,” published by De Mot et Cie, Bruxelles, 1846, tome 10, p. 163. 13. Extract from “Héricart de Thury, Jaillissement des Eaux,” published by Bachelier, Paris, France, 1829, pp. 274, 275. 14. Extract from “ F. Arago, Oeuvres,” tome 6, by Gide et J. Baudry, Paris, and Leipzig, by J. O. Weigel, 1856, p. 457. VOL. CXXII—5 66 OCTOBER TERM, 1886. Opinion of the Court. 15. Extract from. “F. Garnier, Traité sur les Puits Artésiens,” published by Bachelier, Paris, France, 1826, p. 207. 16. Extract from the “ Encyclopædia of Domestic Economy,” published in New York in 1849 by Harper Bros., p. 848. The rule governing defences alleging the invalidity of the patent by reason of prior printed publications was stated by Mr. Justice Clifford in Seymour v. Osborne, 11 Wall. 516, 555, in this language : “ Patented inventions cannot be superseded by the mere introduction of a foreign publication of the kind, though of prior date, unless the description and drawings contain and exhibit a substantial representation of the patented improvement, in such full, clear, and exact terms as to enable any person skilled in the art or science to which it appertains, to make, construct, and practice the invention to the same practical extent as they would be enabled to do if the information was derived from a prior patent. Mere vague and general representations will not support such a defence, as the knowledge supposed to be derived from the publication must be sufficient to enable those skilled in the art or science to understand the nature and operation of the invention, and to carry it into practical use. Whatever may be the particular circumstances under which the pubheation takes place, the account published, to be of any effect to support such a defence, must be an account of a complete and operative invention, capable of being put into practical operation.” The same rule was repeated by Mr. Justice Strong in the opinion of the court in Cohn v. United States Corset Co., 93 U. S. 366, 370, as follows: “It must be admitted that, unless the earlier printed and published description does exhibit the later patented invention in such a full and intelligible manner as to enable persons skilled in the art to which the invention is related to comprehend it without assistance from the patent, or to make it, or repeat the process claimed, it is insufficient to invalidate the patent.” This rule was affirmed in Downton n. Yeager Milling Co., 108 U. S. 466, 471. The application of this rule to the publications relied upon in the present case shows that none of them can properly be said to anticipate the invention of the driven well. It would EAMES v. ANDREWS. 67 Opinion of the Court. serve no useful purpose specially to notice in this opinion all the publications mentioned in the record; a few, as samples most relied on, will be considered. The first is the extract from McKenzie’s 5000 Receipts. It appears, from the file wrapper in the matter of the reissued letters-patent in suit, that the application was rejected at first by the examiner in the Patent Office on reference to this extract, which is as follows: “ To raise water in all situations. The finest springs may be found by boring, which is performed in the simplest manner by the mere use of an iron rod forced into the earth by a windlass. The workmen in a few days get to a genuine spring of pure water, fit for every purpose. After the water is found, they merely put the tin pipes down the aperture, and it preserves a fine stream which sometimes rises from four to five feet high.” It is quite obvious that this has no relation whatever to the process of obtaining water by means of driven wells. It is nothing more than a simple process of finding water in the usual way, as in the case of an ordinary dug or bored well, such as have been immemorially used. The same observation equally applies to the extract from Rees’ Cyclopaedia, under the title of “Wells in Rural Economy,” which is as follows: “ The most ingenious of these is that proposed by a French philosopher, who has advised that the ground should be perforated to a sufficient depth by means of an auger or borer; a cylindrical wooden pipe being then placed in the hole and driven downward with a mallet, and the boring continued, that the pipe may be forced down to a greater depth, so as to reach the water or spring. In proportion as the borer becomes filled with earth it should be drawn up and cleared, when by adding fresh portions of pipe, the boring may be carried to much extent under ground, so that water may in most cases be thus reached and obtained. It is stated that wells made in this manner are superior to those constructed in the common method, not only in point of cheapness, but also by affording a more certain and abundant supply of water, while no accident can possibly happen to the workmen employed. In case the water near the surface should not 68 OCTOBER TERM, 1886. Opinion of the Court. be of a good quality, the perforation may be continued to a still greater depth till a purer fluid can be procured; and when wells have become impure or tainted from any circumstance or accident, when previously emptied, and the bottom perforated in a similar manner, so as to reach the lower sheet of water, it will rise in the cylindrical tube in a pure state into the body of the pump fixed for the purpose of bringing it up.” The extract from “ Brande’s Encyclopaedia,” under the article “Well,” is as follows: “The use of the borer alone may procure an adequate supply of water in particular situations. This mode appears to have been long resorted to in this and other countries. From what we have already stated as to the disposition of strata, the conditions requisite for its success, will be readily conceived, viz., watery strata connected with others on a higher level. The pressure of the water contained in the higher parts of such strata on that in the lower will readily force up the latter through any orifice, however small. All that is necessary, therefore, is to bore down to the stratum containing the water, and, having completed the bore, to insert a pipe into the bore, which may either be left to overflow into a cistern or it may terminate in a pump.” A similar one from the Mechanics’ Magazine, vol. 2, page 16, is this: “ Boring Wells. “ Answer to question. “ Leeds, March 15, 1824. “ Drive a cast-iron pipe through the gravel — i.e., by means of a weight hung at the end of spring pole, used in boring; and should the pipe meet with any loose stone to obstruct its passage, put the boring rods into the pipe, and bore until the stone is broken to pieces or driven sideways, then drive the pipe as before. I have had the management of a great many bore holes for water in this neighborhood, some above 100 yards deep, and many contrivances I have used on account of difficulties met with in different strata. I shall be happy to give your correspondent every information in my power on the subject, and, if agreeable to you, will send a list of a few EAMES v. ANDREWS. 69 Opinion of the Court. holes, stating the different strata gone through and the several springs of water met with. “ Yours, &c., T. T. « N. B. — The shell-borer must be used at times to bring out the gravel that gets into the pipe, and the pipe must have spigot and faucet joints.” There is nothing in these extracts to suggest the peculiarities which distinguish the driven well as described in the reissued patent, and it may be said, in general, of all the extracts contained in the rebord, including these, that, so far as they undertake to describe anything in actual and practical use, they point merely to the ordinary bored artesian well, or the instruments and implements to be used in its construction. This view of these publications is strongly corroborated by the circumstances attending the introduction of Green’s process of driven wells into public use in England. It is shown that his agent for the introduction of the well into that country, and to whom the invention was sold, James L. Norton, took out in his own name an English patent, and, as has already been stated, and as is shown in the proof, after various experimental tests made by civil and military engineers of high authority, the driven well according to this process was adopted and successfully employed for the purpose of obtaining a water supply for the British troops in the Abyssinian expedition. The present record contains extracts from standard scientific publications in England showing how extensively and successfully the driven well has, since its first introduction, been employed in England for the purpose of raising water, in which it is admitted, as the facts show, that the process was considered new, differing in substance from any previously known and in use, and ascribed to the American invention. The next defence relied upon by the appellant is, that the evidence fails to establish a case of infringement. It is not important to set out fully the evidence on this point; the substance of it is contained in the opinion of Judge Shipman TO OCTOBER TERM, 1886. Opinion of the Court. in this case, 15 Fed. Rep. 109. In reference to it the court says: “The defendant’s counsel strenuously urge that these wells were constructed by boring; that the wells were bored until water was struck — that is, until a supply of water was obtained; and that the wells were finished by pressing the pipes more deeply into the source of supply which had been reached when the workmen ‘ struck water.’ In other words, the defendant seeks to bring the case within the decision of Judge McCrary in Andrews v. Long, 12 Fed. Rep. 8T1. In this case, however, the witnesses, when they used the common expression ‘ struck water,’ did not mean that they had reached an adequate source of supply for a well, but that they had reached a place where the presence of water manifested itself, and where by continuous excavation an adequate supply would be attained. The wet sand or wet clay upon the auger showed that water was at hand. The well was then finished, and a supply of water was obtained by pressing or driving a tube into the ground, without removing the earth upward, and attaching thereto a pump. When this was done, there was put ‘ to practical use the new principle of forcing the water in the water-bearing strata of the earth from the earth into a well pit, by the use of artificial power applied to create a vacuum in the water-bearing strata of the earth, and at the same time in the well pit. Andrews v. Cross, 8 Fed. Rep. 269.’ ” In other words, the case of the appellant is this: He sought to evade the patent by boring instead of driving until he came to the water-bearing stratum. Then, in order to avail himself of the patent, he drove the tube downward into the water-bearing stratum, so as to secure those conditions of an air-tight connection between the point of the tube and the surrounding earth, which constitute the principle of the driven-well patent. It is, therefore, a clear case of infringement. The decree of the Circuit Court is accordingly affirmed. Mr. Justice Field, Mr. Justice Bradley, and Mr. Justice Gray dissented. BEEDLE v. BENNETT. 71 Statement of the Case. BEEDLE u BENNETT. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO. Submitted January 7, 1887. —Decided May 23, 1887. If a bill in equity to restrain an infringement of letters-patent be filed before the expiration of the patent, the jurisdiction of the Circuit Court is not defeated by the expiration of the patent by lapse of time before the final decree. The case of Eames v. Andrews, just decided, is applied to the issues in this case, so far as they are identical with those in that case. The use of this invention by the inventor in the manner stated in the opinion of the court, apd his delay in applying for a patent under the circumstances therein detailed for more than two years prior to his application, did not constitute an abandonment of his invention, or a dedication of it to the public, and did not forfeit his right to a patent under the law, as it stood at the time of his application. The use by the respondents of driven wells for their personal use on their farms, which wells were operated by means of the process patented to Green, constituted an infringement of that patent. Bill in equity to restrain infringements of letters-patent. The patent expired by its own limitation after the filing of the bill, and before final decree. The final decree and allowance of appeal were as follows: “ This cause coming on to be heard upon the pleadings in agreed statement of facts and arguments of counsel, the court finds the reissued letters-patent sued on valid, and to have been infringed by defendant, and that the complainants have an established license fee of $10 per well driven by the process described and claimed in the patent, for which said sum, and interest from the 15th day of May, 1883, the date of filing the bill herein, the complainants are entitled to a decree which, to the first day of this term, amounts to $12.03. “The patent having expired, it is ordered, adjudged, and decreed that the court [complainants] do recover the sum of $12.03 per well driven in accordance with said patent, with interest from the 5th day of October, 1886, and his costs, to be taxed. 72 OCTOBER TERM, 1886. Opinion of the Court. “ An appeal being prayed by defendants, it is allowed, and bond fixed at $250, and it is ordered that the other causes pending in this court on said patent be stayed until such appeal has been decided by the Supreme Court, and no entiy or decree be made in them pending said appeal.” The case is stated in the opinion of the court. J/z*. Arthur Stem for appellant. Mr. John, F. Follett, Mr. David M. Hyman, and Mr. Thomas H. Kelley for appellees. Mr. Justice Matthews delivered the opinion of the court. This is a bill in equity filed by the appellees May 15, 1883, to restrain the alleged infringement of reissued letters-patent No. 4372, issued to Nelson W. Green, for a driven well. The cause was heard by stipulation between the parties upon an agreed statement of facts set out in the record, as follows : “ For the purpose of saving the expense of taking testimony, it is hereby agreed by and between the parties hereto that the above cause and the others hereinafter referred to may be tried, upon the following agreed statement of facts, said statement to be accepted as proof of the facts recited as fully and completely as if the same had been duly and formally proven. “ It is agreed that Nelson W. Green was the patentee of a new and valuable process in the construction of wells, and claimed to be its first and original inventor, for which process he received original letters-patent of the United States, No. 73,425, on the 14th day of January, 1868, and for which reissue letters-patent No. 4372 were granted to Nelson W. Green on May 9, 1871, the application for which having been filed February 24, 1871. “ That the title to the letters-patent sued on for the state of Ohio is in the complainants. “ That the defendants have had in use on their farm for the past seven or eight years one or more driven wells, which wells were put down for the defendants by an ordinary well-driver BEEDLE v. BENNETT. 73 Opinion of the Court. in the following manner: A tube, of which the lower portion was perforated with small holes and the lower end provided with a point, was driven into the ground until it projected into the water, without removing the earth upwards, as in boring. “ The water then entered the tube through the perforations and was pumped up through the tube by an ordinary pump. “ That the defendants have never driven wells for themselves except as above described or for other purposes ; never have sold or offered for sale driven wells or the materials for driving them, but have simply used their own wells for their personal use on their farms. “ It is agreed that printed copies of the original and reissued letters-patent granted to N. W. Green in 1868 and 1871, Nos. 73,425 and 4372, respectively, may be offered in evidence at the hearing, and may be accepted as proof with the same force and effect as if formally proven. “ That the said N. W. Green made his alleged invention or discovery as early as 1861, when he put down on his own grounds, at Cortland, New York, the first driven well for the purpose of demonstrating his discovery. “That he, at the time of his alleged invention, claimed to have made a valuable discovery and to have invented a new process. “ That he then declared an intention to secure his process by letters-patent and expressed his belief that large profits would accrue therefrom. “ That he at that time, having been partly educated at West Point, was engaged in organizing a regiment at Cortland, N. Y., his residence, and was expecting soon to take part in the war of the Rebellion. “That in June, 1861, he put down a well at his house in Cortland, and in October, 1861, he publicly drove a well, in the manner described in his original patent, at the fair grounds near Cortland, for the use of the soldiers in camp, and demonstrated to his own complete satisfaction its success. “ That he gave orders and directions for the construction of proper apparatus for driving such ■wells, and made arrangements for its transportation with his regiment as it was moved to the seat of war. 74 OCTOBER TERM, 1886. Opinion of the Court. “ That on the 6th of December, 1861, while in discharge of what seemed to be his duty, he felt compelled to shoot one of the captains of his regiment named McNett; that the shot was not mortal, but inflicted serious injury ; that in the then state of the public mind this occasion gave rise to intense public excitement, out of which sprang a controversy of extraordinary bitterness, involving numerous persons and continuing for several years; that the effect upon Green was disastrous in the extreme; that he was suspended from his command, then tried by a court of inquiry at Albany, and reinstated in command; that his regiment, after having, it is said, required-the protection of a battery to save it from violence at the hands of evil-disposed people of the country, removed to Washington, where Green was relieved from command, and then dismissed the service, and subjected to military charges. “ That he was, in addition, harassed by civil suits brought to charge him with a personal liability for articles used by his regiment. “ That he was also arrested and then indicted for the shooting of McNett, and after repeated postponements of the trial, effected because of the excited state of the public mind, was tried in 1866, and the jury, having disagreed, was discharged. “ That during this period he also became involved in church difficulties arising out of the shooting of McNett; was expelled from the church and compelled to appeal to the bishop, and also became involved in litigation with the pastor of his church. “ That his efforts during this period to secure a reversal of the order dismissing him from the service were constant and absorbing and were attended with such anxiety of mind as to give rise to the charge that he was insane. “That this state of things continued up to 1866, during which period he was of necessity often absent from Cortland, at Albany and at Washington, and that he was compelled to devote his entire time to the controversy in which he had become involved, abandoning all other occupation and exhausting all his means. “ That in November, 1865, when Green saw, by an adver- BEEDLE v. BENNETT. 75 Opinion of the Court tisement in the papers, that driven wells were being put down, although he was advised by counsel defending him on the indictment for the shooting of McNett not to apply for a patent, as he would thereby increase the number of his enemies and prejudice him on the trial of the indictment, then about to come on, he nevertheless did then, and in opposition to the advice of his counsel, file his application and assert his right to the invention. “That the said Green, during this period aforesaid, never declared any intention of abandoning his said discovery and invention, and that, having so made his application as aforesaid, original letters-patent were granted the said N. W. Green, January 14, 1868. “ It is further agreed that whatever order or decree is made in this cause the same shall be made in all the cases pending in this court in which the same parties are complainants, a list of which cases, with the title and number thereof, is hereto attached and made a part of this stipulation. “It is further admitted that the complainants’ price for settling for infringement under the above patent without suit has been ten dollars per well and the recognition of complainants’ rights, and that the complainants offered to settle on such terms with these defendants before bringing suit, which offer was refused.” A decree was rendered in favor of the complainants on the 6th day of December, 1886, but, as at that time the patent had expired, no injunction was granted. The amount of the damages awarded was at the rate of $10 for bach well used, that being the amount of royalty which the complainants had offered to take before suit brought, and admitted to be the customary price for the same, as a license fee. The defendant prosecutes the present appeal. As the patent was in force at the time the bill was filed, and the complainants were entitled to a preliminary injunc tion at that time, the jurisdiction of the court is not defeated by the expiration of the patent by lapse of time before final decree. • There is nothing in the case of Root v. Railway Co., 105 U. S. 189, to sustain the objection made by the appellant 76 OCTOBER TERM, 1886. Opinion of the Court. on this account. See, also, Clark v. Wooster, 119 U. S. 322, 325, and cases there cited. All other defences made in the cause, except that of prior public use and the defendant’s infringement, have been passed upon in the case of Eamies v. Andrews, just decided. In the present case the appellant contends that the patentee publicly used his invention more than two years before he applied for his patent, and thereby forfeited his right to a patent under the law. This defence was raised and considered, upon facts substantially the same, in the case of Andrews v. Cm-ma/n, 13 Blatchford, 307, and also in the case of Andrews v. Cross, 19 Blatchford, 294. The law governing the subject of the alleged dedication and abandonment by Green of his invention prior to obtaining his patent is that which was in force prior to November, 1865, when he made his application. By the patent act of 1870, as well as by the Revised Statutes, all rights previously acquired were preserved. The law, therefore, applicable to the question, is to be found in the acts of 1836 and 1839. The act of 1839, as has repeatedly been held, has no effect to invalidate a patent, unless there be proof of abandonment, or of a use of the invention for more than two years prior to the application for the patent. The only facts from which such an abandonment or dedication can be inferred are, that Green, in June, 1861, put down a well at his house in Cortland, New York; that, in October, 1861, he publicly drove a well, in the manner described in his original patent, at the fair grounds near Cortland, for the use of the soldiers in camp, and demonstrated to his complete satisfaction its success; and that he gave orders and directions for the construction of proper apparatus for the driving of such wells, and made arrangements for its transportation with his regiment as it was moved to the seat of war. The circumstances of delay, which intervened between that date and the time when he made his application for his patent in November, 1865, are stated in the agreed statement of facts. Those circumstances sufficiently rebut any presumptions which might otherwise have arisen of an intention on his part to abandon and dedicate to the use of the public the invention described BEEDLE v. BENNETT. 77 Opinion of the Court. in his patent. The wells made by Green himself at Cortland, and at the fair grounds near Cortland, for the use of his soldiers, were his first experiments. In respect to these, it was said by Judge Benedict, in Andrews v. Carman, 13 Blatchford, 307, 325 : “ The first experiment was a success in this, that it proved the possibility of obtaining a supply of water by this process; but, of course, it could not prove that a tube could be driven down to a water-bearing stratum in all localities, with the cheapness and dispatch necessary to render the process one of general utility. It was natural, therefore, to suppose, that, before the process could be declared to be satisfactory, other experiments, in other and different localities, should be made. He could, by law, use his invention for this purpose, and permit it to be used, for two years, without forfeiting his right to a patent. Under such circumstances, it would be going far to say, that his act of permitting the use of his process at the camp in Cortland, where his regiment was then in camp, and of providing material wherewith to construct such wells- for his regiment when it should move into hostile territory, amounted to a dedication of his invention to public use, and worked a forfeiture of his right to it.” Section 7 of the act of March 3, 1839, 5 Stat. 353, 354, protects every one who had purchased or constructed the subject of the invention prior to the application for the patent, and adds as follows: “ And no patent shall be held to be invalid by reason of such purchase, sale, or use prior to the application for a patent as aforesaid, except on proof of abandonment of such invention to the public, or that such purchase, sale, or prior use has been for more than two years prior to such application for a patent.” There is no evidence in the record of any use or sale of the invention by Green before his application for a patent, and no evidence from which to conclude that any use of any driven well by others before his application was consented to or allowed by him, except in the instances mentioned at Cortland, which were merely experimental tests, made by himself. Much less is there any evidence to show that there was any use of the invention by others for more than two years prior to his application. 78 OCTOBER TERM, 1886. Opinion of the Court. Upon the question of infringement, the agreed statement of facts shows the following: “ That the defendants have had in use on their farm for the past seven or eight years one or more driven wells, which wells were put down for the defendants by an ordinary well-driver in the following manner : A tube, of which the lower portion was perforated with small holes and the lower end provided with a point, was driven into the ground until it projected into the water, without removing the earth upwards, as in boring. The water then entered the tube through the perforations and was pumped up through the tube by an ordinary pump. That the defendants have never driven wells for themselves, except as above described, or for other purposes; never have sold or offered for sale driven wells, or the materials for driving them, but have simply used their own wells for their personal use on their farms.” It is now contended, on the part of the appellant, that the claim of the patent is for the process of driving the well, and not for the use of the well after it has been driven, and that consequently the appellant is not shown to have infringed; but, as has been shown in the case of Eames n. Andrews, the patent covers the process of drawing water from the earth by means of a well driven in the manner described in the patent. The use of a well so constructed is, therefore, a continuing infringement, as every time water is drawn from it the patented process is necessarily used. As was said by Mr. Justice Blatch-ford in Andrews v. Cross, 19 Blatch. 294, 305: “ Under this construction the defendant has infringed by using the pump in a driven well, constructed in a house hired by him, to obtain a supply of water for the use of his family, although he may not have paid for driving the well, or have procured it to be driven. Such use of the well was a use of the patented process.” The decree of the Circuit Court is accordingly affirmed. Me. Justice Field, Mr. Justice Bradley, and Mr. Justice Gray dissented. IRON MOUNTAIN RAILWAY v. KNIGHT. 79 Syllabus. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY v. KNIGHT. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. Argued May 3, 1887. — Decided May 23,1887. A bill of lading, acknowledging the receipt by a common carrier of “ the following packages, contents unknown ... marked and numbered as per margin, to be transported ” to the place of destination, is not a warranty, on the part of the carrier, that the goods are of the quality described in the margin. P. shipped by rail a large quantity of cotton at different times, and at different points south of Texarkana, Ark., to be made up into bales there at a compress-house, and to be thence forwarded to various destinations North and East. The work at the compress house was to be done by the carrier, but under direction of the shipper, who had control of the cotton there for that purpose, and who superintended the weighing, the classing, and the marking of it, and who selected for shipment the particular bales to fill the respective orders at the points of destination. Bills of lading for it were issued from time to time by the agents of the railroad company, sometimes in advance of the separation by P. of particular bales from the mass to correspond with them. P. was in the habit of drawing against shipments with bills of lading attached, and his drafts were discounted at the local banks. When shipments were heavy, drafts would often mature before the arrival of the cotton. 525 bales, marked on the margin as of a particular quality, were so selected and shipped to K. at Providence, Rhode Island. The bill of lading described them as “ contents unknown,” “ marked and numbered as per margin.” The contents of the bales on arrival were found not to correspond with the marks on the margin. The consignee had honored the draft before the arrival of the cotton. He refused to receive the cotton, and sold it on account of the railroad company, after notice to it, and sued in assumpsit, on the bill of lading, to recover from the company, as a common carrier, the amount of the loss. Held, (1) That the bill of lading was not a guarantee by the carrier that the cotton was of the quality described in the margin; (2) That if the railroad company was liable as warehouseman, that lia- bility could not be enforced under this declaration; nor, under the circumstances of this case, by the consignee of the cotton; (3) That tne company was not liable as a common carrier from points south of Texarkana for the specific bales consigned to K.; 80 OCTOBER TERM, 1886, Argument for Plaintiff in Error. (4) That its liability as common carrier began only when specific lots were marked and designated at Texarkana, and specifically set apart to correspond with a bill of lading then or previously issued. In Illinois, under an unverified plea of the general issue in assumpsit against a common carrier for goods lost, the defendant may at the trial deny his liability under the bill of lading; § 34 of the Practice Act having no application to such a denial. Assumpsit against plaintiff in error, defendant below, as a common carrier, to recover on a bill of lading for goods not delivered. Judgment for plaintiffs. Defendant sued out this writ of error. The case is stated in the opinion of the court. J/r. John F. Dillon for plaintiff in error cited : Walker v. Brewer, 11 Mass. 99; Lickbarrow n. Mason, 2 T. R. 63, 77; Grant v. Norway, 10 C. B. 665; Hubbersty v. Ward, 8 Exch. 330 ; Brown v. Powell Duffryn Go., L. R. 10 C. P. 562; The Freeman v. Buckingham, 18 How. 182; The Loon, 7 Blatch-ford, 244; Robinson v. Memphis, &c., Railway Co., 9 Fed. Rep. 129; S. C. 16 Fed. Rep. 57; Pollard n. Vinton, 105 IT. S. 7; Sears v. Wingate, 3 Allen, 103; Baltimore c& Ohio Railroad v. WZfens, 44 Maryland, 11; Hunt v. Mississippi Central Railroad, 29 La. Ann. 446; Louisia/na Bank v. Io-veille, 52 Missouri, 380; Cha/ndler v. Sprague, 38 Am. Dec. 407, note; Cox v. Bruee, 18 Q. B. D. 147 ; Miller v. Ha/nnibal d’ St. Joseph Railroad, 90 N. Y. 430; The L. J. Farwell, 8 Bissell, 61; Rowley v. Bigelow, 12 Pick. 307 [$. C. 23 Am. Dec. 607]; Haddow v. Parry, 3 Taunt. 303 ; Jessel v. Bath, L. R. 2 Exch. 267; Lebea/a v. General Steam Naw. Co., L. R. 8 C. P. 88; Cla/rk n. Ba/rnwell, 12 How. 272; The Columbo, 3 Blatchford, 521; 630 Casks of Sherry Wine, 7 Ben. 506, 509; S. C. U Blatchford, 517 ; Bissel v. Price, 16 Ill. 408 ; Ba/rrett v. Bogers, 7 Mass. 297 [$. C. 5 Am. Dec. 45] ; Shepherd v. Naylor, 5 Gray, 591; Michiga/n Southern Railroad v. Shurtz, 7 Mich. 515; Platt v. Hibbard, 7 Cowen, 497; St. Louis, <&c., Railroad v. Montgomery, 39 Ill. 335 ; Roskell v. Waterhouse, 2 Starkie, 461; O'Neil v. New York Central Railroad, 60 N. Y. 138; Barron v. Eldredge, 100 Mass. 455. IRON MOUNTAIN BAILWAY v. KNIGHT. 81 Opinion of the Court. J/?. Julius Rosenthal and J/k Abram M. Pence for defendants in error, submitted on their brief, citing: Rowley v. Bigelow, 12 Pick. 307 [& C. 23 Am. Dec. 607] ; Stevenson v. Farnsworth, 2 Gilman, 715; Gaddy V. Me Cleave, 59 Ill. 182; Templeton v. Ray ward, 65 Ill. 178; Dwight v. Newell, 15 Ill. 333; Walker v. Krebaum, 67 Ill. 252; The Idaho, 93 U. S. 575; Robinson n. Memphis, &c., Railway, 16 Fed. Rep. 57, 60 ; Moulor v. American Life Lnsura/nce Co., Ill U. S. 335; India/napolis, &c., Railroad Co. v. Horst, 93 IT. S. 291; Bea/oer v. Taylor, 93 IT. S. 46; Beckwith n. Bea/n, 98 U. S. 266; Ottawa & Fox Riwer Railroad v. McMath, 91 Ill. Ill; St. Louis de Iron Mt. Railroads. La/rned, 103 Ill. 293; Armour v. Mich. Central Railroad, 65 N. Y. Ill; Bank of Pittsburgh v. Neal, 22 How. 96. Mr. Justice Matthews delivered the opinion of the court. This is an action of assumpsit brought by the defendants in error against the St. Louis, Iron Mountain and Southern Railway Company in the Superior Court of Cook County, Illinois, and removed into the Circuit Court of the United States for the Northern District of Illinois by the defendant below, the parties being citizens of different states. The declaration set out several similar causes of action in different counts against the railway company as a common carrier, in one of which it was alleged that the defendant, having received from one G. T. Potter a large number of bales of cotton, described in a certain bill of lading acknowledging receipt thereof, thereby agreed safely to carry the same from Texarkana, in the state of Arkansas, to St. Louis, in the state of Missouri, and thence to Woonsocket, in the state of Rhode Island; and avers that, in violation of its promise and duty, and by reason of its negligence, the said goods became and were wholly lost. The plaintiffs below sued as purchasers of the cotton from Potter and assignees of the bills of lading. The bills of lading sued upon were similar in their tenor, except as to the description of the articles named therein, and commenced as follows: Received from G. T. Potter the following packages, contents unknown, in apparent good order, marked and numbered as vol. cxxn—6 82 OCTOBER TERM, 1886. Opinion of the Comi. per margin, to be transported from Texarkana, Ark., to St. Louis, and delivered to the consignee or a connecting common carrier.” A specimen of what was contained on the margin is as follows: “ Marked. List of articles. Weight. “ [P P] Seventy-four bales cotton, adv. ch’g’s $111.00 35,964 “ Order shipper notify — “ B. B. and R. Knight, “Providence, R. I. “ Deliver cotton Woonsocket, R. I.” Some of the bills of lading specified that the goods were to be transported from Texarkana to Providence, R. I., to be forwarded from St. Louis to destination. The whole number of bales in controversy is 525. To the declaration the defendant filed a plea of the general issue, which was not verified. The ground of the complaint on the part of the plaintiffs was, not that they did not receive the whole number of bales called for by the bills of lading, but that, as to the 525 bales in controversy, they were not of the grade and quality designated by the marks contained in the bills of lading. By reason of this difference in quality, on the arrival of the cotton at destination, the plaintiffs refused to receive the same, and, after notice to the defendant, caused the same to be sold for its account. The amount claimed was the loss thereby incurred. The cause was tried by a jury, and a verdict and judgment rendered for the plaintiffs for $11,808.51. A bill of exceptions, duly taken, sets out the entire evidence given on the trial, and the charge of the court to the jury, with the exceptions taken by the plaintiff in error. The court below in its charge to the jury gave in outline a statement of the main features of the case sufficient for present purposes, as follows: “ The proof tends to show that Potter was a cotton broker at Texarkana, Arkansas, in the fall of 1879 and winter following ; that he bought most of his cotton at points in Texas on IRON MOUNTAIN RAILWAY v. KNIGHT. 83 Opinion of the Court. the lines of railroads running south and southwest and west from Texarkana, and that it was brought to Texarkana by these railroads and there delivered upon the platform of what is known in the testimony as the cotton compress company; that this compress company was a corporation whose business it was to compress cotton, and that all the cotton bought by Potter and delivered at Texarkana was to be there compressed before it was shipped East and North by the defendant. This compress company had a large warehouse, where cotton was stored until it could be compressed and made ready for shipment. “ The testimony tends to show the course of business to have been this: Cotton was bought by Potter and delivered into the compress house. It was there weighed, classed, or graded by Potter, and marks put upon each bale indicating the grade or quality of the cotton and the lot to which it belonged. When Potter had so weighed, graded, and marked a number of bales, he made out a bill of lading, describing certain bales of cotton by the marks on the bales; had the superintendent of the compress company warehouse certify to the fact that the cotton called for by these bills of lading was in the warehouse, and the bills of lading thus certified to by the letters ‘OK’ and the signature of Martin, the superintendent of the compress warehouse, were signed by O’Connor, the freight agent of the defendant at Texarkana. Potter then drew drafts on the persons to whom he had sold cotton of the grade called for by these bills of lading, attached these bills of lading to the drafts, and some local bank at Texarkana or some of the adjacent towns or cities cashed these drafts, and they went forward to some correspondent of such bank for collection, and in due* course of mail and long before the actual arrival of the cotton the drafts were paid; and this seems, from the proof, to have been the course of business between the plaintiffs and Potter. “ There is also testimony in the case, given by Potter himself, which tends to show that the bills of lading were issued upon cotton before it had been received into the warehouse upon some understanding or agreement between Potter and 84 OCTOBER TERM, 1886. Opinion of the Court. O’Connor that they should be so issued, and that Potter would afterwards put the cotton to respond to those bills of lading into the warehouse. “ It is conceded that the defendant, and it is-in fact provided in the bills of lading, that the defendant, the railroad company, should compress this cotton before shipping to the North or East, and that the expense of compressing was paid by the defendant out of its charges for transportation; that some time necessarily elapsed between the arrival of the cotton in the compress warehouse and the time when it was compressed and made ready for shipment. Especially was this so in the fall and early part of the winter, when there was a large rush on cotton and it was impossible to compress and handle the cotton as fast as it came in. The cotton therefore accumulated in large quantities in the compress house, awaiting compression and getting ready for shipment. “ And there is also proof in the case tending to show that when it was ready for shipment it was turned out on what was known as the loading platform, and was there shipped to such consignees as Potter directed — that is, bills of lading having been given to various persons, Potter directed to whom he would have each lot, as it was turned out ready for shipment, sent or forwarded. “The controversy in this case is wholly in regard to 525 bales of cotton covered by the eight bills of lading offered in evidence in this case. These bills of lading, as you will remember, covered a large amount of other cotton which it is conceded was received in due course of business, and answered to the marks of quality which were upon the bales; but it is claimed on the part of the plaintiffs that 525 bales of the whole number of bales covered by the bills of lading were not of the quality called for by these bills of lading, and this suit is wholly in regard to those. “ The plaintiffs claim that, on or about the 9th of April, 1880, there still remained unshipped from Texarkana and in the compress warehouse 525 bales of this cotton, for which they held bills of lading; that, on or about the 9th of April, there remained in the compress house about 800 bales of cotton IRON MOUNTAIN RAILWAY v. KNIGHT. 85 Opinion of the Court. of an inferior grade to that indicated by the marks on the cotton called for by these bills of lading; and that certain employes of Potter, as plaintiffs insist, with the knowledge of O’Connor, the defendant’s freight agent, re-marked this cotton with marks indicating the grade or quality called for by the hills of lading; and the defendant forwarded this inferior cotton to the plaintiffs instead of the actual quality called for by these bills of lading. “The plaintiffs’ proof also tends to show that when this inferior cotton arrived at its destination, Providence, Rhode Island, plaintiffs declined to accept it, caused it to be put into an auction house, and sold for the benefit of whom it might concern, notified the defendant of what they had done before this sale took place, giving the defendant opportunity to reclaim and take the cotton if it saw fit and dispose of it itself; and this suit is now brought to recover the difference between the proceeds of this inferior cotton, as the plaintiffs claim, and the drafts and freight they have paid.” It is not denied that the railroad company delivered to the plaintiffs below the whole number of bales of cotton mentioned in the bills of lading, with external marks thereon as called for, and that no change was made in the cotton or in the marking thereof after it was loaded on the cars for transportation at Texarkana, and that no damage or loss was occasioned by reason of any want of care or diligence in the transportation. The bill of lading contains no warranty that the goods described shall answer any particular quality; on the contrary, it expressly specifies that the contents of the packages are unknown. That a bill of lading in such cases does not operate as such a guaranty appears from the case of Clark v. Bara- 12 How. 272, where Mr. Justice Nelson, delivering the opinion of the court (p. 283), said: “It is obvious, therefore, that the acknowledgment of the master as to the condition of the goods when received on board extended only to the external condition of the cases, excluding any implication as to the quantity or quality of the article, condition of it at the time received on board, or whether properly packed or not in the boxes.” 86 OCTOBER TERM, 1886. Opinion of the Court. The observations of the Master of the Rolls, Lord Esher, in the case of Cox v. Bruce, 18 Q. B. D. 147, are very much in point. He says: “ But, then, secondly, it is said that, because the plaintiffs are indorsees for value of the bill of lading without notice, they have another right, that they are entitled to rely on a representation made in the bill of lading that the bales bore such and such marks, and that there is consequently an estoppel against the defendants. That raises a question as to the true meaning of the doctrine in Grant v. Norway, 10 C. B. 665. It is clearly impossible, consistently with that decision, to assert that the mere fact of a statement being made in the bill of lading estops the shipowner and gives a right of action against him if untrue, because it was there held that a bill of lading signed in respect of goods not on board the vessel did not bind the shipowner. The ground of that decision, according to my view, was not merely that the captain has no authority to sign a bill of lading in respect of goods not on board, but that the nature and limitations of the captain’s authority are well known among mercantile persons, and that he is only authorized to perform all things usual in the line of business in which he is employed. Therefore the doctrine of that case is not confined to the case where the goods are not put on board the ship. That the captain has authority to bind his owners with regard to the weight, condition, and value of the goods under certain circumstances may be true; but it appears to me absurd to contend that persons are entitled to assume that he has authority, though his owners really gave him no such authority, to estimate and determine and state on the bill of lading, so as to bind his owners, the particular mercantile quality of the goods before they are put on board, as, for instance, that they are goods containing such and such a percentage of good or bad material, or of such and such a season’s growth. To ascertain such matters is obviously quite outside the scope of the functions and capacities of a ship s captain and of the contract of carriage with which he has to do.” It follows, therefore, that if any liability attached to the plaintiff in error upon these bills of lading, it must be by IRON MOUNTAIN RAILWAY v. KNIGHT. 87 Opinion of the Court. reason of what occurred prior to the actual loading of the cotton upon the cars at Texarkana, when the transportation actually commenced. If Potter had never delivered to the plaintiff in error any cotton at all to make good the 525 bales called for by the bills of lading, it is clear that the plaintiff in error would not be liable for the deficiency. This is well established by the cases of The Schooner Freeman v. Buckingham,^ 18 How. 182, and Pollard v. Vinton, 105 U. S. 7. In the latter case, Mr. Justice Miller, delivering the opinion of the court, and speaking of the nature and effect of a bill of lading, says: “ It is an instrument of a twofold character. It is at once a receipt and a contract. In the former character, it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel. In the latter, it is a contract to carry safely and deliver. The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver.” And the doctrine is applicable to transportation contracts made in that form by railway companies and other carriers by land, as well as carriers by sea. Baltimore <& Ohio Railroad v. Wilkens, 44 Maryland, 11; Miller v. Hanniibod & St. Joseph Railroad, 90 N. Y. 430. A fortiori the carrier is not responsible, as we have already seen, for a deficiency in the quality as compared with that described in the bill of lading if he safely delivers the very goods he actually received for transportation. It becomes necessary, therefore, further to inquire what facts, happening before the actual loading of the cotton in question on the cars of the plaintiff in error at Texarkana, create a liability on its part to make good the loss complained of by reason of its duty as a common carrier under the bills of lading sued on. On this point, the court below charged the jury as follows: “ 1st. This compress warehouse must be deemed the warehouse of the defendant. If you find from the proof that it was used by the defendant as the place for storing the cotton while the defendant was compressing the same — that is, if while the defendant was getting the cotton ready for shipment 88 OCTOBER TERM, 1886. Opinion of the Court. north it used the compress warehouse for the purpose of storage, then the compress warehouse must be deemed the defendant’s warehouse for that purpose. “ 2d. The proof without controversy seems to be that it was understood between Potter and the defendant that all the cotton covered by these bills of lading was to be compressed before it was to be put on the defendant’s cars for actual transportation. While it remained in the compress house for compression, awaiting further shipment, the defendant’s liability was that of a warehouseman only, and not that of a carrier; that is, the defendant was liable for due and ordinary care, such as warehousemen are expected to take of property placed in a warehouse for keeping. A common carrier’s liability is of an extraordinary character, and covers every risk that the property can be subject to, except a loss by the act of God or by an unavoidable accident, and by the public enemy, unless this extraordinary liability which the law imposes is limited or restricted by the contract between the parties, so that this extraordinary liability, as a common carrier, did not commence until the property was actually loaded or taken for transportation; but the liability was that of a warehouseman until the transportation was actually commenced.” After charging the jury, in the same connection, that the bills of lading were not negotiable, so that any defence open to the plaintiff in error, if sued by Potter, might be made against the plaintiffs below, notwithstanding they had paid value for the property on the faith of the bill of lading, the court further said: “But this rule must be taken with this qualification, that after the issuing of a bill of lading by the defendant as a warehouseman or common carrier no collusive agreement or conduct between the defendant and Potter can be allowed to prejudice the plaintiffs’ rights as holders of these bills of lading. The plaintiffs have the right to have the contract performed substantially as it was made between Potter and the defendant. There can be no substantial change in the terms of the contract to the prejudice of the plaintiffs or any person to whom the contract or bill of lading may be assigned.” IRON MOUNTAIN RAILWAY v. KNIGHT. 89 Opinion of the Court. The court further charged the jury, that the defendant, as a common carrier, was not a guarantor of the quality of the commodity it assumed to transport, and added as follows: “ This rule may, however, be subjected to a qualification or limitation under the facts in this case as you may find them to be. The proof tends to show that Potter marked quite a large number of bales with the same grade and lot marks as those described in these bills of lading, and there is proof tending to show that no specific bales of cotton were set apart or considered as forming the particular bales to be shipped on these bills of lading, but it was understood between Potter and the defendant that out of the lot or quantity of bales marked in the manner designated in these bills of lading a sufficient number to make up what are called for by those bills of lading should be shipped. If you so find, then the defendant was bound to ship the number of bales called for by these bills of lading out of the larger quantity bearing the same common marks, and this would be the contract, if you find from the proof that the cotton in question was to be drawn from a larger lot bearing the same common marks. “ The testimony on the part of the defendant tends to show that the defendant’s agents did not know at the time of the issuing of these bills of lading that the marks on these bales indicated the quality or the grade of the cotton; that, so far as Mr. O’Connor and the other agents of the defendant who had the responsible charge of the defendant’s business at Texarkana were concerned, the marks only indicated a means of identification, and the quality of the cotton was not considered by them; that a bale of cotton to them was only a bale of cotton, without regard to quality; that in shipping the cotton in fulfilment of these bills of lading they only referred to the marks as a means of identifying or determining what cotton they were to ship under each bill of lading. “ As has been stated, the plaintiffs’ proof tends to show that on or about the 9th of April the employes of Potter, with the knowledge of the defendant’s agent, marked a lot of 800 bales of inferior cotton, then in the compress warehouse, with grademarks corresponding to those called for by these bills of lad- 90 OCTOBER TERM, 1886. Opinion of the Court. ing, and that the defendant shipped this inferior cotton to the plaintiffs in fulfilment of its contract under those bills of lading; while the defendant’s proof tends to show that the defendant’s agents had no knowledge of the fact that this cotton was of a quality inferior to that called for by these bills of lading, and had no knowledge of the fact that the grademarks on the bales so shipped had been changed from marks indicating a lower grade to those indicating the grade called for by the bills of lading, but that, on the contrary, they accepted the cotton with the belief that it was the cotton called for by the bills of lading, and which had been delayed in the warehouse up to that time for the purpose of compressing and getting it ready for shipment. “ 4th. If the proof in the case satisfies you that the defendant’s agents knew or were informed at the time they shipped this cotton to the plaintiffs or accepted it for shipment that it was of a quality inferior to that called for by the bills of lading which the defendant had issued for it, and knew that the marks on those bales or packages had been changed from marks indicating a lower grade or quality of cotton to marks indicating the grade called for by the bills of lading, then the defendant is liable in this action for the difference in value between the cotton of the quality called for by the bills of lading and the value of the. cotton actually shipped — that is to say, if the proof satisfies you that the agent of the defendant connived at the substitution of a lower and inferior quality of cotton in place of that called for by the bills of lading, although the marks may have been such as called for by the bills of lading, then the defendant is liable. While, if from the proof you are satisfied that when the agents of the defendant actually shipped the cotton they had no knowledge of the difference in quality between the cotton so shipped and that called for by the bills of lading, and had no knowledge that the cotton was, in fact, inferior to that called for by the bills of lading, and that the grade-marks on the bales had been changed from marks indicating a lower grade to marks called for by the bills of lading, then the defendant is not liable. “ You are to determine, then, as a question of fact, from tne testimony — IRON MOUNTAIN RAILWAY v. KNIGHT. 91 Opinion of the Court. “First. Whether it was in the course of business in the handling of this cotton in the warehouse to set apart and keep separate the cotton covered by each bill of lading from the time such bill of lading was issued, or whether the defendant’s agent, O’Connor, only satisfied himself, through the agency of Martin or his employes, that there was enough cotton, as stated in the bills of lading, to fill such bill as part of a common lot answering to the same description. As, for illustration, there might be in a railroad warehouse in this city, 10,000 barrels of flour of one brand, and ten bills of lading might be issued, each to a different person, calling each for 1000 barrels of this lot of flour. No one barrel would be specifically set apart as belonging to any one of these bills of lading; but any one of the 10,000 barrels would be liable to be shipped on any of these bills of lading — that is, it would be assumed that the entire lot was uniform and alike in quality, and it would, therefore, make no difference to the persons to whom it was shipped which particular barrel of flour he got. If such was the mode of doing business in this compress warehouse, and Potter understood it, then the defendant was not obliged to keep separate cotton called for by each bill of lading, but could fill the bill of lading out of the common lot bearing the same marks. “ Second. Did the agents of the defendant in charge of the issue of these bills of lading and the shipment of this cotton know the grade-marks of this cotton called for by the bills of lading; and did they know that this 525 bales in question was of an inferior grade to that called for by the bills of lading; and did they knowingly accept this inferior quality of cotton in place of that called for by the bills of lading, and ship the same to plaintiffs ? “As I have stated, a common carrier is not, as a rule, a guarantor of the quality of the goods transported, but it is bound to transport and deliver the identical goods covered by its contract, where such identity can be established, and, therefore, if at the time these bills of lading were issued it was not intended that they should cover any specific bales, hut only a given number of bales, bearing certain common 92 OCTOBER TERM, 1886. Opinion of the Court. marks, without regard to quality, as understood by the defendant’s agents, and that the defendant did ship the number of bales called for by the bills of lading, and marked as required by the bills of lading, with no knowledge or information that the cotton contained in those bales was inferior to that called for by the bills of lading, then the defendant is not liable.. “ But if you are satisfied, from the proof, that the agents of the defendant knew at the time they received and shipped the 525 bales in question that it was inferior in quality to that called for by the bills of lading, and that fraudulent or false grade-marks had been put upon these bales corresponding to the marks called for by the bills of lading, then the defendant is Hable. “The defendant having, as I have already stated to you, assumed the responsibility of a warehouseman in regard to this cotton while it was being compressed and prepared for shipment, was obliged to see to it that the cotton it had receipted for was kept on hand for shipment, and had no right, knowingly, to allow a lower grade of cotton to be substituted for that called for by the bills of lading.” The suggestion in the charge of the court of a possible ground of liability on the part of the defendant as a warehouseman was entirely outside of the issues. The defendant was not sued upon the ground of any such alleged liability. No facts and circumstances out of which any duty as warehouseman could arise were set out in the declaration; the action was upon the bills of lading alone. The contract alleged to have been made and broken was contained in them. The duty charged to have been violated was the duty of the defendant as a common carrier for an alleged negligence in the transportation of the goods. And if the defendant could be supposed, upon the facts proven, to have incurred liability in its character as warehouseman, as distinguished from its capacity as a carrier, that Hability was not incurred in respect to the plaintiffs. It is not charged that the defendant, as a warehouseman, received any goods as their property for the purpose of storage and safekeeping. Its relation as a ware- IRON MOUNTAIN RAILWAY v. KNIGHT. 93 Opinion of the Court. houseman was with Potter, and him alone. It was an error, therefore, in the court to charge the jury that the defendant might be charged in this action for the loss in question upon its responsibility as a warehouseman to the plaintiffs. It may be contended, however, that in one possible view of the fact this error was not prejudicial to the defendant. It may be said that the defendant’s liability as a common carrier commenced at a time antecedent to the delivery of the cotton to be loaded on the cars; that it might have arisen upon a prior delivery of the cotton in question in the warehouse to be compressed, and then transported, the duty of compressing it, in order to prepare it for transportation, having been undertaken by the defendant. This, however, could only be when the specific goods, as the property of the plaintiffs, were delivered for that purpose into the exclusive possession and control of the defendant. Such was not the case in the present instance. No specific bales of cotton, as the property of the plaintiffs, separate from all others, were delivered to the defendant for them until the 525 bales in controversy were set apart and delivered to the defendant for immediate transportation on its cars; and prior to that time all cotton received in the warehouse to be compressed was received as the property of Potter, on his account, and subject, so far as grading, classifying, and marking were concerned, to his control, and none of it could be considered as having passed into the possession of the defendant as a common carrier for transportation until designated and set apart by Potter or his agents. The cotton received at the compress warehouse came consigned to Potter upon bills of lading issued by other railroad and transportation companies at the point of shipment for delivery to him at Texarkana. Supposing, as one view of the evidence authorizes, the bills of lading were issued by the agents of the defendant to Potter in advance of the actual delivery of the cotton in the warehouse, on the faith of the bills of lading produced and surrendered by him given by other carriers, still the cotton, as it came and accumulated in the warehouse for the purpose of being compressed, continued to be the property of Potter, subject to his control in the re- 94 OCTOBER TERM, 1886. Opinion of the Court. spects already mentioned, and until specific lots were marked and designated, so as to correspond with the bills of lading previously issued by the defendant, the latter had no possession of the property as a carrier. The undisputed facts are that the whole quantity of cotton purchased by Potter, and received on his account in the warehouse, did not answer the grades and descriptions according to which he had sold it to different purchasers. He was unable, out of the cotton to perform all of these contracts. The whole number of bales received by him were sufficient in number, and they were all transported according to his directions. It is not claimed that any of them were converted to the use of the railroad company, or that any of them were delivered by the railroad company, after they were received for transportation, to any other than the proper consignees. The court below, however, charged the jury that, notwithstanding “ no specific bales of cotton were set apart or considered as forming the particular bales to be shipped on these bills of lading,” if “it was understood between Potter and the defendant that, out of the lot or quantity of bales marked in the manner designated in these bills of lading, a sufficient number to make up what are called for by those bills of lading should be shipped,” that “ then the defendant was bound to ship the number of bales called for by these bills of lading out of the larger quantity bearing the same common marks,” if the jury “ find from the proof that the cotton in question was to be drawn from a larger lot bearing the same common marks.” This charge seems to assume that, during the progress of the receipt and accumulation of cotton for Potter in the warehouse, there was a sufficient number of bales of the proper grade and quality, and from time to time so marked, to satisfy the bills of lading sued on; and that it was, therefore, the duty of the defendant so to apply them; but it ignores the fact that they were actually applied to satisfy other bills of lading in the hands of parties equally entitled to call for them, and also the more important, because controlling, fact that they were thus applied by the order and direction of Potter, the IRON MOUNTAIN RAILWAY v. KNIGHT. 95 Opinion of the Court. owner and consignor, who had the right so to direct. There was no relation established between the plaintiffs and the defendant, in respect to the cotton described in their bills of lading, out of which any duty or obligation could arise with respect to it on the part of the defendant until the specific lots of cotton intended for the plaintiffs had been separated and set apart by Potter, and by him delivered to the defendant for immediate transportation, according to the terms of the bills of lading. The court also instructed the jury, as shown by the extracts from the charge already made, that if the agent of the defendant accepted the cotton in question for shipment, knowing at the time that it was of a quality inferior to that called for by the bills of lading which the defendant had issued for it, and the marks on the bales or packages had been changed from marks indicating a lower grade or quality of cotton to marks indicating the grade called for by the bills of lading, then the defendant was liable. This charge seems to have been given independently of any other circumstances than the mere fact of such knowledge. Possibly it was intended to be taken only in connection with the previous portion of the charge already considered, fixing upon the defendant the duty of selecting the specific quantity called for by these bills of lading out of any larger lot that may from time to time have been on hand in the warehouse answering the same description ; and this instruction, therefore, may have been intended by the court as a qualification of what had been previously said. It stands, however, and may have been so understood by the jury, as a complete and separate statement of a distinct ground of liability. In either view, we think it erroneous. If intended as a qualification of the preceding instruction, it does not have the effect of correcting it in the particulars in which we have found it to be erroneous; standing by itself, we think it also to be erroneous. Taken, as it must be, in view of the undisputed facts, it would make it to have been the'duty of the defendant, when the cotton in question was tendered by Potter for delivery to the railroad company to be carried under the terms of the bills of lading sued on, to have 96 OCTOBER TERM, 1886. Opinion of the Court. refused the shipment altogether, on the ground that the goods offered did not correspond in grade and quality with those called for by the bills of lading. As we have already seen, the defendant undertook no such obligation in respect to these plaintiffs. The only alternative, if they did not receive them, would be to reject them altogether, and to refuse to carry them. In that event, upon the facts as they stood, the plaintiffs would have lost the whole 525 bales, instead of merely the difference between the value of those actually carried and those which Potter had agreed to deliver. For, on this supposition, Potter had no other cotton except this to deliver, and the case would have stood, as between the plaintiffs and the defendant, upon bills of lading where no property at all had been received by the carrier for transportation, bringing it exactly within the rule declared in Pollard n. Vinton, 105 U. S. 7. It is argued, however, on the part of the defendants in error, that the defences made by the defendant below, based on the propositions we have considered, were not open to it on the pleadings. The only plea was the general issue of non assumpsit, not verified by an affidavit of its truth. The law of Illinois, as declared by statute, declares that “ No person shall be permitted to deny on trial the execution or assignment of any instrument in writing, whether sealed or not, upon which any action may have been brought, or which shall be pleaded or set up by way of defence or set-off, or is admissible under the pleadings when a copy is filed, unless the person so denying the same shall, if defendant, verify his plea by affidavit.” Hurd’s Revised Statutes of Illinois, Practice Act, § 34. This statute regulates the practice and pleadings in similar cases in the Circuit Court of the United States for that district by virtue of § 914 of the Revised Statutes of the United States. This provision, however, is not applicable to the circumstances of this case. The execution of the bills of lading, which are the written instruments on which the action is founded, is not denied by anything set up on the part of the defendant below. Their existence and validity, so far as their form and terms are involved, are not in question. The only questions made and THE MANITOBA. 97 Syllabus. decided are those which relate to their legal effect when considered with reference to the facts and circumstances of the case as disclosed in the evidence. The defence actually shown by them, so far as the present record is concerned, is not that the bills of lading were not valid and binding, but that the contract contained in them has been fully performed by the defendant. In accordance with these views, The judgment of the Circuit Court is reversed, and the cause is remanded, with directions to gra/nt a new t/rial. THE MANITOBA. APPTCAT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOB THE EASTERN DISTRICT OF MICHIGAN. Argued May 5, 1887. — Decided May 23,1887. Prior to a collision between two steam vessels, the C. and the M., they were moving on nearly parallel, opposite, but slightly converging lines, and that fact was apparent to the officers of both for some considerable time before the C. ported and ran across the course of the M. The M. did not slaken her speed, or signal her intentions, or reverse until it was too late. The relative courses of the vessels, and the bearing of their lights, and the manifest uncertainty as to the intentions of the C., in connection with all the surrounding facts, called for the closest watch and the highest degree of diligence, on the part of each, with reference to the movements of the other: Held, that, although the C. was in fault, the M. was also in fault for not indicating her course by her whistle, and for not slowing, and for not reversing until too late. The proper mode of applying a limitation of liability, where both vessels are in fault and the damages are divided, and both vessels are allowed such limitation, stated. The M. having been bonded, in the limited liability proceedings, on a bond in a fixed sum, conditioned to “ abide and answer the decree,” that sum does not carry interest until the date of the decree of the District Court. The loss of the C., with interest from the date of the collision to the date of the decree of the Circuit Court, exceeded the loss of the M., with like interest, by a sum, one-half of which was greater than the amount of such bond, with interest from the date of the decree of the District VOL. CXXII—7 98 OCTOBER TERM, 1886. Opinion of the Court. Court to the date of the decree of the Circuit Court. It was, therefore, proper for the Circuit Court to award to the C., as damages, the amount of the bond, with such interest. In admiralty. The case is stated in the opinion of the court. J/r. F. H. Canfield for appellants. Mr. William A. Moore was with him on the brief. Mr. Henry H Swan for appellees. Mr. H. L. Terrell filed a brief for same. Me. Justice Blatchfoed .delivered the opinion of the court. The propeller Comet and the steamboat Manitoba came into collision between 8 and 9 o’clock in the evening of the 26th of August, 1875, on the waters of Lake Superior, about six or seven miles to the southward and eastward from Whitefish Point, on the south shore of that lake, the Comet being bound from Grand Island, in Lake Superior, to Cleveland, Ohio, and the Manitoba being on a voyage from Sarnia, Ontario, to Duluth, in Minnesota. The Manitoba struck the Comet on her port bow, causing her to sink almost immediately, and she and her cargo were totally lost. The Manitoba was also injured. Howard M. Hanna and George W. Chapin, as owners of the Comet, filed a libel in rem against the Manitoba, on the 4th of September, 1875, in the District Court of the United States for the Eastern District of Michigan, to recover damages for the loss of the Comet and her cargo and freight money, claiming $70,125, being $30,000 for the Comet, $35,000 for her cargo, and $5125 as freight money. The libel alleges, that the collision was occasioned solely by the negligence and unskilfulness of the persons navigating the Manitoba, “in not having proper officers and men on duty and at their posts, in not porting, signalling answering signals or stopping engine, and in starboarding and running into and upon said propeller, and, by said omissions of duty, and other omissions of duty, and by said and other wrong movements and misconduct, solely causing said collision, and making it inevitable by any conduct, THE MANITOBA. 99 Opinion of the Court. vigilance, or effort on the part of those in charge of the” Comet. The statement of the libel is that the Comet made the white light, and, shortly afterward, the red light of the Manitoba, off the port bow of the Comet, the night being clear; that the Manitoba was on a course opposite or nearly opposite to that of the Comet; that the Comet proceeded on her course with such red light off her port bow, and properly ported her helm, and gave a single blast of her whistle, and stopped her engine; and, that, although the lights of the Comet were properly set and burning, and visible to the Manitoba, the Manitoba, instead of porting and taking further measures to avoid the Comet, starboarded her wheel and struck the Comet on her port bow. Henry Beatty and John D. Beatty appeared as claimants of the Manitoba, and, with Robert J. Hackett and Frederick B. Sibley as sureties, gave a bond for the release of the Manitoba, in the sum of $28,948.85, $200 of that sum being for costs. On the 17th of November, 1875, James H. Beatty, Henry Beatty, William Beatty and John D. Beatty answered the libel of the owners of the Comet. The answer denies the version of the occurrence given in the libel, and avers that the Manitoba made the bright light of the Comet when the Comet was heading upon nearly, if not quite, a parallel, opposite course to that of the Manitoba, the Manitoba being on a course about northwest half north; that the Comet showed her bright and green lights, bearing from one-half to three-quarters of a point on the starboard bow of tjie Manitoba; that the Manitoba starboarded half a point and was steadied on that course; that the Comet continued to approach the Manitoba, showing only her white and green lights, and as if to pass at a good, fair berth on the starboard hand of the Manitoba, until she appeared to be but a short distance off, when she was observed by the watch of the Manitoba to be swinging across the bows of the Manitoba, as if under a port wheel, upon which the engine of the Manitoba was at once checked, stopped, and backed, but it was not possible for her to avoid the collision ; and that the Manitoba suffered $5000 10Q<\> ^ApOCTOBER TERM, 1886. Opinion of the Court. damages. answer denies the allegations of fault in the ^^lanito^pset forth in the libel, and alleges that the collision ► was caused entirely by the fault of those navigating the Comet, in that (1) she did not have competent officers and watch on deck carefully attending to duty ; (2) she did not keep her course and pass the Manitoba on her starboard hand, but recklessly attempted to cross the bow of the Manitoba when she was so near as to make collision probable ; (3) she did not stop and reverse, but kept up a reckless speed, in her approach to the Manitoba, “ when there was risk of collision.” The answer also avers that, with the claim filed to the Manitoba, after her seizure under the warrant for her arrest, the respondents filed a petition setting forth that the claim of the libellants was much greater than the value of the Manitoba and her freight, and praying that she, and her freight then pending, might be appraised ; and that such proceedings were had that the claimants gave a bond, with sureties, in the sum of $28,950 as a substitute for the vessel and her freight then pending. The answer claims the benefit of a limitation of liability, under the act of Congress, against any recovery for any sum greater than the penal sum named in said bond. On the same day, the owners of the Manitoba filed a crosslibel against Hanna and Chapin, as owners of the Comet, to recover the damages caused to the Manitoba by the collision, being $5000. The cross-libel gives the same account of the collision that is given in the answer to the libel, and alleges the same faults on the part of the Comet. The case rested in this position for more than two years, when Hanna and Chapin filed an answer to the cross-libel, denying its allegations as to the facts attending the collision, alleging the facts to be as set forth in the original libel, and denying any fault on the part of the Comet. It also avers, that, as the Comet and her pending freight were totally lost by the collision, her owners became, by virtue of § 4283 of the Revised Statutes, discharged from any liability to the cross libellants by reason of the collision. The two cases were heard together before the District Court, and, on the 29th of April, 1878, it made a decree, on THE MANITOBA. 101 Opinion of the Court. pleadings and proofs, that the damages be divided, and referred it to a commissioner to report their amount. On the 14th of June, 1880, the commissioner reported as follows: value of the Comet, a total loss, $25,000; value of her cargo, $31,941.88; freight money earned by her at the time of the collision, $500; making a total of $57,441.88. He reported the damage to the Manitoba to be $5000. On a hearing on the report, the District Court, on the 15th of March, 1882, made a decree, entitled in both causes, confirming the report at the amounts so reported by the commissioner. The decree then proceeded as follows: “ And it further appearing to the court, that the said libellants and crosslibellants have respectively claimed the benefit of the act of Congress of the United States entitled ‘ An Act to limit the liability of ship-owners, and for other purposes,’ being §§ 4283, 4284, 4285 and 4286 of the Revised Statutes of the United States, and that the said steamer Manitoba has been duly bonded in accordance with the provisions of said statutes, by Henry Beatty and John D. Beatty, claimants, and Robert J. Hackett and Frederick B. Sibley, as sureties, in the sum of $28,694.95, by their bond or stipulation, conditioned to abide the decree of this court, and consenting that unless they shall so do execution should issue against them therefor, which sum is less than the damages occasioned by said collision; and this court having, by its interlocutory decree heretofore entered in this cause, found that both said vessels were in fault for said collision, and that the damages occasioned thereby be equally divided, it is, therefore, ordered, adjudged, and decreed, that said libellants recover from the said claimants and their sureties the sum of twenty-eight thousand six hundred ninety-four m ($28,694.95), being the amount of said bond or stipulation, and that said libellants have execution therefor against said Henry Beatty, John D. Beatty, Robert J. Hackett, and Frederick B. Sibley; and it is further ordered that neither the libellants nor the cross-libellants herein recover costs against the other.” This decree was proper in its figures. Allowing interest on the damages from the date of the collision to the date of the decree (which was proper) and fixing the liability 102 OCTOBER TERM, 1886. Opinion of the Court. for the $28,694.95 as of the date of the decree, (which was proper, in view of the fact that the condition of the bond was to “ abide and answer the decree,” and so the $28,694.65 did not carry interest prior to the date of the decree,) the Manitoba was Hable to pay to the Comet $36,476.74, on a proper computation based on a division of the damages, according to the principle of computation hereinafter stated, and the Manitoba had the proper limitation of liability in paying only $28,694.65, at the date of the decree. The discrepancy between that amount and the amount stated in the bond is not explained, but is not remarked upon by the parties. The obligors in such a bond are not liable for interest prior to the decree of the District Court, but are liable for interest from the date of such decree. The Ann Caroline, 2 Wall. 538; The Wanata, 95 U. S. 600. The owners of the Manitoba, on the 13th of April, 1882, appealed to the Circuit Court from so much of the final decree of the District Court, of March 15, 1882, as adjudged the Manitoba to be in fault for the collision, and also from so much of that decree as awarded to Hanna and Chapin the sum of $28,694.95, “without any deduction or allowance therefrom to these appellants on account of injuries occasioned by said collision to the said steamer Manitoba,” and also from so much of the interlocutory decree of the 29th of April, 1878, as decreed that the Manitoba was in fault for the collision, and that the damages occasioned thereby should be equally divided between the owners of the Comet and the owners of the Manitoba. The owners of the Manitoba perfected their appeal, by giving a stipulation for damages and costs, in the sum of $35,000, in the names of James H. Beatty, Henry Beatty, and John D. Beatty, with the Detroit Dry Dock Company as surety. The owners of the Comet did not appeal. The Circuit Court heard the case on pleadings and proofs, and filed its finding of facts and conclusions of iaw, entitled in both causes, on the 26th of December, 1883, as follows: “That the collision between the propeller Comet and the steamship Manitoba took place between the hours of eight THE MANITOBA. 103 Opinion of the Court. and nine o'clock on the night of the 26th of August, 1875, and at about six or seven miles distant from, and to the southward and eastward of, White Fish Point, on the south shore of Lake Superior; that at that time said propeller was bound down the lake, upon a voyage from Grand Island to Cleveland, Ohio, and, when she made the Manitoba’s light, her general course was southward. The Manitoba was moving in nearly an opposite direction, on a voyage from Sarnia, Ontario, to Duluth, Minnesota. She first made the Comet’s light when she was between White Fish Point and Point Iroquois, her general course then being northwest half north. The officers of each of the colliding vessels discovered, soon after the Comet had rounded White Fish Point, first the white and soon thereafter the green fights of each other, and they continued to approach each other on nearly parallel opposite courses, each showing to the other her white and green fights only. Both vessels had the usual complement of officers and men. When they were from one and a half to two miles apart the Manitoba had the Comet’s green light about three-quarters of a point on her starboard bow. The Manitoba then starboarded her wheel half a point, and continued her course without change until just before the collision. In the meantime the Comet ported her wheel for the second time half a point, and the two vessels thus continued to approach each other, showing their green and white lights only, until they had come within from 400 to 500 feet of each other, the Comet being then from 200 to 300 feet on the starboard side of the Manitoba, and, if each had kept their respective courses, they would have passed without colliding; but at this juncture the Comet ported her wheel, displayed her red light, and suddenly sheered across the Manitoba’s course. The Manitoba thereupon starboarded her wheel, and the collision ensued. At the time, the Manitoba was running about eleven and the Comet about nine miles an hour. The Manitoba struck the Comet on her port bow, which caused her to sink in about two minutes, whereby she and her cargo were irrecoverably lost and the Manitoba quite severely injured. Neither of said vessels sounded any signal of the 104 OCTOBER TERM, 1886. Opinion of the Court. whistle, indicating the side it intended or desired to take, nor did either of them reverse its engine or slacken its speed until the collision was inevitable, but the Manitoba did, just before or about the time it collided with the Comet, reverse its engine. The fact that the two vessels were moving on nearly parallel, opposite, but slightly converging, lines was manifest and apparent to the officers of both, for some considerable time before the Comet ported and ran across the Manitoba’s course, as hereinbefore stated, nevertheless, neither, as hereinbefore stated, slackened speed, changed its course, or signalled its intentions. The relative courses of these vessels, and the bearing of their lights, and the manifest uncertainty as to the Comet’s intentions, in connection with all the surrounding facts, called for the closest watch, and the highest degree of diligence, on the part of both, with reference to the movements of the other, and it behooved those in charge of them to be prompt in availing themselves of any resource to avoid, not only a collision, but the risk of such a catastrophe. If the requisite precautions had been observed by both or by either of said vessels, the collision, in the opinion of the court, would not have happened. Each vessel misapprehended the purposes of the other. The Comet was endeavoring to apply art. 18 of c. 5, title ⁱ Commerce and Navigation,’ of the Revised Statutes of the United States, while the Manitoba probably believed, until the Comet’s sudden sheer across her bow, that the Comet intended to pass on her starboard side. It was this misapprehension on the part of said respective vessels, which might have been timely obviated by proper signals from either, that occasioned the collision.” The court then finds the value of the Comet, and of her cargo and pending freight, and the damage to the Manitoba, at the amounts reported by the commissioner; that the value of the Manitoba and her pending freight was duly appraised under the order of the District Court, and proceedings were had pursuant to §§ 4283 to 4286 of the Revised Statutes, and security was filed for such appraised value in the sum of $28,694.95; and that the owners of both vessels claimed and THE MANITOBA. 105 Opinion of the Court. are entitled to the benefit of those sections. The court then proceeds : « And from these facts the court deduces the following conclusions of law: 1. That said vessels were not meeting end on or nearly end on, within the meaning of art. 18, of c. 5, of tit. XLVIII, ‘Commerce and Navigation,’ of the Revised Statutes of the United States, and that the Manitoba was not, in view of the circumstances of the case,’ in fault for the starboarding her wheel just prior to said collision. 2. That the immediate or proximate cause of the collision was the putting by the Comet of her wheel hard-a-port, as herein previously found, and endeavoring to cross on the port side of the Manitoba, and that she was in fault for so doing. 3. That the Manitoba was in fault in ignoring the fact that the Comet was approaching under a port wheel, and that the courses of the two vessels were convergent and involved risk of collision, and in failing to take proper precaution in time to prevent the collision which afterwards occurred. 4. That she was further in fault in not indicating her course by her whistle, and for not slowing up, and in failing to reverse her engine until it was too late to accomplish anything thereby. 5. That both vessels were in fault in failing to take necessary and proper precautions against collision, which the circumstances manifestly required, and that the damages occasioned by said collision ought to be equally apportioned between said two vessels.” The court further finds, that the libellants are entitled to recover from the owners of the Manitoba, and their sureties on appeal, by reason of the limited liability proceedings, only the sum of $28,694.95, and interest thereon from March 7, 1882, the date of the decree of the District Court, together with the costs of the libellants on the appeal; that, to the extent of the $28,694.95, the libellants are entitled to enforce payment of their damages against the claimants of the Manitoba, and their surviving surety, on the stipulation filed in the District Court for the appraised value of the Manitoba ; and that, by reason of the total loss .of the Comet and her cargo, and the provisions as to limited liability, and the fact that one moiety of the damages suffered by the libellants far exceeds 106 OCTOBER TERM, 1886. Opinion of the Court. the damages suffered by the owners of the Manitoba, and interest thereon, the owners of the Manitoba are not entitled to recover any sum whatever from the libellants. On the 18th of March, 1884, the Circuit Court made a final decree, entitled in both causes, which fixes the damages at the amounts reported by the commissioner, and declares that both vessels were in fault for the collision; that the damages shall be equally divided; that the owners of both vessels claim and are entitled to the benefit of a limitation of liability; and that the sum of $28,694.95, at which the Manitoba and her pending freight were appraised in the limited liability proceedings and bonded, is less than one moiety of the damages occasioned by the collision; and then proceeds as follows: “ It is, therefore, ordered, adjudged, and decreed, that said libellants, Howard M. Hanna and George W. Chapin, do recover of and from said James H. Beatty, Henry Beatty, William Beatty, and John D. Beatty, claimants of said steamer Manitoba, and appellants herein, and of and from the Detroit Dry Dock,Company, their surety on the bond or stipulation on appeal, filed in this court, the sum of $28,694.95, and the further sum of $3395.50, being the interest, at six per cent per annum, on the aforesaid sum of $28,694.95 from the 7th day of March, 1882, the date of the decree of the District Court, to the date of the decree of this court herein, in all, the sum of $32,090.45, together also with the costs of said libellants in this court, to be taxed, upon the appeal of said claimants of said steamer Manitoba from the decree of the District Court on said libel and cross-libel. “And it further appearing to the court, that said Robert J. Hackett, one of the sureties on the bond or stipulation filed in the District Court for the appraised value of the steamer Manitoba and her freight, as aforesaid, has deceased, it is, therefore, ordered, adjudged, and decreed, that said libellants, Howard M. Hanna and George W. Chapin, do recover of and from the said James H. Beatty, Henry Beatty, William Beatty, and John D. Beatty, claimants of the steamer Manitoba, and Frederick B. Sibley, their surviving surety upon the bond for the appraised value of said steamer Manitoba and her freight THE MANITOBA. 107 Opinion of the Court. pending at the time of the collision mentioned in the pleadings in this cause, the sum of $28,694.95, in case of non-payment thereof by the claimants and their surety on appeal to this court. “ And that said libellants, Howard M. Hanna and George W. Chapin, have execution for the damages and costs to them adjudged and decreed by the judgment and decree of this court, against said claimants, James Beatty, Henry Beatty, William Beatty, and John D. Beatty, and the Detroit Dry Dock Company, their surety on the bond or stipulation given by said claimants on appeal to this court, for the aforesaid sum of $28,694.95, and said further sum of $3395.50, as interest thereon, and for the costs of said libellants in this court, to be taxed. “ And it is further ordered, adjudged, and decreed, that, for the recovery of the damages decreed to libellants by the decree of the District Court and of this court, libellants have execution against James H. Beatty, Henry Beatty, William Beatty, and John D. Beatty, claimants, and said Frederick B. Sibley, their surviving surety on the bond or stipulation for the appraised value of said steamer Manitoba and the freight pending as aforesaid, in and for the amount of $28,694.95, the appraised value thereof as aforesaid, provided proceedings shall be had on the bond or stipulation given on appeal to this court, by said claimants of said steamer Manitoba, before recourse shall be had for collection on the bond or stipulation filed in the District Court for the appraised value of the steamer Manitoba and her freight pending at the time of said collision.” The claimants of the Manitoba have appealed to this court from so much of the decree of the Circuit Court as decrees the Manitoba to be in fault for the collision, and from so much of it as awards to the original libellants $32,090.45, without any deduction or allowance therefrom to these appellants on account of injuries occasioned by said collision to the said steamer Manitoba.” The main question of law arising on the record is as to the liability of the Manitoba. The Circuit Court finds, as one of its conclusions of law, 108 OCTOBER TERM, 1886. Opinion of the Court. “ that the Manitoba was in fault in ignoring the fact that the Comet was approaching under a port wheel, and that the courses of the two vessels were convergent, and involved risk of collision; and in failing to take proper precaution in time to prevent the collision which afterwards occurred.’’ The expression “risk of collision,” found in the third conclusion of law, is not contained in the findings of fact proper; and it is, therefore, insisted, on the part of the Manitoba, that it is not found as a fact that the courses of the two vessels involved risk of collision, by the movement of the Comet under a port wheel, in her approach to the Manitoba, prior to the time when she put her wheel hard-a-port and crossed the bows of the Manitoba. But we think this is not a correct view. The findings of fact state, that, when the vessels were from one and a half to two miles apart, the Manitoba had the Comet’s green light about three-quarters of a point on her starboard bow, and that the Manitoba then starboarded her wheel half a point and continued her course without change until just before the collision. This starboarding would bring the green light of the Comet further on the starboard bow of the Manitoba ; but, in the meantime, the Comet ported her wheel half a point; and it is not found that the green light of the Comet continued to open wider to the view of the Manitoba. On the contrary, the findings state, that the fact that the two vessels were moving on nearly parallel, opposite, but slightly converging, lines, was apparent to the officers of both vessels for some considerable time before the Comet ported her wheel, and displayed her red light to the Manitoba, and suddenly sheered across the course of the Manitoba. The findings also state, that, from the relative courses of the two vessels, and the bearing of their lights, there was manifest uncertainty as to the intentions of the Comet, and that this called for the closest watch, and the highest degree of diligence, on the part of the Manitoba, with reference to the movements of the Comet, and that it behooved those in charge of her to be prompt in availing themselves of any resource to avoid, not only a collision, but the risk of such a catastrophe. The findings further state, that neither of the vessels sounded any THE MANITOBA. 109 Opinion of the Court. ■ signal of the whistle indicating the side it intended or desired to take, nor did either of them reverse its engine or slacken its speed until the collision was inevitable; and that, if the requisite precautions, meaning the precautions just mentioned, had been observed by both or either of the vessels, the collision would not have happened. In addition to the facts thus found, the answer of the claimants of the Manitoba to the original libel charges as a fault in the Comet, that she did not stop and reverse, but kept up a reckless speed in her approach to the Manitoba, “ when there was risk of collision.” This allegation is repeated in the crosslibel of the owners of the Manitoba. If there was risk of collision iti the approach of the Comet towards the Manitoba prior to the sudden sheer of the Comet, it was a risk affecting the Manitoba equally with the Comet, and imposing upon her the same duties of slackening her speed, or, if necessary, stopping and reversing, under Rule 21 of § 4233 of the Revised Statutes, which it imposed on the Comet. On the facts, the Circuit Court found, as a conclusion of law, and, we think, correctly, that the Manitoba was in fault in not indicating her course by her whistle, and in not slowing up, and in failing to reverse her engine until it was too late to accomplish anything thereby. The facts in this case are very much like those in The Starb-more, 10 P. D. 135, where one of two steam vessels, under like circumstances with those of the Manitoba, was held in fault for not stopping and reversing, although the collision was mainly caused by the fault of the other vessel, which was also condemned. A few words are necessary on the question as to whether, in the amount decreed to the original libellants, by the Circuit Court, allowance is made to the owners of the Manitoba on account of the damages to her. The findings of fact state that the owners of both vessels are entitled to the benefit of a limitation of liability, and that the owners of the Comet are entitled to recover from the owners of the Manitoba and their sureties on appeal, by reason of the proceedings for a limitation of liabilty, only $28,694.95, and interest thereon 110 OCTOBER TERM, 1886. Opinion of the Court. from March 7, 1882, the date of the decree of the District Court. The decree of the Circuit Court states that the value of the Manitoba and her freight pending at the time of the collision was duly appraised, in the proceedings for a limitation of liability, at the sum of $28,694.95, and that she was duly bonded for that sum, “ which sum,” the decree states “ is less than one moiety of the damages occasioned by said collision.” Those damages, with interest at six per cent per annum from the date of the collision to the date of the decree of the Circuit Court, amounted to $93,288.16. One-half of that is $46,644.08. On the ground that the amount of the appraised value of the Manitoba and her pending freight was “less than one moiety of the damages occasioned ” by the collision, the Circuit Court adjudged that the owners of the Comet should recover from the claimants of the Manitoba, and from their surety on appeal, the Detroit Dry Dock Company, the sum of $28,694.95, with interest thereon from the 7th of March, 1882, the date of the decree of the District Court, and should recover from the claimants of the Manitoba and the surviving surety on the bond given in the District Court for the appraised value of the Manitoba and her pending freight, the sum of $28,694.95, in case of non-payment thereof by the claimants or the Detroit Dry Dock Company. We had occasion to consider this subject at length in the case of The North Star, 106 IT. S. 17, in which Mr. Justice Bradley delivered the opinion of the court. In that case there was a collision between two steam vessels, the Ella Warley and the North Star. The Circuit Court held both vessels in fault, the Ella Warley being sunk and lost and the North Star damaged. There was a libel in rem against the North Star and a libel in personam against the owners of the Ella Warley. The Circuit Court rendered a decree in favor of the owners of the Ella Warley for so much of the damage to her, (it being greater than that sustained by the North Star,) as exceeded one-half of the aggregate damage sustained by both vessels. The owners of the Ella Warley had claimed the benefit of a limitation of liability. On appeals to this court by both parties, it was contended on behalf of the Ella Warley, THE MANITOBA. Ill Opinion of the Court. that, as she was a total loss, the half of the damage to her must be paid in full, without any deduction for the half of the damage sustained by the North Star. This court, after a full examination of the subject, held that the proper rule was, that, as each vessel was liable for one-half of the damage done to both, if one suffered more than the other, the difference should be equally divided, and the one which suffered least should be decreed to pay one-half of such difference to the one which suffered most, so as to equalize the burden. In other words, as both parties were in fault, the damage done to both vessels should be added together in one sum and equally divided, and a decree be pronounced in favor of the owners of the vessel which suffered most, against those of the vessel which suffered least, for one-half of the difference between the amounts of their respective losses. The House of Lords established the same rule in Stoomvaart Maaischappy Nederla/nd v. Penins. & Oriental Stea/m Na/o. Co., 1 App. Cas. 795. Applying this rule to the present case, the amount of the aggregate damage to both vessels, computed with interest to the date of the decree of the Circuit Court, was $93,288.16; being for the Comet, $85,818.16, and for the Manitoba, $7410.00. One-half of this was $46,644.08. The loss of the owners of the Comet and of her cargo and pending freight was greater than that of the owners of the Manitoba by the sum of $18,348.16. One-half of that difference was $39,174.08. That was the amount of the liability of the Manitoba to the Comet, at the date of the decree of the Circuit Court, on a division of the damages, after a proper allowance to the Manitoba for the damage to her, and without reference to the limitation of liability. As the amount of the bond of the Manitoba, $28-694.95, with interest at six per cent per annum, from the date of the decree of the District Court to the date of the decree of the Circuit Court, was only $32,090.45, the Manitoba had the proper limitation of liability aHowed to her by the decree of the Circuit Court, and was entitled to that limitation. Decree affirmed. 112 OCTOBER TERM, 1886 Opinion of the Court. PARSONS v. ROBINSON. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOB THE EASTERN DISTRICT OF PENNSYLVANIA. Submitted April 27, 1887. —Decided May 23,1887. Proceedings were commenced to foreclose a railroad mortgage in which the trustee of the mortgage, the railroad company, and others were respondents, and one bondholder originally, and another by intervention, were complainants. A decree was entered that the complainants were entitled to have a sale of the mortgaged property upon failure of the company to pay an amount to be fixed by reference to a master within a time to be named by the court, and an order of reference was made. The master reported, and a decree of foreclosure was entered in which the trustee was directed to sell the mortgaged property, “at such time and place and in such manner as the court may hereafter determine: ” and a reference was ordered to a master to report the extent and amount of the prior liens on the mortgaged property, “full and detailed statements ” of the property “ subject to the lien of said general mortgage,” and “ what liens, if any, are upon the several properties ” of the railroad company, “junior to said general mortgage and the order of their priority.” Held, that this was not a final decree, which terminated the litigation between the parties on the merits of the case, and that the appeal must be dismissed. Motion to dismiss. The case is stated in the opinion of the court. Hfr. Diehard C. Dale and J/?. Samuel Dickson for the motion. J/r. D. H. Cha/mberlaim, and J/?. F. A. Lewis opposing. Mr. Chief Justice Waite delivered the opinion of the court. This is a motion to dismiss an appeal, because the decree appealed from is not a final decree, and also because the value of the matter in dispute does not exceed five thousand dollars. The suit was originally brought by W illiam M. Robinson, the holder of general mortgage bonds, so called, of the Philadelphia PARSONS v. ROBINSON. 113 Opinion of the Court. and Reading Railroad Company, to the amount of $5000, to foreclose the mortgage given for their security. Afterwards Edwin Parsons, the present appellant and the holder oi $100,000 of the same issue of bonds, intervened by leave of the court, and became a party complainant in the suit. On the 6th of October, 1886, a decree was entered, finding that the railroad company had made default in the payment of the interest, and that the complainants were “ entitled to have a sale of the mortgaged premises, in accordance with the provisions in said mortgage contained, upon the failure of the defendant to pay, within a time to be hereafter fixed, the amount of the bonds and coupons now outstanding entitled to the security of the said mortgage,” and for the purpose of finding this amount the cause was referred to masters to ascertain and report “ the amount due upon the bonds, principal and interest, which are entitled to the security of said mortgage; and also to report what liens, if any, are prior to the bonds, or to any and what bonds secured by said mortgage; and also to ascertain and report the extent of the lien of the said mortgage upon the railroad, branches, leasehold interests, franchises, and other property of the Philadelphia and Reading Railroad Company, including not only the property owned by said company at the time of the execution of said mortgage, but also that which has since been acquired.” Afterwards the masters filed their report, setting forth, 1, the amount due on the bonds entitled to the security of the general mortgage; 2, the liens which were prior to that mortgage; and, 3, by general description, the property covered. Exceptions were taken to this report, and, on consideration thereof, the court ordered, March 7, 1887, that the company pay, on or before June 7, 1887, the amount found due by the masters for interest, and also $1,694,250 for “ general mortgage scrip,” with interest from July 1,1886, and, in default thereof, “ that the defendants, The Philadelphia and Reading Railroad Company, Samuel W. Bell, trustee, The Pennsylvania Company for Insurances on Lives and Granting Annuities, trustees, and all persons claiming under them, be absolutely barred and foreclosed of and from all right and equity of redemption in and to vol. cxxn—8 114 OCTOBER TERM, 1886. Opinion of the Court. the premises in said mortgage described ; and, in default of such payment as aforesaid, the court do further order and decree the defendant, The Fidelity Insurance, Trust and Safe Deposit Company, trustee in said mortgage mentioned, to sell the railroads, estates, real and personal, corporate rights and franchises and premises in said mortgage mentioned, at such time and place and in such manner as the court may hereafter determine; and it is further ordered, that this cause be referred to the masters heretofore appointed, with instructions to report to the court, on or before the 10th day of July, 1887, the extent and amount of all liens prior to said general mortgage upon the properties thereby covered, and also to report to the court full and detailed statements of the several properties, real and personal, of the Philadelphia and Reading Railroad Company subject to the lien of said general mortgage, in accordance with the principles stated in the report of the masters heretofore filed, and also to report what liens, if any, are upon the several properties of the said Philadelphia and Reading Railroad Company and the Philadelphia and Reading Iron and Coal Company junior to said general mortgage, and the order of their priority; and it is further ordered, that said masters do prepare and report to the court an order of sale of said mortgaged properties, and form of advertisement therefor.” From that decree this appeal was taken by Parsons alone, and the first question we will consider is, whether it is a final decree within the meaning of that term as used in the statutes which provide for appeals to this court from the final decrees of the Circuit Courts in cases of equity jurisdiction. That “ a decree of sale in a foreclosure suit, which settles all the rights of the parties and leaves nothing to be done but to make the sale and pay out the proceeds, is a final decree for the purposes of an appeal ” is no longer an open question m this court. Grant v. Phoenix Insurance Co., 106 IT. S. 429, 431, and cases there cited. Here, however, there is as yet no decree of sale. As was said in Railroad Company v. Swasey, 23 Wall. 405, 409, “ to justify such a sale, without consent, the amount due upon the debt must be determined and the property to be sold ascertained and defined. Until this is done, the PARSONS v. ROBINSON. 115 Opinion of the Court. rights of the parties are not all settled. Final process for the collection of money cannot issue until the amount to be paid or collected by the process, if not paid, has been adjudged. So, too, process for the sale of specific property cannot issue until the property to be sold has been judicially identified.” In this case the amount due upon the debt has been ascertained and its payment by a day certain ordered, but “ the ex tent and amount of all liens prior to said general mortgage upon the property thereby covered” have not been determined, and “ full and detailed statements of the several properties ... subject to the lien of said general mortgage” have not been furnished to the court. Neither has it been determined what “the order of sale of said mortgage properties” shall contain, nor what shall be the “ form of the advertisement therefor.” The court has, indeed, declared its intention of hereafter directing such a sale, but, as it requires further information to enable it to act understandingly in that behalf, has sent the case again to the masters with instructions to inquire and report upon the matters in doubt. All this is necessarily implied from the provision that the sale is to be “ at such time and place and in such manner as the court may hereafter determine,” coupled, as it is, with directions to the masters to “ prepare and report to the court an order of sale of said mortgaged properties and form of advertisement therefor,” together with a statement in detail of the property to be sold and its exact condition as to prior incumbrances. No order of sale can issue on this decree until these questions are settled and the court has given its authority in that behalf. Further judicial action must be had by the court before its ministerial officers can proceed to carry the decree into execution. Until the particulars of the prior liens are ascertained, the property identified, and the time, place, and manner of sale determined, the rights of the parties will not have been sufficiently settled to make it proper, in the opinion of the court, as expressed in its present decree, to direct that the sale go on. All these matters still remain for adjudication, and the decree, as it now stands, has not “ terminated the litigation between the parties on the merits of the case.” Conse- 116 OCTOBER TERM, 1886. Opinion of the Court. quently it is not final. Bostwick v. Brinkerhoff106 U. 8. 3. and the cases there cited. As the motion to dismiss must be granted on this ground, it is unnecessary to consider whether the amount in dispute is sufficient to give us jurisdiction. Dismissed. BARTRAM v. ROBERTSON. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Argued April 29, 1887. — Decided May 23, 1887. The provisions in the treaty of friendship, commerce, and navigation with the king of Denmark, concluded April 26, 1826, and revived by the convention of April 11, 1857, do not, by their own operation, authorize the importation, duty free from Danish dominions, of articles made duty free by the convention of January 30, 1875, with the king of the Hawaiian Islands, but otherwise subject to duty by a law of Congress, the king of Denmark not having allowed to the United States the compensation for the concession which was allowed by the king of the Hawaiian Islands. This was an action to recover back duties alleged to have been illegally exacted by the collector at New York. Judgment for defendant. Plaintiff sued out this writ of error. The case is stated in the opinion of the court. Mr. H. E. Tremain and Mr. A. J. Willard for plaintiffs w error. Mr. Solicitor General for defendant in error. Mr. Justice Field delivered the opinion or the court. The plaintiffs are merchants doing business in the city 01 New York, and in March and April, 1882, they made four importations of brown and unrefined sugars and molasses, the produce and manufacture of the Island of St. Croix, which is BARTRAM v. ROBERTSON. 117 Opinion of the Court. a part of the dominions of the king of Denmark. The goods were regularly entered at the custom-house at the port of New York, the plaintiffs claiming at the time that they should be admitted free of duty under the treaty with Denmark, because like articles, the produce and manufacture of the Hawaiian Islands, were, under the treaty with their king, and the act of Congress of August 15, 1876, to carry that treaty into operation, admitted free of duty. The defendant, however, who was the collector of the port of New York, treated the goods as dutiable articles, and, against the claim of the plaintiffs, exacted duties upon them under the acts of Congress, without regard to those treaties, amounting to $33,222, which they paid to the collector under protest in order to obtain possession of their goods. They then brought the present action against the collector to recover the amount thus paid. The action was commenced in a court of the state of New York, and, on motion of the defendant, was transferred to the Circuit Court of the United States. The complaint sets forth the different importations; that the articles were the produce and manufacture of St. Croix, part of the dominions of the king of Denmark; their entry at the custom-house, and the claim of the plaintiffs that they were free from duty by force of the treaty with the king of Denmark and of that with the king of the Hawaiian Islands; the refusal of the collector to treat them as free under those treaties ; his exaction of duties thereon to the amount stated, and its payment under protest; and asked judgment for the amount. The defendant demurred to the complaint on the ground, among others, that it did not state facts sufficient to constitute a cause of action against him. The Circuit Court sustained the demurrer, and ordered judgment for the defendant with costs, 21 Blatchford: 211; and the plaintiffs have brought the case to this court for review. We are thus called upon to give an interpretation to the clause in the treaty with Denmark which bears upon the subject of duties on the importation of articles produced or manufactured in its dominions, and the effect upon it of the treaty with the Hawaiian Islands for the admission without duty of similar articles, the produce and manufacture of that kingdom. 118 OCTOBER TERM, 1886. Opinion of the Court. The existing commercial treaty between the United States and the king of Denmark, styled “General convention of friendship, commerce, and navigation,” was concluded on the 26th of April, 1826. 8 Stat. 340. It was afterwards abrogated, but subsequently renewed, with the exception of one article, on the 12th of January, 1858. 11 Stat. 719. The first article declares that “ the contracting parties, desiring to live in peace and harmony with all the other nations of the earth, by means of a policy frank and equally friendly with all, engage, mutually, not to grant any particular favor to other nations in respect of commerce and navigation which shall not immediately become common to the other party, who shall enjoy the same freely, if the concession were freely made, or upon allowing the same compensation, if the concession were conditional.” The fourth article declares that “ no higher or other duties shall be imposed on the importation into the United States of any article, the produce or manufacture of the dominions of his majesty the king of Denmark; and no higher or other duties shall be imposed upon the importation into the said dominions of any article the produce or manufacture of the United States, than are, or shall be, payable on the like articles, being the produce or manufacture of any other foreign country.” The treaty, or convention, as it is termed, between the king of the Hawaiian Islands and the United States, was concluded January 30, 1875, and was ratified May 31 following. 19 Stat. 625. Its first article declares, that “ for and in consideration of the rights and privileges granted by His Majesty the King of the Hawaiian Islands,” and “ as an equivalent therefor,” the United States agree to admit all the articles named in a specified schedule, the same being the growth, produce, and manufacture of the Hawaiian Islands, into all the ports of the United States free of duty. Then follows the schedule, which, among other articles, includes brown and all other unrefined sugars and molasses. The second article declares, that “ for and in consideration of the rights and privileges granted by the United States of BARTRAM v. ROBERTSON. 119 Opinion of the Court. America in the preceding article,” and “as an equivalent therefor,” the king of the Hawaiian Islands agrees to admit all the articles named in a specified schedule which were the growth, manufacture, or produce of the United States of America, into all the ports of the Hawaiian Islands free of duty. Then follows the schedule mentioned. By the fourth article it is also agreed on the part of the Hawaiian king, that so long as the treaty remains in force he will not lease or otherwise dispose of, or create any hen upon any port, harbor, or other territory in his dominions, or grant any special privileges, or rights of use therein, to any other power, state, or government, nor make any treaty by which any other nation shall obtain the same privileges, relative to the admission of any articles free of duty, thereby secured to the United States. The fifth article declared, that the convention should not take effect until a law had been passed by Congress to carry it into operation. Such a law was passed on the 15th of August, 1876. 19 Stat. 200, c. 290. It provided, that whenever the President of the United States should receive satisfactory evidence that the legislature of the Hawaiian Islands had passed laws on their part to give full effect to the convention between the United States and the king of those Islands signed on the 30th of January, 1875, he was authorized to issue his proclamation declaring that he had such evidence, and thereupon, from the date of such proclamation, certain articles, which were named, being the growth, manufacture, or produce of the Hawaiian Islands, should be introduced into the United States free of duty, so long as the convention remained in force. Such evidence was received by the President, and the proclamation was made on the 9th of September, 1876. 19 Stat. 666. The duties for which this action was brought were exacted under the act of the 14th of July, 1870, as amended on the 22d of December of that year. 16 Stat. 262, 397. The act is of general application, making no exceptions in favor of Denmark or of any other nation. It provides that the articles specified, without reference to the country from which they 120 OCTOBER TERM, 1886. Opinion of the Court. come, shall pay the duties prescribed. It was enacted several years after the treaty with Denmark was made. That* the act of Congress as amended, authorized and required the duties imposed upon the goods in question, if not controlled by the treaty with Denmark, after the ratification of the treaty with the Hawaiian Islands, there can be no question. And it did not lie with the officers of customs to refuse to follow its directions because of the stipulations of the treaty with Denmark. Those stipulations, even if conceded to be self-executing by the way of a proviso or exception to the general law imposing the duties, do not cover concessions like those made to the Hawaiian Islands for a valuable consideration. They were pledges of the two contracting parties, the United States and the king of Denmark, to each other, that, in the imposition of duties on goods imported into one of the countries which were the produce or manufacture of the other, there should be no discrimination against them in favor of goods of like character imported from any other country. They imposed an obligation upon both countries to avoid hostile legislation in that respect. But they were not intended to interfere with special arrangements with other countries founded upon a concession of special privileges. The stipulations were mutual, for reciprocal advantages. “ No higher or other duties ” were to be imposed by either upon the goods specified’, but if any particular favor should be granted by either to other countries in respect to commerce or navigation, the concession was to become common to the other party upon like consideration, that is, it was to be enjoyed freely if the concession were freely made, or on allowing the same compensation if the concession were conditional. The treaty with the Hawaiian Islands makes no provision for the imposition of any duties on goods, the produce or manufacture of that country, imported into the United States. It stipulates for the exemption from duty of certain goods thus imported, in consideration of and as an equivalent for certain reciprocal concessions on the part of the Hawaiian Islands to the United States. There is in such exemption no violation of the stipulations in the treaty with Denmark, and TOPLIFF v. TOPLIFF. 121 Names of Counsel. if the exemption is deemed a “ particular favor,” in respect of commerce and navigation, within the first article of that treaty, it can only be claimed by Denmark upon like compensation to the United States. It does not appear that Denmark has ever objected to the imposition of duties upon goods from her dominions imported into the United States, because of the exemption from duty of similar goods imported from the Hawaiian Islands, such exemption being in consideration of reciprocal concessions, which she has never proposed to make. Our conclusion is, that the treaty with Denmark does not bind the United States to extend to that country, without compensation, privileges which they have conceded to the Hawaiian Islands in exchange for valuable concessions. On the contrary, the treaty provides that like compensation shall be given for such special favors. When such compensation is made it will be time to consider whether sugar from her dominions shaH be admitted free from duty. Judgment affirmed. TOPLIFF v. TOPLIFF. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE NORTHERN DISTRICT OF OHIO. Argued May 3, 4, 1887. — Decided May 23, 1887. When the language of a contract is ambiguous, the practical interpretation of it by the parties is entitled to great, if not controlling influence. In this case the court holds that a contract made by the parties in 1870 is still in force, and that under its terms the appellee is entitled to make use of the combinations covered by the patent to John A. Topliff, one of the appellants, of August 24, 1875, without the payment of royalty, and without being charged With liability as an infringer. Bill in equity to restrain alleged infringements of letterspatent. Decree dismissing the bill, from which complainants appealed. The case is stated in the opinion of the court. Mr. Henry 8. Sherman and Mr. W. BdkeweU for appellants. Mr. M. D. Leggett and Mr. W. W. Boynton for appeHee. Mr. S. Burke was with them on the brief. 122 OCTOBER TERM, 1886. Opinion of the Court. Mr. Justice Matthews delivered the opinion of the court. The appellants, complainants below, on the 28th February, 1880, filed their bill in equity to restrain the alleged infringement by the defendant of letters-patent No. 166,950, granted August 24, 1875, to John A. Topliff, for a new and useful improvement in bow-sockets for buggy-tops. As stated in the specification, “This invention has relation to bowsockets for buggy-tops, and consists in placing a filling of wood in the tubes of the bow-sockets to strengthen the same; also in extending the strip of steel which is inserted in the wood filling far enough down to enable it to be welded or otherwise fastened to the slat-iron.” Among other grounds of defence, the defendant in his answer sets out the following: He alleges that some time prior to the 27th day of December, 1870, he invented a new and useful invention denominated an improvement in carriagebows, consisting in the main in constructing the straight part of carriage-bows out of tapering tubes made of sheet-iron with soldered seams and lower ends flattened, forming a part of the hinge, in conjunction with the bows made of wood, shaped and fitted into the upper ends of the tubes; that this invention was secured to him by letters-patent dated December 27, 1870, No. 110,513; that this patent was reissued as reissued letters patent No. 9026, January 6, 1880; and that he obtained another patent, No. 114,885, dated May 16, 1871, for a new and improved carriage-bow cover and slat-iron combined. That soon after he invented his first improvement in carriage-bows, for which he obtained the patent dated December 27,1870, and pending the application therefor, a contract in writing was entered into on or about the 1st day of September, 1870, between himself and the complainants, as follows: “ This agreement, made and concluded this----------day of -------a.d. 1870, by and between Isaac N. Topliff, of the first part, and John A. Topliff and George H. Ely, of the second part, witnesseth: 1st. The said party of the first part is the sole owner of a certain patent for tubular iron bows used TOPLIFF v. TOPLIFF. 123 Opinion of the Court. in manufacturing carriage and buggy tops, which patent was issued the----day of, a.d.------. Now, in consideration of the agreements of said party of the second part to be by them performed, the said party of the first part hereby gives, grants, sells and conveys to the said party of the second part, the exclusive right of manufacturing and of selling thé above-mentioned article throughout the United States for five years from the date of this agreement ; it being understood that, at the expiration of five years, the said party of the first part shall have the right to have the above-named articles manufactured at not more than two other places, to be sold at prices adopted by said party of the second part, but in all other respects the rights and privileges of the said party of the second part shall continue during the entire fife of the patent. “ 2. The parties mutually agree that they will share the expense of maintaining the right of the patent against infringements and other patents in the following proportion : The first party to pay one-third and the second party to pay two-thirds. It is also further agreed that any improvement made on these articles by either party shall be for the mutual benefit of the parties. “ 3. In consideration of the above grant, the said party of the second part hereby agrees to pay to the said party of first part fifteen per cent on the wholesale selling prices of above-named articles as royalty on all sold by them, it being understood that these prices shall at all times be settled by mutual agreement between both parties. The said party of the second part further agree that they will advertise thoroughly the above-named article in such ways as may seem best, and do all in their power to introduce and extend the sale of said articles. They also agree that they will make them of quality and finish to meet the approbation of said party of the first part. “In witness whereof the parties have set their hands and seals to duplicates the day and year first above written. “I. N. Topliff. [seal.] “J. A. Topliff. [seal.] “George EE. Ely. [seal.]” 124 OCTOBER TERM, 1886. Opinion of the Court. That, in pursuance of the agreement, the complainants en* tered upon the manufacture and sale of carriage-bows, the defendant being in their employment as travelling salesman, and as such devoted his time largely to the introduction and sale of said carriage-bows throughout the United States, and also his time, thought, and attention to making improvements therein, knowledge of which was communicated by him to the complainants from time to time. That some of these improvements made by him were covered by the patent bearing date May 16, 1871. That the business was carried on by the complainants in this way under said contract for more than eight years to their great gain and profit. The defendant further alleges, that “ after the issuing to him of the last-mentioned letters-patent, he made some slight changes and improvements in the manufacture of carriagebows, and communicated the same to said complainants, especially to said John, and requested that, in the manufacture of carriage-bows under his patent aforesaid, that the said complainants should construct and manufacture them in accordance with his said suggestions and improvements, which improvements were communicated by this defendant to the said complainants on or about the first day of June, 1873. That thereupon his said suggestion and invention was adopted by the said complainants in the manufacture of carriage-bows by the said complainants; and afterwards the said John A. Topliff, for the purpose of securing the same to the complainants and to this defendant for their mutual use and benefit, in accordance with the terms of 'said contract, made application for a patent thereon, and secured the alleged patent in the complainants’ bill of complaint described. And this defendant alleges and says, that, if in reality there is anything new or useful embraced in the said letters-patent, issued to the said John A. Topliff, that he was and is the true inventor and rightful owner thereof, and that the said John A. Topliff was not and is not the true and original inventor and discoverer thereof. And this defendant alleges, that, whether said patent, so issued in the name of said complainants, is or is not valid, that he, by the terms of his said contract entered into TOPLIFF v. TOPLIFF. 125 Opinion of the Court. with said complainants, is entitled to use the same to the same extent that the complainants are entitled to use the same. That, by the terms of said contract, such right is expressly granted and conveyed to him, and that the complainants have so interpreted said contract, and have had upon their part the free use and benefit of the invention, discovery, and improvement made by this defendant and secured to him by letterspatent dated May 16, 1871, as aforesaid, and other considerations therefor, as agreed; and that, relying upon said contract, he communicated to the said complainants the information and instructions in regard to manufacturing under his said patents and other improvements above named, upon which the said John A. Topliff made the application and secured to the said complainants the letters-patent said to be owned by them. And this defendant denies that he has made other use of the letters-patent issued to the complainants than such as he was authorized to make by the terms of the contract aforesaid between the complainants and himself.” The defendant further says, that he has established a manufactory of carriage-bows in the city of Cleveland, but not in any other place or places; and that by the terms of his contract with the complainants he is entitled so to do, and in said business to use the alleged improvements covered by the patent described in the bill. The case was heard on the pleadings and proofs, when the Circuit Court being satisfied that under the contract set up in the answer each party had a right to use, without the payment of royalty, the patent issued to the complainants, a decree was entered dismissing the bill. The complainants took the present appeal. It is now contended, on the part of the appellants, 1st, that at the time when the bill was filed the contract set up in the answer was not in force, having been previously rescinded by the parties; and, 2d, that if the contract is in force, it does not secure to the appellee the right to the use of the improvement covered by the patent to John A. Topliff of August 24, 1875, belonging to the appellants. The circumstances which, according to the contention of 126 OCTOBER TERM, 1886. Opinion of the Court. the appellants, constitute the rescission of the contract are claimed to be as follows: They allege that when the contract in question was entered into, the application of the appellee for his patent was pending ; that a sample specimen of the carriage-bow intended to be covered by the patent was shown by the appellee to the appellants ; that the appellee represented to them that the patent would cover the use of tubular carriage-bows; that in point of fact the original application made the following claims: “ 1. The upright part of carriage-bows, constructed of tubular sheet metal A, in combination with the wooden bow B, put together in the manner and for the purposes set forth and described. “ 2. The tube A, with elongated flat portion c, to form a solid joint with the bow-socket D in the manner described. “ 3. The scallop-edged sheet-iron bow-socket D to be used in connection with the tubes A and Af, in the manner described.” That these claims were rejected in the Patent Office, and in lieu of them the claim of the patent as issued on December 27, 1870, was substituted, as follows: “ The straight part of the bow A, tubular and flattened at the lower end, the bow-socket D, consisting of two concave scalloped pieces, and the bent part of the bow B, all combined, constructed, and arranged as and for the purposes set forth.” That the appellants were not aware of the rejection of the original claims until some time in the year 1879; that during that period they acted under the impression that they were secured in the exclusive right to use carriage-bows containing the tubular uprights; that they had no knowledge to the contrary until the fact was disclosed by an examination of the records of the Patent Office; that immediately upon discovering it they gave notice to the appellee that the consideration for the contract between them had thus failed, the patent being of no avail to them, and that they would no longer regard it as obligatory, and that thereupon the appellee acquiesced in this rescission of the contract by them, and resumed his ownership of the original patent, surrendered the same, and obtained a reissue thereof on January 6, 1880, the claims of which are as follows: TOPLIFF v. TOPLIFF. 127 Opinion of the Court. « 1. A carriage-bow, the side or upright portions A A of which are tubular, substantially as and for the purpose shown. « 2. A carriage-bow consisting of the bent wooden section B and the tubular sections A A, the latter constituting the vertical sides or arms of the bow, the opposite ends of the bent portion B being secured to the upper ends of the tubular sections A A, substantially as set forth. “ 3. A carriage-bow consisting of the bent wooden sections B and the metallic tubular sections A A, the latter constituting the straight or vertical sides of the bow, substantially as set forth. “4. A carriage-bow consisting of the bent wooden section B and the tubular sections A A, the latter constituting the straight or vertical sides of the bow, and constructed at their lower ends to be attached to a socket or carriage-seat, substantially as set forth.” On the other hand, it appears from the testimony in the case, that the manufacture of the carriage-bows, as contemplated under the application for the original patent, was abandoned by the parties before the patent was in fact issued, experience showing that the bows so made were not practically useful in the trade ; that the original patent of December 27, 1870, soon after it was issued, was delivered to the appellants, and kept in their possession until it was lost or destroyed in December, 1873, and that thereby they had abundant opportunity of knowing, from an examination of its contents, the actual extent of its claims; and that subsequently the patent of May 16, 1871, was issued to the appellee for a new and improved carriage-bow cover and slat-iron combined, which embodied important improvements on the carriage-bow as previously made. Under this patent all the parties continued to carry on the business of making and selling carriage-bows, the articles of manufacture being from time to time improved and rendered more valuable and salable by the suggestion and adoption of improvements made from time to time by both parties. To cover some of the improvements thus invented and adopted, the appellant, John A. Topliff, applied for and obtained his 128 OCTOBER TERM, 1886. Opinion of the Court. patent of August 24, 18'75. The claims of that patent are as follows: “1. In combination with the back tubes of bow-sockets and wood bows or fillings, a steel or other hard-metal plate, welded or otherwise fastened within the tube to the slat-iron, substantially as and for the purpose specified. “ 2. The combination, with the metal tubes of bow-sockets, of a wooden filling, substantially as and for the purpose set forth.” John A. Topliff states, as a witness in the case, that his improvement consisted “in placing a filling of wood in the tubes of the bow-sockets to strengthen the same, and also in extending the strip of steel, which is inserted in the wood filling, far enough down to enable it to be welded or otherwise fastened to the slat-iron.” After the issue.of this patent, the business was continued by the parties as before, the carriagebows and bow-sockets being made with all the improvements added; the appellants continuing regularly to account to the appellee, according to the terms of the contract between them, for his share of the proceeds of the sales of the manufactured articles, being fifteen per cent of the wholesale selling prices of all actually sold. These sums amounted in the aggregate to $40,000 or $50,000, and the payments were made regularly until in August or September, 1879. In reference to John A. Topliff’s patent of August 24, 1875, the appellee claimed that the idea of a wooden filling in the tubes of the bow-sockets was suggested by him, and that of welding the steel plate to the slat-iron was suggested by his brother. On that point he says in his testimony: “ Some time in 1874 or 1875, I think it was, I came home, and my brother said that they had concluded to patent that device of welding the steel to the slat-iron, and he said that he thought that they had better take out a patent or make one claim for the filling also. I told him that the filling, of course, was my improvement, and I did not know that it would be right to insert it into his patent. He said it would make no difference, as our contract would cover it all. He said that it would make no difference which took out the patent, whether TOPLIFF v. TOPLIFF. 129 Opinion of the Court. it was in his name or my name, and I made no further objection to it; but I always claimed, and he never disputed it at that time, that the device was mine as far as the filling was concerned.” This statement of the appellee as a witness is not contradicted by the testimony of either John A. Topliff or George H. Ely, the appellants, the only other witnesses examined in the cause. In 1879 the appellee left the employment of the appellants, and made preparations to establish a business of his own in the manufacture of carriage-bows and bow-sockets in Cleveland, claiming the right to do so under the terms of his contract, when the present controversy arose between them. In explanation of their continuing to pay royalty under the contract as late as in 1879, John A. Topliff states in his testimony, as follows: “We paid royalty from the fact that we supposed that we were working under his original patent; we did not know to the contrary. The original patent was somewhere, perhaps, in our office, and was burned up in 1873, I think,— I think that was the time of the fire, — and we had not seen it for a long time, and supposed that we were working under the original patent until we finally received the file-wrappers from Washington, informing us to the contrary, and when we received them, together with the patent, we found out that we were not working under his patent and refused to pay further royalty.” This explanation cannot be accepted. It is inconsistent with the facts testified to by the same witness, as well as others, that the manufacture of the bows and bow-sockets under the original patent ceased early in 1870, before, in fact, that patent was issued; and that the business was actually carried on under Isaac N. Topliff’s patent of May 16, 1871, and the subsequent improvements patented to John A. Topliff under the patent of August 24,1875. The fact, therefore, that the patent of December 27, 1870, was of no practical value in the business was well known and perfectly understood from a very early period in its prosecution, and the patent of May 16, VOL. CXXII—9 130 OCTOBER TERM, 1886. Opinion of the Court. 1871, was accepted by the parties as a substitute for it. The appellants, therefore, cannot claim that they made the first discovery of its inutility in 1879, ami had a right by reason thereof to rescind the contract for a failure of consideration. It was equally immaterial that Isaac N. Topliff subsequently thereto, in 1880, surrendered that patent, and obtained the reissue. If the reissue is void, the situation of the parties is not changed ; if it is valid and useful, it inures to the benefit of the appellants as well as to that of the appellee by virtue of the express terms of the agreement between them. The second proposition of the appellants is, that if the contract set up in the answer is in force, it does not secure to the appellee the right to the use of the improvement covered by the patent sued on. The language of the agreement is this: “ It is also further agreed that any improvement made on these articles by either party shall be for the mutual benefit of the parties.” It is contended by the appellants that the articles referred to in this clause of the contract are those mentioned in the former part of the agreement as meaning articles to be manufactured under the original patent of Isaac N. Topliff of December 27, 1870, and that the improvement which is to inure, by virtue of the clause quoted, to the mutual benefit of the parties, must be an improvement upon the patented article. This, however, it seems to us, is too narrow and restricted a meaning to be placed on the language of the parties, and fails to secure their actual intention. The subject of the contract is the manufacture and sale of bows and bow-sockets for carriage and buggy tops, in which the parties were to have mutual interests, as defined in the contract. It was supposed, and this undoubtedly was the original basis of the agreement, that the appellee had secured the exclusive right to a valuable improvement in the manufacture of this description of articles. His application for the patent was then pending; the patent was in fact subsequently issued. In the meantime the article as proposed was manufactured and put on sale, and ascertained by experience not sufficiently to answer the purpose. By mutual suggestion and assent improvements in the manufacture were TOPLIFF v. TOPLIFF. 131 Opinion of the Court. adopted, and some of them embraced in the second patent to the appellee of May 16, 1871. The article made under that patent was treated as the article intended by the contract. Other improvements were subsequently devised and adopted for perfecting the same article, and these were embraced in the patent to John A. Topliff of August 24, 1875. The operations of the parties in the manufacture and sale of the article were carried on, and continued to enlarge and prosper, and became profitable; and the parties throughout acted upon the assumption and understanding that the article thus manufactured was the article contemplated by the contract between them. If there were any doubt or ambiguity arising upon the words employed in the clause of the contract under consideration, they would be effectually removed by this practical construction continuously put upon them by the conduct of the parties for so long a period. “In cases where the language used by the parties to the contract is indefinite or ambiguous, and hence of doubtful construction, the practical interpretation of the parties themselves is entitled to great, if not controlling, influence. The interest of each generally leads him to a construction most favorable to himself, and when the difference has become serious and beyond amicable adjustment, it can be settled only by the arbitrament of the law. But in an executory contract, and where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the court as the true one.” Chicago v. Sheldon, 9 Wall. 50, 54, per Mr. Justice Nelson. In our opinion, the contract between the parties set up in the answer continued in force, notwithstanding what was done by the appellants in 1879 with the intention to put an end to it; and, by virtue of its terms, the appellee is entitled to manufacture, in Cleveland, carriage-bows and bow-sockets, using therein the combinations covered by the patent to John A. Topliff of August 24, 1875, without royalty, and without being charged with liability as an infringer. The decree of the Circuit Court in dismissing the bill, which is its whole legal effect, was therefore right, and is hereby Affirmed, 132 OCTOBER TERM, 1886. Statement of the Case. WARREN u MOODY. APPTCAT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA. Submitted April 22,1887. — Decided May 23, 1887. K., owning property of the value of $91,400, and owing individually $3400 of debts, and about $3000 more as a member of a firm, conveyed land in Alabama, to his daughter, in 1866, as an advancement on her marriage. In 1876, K. was adjudged a bankrupt. His assignee in bankruptcy sued the daughter in equity, to set aside the deed of the land, alleging in the bill that the deed, being voluntary, was void under the laws of Alabama. No fraud as to creditors was alleged: Held, that the assignee did not represent the prior creditors, because the land was not conveyed in fraud of creditors, within the meaning of § 14 of the Bankruptcy Act of March 2, 1867, c. 176, 14 Stat. 522, now §§ 5046 and 5047 of the Ke-vised Statutes. This was a bill in equity, filed in the District Court of the United States for the Middle District of Alabama, on the 25th of July, 1878, by Frank S. Moody and Richard C. McLester, as assignees in bankruptcy of Baugh, Kennedy & Co. and John S. Kennedy, against John S. Kennedy and his wife, Mary E. Kennedy, and Edward Warren and his wife, Vernon L. Warren. The bill alleged, that, on the 7th of July, 1876, the defendant John S. Kennedy, as one of the partners in the late firm of Baugh, Kennedy & Co., and as an individual, was adjudged a bankrupt by the said District Court, on a petition filed by that firm and each of its individual members; that the plaintiffs were appointed, on July 28,1876, assignees in bankruptcy of the estate, rights and credits of the firm, and of each of its individual members, including the defendant Kennedy; that they received the usual assigmnent from the register in bankruptcy, on the 11th of August, 1876; that, on the 31st of December, 1866, Kennedy and his wife were seized and possessed of a tract of land in Sumter County, Alabama, containing 1056 acres; that, on that day, without any other consideration than that of natural love and affection, they undertook to convey the land to their daughter, the defendant Ver- WARREN v. MOODY. 133 Statement of the Case. non L. Warren, but the deed was not acknowledged by the grantors until the 7th of October, 1867, and was not recorded until the 29th of March, 1872; that, as the deed had no attesting witnesses, it did not become operative as a deed of conveyance, as against existing creditors, for any purpose, until the date of its recording, or at least until it was acknowledged; that none of the defendants have been in the actual possession of the land since the date of the deed; that, at the time the deed was executed, Kennedy owed six debts, which are specified in detail in the bill, and amount in the aggregate to $6442.62, four of them, amounting to $4371.92, having been proved in bankruptcy, two of those proved having been due to two minors, wards of Kennedy, named Harrison, and one of those not proved having been due to a Mrs. Herbert, and three of the debts having been due by the said firm, of which he was a member. The bill alleged that the said deed, being wholly voluntary, was, under the laws of Alamaba, absolutely void, as against those debts and as against the plaintiffs, who, as such assignees, represented those debts for the purposes of this suit. The bill prayed that the deed might be declared null and void and be set aside and vacated, and that the land might be sold by the plaintiffs, and its proceeds be administered by them as part of the estate of Kennedy in bankruptcy. The deed, a copy of which was annexed to the bill, set forth that it was made “ in consideration of the love and affection we bear to our daughter, Vernon L. Warren, and the sum of ten dollars.” It conveyed the land to her and to her heirs and assigns forever, and contained a convenant of warranty and this clause: “ The foregoing conveyance is intended as an advancement to our said daughter.” The answer of Kennedy and his wife averred that love and affection for their daughter was part of the consideration for the conveyance, and that the sum of ten dollars was also paid as part of the consideration, as stated in the deed; that the defendant Warren and his wife were married on the 20th of December, 1866; that the deed was executed and delivered to the daughter on the day it bears date; that the daughter and 134 OCTOBER TERM, 1886. Statement of the Case. her husband took immediate and actual possession of the land; that the husband rented the land for the year beginning January 1, 1867; that he had had the sole control and management of the land, as agent and husband of his wife, paying taxes thereon, directing and superintending the repairs, and receiving the entire rent thereof for his wife, from the date of the deed to the day of making the answer, (April 21st, 1879,) and that Warren and his wife were still in the actual possession of the land. The answer averred, that all the debts of any moment which Kennedy owed at the date of the deed, on his own individual account, being the debts to the two minors, and the debt to Mrs. Herbert, amounted to nearly $3400; that the same debts were substantially all the debts he owed at the date of his bankruptcy, on his own private account; and that, as a. member of the old firm of Baugh, Kennedy & Co., he owed, at the time of making the deed and at the date of his bankruptcy, jointly with his partners, debts amounting to about $3071. The answer averred that the deed was not made with the intent to hinder, delay or defraud the creditors named in the bill, or any other creditors, or that it necessarily did so; that, at the time of making the conveyance, Kennedy and his wife were in prosperous circumstances, and possessed of ample means to pay all debts, and were able to withdraw the value of their donation to their daughter from their estate without the least hazard to their creditors; that they owed, in their individual capacity, at that time, very little money, the debts above named in the answer, amounting to nearly $3400, being their chief and almost their only individual debts; that at the time of making the deed, Kennedy’' owned, in his own right, free from all kens or incumbrances, real and personal property and choses in action, a schedule of which was annexed to the answer, amounting in value at that date to $91,400; that he was never sued for an individual debt, and never gave any incumbrances on his property, until some twelve months before his failure; and that he would long since have paid the three individual debts due to the minors and Mrs. Herbert, but the last-named debt was so fixed by will that Mrs. Her- WARREN v. MOODY. 135 Statement of the Case. bert could only use the interest during her life, and, at her death, without heirs, she being childless, the property was to go back to other parties, and the two minors were under age until three or four years before the filing of the answer, and could not lawfully receive the money. The answer of the defendants Warren and wife adopted, as their answer, the answer of Kennedy and his wife, and pleaded the facts set forth in the latter answer, as a bar to the plaintiff’s suit. There was a replication to these answers, and three witnesses were examined on behalf of the plaintiffs. The only point of any materiality in their testimony was as to the value of the property in December, 1866, which one of them put at six dollars an acre, another at from eight to ten dollars an acre, and the third knew nothing about. In June, 1880, the solicitors for the plaintiffs signed a stipulation, entitled in the suit, admitting “ that the facts set forth in the answers were substantially true, except so far as controverted by the depositions and other evidence in the cause.” The case was brought to a hearing on the pleadings and the three depositions, the deed to Mrs. Warren, the stipulation, and the schedule to the answers of the defendants, and the District Court, on the 9th of July, 1880, made a decree, setting aside the deed and directing that the land covered by it be sold by the plaintiffs as assignees in bankruptcy, and that the net proceeds of the sale be held by the assignees subject to distribution among the creditors of the bankrupt under the orders and directions of the District Court, according to the. respective rights and priorities of such creditors and of the defendants Warren and his wife. The decree also referred it to a master to ascertain and report the amounts due from Kennedy on the several demands set forth in the bill, and which should, up to the time of holding the reference, have been proved against the estate of Kennedy in bankruptcy. The defendants Warren and wife appealed from that decree to the Circuit Court, which in December, 1881, affirmed the decree of the District Court, from which latter decree Warren and his wife appealed to this court. John T. Morgan for appellants. 136 OCTOBER TERM, 1886. Opinion of the Court. JZr. M. L. Woods and Mr. Willia/m S. Thorrington for appellees. This conveyance was voluntary, and without adequate consideration. The debt of the attacking creditor was a liability against the debtor when the deed was made. These two conditions coexisting, the deed is void under the laws of Alabama. Cato n. Easley, 2 Stewart (Ala.) 214; Miller v. Thompson, 3 Porter (Ala.) 196; Moore v. Spence, 6 Ala. 506; Thomas v. De Graffenreid, 17 Ala. 602; Foote v. Cobb, 18 Ala. 585 ; Ga/nnard v. Esla/oa, 20 Ala. 732; Stiles n. Lightfoot, 26 Ala. 443; McAnally v. O’Neal, 56 Ala. 299; Hubba/rd v. Allen, 59 Ala. 283; Anderson v. Anderson, 64 Ala. 403. The case last cited contains a very full and clear exposition of the law of Alabama on this subject. These authorities leave no room for doubt as to the settled law of Alabama on this subject; and the law of Alabama governs in this case. There are two reasons why this court will follow the Alar bama decisions on this subject. The first is, that these decisions are a construction of a state statute, to wit: § 2124, Code of Alabama; and the Federal courts will adopt the construction given to a state statute by the highest court of the state. Pratt v. Curtis, 2 Lowell, 87; & C. 6 Bank Reg., 139; Thatcher v. Powell, 6 Wheat. 119; Polks’ Lessee v. Wendall, 9 Cranch, 87; Elmendorf v. Taylor, 10 Wheat. 152. In the next place the decisions of Alabama on this subject have become a rule of property in that state, and in such cases the Federal courts, sitting there, will apply the rule as though they were state courts. Lloyd v. Fulton, 91 IT. S. 479, 485; Christy v. Pridgeon, 4 Wall. 196. Mr. Justice Blatchford, after stating the case as reported above, delivered the opinion of the court. It will be noticed that the bill does not attack the deed on the ground of fraud. It does not allege that it was made with any intent to delay, hinder, or defraud the creditors named in the bill, or any other creditors of Kennedy. It does not allege that there are any other creditors than those WARREN v. MOODY. 137 Opinion of the Court. named in the bill, or any creditors who became such after the making of the deed. The sole ground on which it proceeds is, that the deed was a voluntary deed, and is void as against the persons who were creditors of Kennedy prior to the making of the deed. It claims that the plaintiffs, as assignees in bankruptcy, represent the debts of those creditors, for the purposes of the suit. The alleged right of action of the plaintiffs is asserted under § 14 of the Bankruptcy Act of March 2, 1867, c. 176, 14 Stat. 522, which provides, that “ all the property conveyed by the bankrupt in fraud of his creditors ” “ shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee, and he may sue for and recover the said estate, debts, and effects.” This provision is also found in §§ 5046 and 5047 of the Revised Statutes. The deed in question was a valid instrument between the grantors and the grantees. The stipulation on which the case was heard, containing an admission “ that the facts set forth in the answers are substantially true, except so far as controverted by the depositions and other evidence in the cause,” makes the allegations of fact contained in the answer of Kennedy and his wife evidence in the cause. When the deed was made, Kennedy was, as the answer alleges, in prosperous circumstances, and possessed of ample means to pay all debts, and was able to withdraw the value of the donation to his daughter from his estate without the least hazard to his creditors, and the amount of his individual debts was very small as compared with the amount of his property. The deed to the daughter being honest in fact and in intent, and being, on the evidence, a proper provision for her, as an advancement on the occasion of her marriage, and being valid as between her parents and herself, and no fraud in fact, or intent to commit a fraud, or to hinder dr delay creditors, being alleged in the bill, the case is not one in which these plaintiffs can set aside the deed, as being a deed of “ property conveyed by the bankrupt in fraud of his creditors,” even though the conveyance uiay have been invalid, under the statute of Alabama, as 138 OCTOBER TERM, 1886. Syllabus. against the creditors named in the bill, because it was a voluntary conveyance. These creditors, whatever remedies they may have had to collect their debts, are not represented by the plaintiffs, as assignees in bankruptcy, for the purposes of this suit, on the facts developed. The case of Pratt v. Curtis, 2 Lowell, 87, cited by the plaintiffs, was a case of two bills in equity by the assignee of a bankrupt to set aside conveyances of land made by the bankrupt, one being a voluntary deed of settlement for the benefit of his children, and the other being a like deed for the benefit of his wife. Each bill alleged that, at the time of the settlement, the bankrupt was indebted to persons who were still his creditors, and was embarrassed in his circumstances, and that the deed was made with intent to delay and defraud his creditors. On demurrer, the bill was sustained, on the view that the assignee in bankruptcy, and he only, had the right to impeach the deeds, in the interest of creditors. That decision, based on a case of intent to delay and defraud creditors, on the part of a person embarrassed in his circumstances, has no application to the present case. The decree of the Circuit Court is reversed, and the case m remanded to it, with a direction to dismiss the bill, with costs to the defenda/nts in the Circuit Court and in the District Court. DAVIS v. PATRICK. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOE THE DISTRICT OF NEBRASKA. Argued April 14,1887. — Decided May 23, 1887. Where a bill of exceptions is signed after the beginning of the term of this court when the writ of error is returnable, and during a term of the Circuit Court succeeding that at which the case was tried, but was seasonably submitted to the judge for signature, and the delay was caused y the judge and hot by the plaintiff in error, the bill of exceptions will not be stricken out. DAVIS v. PATRICK. 139 Statement of the Case. A written instrument between A and B, held to constitute A the creditor of B, and not the partner, and not to make A liable to third parties on contracts made by B. In a suit by a third party against A to make him liable on such a contract, where the written instrument is in evidence, an instruction to the jury is erroneous, which overrides the legal purport of the instrument. An instruction to a jury, based upon a theory unsupported by evidence, and upon which theory the jury may have rendered the verdict, is erroneous. This was an action at law brought in a court of the state of Nebraska, on the 24th of November, 1880, and removed, on the petition of the defendant, into the Circuit Court of the United States for the District of Nebraska, by Algernon S. Patrick against Erwin Davis, to recover certain sums of money. There were two causes of action set forth in the petition by which the suit was commenced. Under the first one the plaintiff claimed to recover $2677.90, with interest from September 3, 1877, and $8806.92, with interest from February 7, 1877. No question arose here as to the first cause of action. The second cause of action alleged in the petition was, that, on or about the 15th of November, 1873, the plaintiff was employed by the defendant to transport silver ore from the Flagstaff mine, in Utah Territory, to the furnaces at Sandy, in that territory, for a certain hire and reward then agreed upon therefor between the parties; that the plaintiff continued in that employment until on or about the 20th of November, 1875, at which date the account of services was settled and stated from the books of the defendant, and there was then found to be due to the plaintiff $26,539.54; and judgment was prayed for that sum, with interest from November 20, 1875. The answer of the defendant to the second cause of action was a general denial. At the trial before a jury, there was a verdict for the plaintiff, on the 20th of June, 1883, for $50,015.72, and a judgment accordingly, to review which the defendant brought a writ of error. It was not denied that the services were rendered. The question at issue was whether they were rendered for Davis, or for an English company, owners of the mine, and the rela-wns of Davis to the mine depended in part upon the construe- 140 OCTOBER TERM, 1886. Counsel for Plaintiff in Error. tion of the contract between him and the company set forth at length below in the opinion of the court. M. T. Patrick, who employed Algernon Patrick, was in charge of the mine under the J. N. H. Patrick named in this contract, and also in the power of attorney which follows that contract in the opinion of the court, to both of which reference is made for the better understanding of the case. The plaintiff moved to strike the bill of exceptions from the record, for the reason that it was not allowed and signed in proper time. On the day the judgment was entered, June 25, 1883, a written stipulation between the parties was filed, providing that the defendant should have forty days to prepare and present to the court his bill of exceptions, and that the plaintiff should have twenty days thereafter to examine the same and make any suggestions of omission, addition or correction thereto. On the 16th of August, 1883, the writ of error was allowed and filed, a supersedeas bond, duly approved, was filed, and a citation was duly issued, the writ of error being returnable at October Term, 1883. On the 14th of September, 1883, the following written stipulation, entitled in the cause, was made between the parties: “ The bill of exceptions in this case having been partially settled by his Honor, Judge Dundy, and he desiring to be absent from the district for a month or more, and being unable to settle the remainder of the bill before leaving, it is hereby stipulated that the same may be settled and signed at any time before November 1,1883, and that the record may be filed in the Supreme Court by the 1st of December, 1883, with the same effect as if filed at the beginning of the October Term.” The term of the court at which the trial was had and the judgment rendered adjourned svm die on the 20th of October, 1883. The succeeding term of the court began on the 12th of November, 1883. The bill of exceptions was allowed and signed by the judge on the 8th of December, 1883, and was filed on the same day. The record was filed in this court on the 26th of December, 1883. Joseph II. Choate, Mr. J. Woolworth, and > Henry A. Root for plaintiff in error. DAVIS v. PATRICK. 141 Argument for Defendant in Error. Nr. John F. Dillon and Mr. John L. Webster for defendant in error. The bill of exceptions being signed after the time when the writ of error was made returnable, and after the adjournment of the term at which the case was tried, and during a succeeding term of the court, and without consent of parties cannot be considered. Walton v. United States, 9 Wheat, 651; Coughlin v. District of Columbia, 106 U. S. 7; Muller v. Ehlers, 91 U. S. 249; Hunnicutt v. Peyton, 102 U. S. 333; Kirby n. Bowland, 69 Ind. 290; Sheppard v. Wilson, 6 How. 260. The motion must be determined by the record. Affidavits are not receivable. Claggett v. Gray, 1 Iowa, 19, 23; Powers v. WWgAii, Minor (Ala.), 66. Under the contract J. N. H. Patrick became the agent of Davis. Under the contract the Flagstaff Company was put out of possession of the mine, and J. N. H. Patrick was put in possession to manage it for the primary use and benefit of Davis. The company had no control over J. N. H. Patrick or his agents or employes. The company could not remove him from his management. His appointment was “ sole, exclusive and irrevocable” by the company. Erwin Davis alone had the power to remove him and to appoint a new manager. J. N. H. Patrick was subject to the control and direction of Davis, and not of the Flagstaff Company. To make J. N. H. Patrick the agent or servant of the Flagstaff Company, the company must have more than the mere right of selection. It must have had the right of control over J- N. H. Patrick, which it did not have under the contract, having by that instrument expressly surrendered it. “ Something more than the mere right of selection on the part of the principal is essential to that relation.” Boswell v. Laird, 8 Cal. 169 [A C. 68 Am. Dec. 345]. The liability of a principal is based upon his power to control the agent or servant or to discharge him for misconduct. Ohio <& Miss. Railroad v. ^Mis, 23 Ind. 553 [& C. 85 Am. Dec. 477]; Maximilian v. New York, 62 N. Y. 160; Ham n. New York, 70 N. Y. 459. “The rule of respondeat superior is based upon the 142 OCTOBER TERM, 1886. Opinion of the Court. right which the employer has to select his servants, to discharge them if not competent, or skilful, or well behaved, and to direct or control them while in his employ.” Maximilian v. Mayor, 62 N. Y. 163. “ The application of the rule referred to in this case depends upon the question whether the power to discharge, direct and control existed, and is the main point now to be determined.” Ham v. Mayor, 70 N. Y. 462. By the contract J. N. H. Patrick did not receive his appointment from the company alone. It is apparent that his appointment was dictated by Davis, and for his primary benefit, and both unite in the contract as parties to it. If, however, J. N. H. Patrick had been appointed by the Flagstaff Company only, still that fact would not make him the agent of the company. Buttrick v. Lowell, 1 Allen, 172 [A. C. 79 Am. Dec. 721]; Walcott v. Swampscott, 1 Allen, 101; Barney v. Lowell, 98 Mass. 570; Wheeler v. Cincinnati, 19 Ohio St. 19. No provision was made in the contract for the payment of the salary of him or of his employes. Even if it had been provided that the company should pay Patrick’s salary, it would not have made him the agent of the company. Hafford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass. 87; Ba/rnes v. District of Columbia, 91 IT. S. 540. Davis owned the ores hauled by the plaintiff, and this makes an incontestable and distinct ground of liability to the plaintiff. And further, he was a mortgagee or creditor in possession, and as such is liable to the plaintiff. Benham v. Bowe, 2 Cal. 387 [A. C. 56 Am. Dec. 342]. He was bound to see that the expenses of operating the mine were paid, as a mortgagee in possession is entitled to compensation for repairs made and for outlays for the preservation of the property. Gillis v. Martin, 2 Devereux Eq. 470; Hardy v. Reeves, 4 Ves. 466; Schaeffer v. Chambers, 2 Halstead Ch. 548; Sanders v. Wilson, 34 Vt. 318; Barnett v. Nelson, 54 Iowa, 41; Dewey v. Brownell, 54 Vt. 441; Iron Mountain, dec., Railroad v. Johnson, 119 IT. S. 608. Mr. Justice Blatchfoed, after stating the case, delivered the opinion of the court. DAVIS v. PATRICK. 143 Opinion of the Court. The first point taken is, that, as the bill of exceptions was signed after the beginning of the term of this court at which the writ of error was made returnable, and during a term of the Circuit Court succeeding that at which the case was tried, it cannot be considered. But we are of opinion that this objection cannot avail. The stipulation of September 14, 1883, shows, on its face, that the matter of the settlement of the bill of exceptions had been submitted to the judge, and that the delay was agreed to for the convenience of the judge. The purport of the stipulation is, that the bill had, with the knowledge of the plaintiff, been tendered to the judge for signature. This being so, the consent of the parties that the judge might delay the settlement and signature did not have the effect to cause any more delay than would have occurred if the judge had delayed the matter without such consent. The defendant was not to blame for the delay beyond the time named in the stipulation. He appears to have done all he could to procure the settlement of and signature to the bill, and he cannot be prejudiced by the delay of the judge. The bill of exceptions shows, on its face, that the several exceptions taken by the defendant were taken and allowed at the trial and before the verdict. The cases cited by the plaintiff, Walton v. United States, 9 Wheat. 651; Ex parte Bradstreet v. Thomas, 4 Pet. 102; Sheppard v. Wilson, 6 How. 260, 275 ; Muller v. Ehlers, 91 U. S. 249 ; and Coughlin v. District of Columbia, 106 U. S. i, do not contain anything in conflict with this ruling. It is supported by United States n. Breitling, 20 How. 252. The motion to strike out the bill of exceptions is therefore denied. The claim of the plaintiff is, that he was employed, not by the defendant personally, but by the plaintiff’s brother, M. T. Patrick. The defendant, not disputing the rendering of the services or their value, denies that they were rendered for him, and denies that M. T. Patrick was his agent. He contends that the services were rendered to the Flagstaff Silver Mining Company of Utah, Limited, an English corporation; that M. T. Patrick was the agent of that company; and that, as such, he employed the plaintiff. The question of this agency was the principal question in dispute at the trial. 144 OCTOBER TERM, 1886. Opinion of the Court. The Flagstaff mine was owned in 1870 by certain parties in Utah Territory, who sold it, through the defendant, to the Flagstaff Silver Mining Company. That company continued to own and operate the mine until December, 1883, when J. N. H. Patrick, another brother of the plaintiff, went from New York to London, the defendant being then in London. On the day that J. N. H. Patrick arrived in London the company received a telegram from one Maxwell, superintendent of its mine in Utah, stating that the mine was attached for debt. It applied to the defendant for a loan of money, whereupon the following written agreement was made between the company and the defendant, on the 16th of December, 1873: “This agreement, made this 16th day of December, one thousand eight hundred and seventy-three, between the Flagstaff Silver Mining Company of Utah, Limited, of the one part, and Erwin Davis, now of the city of London, of the other part. “ Whereas the said Erwin Davis, on the 12th of June, one thousand eight hundred and seventy-three, advanced the said company the sum of five thousand pounds, at the rate of six per cent per annum interest; “ And whereas the said sum of five thousand pounds is now due and owing to said Erwin Davis, with the interest thereon; “ And whereas it is necessary that the said company should have a further advance of money for the purpose of continuing the development of their mine, and for carrying on then¹ business; “ And whereas the said Erwin Davis doth hereby agree to advance to said company at such time or times as may be necessary for the purpose aforesaid, not to exceed in amount the sum of ten thousand pounds, in addition to the said sum of five thousand pounds already advanced; “ And whereas the said company has, at different times and dates, sold to the said Erwin Davis five thousand one hundred and ninety-five tons of ore, which said ore the said company agreed to deliver to the said Erwin Davis at the ore-house o said company, free of cost; DAVIS v. PATRICK. 145 Opinion of the Court. “And wnereas they have so delivered two hundred tons of said ore, leaving a balance of four thousand nine hundred and ninety-five tons yet undelivered, the cost of said ore having all been paid to said company by said Erwin Davis; “ Now, therefore, it is agreed between the parties hereto, in consideration of the said sum of money now due and owing to said Erwin Davis by the said company, and the further ad • vances to be made by the said Erwin Davis, as herein agreed, and in further consideration of the premises heretofore stated, J. N. EL Patrick, of Salt Lake, is appointed manager of all the property of said company in Utah, and the said J. N. H. Patrick, as said manager, by himself or his agents, is to have the exclusive, sole, and irrevocable (except as hereinafter mentioned) management of all the said company’s properties in Utah, and of all the business in Utah of the said company in mining and smelting silver and other ores, and any and all other lawful business, and, as such manager aforesaid of the business and properties aforesaid, he is hereby authorized and empowered to do, execute, and perform any and all acts, deeds, matters, or things whatsoever which ought to be done, executed, and performed, or which, in the opinion of the said J. N. H. Patrick, ought to be done, executed, or performed, in or about the concerns, engagements, or business of the said company, of every nature and kind whatsoever, as fully and effectually as it could do if the said company were actually present, hereby ratifying and confirming whatsoever the said J. N. H. Patrick may do in and about the company’s concerns and business; and it is hereby further agreed, that the said J. N. H. Patrick, or his agents, in furtherance of the purposes aforesaid, is to enter into the possession of all the said company’s properties in Utah necessary for conducting the business and management thereof as aforesaid, until such time as, out of the profits of the workings of the properties aforesaid, he, the said J. N. EL Patrick, has repaid to Erwin Davis the said sum of five thousand pounds, with the interest thereon, and also has repaid to him all and every sums of money he ’uay have advanced to the said company under this agreement, together with interest thereon at the rate of six pounds vol. cxxrr—10 146 OCTOBER TERM, 1886. Opinion of the Court. per centum per annum, and also until he has mined and delivered to Erwin Davis all the ores sold him by said company, as per agreement herein stated, and also until he has smelted the ore so mined and delivered to him, in the said company’s furnaces, according to the terms and agreement dated the 12th day of September last, made between the said company and Erwin Davis, and when he, the said J. N. H. Patrick, has so paid to him all the moneys so advanced said company and interest as aforesaid, mined and delivered the ores so sold and contracted, and smelted said ores, and done and performed all the agreements herein contained, then the said J. N. H. Patrick may resign the management aforesaid, and shall, upon being called upon so to do, deliver to said company all of said properties in as good condition as possible after the necessary workings, mining, and smelting, as herein agreed to be done and performed. And it is hereby further agreed, that the said mine is to be worked and mined by the said J. N. H. Patrick in a proper and minerlike manner, and that the said business of said company is to be managed with economy and for the best interests of the parties hereto; that a statement of all the business transactions, with accounts of the same, showing all moneys received and the source from whence so received, and all moneys paid out, with the proper vouchers therefor, is to be made monthly to said company, at their office at the city of London, by the said J. N. H. Patrick. And it is hereby further agreed, that nothing herein contained shall be construed to defeat or impair any legal rights the said Erwin Davis may have for the moneys now due said Erwin Davis, or so to be advanced by said Erwin Davis, or for the delivery of the ores so sold said Erwin Davis. And it is hereby further agreed, between the parties hereto, that if, at any time, the said Erwin Davis becomes dissatisfied with the management of the business and the property in Utah, he may suspend and remove the manager and appoint another manager in his place, with any or all rights, powers, or authority delegated under this agreement; and, should the said Erwin Davis proceed to act upon the powers contained in the last preceding clause, he will consult with the board of directors of the said company, as to the new manager from time to time to be appointed. DAVIS v. PATRICK. 147 Opinion of the Court. « In witness whereof the said parties hereto have set their hands the day and year first above written. “J. R. Gole, “ Secretary, for a/nd on behalf of the Flagstaff Silver Mining Company of Utah, Limited. “Erwin Davis. “ Witness to the foregoing signatures — “E. Johnson.” At the same time, and as a part of the same arrangement, the company, on the 16th of December, 1883, executed to J. N. H. Patrick the following power of attorney: “Know all men by these presents, that we, The Flagstaff Silver Mining Company, do hereby constitute and appoint John Nelson Hays Patrick, of Salt Lake City, Utah, in the United States of America, their true and lawful attorney, to take possession of and carry on and manage the workings of the mine or mines belonging to the said company, and for that purpose to appoint officers, clerks, workmen, and others, and to remove them and appoint others in their place, and to pay and allow to the persons to be so employed such salaries, wages, or other remuneration as he shall think fit; also, to ask, demand, sue for, recover, and receive of and from all persons and bodies politic or corporate, to pay, transfer, and deliver the same, respectively, all sums of money, stocks, funds, interest, dividends, debts, dues, effects, and things now owing or payable to the said company, or which shall at any time or times hereafter be owing or belong to the said company by virtue of any security or upon any balance of accounts or otherwise howsoever, or of any part thereof, respectively ; to give, sign, and execute receipts, releases, and other discharges for the same, respectively, and on non-payment, non-transfer, or non-delivery thereof, or of any part thereof, respectively, to commence, carry on, and prosecute any action, suit, or other proceeding whatsoever for recovering and compelling the payment, transfer, or delivery thereof, respectively ; also, to settle, adjust, compound, submit to arbitration 148 OCTOBER TERM, 1886. Opinion of the Court. and compromise all actions, suits, accounts, reckonings, claims, and demands whatsoever which now are or hereafter shall or may be pending between the said company and any person or persons whomsoever, in such manner and in all respects as the said John Nelson Hays Patrick shall think fit ; also, to sell and convert into money any goods, effects, or things which now belong or at any time or times hereafter shall belong to said company, and, also, to enter into, make, sign, seal, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of him, the said John Nelson Hays Patrick, be necessary or proper to be entered into, made, or signed, sealed, executed, delivered, acknowledged, or performed for effectuating the purposes aforesaid, or any of them, and, for all or any of the purposes of these presents, to use the name of the said company, and generally to do, execute, and perform any other act, deed, matter, or thing whatsoever which ought to be done, executed, or performed, or which, in the opinion of the said John Nelson Hays Patrick, ought to be done, executed, or performed, in or about the concerns, engagements, and business of the said company, of every nature and kind whatsoever, as fully and effectually as it could do if the said company were actually present ; and the said company do hereby agree to ratify and confirm all and whatsoever the said John Nelson Hays Patrick shall lawfully do or cause to be done in or about the premises, by virtue of these presents. “ In witness whereof the said company have hereunto affixed their official seal this sixteenth day of December, one thousand eight hundred and seventy-three. L-o” MALE^ I Directors. “Küssell Dole, ) “ Witness : “ J. R. Gole, Secretary. “E. Johnson, 5 cfi 6 GPt Winchester St., London.¹’ J. N. H. Patrick testifies that, in consequence of the arrangement made between the company and the defendant, though prior to the actual execution of the papers of the DAVIS v. PATRICK. 149 Opinion of the Court. 16th of December, 1883, he, J. N. H. Patrick, telegraphed, from London, to M. T. Patrick, in the United States, instructions to take charge of the mine, directing him to stave off all debts he could, and saying that money would be forwarded to him to keep the mine running, and that full instructions had been written to him ; and that the company telegraphed to Maxwell to turn the mine over to M. T. Patrick. J. N. H. Patrick testifies that the defendant did not send any such telegram to M. T. Patrick. On the other hand, M. T. Patrick testifies that he received a telegram from London with the name of the defendant signed to it, instructing him to go to Utah and take charge of the mine ; that that was the authority upon which he did so ; that he received possession of the mine from Maxwell ; and that he employed the plaintiff to do the hauling of the ore. J. N. H. Patrick testifies, that, when the news of the financial difficulties of the company arrived in London, and the company applied to the defendant for a further loan of money, he refused to make it unless the company would give him the management of the mine ; and that the company declined to do so, but agreed to make the arrangement evidenced by the papers of December 16, 1873. The purport and bearing of these papers is very plain, on their face. The company owed the defendant £5000, with interest at the rate of six per cent per annum, for that amount advanced by him to it on the 12th of June, 1873. A further advance of money was necessary to enable it to carry on its business. The defendant agrees to advance to it not to exceed £10,000, in addition to the £5000 already advanced. It had previously sold to him a quantity of ore, which it had agreed to deliver to him at its ore-house, free of cost, the cost of it having all been paid to the company by the defendant, and a balance of 4995 tons being yet undelivered. In consideration of the premises, the company appoints J. N. H. Patrick manager of all its property in Utah, he, by himself or his agents, to have the exclusive and irrevocable management, except as thereinafter mentioned, of all its properties in Utah, and of all ds mining and smelting business there. He is to conduct and 150 OCTOBER TERM, 1886. Opinion of the Court. manage the above business until such time as, out of the profits of the working of the properties, he has repaid to the defendant the £5000 and interest, and also all moneys the defendant may advance to the company under the agreement, with interest, and also until he has mined and delivered to the defendant all the ore so sold to him by the company, as stated in the agreement, and also until he has smelted in the furnaces of the company the ore so to be mined and delivered to the defendant, according to the terms and agreement of September 12, 1873, made between the company and the defendant. When all this is done, J. N. H. Patrick may resign the management. He is to work the mine in a proper manner, and manage the business of the company with economy, and for the best interests of the parties to the agreement, and is to render a monthly statement, with vouchers, to the company at London. If, at any time, the defendant becomes dissatisfied with the management of the business and the property in Utah, he may suspend and remove the manager and appoint another manager in his place, with any or all rights, powers, or authority delegated under the agreement, and, should the defendant proceed to act upon such power of suspension and removal, he is to consult with the board of directors of the company as to the new manager to be appointed. The power of attorney from the company to J. N. H. Patrick appoints him to be the attorney of the company to take possession of and carry on the mine, and for that purpose to appoint workmen and others, and to pay and allow them such remuneration as he shall think fit. The relation between the defendant and the company was strictly that of creditor and debtor. The agreement of December 16, 1873, in connection with the powder of attorney, was simply a method of securing the defendant, as a creditor of the company, for past and future advances, and to insure the delivery of the ore which he had bought and paid for. The irrevocable character of the appointment of J. N. H. Patrick as manager, with the power given to the defendant to suspend and remove him, and to appoint another manager in his place, on consultation with the board of directors of the DAVIS v. PATRICK. 151 Opinion of the Court. company, was an incident of thé security to the defendant, and a means of having the operation of the mine continued until the debt to him should be discharged. Any new manager to be appointed wras to have the rights, powers, and authority delegated to J. N. II. Patrick under the agreement, and none others. The agreement did not in any manner make the defendant a partner with the company, or with J. N. H. Patrick, or make J. N. H. Patrick the agent of the defendant in managing the mine, so as to make the defendant responsible for any contract entered into by J. N. H. Patrick. The company continued to be the owner of the mine, operating it through J. N. H. Patrick, as its manager, agent, and attorney, and responsible for his contracts, as such. Cox v. Hickman, 8 H. L. Cas. 268 ; JWollwo v. Court of Wards, L. R. 4 P. C. App. 419 ; Cassidy v. Hall, 97 N. Y. 159. This being the proper legal view of the papers of December 16,1883, the defendant, at the trial, asked the court to charge the jury as follows: “The jury are instructed that the contract between the Flagstaff Mining Company and the defendant, and the power of attorney from the company to J. N. H. Patrick, constituted J. N. H. Patrick the sole manager and controller of the mine, for the time being, as the general agent and representative of the company, and that the attitude of Erwin Davis, as a creditor of the company, to whom J. N. H. Patrick was bound to pay all profits of working the mine, did not render him personally liable for any of the expenses incurred by J. N. H. Patrick while working and operating the mine pursuant to the agreement and situation created by the contract and power of attorney. The legal effect of the contract and power of attorney was to give to the defendant, Davis, security for the indebtedness of the company to him, and was not in any way to render him liable personally for any debts of the company incurred in working the mine, in hauling ores or otherwise.” The court gave this instruction with the following qualification and comment: “Of course that is to be taken in connection with the other instructions, if the original transaction between J. N. H. Patrick and the lagstaff company was what it purports to be ; but if Davis 152 OCTOBER TERM, 1886. Opinion of the Court. was the real party, then he is Hable here.” The defendant excepted to the giving of this qualification and comment. This qualification and comment put aside entirely the legal effect of the agreement and the power of attorney, as those papers were construed by the court, and which construction was the correct one, and left it to the jury to determine what was the relation of the defendant to the business, and to ignore entirely the legal effect of the instruments. There was nothing ambiguous in the terms of the agreement, and there is nothing in the record to show that it did not truly represent the actual relations between the company and the defendant, and the actual circumstances of the connection of the defendant and of J. N. H. Patrick with the enterprise. In another portion of the instruction of the court to the jury, it stated to the jury, under the exception of the defendant, that if they should conclude “that Davis was the Flagstaff Mining Company, operating the mine for his own use and benefit, then his liability is fixed and he cannot escape it. That is plaintiff’s theory, and it may be a reasonable or an unreasonable one. If the testimony convinces you that the plaintiff’s theory is correct, then you are justified in finding a verdict for the full amount claimed for these services, if they are according to contract price.” This was substantially an instruction to the jury that they might conclude, from the terms of the agreement, that the defendant was the company, and that, if they should conclude that the agreement made J. N. H. Patrick the agent of the defendant, and not the agent of the company, in the management of the mine, then the defendant was liable to the plaintiff. This instruction overrode the legal purport of the agreement and was erroneous. The court further instructed the jury as follows, under the exception of the defendant: “There is another view of the case, in which there may possibly be a liability. It is claimed that the ores hauled by Patrick were really the ores that belonged to Davis, independent of any person operating the mines. If that be so, and Patrick undertook to haul them for the defendant, by direction of the superintendent of the DAVIS v. PATRICK. 153 Opinion of the Court. mines, representing Mr. Davis, the defendant would be liable. If the ores belonged to him, then he would be required to pay for the hauling, if his agent represented him in the matter of making the alleged contract. If you are satisfied that the mines were operated by Davis, that he received the profits arising from the same, or that the ores belonged to Davis, and Patrick was employed by a representative of Davis to haul the same, then Davis would be liable for the hauling of the same.” In this instruction, the theory of the liability of the defendant was, that he really owned the ores which were hauled by the plaintiff, and that J. N. H. Patrick represented the defendant in procuring the plaintiff to haul them. This assumed liability of the defendant was not made to rest upon any connection which the defendant had with the management of the mine, or upon the written agreement between the defendant and the company, or the relation created by that agreement. But we do not understand the testimony of M. T. Patrick, or any other testimony in the case, as showing that the ores hauled belonged to the defendant, independently of his relations with the company, created by the written agreement; nor that the testimony purports to show anything as to the ownership of the ores by the defendant, other than that the ores taken from the mine belonged to the defendant as the operator of the mine for the company. The testimony of M. T. Patrick shows that the proceeds of all the ores mined and hauled by A. S. Patrick to the smelting furnace, and smelted and sold, were deposited in bank in the name of the company; that the books and accounts were all kept in the name of the company; and that the mine was run in the name of the company. The entire testimony is to the effect that the ores taken from the mine did not belong to the defendant, independently of the fact that he was operating the mine for the company. J. N. H. Patrick testifies as follows: “There were no ores delivered to Davis during my management; all ores mined and hauled by plaintiff were smelted and sold, and the money put in the bank to the credit of the company, and went to pay expenses of running the mine.” It does not appear that any ore taken from the mine was de- 154 OCTOBER TERM, 1886. Syllabus. livered to the defendant as a portion of the ore referred to in the written agreement as purchased by him from the company, or that that portion of the agreement was ever carried into execution. The last instruction quoted was, therefore, based upon an erroneous theory, unsupported by evidence, and the jury may have rendered its verdict upon this erroneous theory, ignoring the view that the defendant was the company. This second erroneous instruction may, therefore, have misled the jury to the injury of the defendant. For these errors, the judgment is reversed and the case is remanded to the Circuit Court, with a direction to awari a new trial. WILLIAMS v. SUPERVISORS OF ALBANY. ERROR TO THE CIRCUIT COURT OK THE UNITED STATES EOR THE NORTHERN DISTRICT OF NEW YORK. Argued March 16,1887.—Decided May 23, 1887. Stanley v. Supervisors of Albany, 121 U. S. 535, affirmed to the point that a party who feels himself aggrieved by overvaluation of his property for purposes of taxation, and does not resort to the tribunal created by the state for correction of errors in assessments before levy of the tax, cannot maintain an action at law to recover the excess of taxes paid beyond what should have been levied on a just valuation. His remedy is in equity, to enjoin the collection of the illegal excess upon payment or tender of the amount due upon what is admitted to be a just valuation. The mode in which property shall be appraised; by whom and when that shall be done; what certificate of their action shall be furnished by the board which does it; and when parties may be heard for the correction of errors, are all matters within legislative discretion; and it is within the power of a state legislature to cure an omission or a defective performance of such of the acts required by law to be performed by local boards in the assessment of taxes as could have been in the first place omitted from the requirements of the statute, or which might have been required to be done at another time than that named in it; provided always, that intervening rights are not impaired. The statute passed by the legislature of New York April 30, 1883, to legalize and confirm the assessments in Albany for the years 1876, 1877, an WILLIAMS v. SUPERVISORS OF ALBANY. 155 Statement of the Case. 1878 was not in conflict with the acts of Congress respecting the taxation of shares of stock in national banks, and was a valid exercise of the power of the legislature to cure irregularities in assessments. This was an action to recover the amount of certain taxes alleged to have been illegally collected from the plaintiff and others on sundry shares of stock held by them in the National Albany Exchange Bank, in the city of Albany, New York, and paid into the treasury of the county. The stockholders other than the plaintiff assigned to him their respective claims before its commencement. Their demands were originally embraced in an action brought by one Edward N. Stanley against the Board of Supervisors, he being at the time assignee of their claims. In that action judgment was recovered by him. The case being brought to this court, the judgment was reversed, and the cause remanded with leave to the court below, in its discretion, to hear evidence upon the point whether the shares were habitually and intentionally assessed higher in proportion to their actual value than other moneyed capital generally, and, if necessary, to allow an amendment of the pleadings that the point might be properly presented. Supervisors v. Stanley^ 105 U. S. 305. When the case was remanded, on application to the court below, all the counts of the complaint, except the fourth, were amended. Subsequently, however, Stanley discontinued the action as to the claim for the taxes assessed and collected for the years 1876,1877, and 1878. The plaintiff then took an assignment of the claim for those taxes from Stanley and commenced the present action. He contended that the assessment for those years upon the shares of the stock of the bank was illegal on these grounds: 1st. Because it was not made within the period required by law, which was before the first of September of each year; but after that date. 2d. Because it was not accompanied by the oath of the assessors, that it had been made at the full and true value of the shares, subject only to certain specified deductions allowed by law. 3d. Because it was higher, in proportion to the actual value 156 OCTOBER TERM, 1886. Statement of the Case. of the shares, than the assessment of other moneyed capital in the hands of individual citizens of the state was to its actual value. The defendant answered these grounds by a general denial, and by setting up an act of the legislature of New York, passed April 30, 1883, legalizing and confirming the assessment.¹ ¹ The following is a copy of the provisions of that act found in the Session Laws of 1883, at page 522, omitting the title and enacting clause. Section 1. The assessments contained in the assessment-rolls of the respective wards of the city of Albany, for the years eighteen hundred and seventy-six, eighteen hundred and seventy-seven, and eighteen hundred and seventy-eight, and which are now on file in the office of the receiver’ of taxes of the city, are hereby in all things legalized and confirmed, subject to the rights of the shareholders or their personal representatives in national or state banks which were located in said city during those years, and the assessments against whom, by reason of their ownership of such shares, were collected by process of law, to claim a deduction from or cancellation of such assessments as provided for in the next section. § 2. Within ten days after the passage of this act, the assessors of the city of Albany shall publish a notice subscribed by them, in the official papers of the city, daily, Sundays and holidays excepted, for three weeks, notifying all of such above described shareholders that at the office of such assessors in the city of Albany for three weeks subsequent to the last day of the publication of such notice, Sundays and holidays excepted, the assessors will be in attendance, and will hear any application that may be made to them for the purpose of deducting from the assessments aforesaid any amount which such shareholder or his personal representative would have been entitled to deduct under the law as it existed in the year when the assessment was placed in the roll, had such application then been made. § 3. During the time above named, any of such above described shareholders assessed in any of such rolls, or any one representing them, may appear before such assessors and make application to have a reduction or cancellation of such assessment upon any ground which would have been a legal ground at the time when such assessment was placed in the roll, and upon the facts as they existed at the time when such assessment was placed in such roll. The assessors shall have power to administer an oath to the applicant, and, after an examination .of him upon the material facts of such application, shall grant to him such deduction from or cancellation of the assessment in question, as he would have been legally entitled to upon the facts as they existed at the time when the assessment to reduce or cancel which the application is made was placed in the roll. § 4. After the expiration of the time for hearing applications, the assessors, or a majority of them, shall sign a certificate stating the name of the WILLIAMS v. SUPERVISORS OF ALBANY. 157 Statement of the Case. The issues were tried by the court without the intervention of a jury, by consent of parties. The court found the facts as admitted by the pleadings and by stipulation of the parties, from which it appeared, among other things, that no entry of any assessment of the shares of the stockholders of the bank was made upon the assessment-roll of 1876, 1877, and 1878, until after the 1st day of September of those years, and after the time provided by law for revising and correcting the assessment ; that the oath of the assessors, annexed to the assessment of each year, was defective in its averment respecting the estimated value of the real estate assessed, but was correct in its averment of the estimated value of the personal property ; that there were several banks, state and national, located in the city of Albany, and that the actual value of their shares during those years, with one exception, was above par, varying in that respect from ten to over one hundred per cent, and yet the value of all of them was assessed at par; that the actual value of shares in the National Albany Exchange Bank was from twenty-five to thirty per cent above par; that the asssessment of the shares of some of the other banks was higher and of some of them lower than this figure; and that the assessment at par was not made by the assessors with the intent of discriminating against the holders of national bank shareholder or his personal representative, who is entitled to a deduction from the amount contained in the assessment-roll, and the amount of such deduction, and the amount of the interest thereon from the fifteenth day of December of the year to which the deduction applies up to the first day of February, eighteen hundred and eighty-four, and the certificate shall be made up in duplicate, and one of them sent to the board of supervisors of the county at its fall session in eighteen hundred and eighty-three, and the other to the county treasurer. § 5. The board of supervisors shall at such session add to the amount to be raised by tax for county purposes the total amount named in such certificate for the principal and interest of such deduction therein named, and such sum shall be levied, assessed, and collected in the same way as other taxes for county purposes and paid to the county treasurer with other county funds. § 6. The county treasurer, upon receipt of the moneys raised by tax, shall Pay to the parties named in such certificate sent him by the assessors, the amount therein specified as due such persons. § 7. This act shall take effect immediately. 158 OCTOBER TERM, 1886. Argument for Plaintiff in Error. shares, or in favor of the holders of state bank shares, or other moneyed capital. As a conclusion of law, the court found that the assessments were illegal because not made in conformity with the laws of the state, but that they were legalized and confirmed by the act of its legislature of April 30, 1883, and that they were not in violation of any law of the United States. 22 Blatchford, 302. Judgment was accordingly rendered for the defendant, and the plaintiff brought the case here for review. J/r. Matthew Hale for plaintiff in error. I. The assessments referred to in the complaint were illegal and void. This was conceded and held by the court below; but, with a view to consider the effect of the confirmatory law, it is deemed necessary here to discuss the grounds of such ille-gality. (1) They were illegal by reason of the omission of the assessors to place the names of the shareholders upon the assessment-roll before September first in each year. It will be readily seen from an examination of the statute that the course of the assessors was entirely unwarranted by it. The only way provided by law for making assessments in the city of Albany is by inserting them in the assessment-roll. The fact that the paper was regarded by the assessors as a valid and legal assessment, as above stated, makes no difference. The law required the assessment to be made in a certain way, and it has been repeatedly held that an assessment made otherwise, or after the statutory time, is absolutely void. Clark v. Norton, 49 N. Y. 243; Westfall v. Preston, 49 N. Y. 349. See also Albany City Bank v. Maher, 6 Fed. Rep. 417. (2) By reason of the failure of the assessors to annex the statutory oath or certificate to the assessment-roll. It is perfectly well settled law in the state of New York that such a departure from the statutory oath makes the assessment absolutely void. Van Rensselaer v. Whiibeck, 7 N. Y. 517; Hinckley v. Cooper, 22 Hun, 253; Brevoort v. Brooklyn, 89 K Y. 128. WILLIAMS v. SUPERVISORS OF ALBANY. 159 Argument for Plaintiff in Error. (3) Because the assessments in question were at a greater rate than was imposed upon other moneyed capital in the hands of individual citizens, and were, therefore, a violation of § 5219 of the Revised Statutes. This resulted, not from accident, or from an erroneous judgment on the part of the assessors as to the actual value, but from the rule which the assessors, in spite of the remonstrances of the plaintiff and others, persisted in. In other words, it resulted from the illegal system adopted by the assessors, and not simply from an erroneous judgment. This court held, in the Stanley case, that if “ the assessors habitually and intentionally, or by some rule prescribed by themselves, or by some one whom they were bound to obey, assessed the shares of the national banks higher in proportion to their actual value than other moneyed capital generally, then there is ground for recovery.” 105 U. S. 318. It is plain, therefore, again referring to the language of this court in the Stanley case, that the assessors, in defiance of law, habitually and intentionally, and by a “ rule prescribed by themselves,” assessed the shares of the national bank higher in proportion to their actual value than other moneyed capital generally in the sixth ward. II. The court erred in deciding that the act, c. 345 of 1883, was valid and effectual to legalize and confirm said assessments. This act, so far as it legalizes assessments, should be held to apply only to such assessments as had not been collected. It is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively. United States v. Heth, 3 Cranch, 399 ; Harvey v. Tyler, 2 Wall. 328; Dash v. Van Kleeck, 7 Johns. 477 [& C. 5 Am. Dec. 291]; Drake v. Gilmore, 52 N. Y. 389; Quackenbush v. Danks, 1 Denio, 128; & C. 3 Denio, 594; Bay v. Gage, 36 Barb. 447; Thames Mf'g Co. v. Lathrop, 7 Conn. 550. If, however, the act should be considered as attempting to legalize the assessments in question upon which taxes have been collected, it is m violation of the Constitution of the United States, and is void as depriving plaintiff and the other shareholders of their property without due process of law, and also denying to 160 OCTOBER TERM, 1886. Argument for Plaintiff in Error. them the equal protection of the laws. Tifft n. Buffalo, 82 N. Y. 204; Richards n. Rote, 68 Penn. St. 248; Menges v. Rentier, 33 Penn. St. 495 [& fZ 75 Am. Dec. 616] ; Schaffer v. Eneu, 54 Penn. St. 304; Shonkx. Brown, 61 Penn. St. 320; Bitings v. Dotten, 15 Ill. 218; Marsh v. Chesnut, 14 Ill. 223; Conway v. Cable, 37 Ill. 82; Maine n. Doherty, 60 Maine, 504; Forster v. Forster, 129 Mass. 559. III. The defects in the assessments involved in this action were such as could not be legalized, even if the tax had not been collected. People v. Weaver, 100 U. S. 539, 543, and cases cited there. Tifft v. Buffalo, above cited. IV. The notice and hearing provided for by c. 345 were not sufficient to constitute due process of law. Alba/ny City Bank v. Maher, 9 Fed. Rep. 884. The so-called assessment made by the assessors was beyond their jurisdiction, being made after the time that the law permitted them to make assessments. 'Westfall v. Preston, 49 N. Y. 349; Clark v. Norton, 49 N. Y. 243. It lacked all the elements of a valid tax. There was no apportionment, but an arbitrary assessment of a fixed sum without reference to actual value. It could not, therefore, be legalized. Denny v. Mattoon, 2 Allen, 361 [>& C. 79 Am. Dec. 784]; Mayor, &c., v. Horn, 26 Maryland, 194; Butlers. Saginaw, 26 Mich. 22; Tifft v. Buffalo, 82 N. Y. 204, 210,211. The adjudications in regard to property taken under the power of eminent domain, do not sustain the court below in its holding that the hearing provided for by c. 345 of 1883, was sufficient, (a) The Federal courts have generally held that, in such cases, compensation must be paid before the property can be taken. See Bonaparte v. Camden Amboy Railroad, 1 Bald. 205; Avery v. Fox, 1 Abb. U. S. 246; Pryzbylowicz v. Missouri River Raidroad, 17 Fed. Rep. 492; Burns v. Multnomah Railroad, 15 Fed Rep. 177; People v. Ha/yden, 6 Hill, 359, 361; Sage v. Brooklyn, 89 N. Y. 189; Rensselaer Sa/ratoga Rail/road v. Davis, 43 N. Y. 137; In re New York Central Railroad, 66 N. Y. 407; In re Eureka Warehouse Co., 96 M. Y. 42. (6) Laws authorizing the exercise of eminent domain, without providing for compensation, have been repeatedly held to be unconstitutional and void- WILLIAMS o. SUPERVISORS OF ALBANY. 161 Argument for Plaintiff in Error. Thatcher n. Dartmouth Bridge Co., 18 Pick. 501; In re Aft. Washington Road, 35 N. H. 134; Boston de Lowell Railroad v. Salem (Sc Lowell Railroad, 2 Gray, 1; Watson v. Trustees, 21 Ohio St. 667; Beckwith v. Beckwith, 22 Ohio St. 180; Nichols v. Somerset, (See., Railroad, 43 Maine, 356; Prichard v. Atkinson, 3 N. H. 335. V. The attempted legalization by c. 345 of 1883 was void, because in violation of the restriction in § 5219 of the Revised Statutes, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of the state. People v. Assessors, 2 Hun, 583; IP/TZwwns v. Weaver, 75 N. Y. 30 ; Stanley v. Supervisors, 15 Fed. Rep. 483. VI. While we insist that all the assessments were void, and were not cured by the law of 1883, there are some, to which there are still other objections than those stated above, and as to which it cannot well be claimed that there is any defence. Assessments to the “ estate ” of a deceased person are wholly void, as has been held by the Court of Appeals of this state. Trowbridge v. Horan, 78 N. Y. 439. Several of the shareholders assessed in the years 1876, 1877, and 1878, died before the passage of the act of 1883. As to these deceased persons, the provision for notice in §§ 2 and 3 of the laws of 1883, are entirely inadequate. None but the persons themselves, if living, could swear as to their financial condition at the time of the respective assessments. No. notice to their personal representatives is provided. VII. There is no doubt that this action can be maintained, if the assessment was illegal, from whatever cause. Newmarn v. Supervisors, 45 N. Y. 676 ; National Bank of Chemung v. Ilmira, 53 N. Y. 49; Horn v. Town of New Lots, 83 N. Y. 100. VIII. The facts set up in the third paragraph of the answer constitute no defence. The plaintiff could not so ratify and acknowledge the validity of an unconstitutional law as to make it constitutional and valid. Nor is there any asis for claiming an equitable estoppel if such there could be. he principles of estoppel and waiver have no application to vol. exxn—ii 162 OCTOBER TERM, 1886. Opinion of the Court. the facts in this case. All the familiar elements constituting estoppel in pais are wanting. (1) There was no admission by plaintiff inconsistent with this claim. His claim was that all the assessments were void, and that the money illegally collected should be refunded. There was no inconsistency therefore in his taking a pa/rt. (2) There was no action on the part of the defendant, induced by any act or admission of plaintiff which will injure it. If our contention is correct, the defendant was legally liable to pay us the whole amount of our claim; it certainly suffered no injury by paying a part, for which it conceded its liability. Nor is there any ground for claiming a waiver. A plaintiff, by the receipt of the amount of a judgment in his favor, is not precluded from appealing on the ground that the recovery should have been greater. United States v. Dashiel, 3 Wall. 688; Embry v. Palmer, 107 IT. S. 3; Clowes v. Dickenson, 8 Cow. 328; Hig-bie v. Westlake, 14 N. Y. 281; Benkard v. Babcock, 2 Robertson (N. Y.) 175; Barker v. White, 58 N. Y. 204. Mr. Wheeler H. Peckha/m and Mr. Simon W. Rosendale for defendant in error. Mr. Justice Field, after stating the case as above reported, delivered the opinion of the court. It may be conceded that the assessment of the shares of the National Albany Exchange Bank was in some instances higher in proportion to their actual value than the assessment of some other moneyed capital in the hands of individual citizens was to its actual value; but, as seen from the findings, such discrimination was not designed by the assessors. It is so stipulated by the parties. Whatever discrimination in such instances may have existed arose from the difficulty of devising any other mode than the one adopted, which would work out greater equality and uniformity in the valuation of different kinds of moneyed capital. There was no proof as to the assessment of any moneyed capital, except shares of other banks, state or national. The value of shares in some of these banks was higher, in some lower, than that of the WILLIAMS v. SUPERVISORS OF ALBANY. 163 Opinion of the Court. shares of the National Albany Exchange Bank. The method adopted of assessing all shares at par was generally satisfactory to the owners of the national bank stock in the city of Albany, with the exception of a few stockholders in the National Albany Exchange Bank. Considering the nature of the property, and the frequent fluctuations in value to which it is subject, the method applied to all banks, state and national, came, as we said in the recent case of Stanley against the same defendants, as nearly as practicable to securing between them equality and uniformity of taxation. All the banks, state and national, being thus placed, as respects taxation, upon the same footing, the method could not be considered as adopted in hostility to any of them. If it sometimes led to undervaluation of the shares of national banks, the holders could not complain. If it sometimes led to overvaluation of the shares, the aggrieved party could obtain relief by pursuing the course pointed out by the statute for its correction, unless, as asserted, this course was not, in the years mentioned, available to the plaintiff and the stockholders, whose interests were assigned to him, because their names were not placed on the assessment-roll until the time provided by law for revising and correcting the assessment had passed. If that course was thus cut off, they could have resorted to a court of equity to enjoin the collection of the illegal excess upon payment or tender of the amount due upon what they admitted to be a just valuation. We have considered this subject so fully in the recent case of Stanley against these same defendants, 121 U. S. 535, to which we refer, that it is unnecessary to pursue it further. The irregularities in the assessment for the years 1876,1877, and 1878, in that no entry of any assessment of the shares of the plaintiff and of the stockholders whose claims were assigned to him was made on the assessment-roll of those years until after the first of September, and after the time for revising and correcting the assessment had passed, and in the defect of the oath annexed in its averment as to the estimate ⁰ value of real estate, were, in our judgment, cured by t e validating act of April 30, 1883. The power of taxa- 164 OCTOBER TERM, 1886. Opinion of the Court. tion vested in the legislature is, with some exceptions, limited only by constitutional provisions designed to secure equality and uniformity in the assessment. The mode in which the property shall be appraised, by whom its appraisement shall be made, the time within which it shall be done, what certificate of their action shall be furnished, and when parties shall be heard for the correction of errors, are matters resting in its discretion. Where directions upon the subject might originally have been dispensed with, or executed at another time, irregularities arising from neglect to follow them may be remedied by the legislature, unless its action in this respect is restrained by constitutional provisions prohibiting retrospective legislation. It is only necessary, therefore, in any case to consider whether the assessment could have been ordered originally without requiring the proceedings, the omission or defective performance of which is complained of, or without requiring them within the time designated. If they were not essential to any valid assessment, and therefore might have been omitted or performed at another time, their omission or defective performance may be cured by the same authority which directed them, provided, always, that intervening rights are not impaired. Such is the conclusion of numerous adjudications by the state courts upon the effect of curative acts, and of this court in Mattingly v. District of Columbia, 97 U. S. 687, 690. Hart v. Henderson, 17 Mich. 218 ; Musselman v. Logansport, 29 Ind. 533 ; Grim v. Weissenberg School District, 57 Penn. St. 433. The completion of the assessment-roll in the case at bar before the first of September in the years mentioned, and the form of the oath annexed, were not so vital to the assessment itself as necessarily to render the defect arising from a later return or a deficient oath incurable. The completion of the assessment-roll by that date was deemed essential by the court below, because the law required the assessors forthwith to cause notices to be published in three of the public newspapers of the city for twenty days, specifying a day at their expiration when they would meet and remain in session five days for the purpose of reviewing their assessments on the application of any one aggrieved. The re- WILLIAMS v. SUPERVISORS OF ALBANY. 1B5 Opinion of the Court. quirement was designed to afford tax-payers whose names were on the roll an opportunity for the examination and correction of the assessment of their property. The assessment could not stand if they were deprived of that opportunity. But it is not perceived why it might not be legalized and confirmed by the legislature giving to them such opportunity after the time originally designated had expired. No just right of the tax-payer would thereby be defeated. The assessment of the shares of the bank for the years 1876, 1877, and 1878 was held invalid for the reason stated, under the laws of the state, although from what we have said it would not be open to objection as being in conflict with the act of Congress. It is only in view of its invalidity for want of conformity to the laws of the state that the validating act becomes of importance. That act declares that the assessments contained in the assessment-rolls of the wards of the city for the above years are “ in all things legalized and confirmed, subject to the rights of the shareholders or their personal representatives, in national or state banks which were located in said city, during those years, and the assessments against whom by reason of their ownership of such shares were collected by process of law, to claim a deduction from or cancellation of such assessments.” It required the assessors, within ten days after the passage of the act, to publish in the official papers of the city daily for three weeks, Sundays and holidays excepted, a notice to the stockholders that the assessors would be in attendance at their office in Albany, for three weeks subsequent to the last day of publication of the notice, and hear applications for the deduction from the assessments of any amount which such stockholders or their personal representatives would have been entitled to deduct under the law as it existed in the year when the assessment was placed on the roll, had such application then been made. And the act provided that such shareholders, or any one representing them, might appear before the assessors and apply f°r a deduction or cancellation of the assessment upon any ground which would have been a legal one when the assessment was placed on the roll, and the assessors were empow- 166 OCTOBER TERM, 1886. Opinion of the Court. ered to grant such reduction or cancellation as the shareholders would have been legally entitled to at that time. The act, also, made provision for the collection and payment to the parties of the amount found to be due them with interest. It is difficult to see on what plausible ground the validity of this act can be questioned, unless the power of the legislature to cure by legislative act any irregularities of the assessment be denied. Every right of the shareholder who had paid taxes on the assessment, and it does not appear that there were any others, was secured. He could present any claim he might have for a reduction or cancellation of the assessment, and be heard respecting it. He occupied the same position he would have held, if the assessment of his shares had been placed on the assessment-roll within the time required — that is, before the first of September — and the oath annexed had been without any fault or omission in its averments. The plaintiff and the other shareholders were bound, as owners of property, to bear their just proportion of the public burdens, and if, in ascertaining what that proportion should be, some steps in the proceeding were omitted which invalidated the assessment, it would seem but just that the defect should be cured, if practicable, and the shareholders not be allowed to escape taxation, and thus entail the burden they should bear upon other taxpayers of the community. After the validating act was passed, the plaintiff applied to the assessors for the cancellation of the assessment for the years 1876, 1877, and 1878, or a reduction from the amount assessed. The assessors refused to cancel the assessments, but they allowed a reduction from them to the amount of $2071.66, which was paid to him. It follows from the views expressed that The judgment of the Circuit Court must t>e affirmed ; a/nd it is so ordered. BULLARD v. DES MOINES RAILROAD. 167 Argument for Plaintiff in Error. BULLARD v. DES MOINES AND FORT DODGE RAILROAD. ERROR TO THE SUPREME COURT OF THE STATE OF IOWA. Argued May 4, 1887. — Decided May 23, 1887. The joint resolution of the two Houses of Congress of March 2, 1861, 12 Stat. 251, relinquishing to the State of Iowa certain lands along the Des Moines Elver above the mouth of Raccoon Fork, did not operate to terminate the withdrawal of all the lands on that river above Raccoon Fork from entry and preemption which was originally made in 1850, and which was continued in force from that time and of which renewed notice was given in May, 1860: that resolution was only a congressional recognition of the title, which had passed to grantees of the State of Iowa, to lands certified to the State under the act of 1846, which certificates had been held by this court in Dubuque & Pacific Railroad v. Litchfield, 23 How. 66, to have been issued without authority of law. In equity, in a state court of Iowa, to quiet title to land. The complaint set up a preemption title. The respondent claimed under the act of July 12, 1862, 12 Stat. 543. The bill was dismissed, and on appeal the decree was affirmed by the Supreme Court of the state. The complainant sued out this writ of error. The case is stated in the opinion of the court. J/r. Edward Fitch Bullard, plaintiff in error, in person cited: Wolcott v. Des Moines Co., 5 Wall. 681; Dubuque <& Sioux City Railroad v. Des Moines Walley Railroad, 109 IT. S. 629; Doe v. Nicholls, 1 B. & C. 336; Crilley v. Burrows, 17 Wall. 167, more fully reported in the Letter of the Register of Iowa to the governor of that state in November, 1873 ; Hand v. Newton, 92 N. Y. 88 ; Homestead Co. v. Walley Railroad, 17 Wall. 153; WTlia/ms v. Baker, 17 Wall. 144; Bellows v. Todd, 34 Iowa, 18; United States v. Schurz, 102 tl. S. 378; Clements v. Warner, 24 How. 394; Terry v. Megerle, 24 Cal. 609 [N. C. 85 Am. Dec. 84]; Rector v. Gibbon, 111 IT. S. 276; Shepley v. Gowan, 91U. S. 330; Witherspoon n. Dv/nca/n, 4 Wall. 210; Dy fie V. Arkansas, 9 How. 314; Frisbie v. Whitney, 9 Wall. 187; 168 OCTOBER TERM, 1886. Opinion of the Court. Wirth v. Branson, 98 U. S. 118; Simmons v. Wagner, 101 U. S. 260; Duryee v. Nay or, 96 N. Y. 477; Wolsey v. Chapman, 101 IT. S. 755; Ry am v. Railroad Co., 99 U. 8. 382; Platt n. Union Pacific Railroad, 99 U. S. 48; Cromwell v. \ Sac County, 94 U. S. 351; Weed n. Tücher, 19 N. Y. 422; People v. Da/oenport, 91 N. Y. 574; People v. Lacombe, 99 N. Y. 43; Slidell n. Grandjean, 111 IT. S. 412; Rice v. City, dec., Railroad, 110 IT. S. 695; Johnson v. Towsley, 13 Wall. 72 : Newhall v. Samger, 91 IT. S. 761; Leamenworth, &c., Railroad v. United States, 92 U. S. 733 ; Nongeon y. People, 55 N. Y. 613; Vance v. Burbank, 101 IT. S. 514; French v. Fyarn, 93 IT. S. 169, 172; Steel v. Smelting Co., >106 IT. 8. 447, 451; Ehrhardt n. Hogeboom, 115 IT. S. 67; Lee v. Johnson, 116 IT. S. 48; Pumpelly v. Green Bay Co., 13 Wall. 166; Bicknell v; Comstock, 113 U. S. 149; United States v. Fitzgerald, 15 Pet. 407; Cummings v. Browne, 61 Iowa, 385 ; Cross v. Th B. <& S. W. R. Co., 51 Iowa, 683 ; Smith v. People, 47 N. Y. 330; Harlem Railroad v. Kip, 46 N. Y. 546; Perrine v. Chesapeake & Delaware Carnal, 9 How. 172; Hart v. Kleis, 8 Johns. 41; Wendell v. Van Rensselaer, 1 Johns. Ch. 344. Nr. J. F. Duncombe for defendants in error submitted on his brief, citing: Wolcott v. Des Noimes Co., 5 Wall. 681; Reilly v. Wells, not reported; Homestead Co. v. Valley Railroad Co., 17 Wall. 153; Williams v. Baker, 17 Wall. 144; Bellows v. Todd, 34 Iowa, 19; Dubuque & Sioux City Railroad v. Des Noimes Valley Railroad, 54 Iowa, 89; Railroad Co. n. Fremont County, 9 Wall. 89; Railroad Co. v. Smith, 9 Wall. 95; Wolsey v. Chapman, 101 IT. S. 755 ; Dubuque, &c., Railroad v. Des Noimes Valley Railroad, 109 U. S. 329,334. Mr. Justice Miller delivered the opinion of the court. This is a writ of error to the Supreme Court of the state of Iowa. The case originated in a suit in equity, brought in the District Court of that state for the county of Humbolt by Edward F. Bullard, who is the appellant here. The object of the BULLARD v. DES MOINES RAILROAD. 169 I Opinion of the Court. bill was to quiet or remove clouds upon the title of the plaintiff to certain lands in that state, to which the defendant filed an answer and cross-bill, asking that its own title might be declared to be good and established by the decree of the court. The District Court of that county made a decree in favor of the defendant, which on appeal to the Supreme Court of the state was affirmed. There were many questions considered in the state courts of which this court can take no jurisdiction. But the main question raised there, and the only one here, has relation to a subject which has been often considered by this court. It arises out of what is called the Des Moines River Land Grant, which was originally made by the Congress of the United States to the then territory of Iowa. A short history of the matters growing out of that grant, with some references to the decisions of this court, will simplify the complex record presented in this case. By the act of Congress of August 8, 1846, 9 Stat. 77, there was “ granted to the territory of Iowa, for the purpose of aiding said territory to improve the navigation of the Des Moines River from its mouth to the Raccoon Fork, (so called,) in said territory, one equal moiety, in alternate sections, of the public lands, (remaining unsold, and not otherwise disposed of, encumbered, or appropriated,) in a strip five miles in width on each side of said river; to be selected within said territory by an agent or agents to be appointed by the governor thereof, subject to the approval of the Secretary of the Treasury of the United States.” Soon after the passage of this statute the state of Iowa created a Board of Public Works, to take charge of this river improvement, under a system of slack water navigation on that stream. The contract for the execution of the work came into the hands of a corporation called The Des Moines Navigation Company. The work progressed for a number of years, several dams and locks being built from the mouth of the river upwards, the means for paying the contractors coming solely from the sales of the lands granted to the state for that purpose. These lands, as the work went on and the money was 170 OCTOBER TERM, 1886. Opinion of the Court. needed, were certified to the state by the Secretary of the Treasury, and by it either sold to purchasers or conveyed to the contractors who did the work. The state made no appropriations and furnished no means from any other source than this for the prosecution of the enterprise. So long as no request on the part of the state for the certification of lands lying above the mouth of the Raccoon. Fork was made of the Secretary of the Treasury, no question arose as to the extent of the grant. Afterwards, however, when a demand was made upon that officer that such lands should be certified, he objected on the ground that the grant of lands did not extend beyond that point; that, as by the language of the statute making the grant it was “ for the improvement of the Des Moines River from its mouth to the Raccoon Fork.” it was not intended to grant lands lying above that point, although the same river ran through the entire length of the state, from near its northwestern corner in the territory of Minnesota to the southeast corner, where it flows into the Mississippi River. This question became the subject of active negotiations and controversy between the state of Iowa, through its governor and members of Congress, and the Treasury Department, as well as the Interior Department, which was created during this time and succeeded to the charge of this subject. Meanwhile one of the secretaries certified to the state a part of the land in dispute, running to a certain range of townships above the Raccoon Fork. It may as well be stated here that the lands now in controversy were not among the lands so certified, but are among the odd sections lying north of those thus certified and within five miles of the Des Moines River. On April 6, 1850, Secretary Ewing, while concurring with Attorney General Crittenden in his opinion that the grant of 1846 did not extend above the Raccoon Fork, issued an order withholding all the lands then in controversy from market “ until the close of the then session of Congress,” which order has been continued ever since, in order to give the state the opportunity of petitioning for an extension of the grant by Congress. This court has decided in a number of cases, in re- BULLARD v. DES MOINES RAILROAD. 171 Opinion of the Court. gard to these lands, that this withdrawal operated to exclude from sale, purchase, or preemption all the lands in controversy, and unless the case we are about to consider constitutes an exception, it has never been revoked. In 1856 Congress granted to the state of Iowa, for the purpose of aiding in the construction of several railroads across that state from the Mississippi to the Missouri River, every alternate section, as shown by odd numbers, of the lands on each side of said roads, each of which, when the line was fixed, crossed the Des Moines River and ran through the lands which the state claimed had been granted to it for the purpose of improving the navigation of that stream. Pending this controversy between the state of Iowa and the authorities of the United States as to the extent of the grant, a suit was brought by one of these railroad companies, that the question might be decided by this court. The case is reported as the Dubuque de Pacific Railroad Co. v. Litchfield, 23 How. 66, decided in 1860, and it was held that the grant did not extend above the Raccoon Fork. As soon as this decision was made, the state, through its congressional delegation, sought the action of the Congress of the United States to obtain the o passage of an act, which would secure the grant to the state and its grantees in the full extent which they believed Congress had originally intended by the act of 1846. That the propriety of some action by Congress, and the demand for it was pressing, is obvious, when we consider that the Des Moines Navigation Company, under contract with the state, had spent large sums of money beyond what they had received from the state, and beyond the value of the lands certified to the state by the Secretary. The work, with all the materials and implements on hand, was suspended, and the danger of the works being swept away and ruined by floods in the river was imminent. The whole subject was before Congress, but, without waiting to dispose of it entirely, that body, by way of immediate relief, passed the following joint resolution, approved March 2, 1861, 12 Stat. 251. “ That all the title which the United States still retain in the tracts of land along the Des Moines River, and above the 172 OCTOBER TERM, 1886. Opinion of the Court. mouth of the Raccoon Fork thereof, in the state of Iowa, which have been certified to said state improperly by the Department of the Interior, as part of the grant by act of Congress approved August eight, eighteen hundred and forty-six, and which is now held by bona fide purchasers under the state of Iowa, be, and the same is hereby, relinquished to the state of Iowa.” At the next session of Congress a statute was passed, approved July 12, 1862, which provided as follows: “ That the grant of lands to the then territory of Iowa for the improvement of the Des Moines River made by the act of August eight, eighteen hundred and forty-six, is hereby extended so as to include the alternate sections (designated by odd numbers) lying within five miles of said river, between the Raccoon Fork and the northern boundary of said state; such lands are to be held and applied in accordance with the provisions of the original grant, except that the consent of Congress is hereby given to the application of a portion thereof to aid in the construction of the Keokuk, Fort Des Moines, and Minnesota railroad, in accordance with the provisions of the act of the General Assembly of the state of Iowa, approved March twenty-two, eighteen hundred and fifty-eight.” 12 Stat. 543. By this joint resolution and this act of Congress the United States relieved so far as it could the misfortune of the construction of the grant to the territory of Iowa of 1846, made by this court, and ratified the construction which had always been claimed by the state. During all this controversy there remained the order of the Department having control of the matter, withdrawing all the lands in dispute from public sale, settlement or preemption. This withdrawal was held to be effectual against the grant made by Congress to the railroad companies in 1856, because that act contained the following proviso: “ 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 BULLARD v. DES MOINES RAILROAD. 173 Opinion of the Court. from the operation of this act, except so far as it may be found necessary to locate the routes of said railroads 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.” 11 Stat. 9. See Wolcott v. Des Moines Co., 5 Wall. 681, and Williams v. Baker, 17 Wall. 144, in which cases is also to be found a very full and clear recital of the history of this Des Moines grant controversy. In May, 1860, the Commissioner of the General Land Office sent to the registers and receivers of that office at Des Moines and Fort Dodge the following printed notice: “ Notice is hereby given that the land along the Des Moines River, in Iowa, within the claimed limits of the Des Moines grant, in that state, above the mouth of the Raccoon Fork of said river, which has been reserved from sale heretofore on account of the claim of the state thereto, will continue reserved, for the time being, from sale or from location, by any species of scrip or warrants, notwithstanding the recent decision of the Supreme Court against the claim. This action is deemed necessary to afford time for Congress to consider, upon memorial or otherwise, the case of actual Vona fide settlers holding under titles from the state, and to make such provision, by confirmation or adjustment of the claims of such settlers, as may appear to be right and proper. “ John S. Wilson, “ Commissioner of the Gen. Land Office. “Gen. Land Office, May 18,1860.” It will thus be seen that, notwithstanding the decision of the Supreme Court of the United States in the winter of 1860, the land office determined that the reservation of these lands should continue for the purpose of securing the very action by Congress which the state of Iowa was soliciting, and it is not disputed by counsel for the appellant in this case that this was a valid continuation of such reservation and that during its continuance the preemptions under which the plaintiff claims 174 OCTOBER TERM, 1886. Opinion of the Court. could not have been made. But it is argued that the joint resolution of 1861 terminated this condition of suspense, and in and of itself ended the withdrawal of these lands which had been established and continued since the controvesy originated between the state and the Federal government as to the extent of the grant. This is the only foundation on which plaintiff’s title to the land in controversy in this case rests. We do not think the joint resolution had the effect to end the reservation of these lands from public entry. Whether we consider the purpose of the original order, its long continuance, and that it has been held, in the face of an act of Congress granting lands for public purposes to the railroads already mentioned, to constitute such a withdrawal as that act excepts from the operations of the grant, and that up to the present time no preemptions or sales have been finally recognized as valid by the Department or by the courts, it would be very extraordinary if the joint resolution should have that effect. It does not purport to act upon all the matters which were in controversy between the state and the general government. It certainly did not act upon all the claims and matters in question then pending before Congress in regard to these lands. It was, indeed, a very limited disposition of a part of the matter which Congress supposed might then be acted upon with safety without further investigation. It was simply the recognition of the title which had passed to the grantees of the state of Iowa in regard to the lands which had been certified by the proper authorities of the general government to the state under the act of 1846, and which, by the decision in Dubuque cSs Pacific Railroad v. Litchfield, had been held to be unwarranted by the statute. Congress, urgently pressed by parties who were innocent purchasers under the state, passed the resolution which went to this extent, in the last days of the session, securing to such purchasers, so far as the United States could do so, their title to the lands that they had bought under the sanction of this action of the Department. The broader and larger question of the title to the lands within five miles of the Des Moines River, above Raccoon BULLARD v. DES MOINES RAILROAD. 175 Opinion of the Court. Fork, which had not been certified to the state, and which were declared by the decision of Dubuque & Pacific Railroad v. Litchfield not to be included within the grant of 1846, Congress retained for further consideration, and, at its next session after this joint resolution was passed, it completely disposed of the whole subject, so far as it was within its power to do so, by validating the graht of 1846 to the full extent of the construction claimed by the state of Iowa. If the order of the Commissioner of the General Land Office of May 18, 1860, was in force up to the passage of the joint resolution, it is not possible to perceive why it terminated then. It was declared by the Commissioner that the order or notice was made to protect these lands from location by any species of scrip or warrant, notwithstanding the decision of the Supreme Court to afford time for Congress to further consider the case. This is not the way in which a reservation from sale or preemption of public lands is removed. In almost every instance, in which such a reservation is terminated, there has been a proclamation by the President that the lands are open for entry or sale, and in most instances they have first been offered for sale at public auction. It cannot be seen, from anything in the joint resolution, that Congress either considered the controversy ended or intended to remove the reservation instituted by the Department. Its immediate procedure at the next session to the full consideration of the whole subject shows that it had not ceased to deal with it; that the reason for this withdrawal or reservation continued as strongly as before, and it cannot be doubted that the subject was before Congress, as well as before its committees, and that the act of July 12, 1862, was, for the first time, a conclusion and end of the matter so far as Congress was concerned. The title of the plaintiff, therefore, rests upon settlements upon odd sections of land within five miles of the Des Moines River, which were reserved from sale or preemption at the time the settlements were made. Two of the settlements, which are the foundation of plaintiff’s title, were made in May, 1862, °nly a few days before the passage of the act of July in the same year; and one of the settlements under which the plain- 176 OCTOBER TERM, 1886. Syllabus. tiff claims was made after the passage of that act. The title was transferred by that act to the state of Iowa for the original purposes of the grant of 1846. The object of this bill is to have a declaration of the court that the title of the plaintiff under those settlements and preemptions is superior to the title conferred by Congre^ on the state of Iowa and her grantees under the'act of July 12, 1862. If the lands were at the time of these settlements and preemption declarations effectually withdrawn from settlement, sale, or preemption, by the orders of the Department, which we have considered, there is an end of the plaintiff’s title, for by that withdrawal or reservation the lands were reserved for another purpose, to which they were ultimately appropriated by the act of 1862, and no title could be initiated or established, because the Land Department had no right to grant it. This proposition, which we have fully discussed, will be found supported by the following decisions, which are decisive of the whole controversy. Dubuque de Pacific Railroad v. Litchfield, 23 How. 66; Wolcott n. Des Moines Co:, 5 Wall. 681; Homestead Co. v. Valley Railroad, 17 Wall. 153; Williams v. Baker and Cedar Rapids Railroad v. Des Moines Na/oigation Co., 17 Wall. 144; Wolsey v. Chapman, 101 IT. S. 755; Dubuque & Sioux City Railroad v. Des Moines Valley Railroad, 109 IT. S. 329, 334. The judgment of the Supreme Court of the state of Iowa, founded on the same view of the subject as above set forth, is therefore Affirmed. SANGER v. NIGHTINGALE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOB THE SOUTHERN DISTRICT OF GEORGIA. Argued April 15, 1887. — Decided May 23, 1887. Following the decisions of the Supreme Court of Georgia, this court holds that the act of the legislature of Georgia, of March 16, 1869, which provided that actions upon contracts or debts “ which accrued prior to the SANGER v. NIGHTINGALE. 177 Statement of the Case. 1st of June, 1865, and are now barred, shall be brought by 1st January, 1870, or both the right and right of action to enforce it shall be forever barred” is an ordinary statute of limitations; that it was a personal privilege of the debtor to plead it; and that to avail himself of it he must plead it. The proposition that a purchaser with the legal title, whose right accrued subsequent to a mortgage debt barred by the statute of limitations, can avail himself of the statute, when sued to foreclose the equity of redemption, has been sustained in Georgia only in cases where the party setting it up has become the owner of the title, or of the entire equity of redemption, or has been found in possession of the mortgaged property. The court finds no fraud or irregularity in the transactions assailed in the bill to warrant a reversal of the decree. This was an appeal from the Circuit Court of the United. States for the Southern District of Georgia. The decree from which this appeal was taken dismissed a bill brought by William H. M. Sanger, the appellant, to foreclose a mortgage. The bill was brought against William Nightingale, as executor of Phineas M. Nightingale, his father, Mrs. Ellen D. Nightingale, the widow, and John K. Nightingale, and others, children of Phineas, deceased, the maker of the original mortgage. Sanger, the plaintiff below, was a citizen of New York, and the other parties were mainly citizens of the state of Georgia. This mortgage was made in the city of New York, on December 6,1869, by Phineas M. Nightingale, who was a resident of Georgia. It conveyed to Sanger, the appellant, certain property in the state of Georgia, known as Camber’s Island, in the Altamaha River. Three notes of $10,000 each accompanied the mortgage, payable respectively in one, two and three years, with semiannual interest at the rate of seven per cent per annum. It was to secure the payment of these notes that the mortgage was made, and it was duly recorded January 28, 1870, after having been properly acknowledged. No money was ever paid upon this mortgage, either by way of principal or interest. Nightingale, the mortgagor, died in April, 1873, and William Nightingale became the executor of his will. There were several mortgages on this property prior to the one to the plaintiff, which were properly recorded so as to com VOL. CXXII—12 178 OCTOBER TERM, 1886. Statement of the Case. stitute notice to Sanger, as well as to all other subsequent purchasers or incumbrancers. When Sanger came to file his bill to foreclose his mortgage, which he did April 8,1883, it became necessary for him to bring these mortgages to the attention of the court. The principal, and only one of them, as the case presents itself to us, which is necessary to be considered, was one made by Nightingale, on January 30, 1855, to Charles Spalding, which included Camber’s Island and a very large amount of landed estate beside, as well as some 120 slaves residing upon the estate so mortgaged. This mortgage had been assigned, for the consideration of $100,000, by Spalding to Edmund Molyneux, who afterwards died, and his widow and heirs had removed to England. The executor of the estate of Molyneux had taken judgment against Nightingale before his death for the sum due on the bonds secured by the mortgage to Spalding, and he had also foreclosed the mortgage of Nightingale to Spalding, the property had been sold, and a deed made by the sheriff under that sale to William Nightingale, son of Phineas. All this occurred in the lifetime of the latter. The bill of complaint of Sanger assailed this proceeding by which the mortgage to Spalding was foreclosed, and the title of the property came into the hands of William, as the result of a fraudulent combination on the part of Phineas M. Nightingale, his debtor, and William Nightingale, as representing the children of Phineas M. Nightingale, Mrs. Molyneux, and the executor of Molyneux, to defraud him of his just claims under the mortgage of December, 1869. In reciting the means by which this fraud was carried out he said that Phineas M. Nightingale, the mortgagor in both mortgages, conveyed on July 21, 1870, to Mrs. Molyneux, the widow and real party in interest as heir or devisee of Molyneux, then dead, a tract of land known as “ Dunginess,” which was received by Mrs. Molyneux and intended by Nightingale to be a complete satisfaction of the Spalding mortgage. He further asserted that the Spalding bonds and mortgage were then turned over to P. M. Nightingale, either by a written assign-ment, or accompanied with an indorsement showing that tney SANGER v. NIGHTINGALE. 179 Statement of the Case. were satisfied; that P. M. Nightingale afterwards procured this mortgage to be foreclosed and Camber’s Island sold under it and brought in by his son William without any consideration being paid for it, and solely for the purpose of cutting off the right of Sanger under his mortgage. The answer of the Nightingales denied this combination and fraud, and by way of explanation said that Dunginess was received by Mrs. Molyneux at the sum of $25,000, credited on the Spalding mortgage; that a question at that time existed as to how far the loss of the slaves who had been emancipated, which were included in the mortgage of Nightingale to Spalding, and the consideration of which was the land and negroes mortgaged, would be treated as a failure of consideration; that this question was also settled at the time that Dunginess was conveyed to Mrs. Molyneux, and that an adjustment of that matter was made by which, after the receipt of the deed of conveyance of Dunginess, it was agreed that the sum of $51,250 remained due upon that mortgage. They denied all combination to defeat the plaintiff in his mortgage; they asserted that the foreclosure of the mortgage was a lyona fide attempt to enforce the collection of the remaining sum of $51,250, and that William Nightingale gave his note for the sum of $30,000, for which the property was sold. The plaintiff afterwards filed an amended bill, in which he adopted the version of the settlement between Mrs. Molyneux and Phineas M. Nightingale, by which Dunginess was received as part payment only, and the mortgage was foreclosed for the remaining sum, after deduction for the loss of the slaves, the balance of the bonds remaining unpaid. But in regard to the foreclosure proceedings on that mortgage he said, that at the time they were instituted the debt was barred by I the limitation law of March 16,1869, of the General Assembly of Georgia, and that at the time the bonds and mortgage on which that proceeding was instituted were taken by the chil-I ren of said Phineas M. Nightingale, by the assignment I and. transfer of the executor of the Molyneux estate, the said I °nds and mortgage were all past due and barred by said act 180 OCTOBER TERM, 1886. Argument for Appellant. of 1869.¹ He further averred that the failure of said Phineas to plead the statute of limitations in bar of the foreclosure did not and could not affect the right of the complainant to now avail himself of said statute of limitation. He then requested the court to decree the said foreclosure void, by virtue of said limitation law, against the claim and right of complainant. 4 Woods, 483. Mr. Henry B. Tompkins for appellant submitted on his brief, in which he argued at length in regard to the alleged frauds, and as follows in regard to the statute of limitations. 1. The Spalding mortgage was given to secure a debt aris-ing before 1st June, 1865, to wit: in 1855. Section 3 of the act of 16th March, 1869, is as follows (pamphlet acts, Georgia Legislature, page 133): “ That all actions on bonds or other instruments v/nder seal, and all suits for the enforcement of rights accruing to individuals, or corporations, under statutes or acts of incorporation, or in any way by operation of law, which accrued prior to 1st June, 1865, not now barred, shall be brought by 1st January, 1870, or the right of the party, plaintiff or claimant, a/nd all right of action for enforcement shall be forever barred.” It is distinctly ruled in Georgia that a purchaser of mortgaged premises, buying before the foreclosure suit is begun, can set up the statute of limitations. In Williams^. Terr di, 54 Ga. 462, the court holds: “ One who purchases mortgaged property, prior to the commencement of statutory proceeding to foreclose, and who is not a party to such proceedings, is not bound by the judgment of foreclosure, and may, when the mortgage fl.fa. is levied, go behind the judgment and set up that the mortgage was barred by the statute of limitations at the date of the filing the petition to foreclose.” See also Ini ienthal n. Cha/mpion, 58 Geo. 158, where it is held that a pur-_________________________________________________________________— ¹ The sections of this act which were brought before the court in the briefs of counsel were: § 3, in the brief of the counsel for the appellant, and § the brief of the counsel for the appellees. The former will be found® the report of the counsel’s argument; the latter in the opinion of the cou SANGER v. NIGHTINGALE. 181 Argument for Appellant. chaser before foreclosure proceedings may go behind the judgment and show usury. Also, Stokes n. Maxwell, 58 Geo. 78, where the right of a purchaser to go behind the foreclosure and set up the statute of March, 1869, was denied on the ground that he purchased after suit was begun. Under the laws of Georgia providing for statutory foreclosure it was not permitted for any one to intervene in the suit. Code of Georgia, § 3965. But those not parties, and who could not become parties, are not precluded by the foreclosure. Frost v. Bordens, 59 Geo. 819. 2. So whatever knowledge Sanger may have had of the foreclosure of the Spalding mortgage in McIntosh Superior Court, he could not have interposed. The question arises, if it be lawful for Sanger to take advantage of this statute of March, 1869, being a junior mortgagee, when he could without doubt have taken advantage of it, after foreclosure of the Spalding mortgage, if he had been a purchaser of Camber’s Island from P. M. Nightingale ? As a general proposition, the rights and liens of mortgagees are not affected if they are not made parties to foreclosure proceedings in the suit of another mortgagee. 2 Hilliard on Mortgages, 156, § 51 et seq. There is no question in the case of attacking a judgment collaterally. The questions are: 1, Fraud, which renders void all judgments, &c., Code of Georgia, S 1945 to 1947, 3178, 3595, 3596; and, 2, superiority of lien by reason of the absolute bar of the Spalding mortgage. 3. And where a prior mortgagee is barred by the statute of limitations, and is yet proceeding to foreclose without subsequent mortgagees being made parties, such subsequent mortgagees may intervene, and recover against the prior mortgagee. 2 Hilliard on Mortgages, 160, note (a). Lord v. Morris, 18 Cal. 482. (Decided by Mr. Justice Field.) Gates v. Lilly, 81 Nor. Car. 643. It has been shown that under statutory foreclosure m Georgia the subsequent mortgagee had no right to intervene. In California, as in Georgia, a mortgage is only a secur-^y for a debt. Yet a mortgage in Georgia is a deed of a claim, a right, a demand. Callowa/y v. Peopled Bank, 54 Geo. 441, 182 OCTOBER TERM, 1886. Opinion of the Court. 447, 448; Allen v. Lathrop, 46 Ga. 133, 137; Lame v. Partee, 41 Geo. 202, 207. In this last case the court says: “ Alona fide mortgagee, to the extent of his interest in the land mortgaged, stands upon the same footing as any other bona fide purchaser,” &c. This is just the doctrine laid down in Lord v. Morris. So, in Georgia as in California, the statute applies to “ actions at law as well as suits in equity.” 18 Cal. 486; Code of Georgia, 2924, Acts of 1869, p. 133. 4. The decree of the court below, if valid, establishes the doctrine that the mortgagor, P. M. Nightingale, could by his failure to plead the bar of the statute of 1869, that is, “ by his acts, confessions or neglect,” be able to defeat the mortgage lien of appellant in favor of his own family, who, by the law, was precluded from setting up that statute. This principle is ably combated by Judge McCay himself, in his high and palmy days, when he was one of the most distinguished judges the Supreme Court of Georgia ever had, in Willia/ms n. Terrell, 54 Geo. 463. 5. But the question recurs, does not the limitation law of March, 1869, bar the right of • action and extinguish the remedy upon all causes of action accruing prior to 1st June, 1865? In this matter the ruling of the Supreme Court of Georgia is conclusive. Mills v. Scott, 99 IT. S. 25, 28; Koshkonong v. Burton, 104 IT. S. 668. Aside, then, from any other considerations, the case of Pitman v. Elder, decided by Supreme Court of Georgia, at March Term, 1886, is conclusive on this point. This case not yet being published, a certified copy of the decision is herewith submitted. See also Pamphlet decisions of Georgia Supreme Court, March Term, 1886, p. 11. Mr. Alexander R. Lawton for appellees. Mr. Rufus E. Lester was with him on the brief. Mr. Justice Miller, after stating the case as reporter above, delivered the opinion of the court. Two questions are presented for consideration on the pleadings in the case. The first of these may be said to be this SANGER v. NIGHTINGALE. 183 Opinion of the Court. plea of the statute of limitations; the second, the question of actual fraud in the foreclosure of the Spalding mortgage, and the transfer of title thereby to the children of Phineas M. Nightingale. As regards the statute of limitations, it is observable that the foreclosure suit was brought in the name of Spalding, the original mortgagee, for the use of Johnston, administrator of the estate of Molyneux, for reasons explained by the attorneys who brought it. The suit was against Phineas M. Nightingale himself, who lived until the whole proceeding . was ended and the property sold, and who died a few months I afterwards. The proper, if not the only, time and place that this statute of limitations could have been pleaded was in that suit. Nightingale himself, who was the debtor and was | in possession and' had no equitable defence against the debt for which a judgment at law had been already obtained against him in one of the courts of Georgia, did not plead the statute of limitations. It would hardly be insisted by anybody that I he was under any personal, legal or moral obligation to plead that statute. He had obtained from Mrs. Molyneux a very I favorable settlement of a debt of over one hundred thousand I dollars. Dunginess, which was accepted at the price of I $25,000, is stated in the oral testimony to have been sold not I long afterwards for $15,000. The value of the slaves was I adjusted on some fair basis, and corresponding deduction was I made on that account, so that the sum of $51,250, which was I yet due on the mortgage, was in every sense an honorable and I just debt which Nightingale owed to the estate of Molyneux, I and a plea of the statute of limitations to that debt, if it could I have been sustained after the payments made upon it, within I the period of limitation, would have been an unjust exercise I of his right to make such a plea which could only result in I favor of the plaintiff Sanger. The right to plead the statute of limitations has been I a ways held to be a personal privilege, of which the debtor I could avail himself or not, as he might choose. See Pitman's I ^Piimstratrix v. Elder et al. in the Supreme Court of I Georgia, March Term, 1886. 184 OCTOBER TERM, 1886. Opinion of the Court. It is true there are some authorities which go to show that a purchaser with the legal title, whose right accrued subsequent to the debt which may be barred by the statute, can also avail himself of the statute when he is sued to foreclose this equity of redemption. While this proposition is not undisputed, the cases in which this privilege has been sustained by the courts of Georgia are those in which the party setting it up has become the owner of the title or the entire equity of redemption, or has been found in possession of the mortgaged property. And in the case of Ewell v. Doggs, 108 IT. S. 143, this court said that, though the subsequent purchaser might set up the plea of the statute, the plea must show that the action is barred as between the parties to the debt, because as the owner of the equity of redemption it is that debt he’ has to pay. The statute of limitations applicable to this case is § 6 of the act of March 16, 1869, Pamph. Laws Geo. 1869, p. 133, which reads as follows: “ That all other actions upon contracts, express or implied, or upon any debt or liability whatsoever to the public, or a corporation, or a private individual or individuals, which accrued prior to 1st June, 1865, and are not now barred, shall be brought by 1st January, 1870, or both the right and right of action to enforce it shall be forever barred.” This being a law of the state of Georgia, we must follow its construction by the courts of that state, so far as it has been construed. It is said in the argument in this case, but not much insisted upon by the plaintiffs, that this is a peremptory discharge of the debt, and is not a mere statute of limitations, which, to be available, must be pleaded, as is the case with other limitation acts. The proposition is, that the statute in effect destroys the right of action, but this doctrine has been overruled repeatedly by the Supreme Court of Georgia, in which it has been held to be an ordinary statute of limitations. See George v. Gardner, 49 Geo. 441, 449; Harris v. Gray, 49 Geo. 585. In Parker n. Irvin, 47 Geo. 405, it was decided that the pleading of the statute was only a persona privilege of the debtor, and that to avail himself of the stat- SANGER v. NIGHTINGALE. 185 Opinion of the Court. ute he must plead it. See also Baker and wife v. Bush, 25 Geo. 594. The mortgagee of real estate in Georgia does not take the title to the property. The mortgage is only a security for the debt for which it is made. The title remains in the mortgagor. The- cases in that state, as already intimated, go no further than to hold that a purchaser of the legal title, or possibly a mortgagee in possession, may, when sued, plead the statute of limitations as a defence to a prior debt, or mortgage, or incumbrance, made by the holder of the legal title. In the case before us Sanger never had the possession, never had the legal title, and, as he was no party to the foreclosure proceedings, which he now contests, he simply stands upon such rights as his. mortgage lien gives him against Nightingale. It is difficult to see from what standpoint he, in this suit, in which he is complainant, seeking to foreclose his own mortgage, can set up the statute of limitations, not as a defence, for he is not sued and nobody is troubling him about his claim, but as a positive weapon to set aside and annul in this collateral proceeding the decree of a court of competent jurisdiction, with proper parties before it, which foreclosed a mortgage prior in time and equal in equity to his, under which the property was sold and passed into other hands. Certainly the court which rendered that decree had jurisdiction of the property and of Nightingale, the defendant, who was in possession, and who had the legal title. It is equally as certain that whether Nightingale ought to have pleaded the statute or not, he did not do so, and it is now too late to set it up as a defence to that suit. If Nightingale himself had made that plea, it is difficult to perceive how he could have avoided the effect of part payment by the transfer of Dunginess and an acknowledgment of the debt by the settlement under which it was adjusted at $51,250, as a sufficient answer to the plea of the statute of limitations. We suppose, though no authorities are cited on the subject, that the law of Georgia, like that of other states, admits of such evidence as payment, acknowledgment of the debt, and agreement to pay, as being a sufficient reply to the statute of limitations. How Nightingale 186 OCTOBER TERM, 1886. Opinion of the Court. could have pleaded the statute successfully under such circumstances we do not see. In short, we see no way, in accordance with any known principles of dealing with the statute of limitations, that the plaintiff can, in this collateral proceeding, make use of the statute as a positive weapon of attack to set aside a decree rendered by a court of competent jurisdiction, with proper parties before it, under which the title has passed by a judicial sale to third persons. In regard to the other proposition, that the whole proceeding was the result of a fraudulent combination to cut off and defeat the claim of the plaintiff, we have a little more difficulty. There are many circumstances of suspicion in the transaction. There is no very satisfactory account of anything being paid by the Nightingales for the purchase of Camber’s Island under that decree of foreclosure. There is no very clear account of how the bonds and mortgage, under which that decree was made, came into the possession of William Nightingale and his brothers and sisters. When the purchase was made, William Nightingale gave his note for $30,000, payable to the order of the attorneys who foreclosed the mortgage. It is nowhere shown that this note was ever paid. It is not claimed that it was ever paid in fact; nor is it shown what became of it. It is stated by the attorneys that the mortgage was foreclosed in the name of Spalding, for the use of George H. Johnston, administrator of Edward Molyneux, and that the note for the purchase money was taken to the solicitors as a means of distributing it to those who might be entitled to it. The attorneys seem to have been satisfied that the transfer of the original mortgage and bonds to the Nightingales, the children of Phineas M. Nightingale, extinguished this note, and if there were any clear and satisfactory account of how the junior Nightingales became possessed of the bonds and mortgage this might explain the whole matter. The attempt to do this is rather a lame affair. It is said that the title of Phineas M. Nightingale to Dunginess was brought into doubt by an examination of some papers under which he held it, which raised a question whether he had any- SANGER v. NIGHTINGALE. 187 Opinion of the Court. thing more than a life estate in that property, the title of which after his death descended to his children, and, therefore, Mrs. Molyneux would have no title to Dunginess when he died. A paper is produced which professes to be a quitclaim conveyance by the children of Nightingale to Mrs. Molyneux. This conveyance is set up as the consideration on which Mrs. Molyneux, or the administrator of her husband’s estate, transferred the remaining part of the debt due on the original mortgage to the children of Phineas M. Nightingale. But it must be confessed that the whole of this proposition is involved in obscurity. Where this paper came from, whether it was ever delivered to anybody, or how it came to be executed, are questions which are wholly unexplained by any part of the paper or by anybody who seems to know anything about it. If the other defences to the charges of fraud and conspiracy in the foreclosure of the Spalding mortgage and the purchase of the estate were not better sustained than this, we should be very much inclined to reverse the decree on that branch of the subject. But it is very clear that the settlement and adjustment by which the elder Nightingale conveyed Dunginess at a consideration of $25,000 to Mrs. Molyneux, and by which an adjustment was at the same time made of the claim for the failure of consideration by reason of the emancipation of the slaves, and the sum of $51,250 found to be due and unpaid on the mortgage, was a fair and honest transaction ; nor is anything to be found which impeaches the proceedings for the foreclosure of the mortgage for the remainder of the debt. The proceedings in this case were fair and open and according to the laws of the state of Georgia. Nothing hindered the attorneys who conducted these proceedings from accepting William’s note for $30,000 as a proper consideration for the purchase money and for the sheriff’s deed, which was made to him. It is nowhere asserted that the property was worth more than this $30,000. Up to this point there is no reason to complain of any improper exercise of power on the part of the owners of the mortgage, or of the conduct and proceedings for its foreclosure in the courts of Georgia. -Now, whatever arrangement may have afterwards been 188 OCTOBER TERM, 1886. Opinion of the Court. made between Mrs. Molyneux, or the administrator of the Molyneux estate, and the Nightingales, by which this note was either satisfied by the quitclaim conveyances referred to of Dunginess, or was absolutely remitted as a gratuity to the children of the senior Nightingale, is a matter of which Sanger had no right to complain. The debt was a just debt. The decree was an honest decree, and the proceeds of it belonged to the estate of Molyneux, either to the widow, the administrator, or devisees, if there was a will. It is stated here, and it seems the most probable solution of the matter, that in addition to this quitclaim of the heirs of Nightingale of Dunginess, that Mrs. Molyneux, who was the principal if not the sole devisee under her husband’s will, had become attached to the family of the Nightingales while she resided in this country, and was willing that the debt due to her should be used as a means of securing to the children the family homestead. She had a right to do this. It was her property. She had the right to select whether she would give it to Sanger or to these children. In no event, that we can see, was Sanger injured by the transaction. If, however^ he had any right to complain, if there was any wrong done him, it was not in the proceedings by which the decree was obtained, and that decree must be held to remain valid under all circumstances. If Sanger had brought his bill to merely set aside the sale under that decree, and proposed to redeem or pay the amount of the decree, there might be some reason to consider his claim, because up to the rendition of the decree everything was fair and right. If the sale was set aside the decree would remain, and he could not under such a bill do anything but pay the money due on that decree, and then proceed to sell for his own debt. This he does not seem to have contemplated; perhaps for the reason that the property is not worth the debt, or half the debt, for which that decree was rendered. On the whole case we are of opinion that The decree of the Circuit Court must be affirmed. TUTTLE v. MILWAUKEE RAILWAY. 189 Statement of the Case. TUTTLE v. DETROIT, GRAND HAVEN AND MILWAUKEE RAILWAY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOE THE EASTERN DISTRICT OF MICHIGAN. Argued April 4, 1887. — Decided May 23, 1887. There is no rule of law to restrict railroad companies as to the curves it shall use in its freight stations and its yards, where the safety of passengers and of the public are not involved. The engineering question as to the curves proper to be made in the track of a railroad within the freight stations or the yards of the railroad company is not a question to be left to a jury to determine. Brakemen and other persons employed by a railroad company within the freight stations and the yards of the company, when they accept the employment assume the risks arising from the nature of the curves existing in the track, and the construction of the cars used by the company; and they are bound to exercise the care and caution which the perils of the business demand. When a servant, in the execution of his master’s business, receives an injury which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself. This was an action for negligence resulting in the death of plaintiff’s husband and intestate, Orson Tuttle, a brakeman in the defendant’s employment. The declaration contained three counts, the first of which charged that on or about the 30th of October, 1882, the said Tuttle was in the employ of the defendant in the city of Detroit at the “ Detroit, Grand Haven and Milwaukee yards,” and in the course of his ordinary employment was ordered to couple some cats standing on a certain track known as “ boot-jack siding; ” that said siding is a double-curve track containing a very sharp curve; that in compliance with the order he proceeded to couple certain cars on said siding, which were near a certain boat-slip, and while he was endeavoring to couple said cars the “ drawheads” of the cars failed to meet and passed each other, allowing the said cars to come so close together that he was 190 OCTOBER TERM, 1886. Statement of the Case. crushed to death; that there were no bumpers nor other device on either of the said cars to prevent them from going together, in case said draw-heads failed to meet and passed each other; and that the only device on said cars for the purpose of keeping them apart and to receive the concussion in coupling was the draw-heads aforesaid. The charge of negligence was, that the defendant, disregarding its duty, neglected, in the construction of its said cars, to provide any means to prevent injuring its said employe in case the drawheads of its cars so constructed should fail to meet or pass each other under circumstances set forth; and that the said defendant, in the construction of said “boot-jack siding,” so called, negligently and unskilfully constructed the same with so sharp a curve that the draw-heads of the said cars failed to meet and passed each other, thereby causing the death of the said Orson Tuttle while in the act of coupling said cars as aforesaid, without fault or negligence on his part. The third count was substantially the same as the first; the second count, which charged a defective construction of the car, in not supplying it with bumpers, or other means of preventing the draw-heads from passing each other, was abandoned at the trial. As stated in the brief of the plaintiff’s counsel, “ the first and third counts allege that boot-jack siding was negligently and unskilfully constructed by the defendant with so sharp a curve that the draw-heads of the cars in use by it would pass each other and cause the cars to crush any one who attempted to make a coupling thereon: ” and this alleged faulty construction of the track was the principal matter of contest on the trial; the plaintiff contending that the defendant was bound, in duty to its workmen and employes, to construct a track that would not expose them to the danger which existed in this case; whilst the defendant contended, and offered evidence to prove, that the track was constructed according to the requirements of the situation, a sharp curve being necessary at that place in order to place the cars, when loading, alongside of the dock or slip; that such curves are not uncommon in station yards; that in such conditions the draw-heads of cars quite often pass each other TUTTLE v. MILWAUKEE RAILWAY. 191 Argument for Plaintiff in Error. when the cars come together; that this must be presumed to have been well known to Tuttle, the deceased, who was an experienced yard man; that he accepted the employment with a full knowledge of its risks, and must be held to have assumed them; and that it was negligence on his part to place himself in such a situation as to incur the danger and suffer the injury complained of. It appeared by the evidence that, when trying to make the coupling, the deceased stood on the inside of the curve where the corners of the cars come in contact when the draw-heads pass each other, and will crush a person caught between them; whereas, on the outside of the curve they are widely separated, and there is no danger. The defendants contended that the position thus taken by Tuttle was contributory negligence on his part. On the other hand, the plaintiff offered evidence tending to show that it was usual for the brakeman in coupling cars on a curve to stand on the inside so as to see the engineer and exchange signals with him for stopping, backing, or going forward. The defendants contended, and offered evidence tending to show, that this was not necessary, as there were always the yard master or others standing by and cooperating, by whom the signals could be given. This statement of the pleadings and of the leading issues raised on the trial, is sufficient for properly understanding the question of law presented to the court. Upon the evidence adduced, the judge directed the jury to find a verdict for the defendant, holding that Tuttle wantonly assumed the risk of remaining upon the inside of the draw-bar, when he should have gone on the other side, and that the defendant ought not to be held in this action. JTa 0. Springer for plaintiff in error. J/r. F. A. Baiter was with him on the brief. 1. It was the duty of the defendant to construct and keep in repair, a proper, sufficient and safe road-bed and track, and it is liable to an employe for negligence in the performance of this duty. In the recent case of Northern Pacific RaiVroad v. Herbert^ 192 OCTOBER TERM, 1886. Argument for Plaintiff in Error. 116 U. S. 642, this court, in an opinion by Mr. Justice Field, after stating the rule with reference to the risks incident to the employment, said: “ It is equally well settled, however, that it is the duty of the employer to select and retain servants who are fitted and competent for the service and to furnish sufficient and safe materials, machinery and other means, by which it is to be performed, and to keep them in repair and order. This duty he cannot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his servants can be transferred, so as to exonerate him from such liability. The servant does not undertake to incur the risks arising from the want of sufficient and skilful colaborers, or from defective machinery, or other instruments with which he is to work. His contract implies that in regard to these matters his employer will make adequate provision that no danger shall ensue to him. This doctrine has been so frequently asserted by courts of the highest character that it can hardly be considered any longer open to serious question.” This doctrine has also been recently enforced by the Supreme Court of the State of Michigan, in Broderick v. Detroit Union Station Go., 56 Mich. 261. In addition to the authorities cited in Northern Pacific Railroad v. Herbert, we refer to the following, in which the employer has been held liable for negligence in constructing or in not repairing the instrumentalities the servant was required to use in the performance of his duties: Want of repairs in the road-bed of a railroad, 8m® • v. Housatonic Railroad, 8 Allen, 441. Insufficiently supported derrick at side of railroad, Holden v. Fitchburg Railroad, 129 Mass. 268. Defective construction of trestle work, Elmer v. Locke, 135 Mass. 575. Failure to repair a tell-tale, or bridgeguard, Warden v. Old Colony Rail/road, 137 Mass. 204. Improperly constructed culvert under a railroad, Doris v. Central Vermont Rail/road, 55 Vt. 85; Chicago <& Northwestern Railroad v. Swett, 45 Ill. 197. Machinery negligently set up, Wilson n. Willimantic Co., 50 Conn. 433. Defective platform or scaffold, Berning v. Steinway, 101 N. Y. 547; Behm n. Armour, 58 TUTTLE v. MILWAUKEE RAILWAY. 193 Argument for Plaintiff in Error. . Wis. 1. Permitting car-ladder to remain out of order, Richmond Danrille Railroad v. Moore, 78 Va. 93. Negligently constructed railroad, Trash v. California Southern Railroad, 63 Cal. 96. Rotten ties on the road-bed of a railroad, II. & T. C. R'y n. McNamara, 59 Texas, 255. Defective brake on a railroad car, Texas c& Pacific Railway v. McAtee, 61 Tex. 695. Uneven and improperly constructed side-track, Porter v. Hannibal & St. Joseph RaJroad, 60 Missouri, 160. Buffers on two cars so placed that they went by each other, and crushed employe between the cars, Ellis v. New York, &c., Railroad, 95 N. Y. 546. Defective machinery for operating a circular saw, Indiama Car Co. v. Parker, 100 Ind. 181. Sidetrack with too short a curve, and an improper connection with main track, Patterson v. Pittsburg, dec., Railroad, 76 Penn. St. 389. II. The question of contributory negligence should have been submitted to the jury. To hold that a jury would not be warranted in finding that the deceased was not guilty of contributory negligence would be a contradiction of the main facts and circumstances of the case as shown by the record, and a trifling with matters involving the life of a human being. See Spicer v. South Boston Iron Co., 138 Mass. 426 ; Mulvey n. Rhode Isla/nd Locomotive Works, 14 R. 1.204; Kelley v. Silver Spring Co., 12 R. I. 112 ; Porter v. Hamnibal db St. Joseph Railroad, 60 Missouri, 160. In the case at bar, it was apparent that there was quite a sharp curve, but that it was so very sharp or irregular, that the draw-heads would pass each other, could only be known by actual experiment, or by the use of instruments. The defect was a latent one in every sense of the word. But even if the deceased had known of the defect, it would not necessarily follow that he was guilty of contributory neg-ligehce, simply because, in the busy and prompt performance of his work, he did not remember the exact locality of the point of danger. Snow v. Housatonic Co., 8 Allen, 441; Greenleaf v. Illinois Cent/ral, 29 Iowa, 14. vol. cxxn—13 194 OCTOBER TERM, 1886. Opinion of the Court. J/r. E. W. Meddaugh, for defendant in error, submitted on his brief. Mb. Justice Bradley, after stating the case, delivered the opinion of the court. We have carefully read the evidence presented by the bill of exceptions, and, although it appears that the curve was a very sharp one at the place where the accident happened, yet we do not think that public policy requires the courts to lay down any rule of law to restrict a railroad company as to the curves it shall use in its freight depots and yards, where the safety of passengers and the public is not involved; much less that it should be left to the varying and uncertain opinions of juries to determine such an engineering question. (For analogous cases as to the right of a manufacturer to choose the kind of machinery he will use in his business, see Richards v. Rough, 53 Mich. 212; Hayden v. Smithville Man. Co., 29 Conn. 548, 558.) The interest of railroad companies themselves is so strongly in favor of easy curves as a means of facilitating the movement of their cars, that it may well be left to the discretion of their officers and engineers in what manner to construct them for the proper transaction of their business in yards, &c. It must be a very extraordinary case, indeed, in which their discretion in this matter should be interfered with in determining their obligations to their employes. The brakemen and others employed to work in such situations must decide for themselves whether they will encounter the hazards incidental thereto ; and if they decide to do so, they must be content to assume the risks. For the views of this court in a cognate matter, see Ra/ndall v. Baltimore <& Ohio Railroad, 109 U. S. 478, 482, where it was said: “A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad corporation connected with the moving of trains, assumes the risks of that condition of things. It is for those who enter into such employments to exercise all that care and caution which the perils of the business in each TUTTLE v. MILWAUKEE RAILWAY. 195 Opinion of the Court. case demand. The perils in the present case, arising from the sharpness of the curve were seen and known. They were not like the defects of unsafe machinery which the employer has neglected to repair, and which his employes have reason to suppose is in proper working condition. Everything was open and visible, and the deceased had only to use his senses and his faculties to avoid the dangers to which he was exposed. One of these dangers was that of the draw-bars slipping and passing each other when the cars were brought together. It was his duty to look out for this and avoid it. The danger existed only on the inside of the curve. This must have been known to him. It will be presumed that, as an experienced brakeman, he did know it; for it is one of those things which happen, in the course of his employment, under such conditions as existed here. Without attempting, therefore, to give a summary of the evidence, we have no hesitation in saying that the judge was right in holding that the deceased, by voluntarily assuming the risk of remaining on the inside of the draw-bar, brought the injury upon himself, and the judge was right, therefore, in directing a verdict for the defendant. We are led to this conclusion, not only on the ground that the deceased, by his own negligence, contributed to the accident, but on the broader ground, already alluded to, that a. person who enters into the service of another in a particular employment assumes the risks incident to such employment. Judge Cooley announces the rule in the following terms: “ The rule is now well settled,” says he, “ that, in general, when a servant, in the execution of his master’s business, receives an injury which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself. The reason most generally assigned for this rule is, that the servant, when he engages in the employment, does so m view of all the incidental hazards, and that he and his employer, when making their negotiations, fixing the terms and agreeing upon the compensation that shall be paid to him, !nust have contemplated these as having an important bearing uP°n their stipulations. As the servant then knows that he 196 OCTOBER TERM, 1886. Opinion of the Court. will be exposed to the incidental risk, ‘ he must be supposed to have contracted that, as between himself and the master, he would run this risk.’ ” The author proceeds to show that this is also a rule of public policy, inasmuch as an opposite doctrine would not only subject employers to unreasonable and often ruinous responsibilities, thereby embarrassing all branches of business, but it would be an encouragement to the servant to omit that, diligence and caution which he is in duty bound to exercise on behalf of his master, to protect him against the misconduct and negligence of others in the same service; and in exercising such diligence and caution he would have a better security against injury to himself than any recourse to the master for damages could afford. This accurate summary of the law supersedes the necessity of quoting cases, which are referred to by the author and by every recent writer on the same subject. Its application to this case is quite clear. The defendant, as we have seen, had a right to construct its side-track with such curves as its engineers deemed expedient and proper; and as to the draw-heads, and the absence of bumpers, the plaintiff herself abandoned all claim founded upon any supposed misconstruction of the cars in relation thereto. Then, it was clearly shown to be a not uncommon accident, especially on sharp curves, for the draw-heads of cars to slip by and pass each other. Tuttle, the deceased, entered into the employment of the defendant as a brakeman in the yard in question, with a full knowledge (actual or presumed) of all these things—the form of the sidetracks, the construction of the cars, and the hazards incident-to the service. Of one of these hazards he was unfortunately the victim. The only conclusion to be reached from these undoubted facts is, that he assumed the risks of the business, and his representative has no recourse for damages against the company. This view of the subject renders it unnecessary to examine the various particular instructions which the plaintiff’s counsel requested the court to give to the jury. The only one that need be noticed is the following, namely: “ If the jury find that Tuttle had no notice or knowledge UNITED STATES v. AUFFMORDT. 197 Syllabus. of the fact that the draw-heads would pass on a portion of this siding, and that the fact itself would not be noticed or discovered by a careful and prudent man while engaged in coupling cars on said siding, then it cannot be said that he was guilty of contributory negligence, unless it had already come to his knowledge that the draw-heads would pass.” On this point the judge stated, in his charge, that “ he (the deceased) knew, as he was an experienced man, that draw-bars do slip sometimes, even upon a straight track, as it has been testified to, and the sharper the curve the greater was the danger of their slipping.” In making this statement the judge was fully borne out by the testimony, and there was no evidence to contradict it. We find no error in the judgment, and it is therefore affirmed. Mr. Justice Miller, with whom was Mr. Justice Harlan, dissenting. I dissent from this judgment, and especially the proposition that the railroad company owed no duty to its employes in regard to the sharpness of the curves of the track in the yards in which they are employed. Mr. Justice Harlan unites in this dissent. UNITED STATES v. AUFFMORDT. error to the circuit court of the united states for the SOUTHERN DISTRICT OF NEW YORK. Argued April 26, 1887. — Decided May 27, 1887. Under § 2839 of the Revised Statutes, there can be no recovery by the United States for a forfeiture of the value of imported merchandise, the property of its foreign manufacturer, against the person to whom he had consigned it for sale on commission, and who entered it as such consignee, the forfeiture being claimed on the ground that the merchandise was entered at invoice prices lower than its actual market value at the time and place of exportation. Section 2839 applies only to purchased goods. 198 OCTOBER TERM, 1886. Statement of the Case. Section 2864, so far as it provides for a forfeiture of the value of merchandise, is repealed by the provisions of § 12 of the act of June 22, 1874, c. 391, 18 Stat. 188. The amendment made to § 2864, by the act of February 18, 1875, c. 80,18 Stat. 319, by inserting the words “ or the value thereof,” did not have the effect of enacting that the value of merchandise is to be forfeited under § 2864, notwithstanding the act of June 22, 1874, c. 391. The object and effect of the amendment were only to correct an error in the text of § 2864, and to make it read as it read, when in force, on the 1st of December, 1873, as a part of § 1 of the act of March 3, 1863, c. 76, 12 Stat. 738. This was an action brought by the United States, in the District Court of the United States for the Southern District of New York, against Clement A. Auffmordt, John F. Dege-ner, William Degener, and Adolph William Von Kessler, composing the firm of C. A. Auffmordt & Co., to recover the sum of $321,519.29 with interest. The complaint alleged violations by the defendants of statutes of the United States in respect to entries of imported merchandise made by the defendants in 1879, 1880, 1881, and 1882, the value of such merchandise being the above-named sum, and claims that by reason of the acts of the defendants alleged in the complaint the defendants have forfeited such value to the United States. The defendants put in an answer containing a general denial, and the case was tried in the District Court before a jury. After the case was opened to the jury on the part of the United States, and before any testimony was offered, the defendants moved, upon such opening, that the court direct a verdict for the defendants, on the ground that there was no statute of the United States whereby the value of the merchandise could be recovered by reason of the acts alleged to have been committed by the defendants as consignees of the goods, which was the capacity in which they received and entered the goods, the goods being the property of the manufacturers of them in Switzerland, and being consigned to the defendants for sale on commission. The facts sought to be proved against the defendants were that they, knowingly and with intent to defraud the revenue, entered the goods at m- UNITED STATES v. AUFFMORDT. 199 Argument for Plaintiff in Error. voice prices lower than their actual market value at the time and place of exportation. The court ruled that there was no existing statute of the United States under which the plaintiff could recover upon any possible proof, and that a verdict must be directed for the defendants. 19 Fed. Rep. 893. The plaintiffs excepted to this ruling. Mr. Solicitor General for plaintiff in error. Two propositions are proposed to be maintained by the government in this case: 1. The merchandise for whose value suit was brought, was, under the evidence offered, subject to forfeiture. 2. As the merchandise was subject to forfeiture, the United States were entitled to recover its value without seizure of the goods. As applicable to the first of these propositions, the following statutes are cited: § 2839, Revised Statutes, originally enacted as the 66th section of the act 2d March, 1799 ; so much of § 2841 as is material, originally § 4 of the act of 1st March, 1823; § 2845, originally § 8 of the act of March 1, 1823; § 2854, originally the first part of § 1 of the act of the 3d March, 1863 ; § 2864, originally part of § 1 of the act of March 3,1863; § 12 of the act of June 22, 1874, Supplement to Revised Statutes, page 79. The remaining question is, can the United States recover the full value of the invoice or packages without a seizure of the goods ? The rule to be applied in the construction of revenue laws involving forfeiture is stated by Justice Swayne in the case of Cliguot's Champagne, 3 Wall. 114,145, to be as follows: “ Revenue laws are not penal laws in the sense that requires them to be construed with great strictness in favor of the defendant. They are rather to be regarded as remedial in their character, and intended to prevent fraud, suppress public wrong, and promote public good. They should be so construed as to carry out the intention of the legislature in passing them and most effectually accomplish these objects.” See also Taylor v. United States, 3 How. 197, 210. 200 OCTOBER TERM, 1886. Argument for Plaintiff in Error. Sections 2839 and 2864 both expressly provide for the forfeiture of merchandise or its value. If, then, these sections, or either of them, stand as law at this time, and are applicable to the facts of this case, the value may be recovered without seizure of the merchandise. The facts of this case fully meet the requirements of both sections, unless they are rendered inapplicable under § 2839, because, as was ruled by the District Court, that section was applicable only to goods purchased. Alfonso v. United States, 2 Story, 421, cited to support this proposition does not support it ; on the contrary, the court avoided it. Whatever the lawmakers intended at the time of the passage of § 2839, unless modified or repealed by subsequent legislation, is what the section means now. It was originally enacted in 1799. Neither at nor prior to that time had there been any legal distinction recognized between an import by a purchaser and an import by a manufacturer. The section is general in its terms and embraces “ all merchandise of which entry has been made,” whether entered by the foreign manufacturer or by the purchaser. The word “ cost,” as distinguished from the market value or wholesale price, was first used in the act of March 1, 1823. It is only in still more recent legislation that the word “ cost ” is applied in the same legislation to purchasers and market value, to manufacturers and their consignees and agents. Numerous cases arose under this section and are reported, but in none of them did the distinction now sought to be set up between purchaser and manufacturer as applicable to that section obtain any recognition. Those cases extended from the United States v. Riddle, 5 Cranch, 311, to Smoltz's Case, decided at December Term, 1869, reported in 5 C. Cl. 294. As the distinction then was not made between purchaser and manufacturer until after the passage of the act of 1799, it cannot with propriety be made to relate back, and be applied to the interpretation of the section passed before it was known and recognized. It is, therefore, contended that § 2839 when originally enacted applied to purchasers and manufacturers alike, and, unless repealed, is applicable to this case. That it was not repealed UNITED STATES v. AUFFMORDT. 201 Argument for Plaintiff in Error. up to December, 1869, is abundantly established by the following cases: Wood v. United States, 16 Pet. 342; United States v. Sixty-Seven Packages Dry Goods, 17 How. 85; United States v. Nine Cases Silk Hats, 17 How. 97; United States v. One Package Merchandise, 17 How. 98; United States v. One Case Clocks, 17 How. 99 ; Smoltz v. United States, 5 C. Cl. 301. The District Court in this case ruled that § 2864 was repealed by the 12th section of the act of June 22,1874. If this ground be well taken, both §§ 2839 and 2864 have ceased to be a part of the law of the land; if erroneous, they both still remain, and the judgment in this case should be reversed. The only direct repealing provision found in the 12th section of the act of the 22d of June, 1874, is: “ And anything contained in any act which provides for the forfeiture or confiscation of an entire invoice in consequence of any item or items contained in the same being undervalued, be and the same is hereby, repealed.” This clause shows that it was the intent of the law to repeal only so much of the former law with reference to forfeitures, as forfeited an invoice for an item or items of fradulent entry. Had the legislature intended to repeal aH, they would have used different language. It cannot be conceived that they intended to repeal the whole system of laws by implication, and then expressly repealed a part of the system. The alleged repealing section mitigated the forfeiture of prior enactments, and in lieu of the penalty of the forfeiture of the whole invoice, made the fraudulent entry a crime. No implication of a general repeal arises from this. There is no legal inconsistency between the two acts. But it is contended the new law covers the whole subject matter of the old, and adds an offence and prescribes its penalties, and therefore is inconsistent and effects a repeal; but in this case we claim that the new law only reenacts an offence and modifies a penalty prescribed by the 19th section of the act of the 30th of August, 1842, 5 Stat. 565. The new statutory penalty or forfeiture only modifies so far as it extends, which is to cases where seizure can be made. The present case clearly shows that the new law does not cover the whole subject matter of the old. 202 OCTOBER TERM, 1886. Opinion of the Court. The new law only provides for a forfeiture of the merchandise, but not for the forfeiture of its value. The merchandise can only be forfeited when the fraud is discovered, before it shall have been so disposed of as to place it out of the reach of legal seizure. The old law provides for an additional case of the forfeiture of the value as well as the merchandise under it, when, as in this case, where the fraudulent invoices, by the secret cunning of the wrong-doers, had concealed the wrong until the remedy by seizure had become impossible, the value only could be forfeited. If the tariff acts of 1799, and subsequent acts be examined with care, it will be found that § 12 of the act of 1874 only consolidates so much of the law as related to cases where seizure of merchandise could be made, but does not include such provisions of the prior law as are applicable to cases where seizure could not be made. The cases of Buckley v. United States, 4 How. 251; Wood v. United States, 16 Pet. 342; United States v. Sixty-Seven Packages of Dry Goods, 17 How. 85; Taylor n. United States, 3 How. 197, rule, that the provisions of the above-named several statutes did not repeal § 66 of the act of 1799. In these cases the distinction is also recognized, between the provisions of that section, which relate to cases in which the seizure can be made and those in which it cannot. Mr. Cha/rles M. Da Costa for defendants in error. Mr. Justice Blatchford, after stating the case as above reported, delivered the opinion of the court. The two sections of the Revised Statutes upon which the United States base their right of recovery in the case are §§ 2839 and 2864. Section 2839 was originally enacted as part of § 66 of the act of March 2,1799, c. 22,1 Stat. 677, and reads as follows: “ Sec. 2839. If any merchandise, of which entry has been made in the office of a collector, is not invoiced according to the actual cost thereof at the place of exportation UNITED STATES v. AUFFMORDT. 203 Opinion of the Court. with design to evade payment of duty, all such merchandise, or the value thereof, to be recovered of the person making entry, shall be forfeited.” Section 2864 was originally enacted as part of § 1 of the act of March 3, 1863, c. 76, 12 Stat. 738, and reads as follows: “Sec. 2864. If any owner, consignee, or agent of any merchandise shall knowingly make, or attempt to make, an entry thereof by means of any false invoice, or false certificate of a consul, vice-consul, or commercial agent, or of any invoice which does not contain a true statement of all the particulars hereinbefore required, or by means of any other false or fraudulent document or paper, or of any other false or fraudulent practice or appliance whatsoever, such merchandise, or the value thereof, shall be forfeited.” The bill of exceptions contains the following statement as to the proceedings after the above ruling of the court: The plaintiffs asked leave to prove, successively, that items contained in the invoices mentioned in the complaint and bill of particulars were undervalued, within the meaning of the last clause of §12 of the act of June 22, 1874, which reads as follows: “Anything contained in any act which provides for the forfeiture or confiscation of an entire invoice in consequence of any item or items contained in the same being undervalued, be, and the same is hereby, repealed; ” that the defendants, being consignees of the merchandise mentioned in the complaint, knowingly made entries thereof by means of false invoices; that the defendants, being agents of the merchandise men-tioned in the complaint, knowingly made entry thereof by means of false invoices; that the defendants, being consignees of the merchandise mentioned in the complaint, knowingly made entry thereof by means of invoices which did not contain a true statement of the particulars required in that part of the act of March 3, 1863, preceding the provision of the act which was reenacted as § 2864 of the Revised Statutes; that the defendants being agents of the merchandise mentioned in the complaint, knowingly made entry thereof by means of invoices which did not contain a true statement of the particulars required in that part of the act of March 3, 1863, preceding the 204 OCTOBER TERM, 1886. Opinion of the Court. provision of the act which was reenacted as § 2864 of the Revised Statutes; that the defendants, being the consignees of the merchandise mentioned in the complaint, knowingly made entry thereof by means of false and fraudulent documents and papers; and that the defendants, being the agents of the merchandise mentioned in the complaint, knowingly made entry thereof by means of false and fraudulent documents and papers. These requests being successively denied, the plaintiffs excepted to each refusal. The jury under direction of the court, found a verdict for the defendants, to which direction the plaintiffs excepted. After a judgment for the defendants, the plaintiffs took the case to the Circuit Court by a writ of error, where the judgment was affirmed, and they have brought the case to this court by a writ of error. The main contentions on the part of the defendants are, that § 2839 relates only to purchased goods, and not to consigned goods, and that § 2864 is superseded by § 12 of the act of June 22,1874, c. 391, 18 Stat. 188. These contentions were sustained by the District Court in its opinion. Section 2839 provides for the forfeiture of merchandise, or the value thereof, “to be recovered of the person making entry,” where the merchandise is “ not invoiced according to the actual cost thereof at the place of exportation, with design to evade payment of duty.” This section, originally enacted in 1799, is applicable only to goods which are required to be invoiced according to their actual cost at the place of exportation. Alfonso v. United States, 2 Story, 421, 429, 432. By § 2841 of the Revised Statutes, originally § 4 of the act of March 1, 1823, c. 21, 3 Stat. 730, 732, forms of oaths on the entry of goods are prescribed, one for the “consignee, importer, or agent,” one for the “owner in cases where merchandise has been actually purchased,” and a third for the “ manufacturer or owner in cases where merchandise has not been actually purchased.” In the first form of oath, the oath is, that the invoice “ exhibits the actual cost, (if purchased,) or fair market value, (if otherwise obtained,) ” at the time and place of pr⁰' curement. In the second form of oath, the oath is, that the oath contains “ a just and faithful account of the actual cost. UNITED STATES v. AUFFMORDT. 205 Opinion of the Court. In the third form of oath, the oath is, that the goods were not actually bought by the importer or consignee, or by his agent, in the ordinary mode of bargain and sale, but that nevertheless the invoice “ contains a just and faithful valuation of the same, at their fair market value ” at the place of procurement. Section 2845, originally § 8 of the act of March 1,1823, c. 21, 3 Stat. 733, provides that “no merchandise subject to ad valorem duty, belonging to a person not residing at the time in the United States, who has not acquired the same in the ordinary mode of bargain and sale, or belonging to the manufacturer, in whole or in part, of the same, shall be admitted to entry, unless the invoice thereof is verified by the oath of the owner or of one of the owners, . . . certifying that the invoice contains a true and faithful account of the merchandise, at its fair market value, at the time and place when and where the same was procured or manufactured, as the case may be.” Section 2854, originally a part of § 1 of the act of March 3, 1863, c. 76, 12 Stat. 737, provides as follows: “AH such invoices” (that is, all invoices of merchandise imported from any foreign country) “ shall, at or before the shipment of the merchandise, be produced to the consul, vice-consul, or commercial agent of the United States nearest the place of shipment, for the use of the United States, and shall have indorsed thereon, when so produced, a declaration signed by the purchaser, manufacturer, owner, or agent, setting forth that the invoice is in aH respects true ; that it contains, if the merchandise mentioned therein is subject to ad valorem duty, and was obtained by purchase, a true and full statement of the time when and the place where the same was purchased, and the actual cost thereof, and of aH charges thereon ; and that no discounts, bounties, or drawbacks are contained in the invoice but such as have actually been allowed thereon; and when obtained in any other manner than by purchase, the actual market value thereof at the time and place when and where the same was procured or manufactured ; and, if subject to specific duty, the actual quantity thereof ; and that no different invoice of the merchandise, mentioned in the invoice so produced, has been or wiH be furnished to any one. If the 206 OCTOBER TERM, 1886. Opinion of the Court. merchandise was actually purchased, the declaration shall also contain a statement that the currency in which such invoice is made out is the currency which was actually paid for the merchandise by the purchaser.” It is quite clear, from the above provisions, that, where imported goods are the property of their manufacturer, the invoice need only state the fair market value of the goods at the place of manufacture, and it need not state “ the actual cost thereof at the place of exportation.” Therefore, an invoice of goods which belong to their manufacturer is not, nor is an entry of such goods, within the purview of § 2839, so as to make the person entering them with design to evade payment of duty liable to a forfeiture of their value. The most serious question arises in respect to § 2864, which is alleged to have been superseded by § 12 of the act of June 22, 1874. The two statutes are here placed in parallel columns: Section 286Jp, Revised Statutes, Section 12 of the Act of June ($d ed). 22, 187Ip. “ If any owner, consignee, or “ That any owner, importer, agent of any merchandise shall consignee, agent, or other per- knowingly make, or attempt son who shall, with intent to to make, an entry thereof by defraud the revenue, make, or means of any false invoice, or attempt to make, any entry false certificate of a consul, of imported merchandise, by vice-consul, or commercial means of any fraudulent or agent, or of any invoice which false invoice, affidavit, letter, does not contain a true state- or paper, or by means of any ment of all the particulars false statement, written or hereinbefore required, or by verbal, or who shall be guilty means of any other false or of any wilful act or omission fraudulent document or paper, by means whereof the United or of any other false or fraud- States shall be deprived of the ulent practice or appliance lawful duties, or any portion whatsoever, such merchandise thereof, accruing upon the mer- or the value thereof shall be chandise, or any portion there- forfeited.” of, embraced or referred to in UNITED STATES v. AUFFMORDT. 207 Opinion of the Court. such invoice, affidavit, letter, paper, or statement, or affected by such act or omission, shall, for each offence, be fined in any sum not exceeding five thou- sand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both; and, in addition to such fine, such merchandise shall be forfeited; which for- feiture shall only apply to the whole of the merchandise in the case or package containing the particular article or articles of merchandise to which said fraud or alleged fraud relates; and anything contained in any act which provides for the for- feiture or confiscation of an entire invoice in consequence of any item or items con- tained in the same being un- dervalued, be, and the same is hereby, repealed.” Assuming that the language of § 2864, declaring that the merchandise or its value shall be forfeited, would authorize a suit in personam, without a seizure of the merchandise, and also assuming that the suit for a forfeiture of the value may be brought against the owner, consignee, or agent, the question for determination is, whether the provision in § 2864, for a forfeiture of the value, is superseded by the enactment of § 12 of the act of June 22, 1874, which provides only for a forfeiture of the merchandise, and does not provide for any forfeiture of its value. Section 13 of the act of June 22, 1874, provides that any Merchandise entered by any person violating § 12, but not 208 OCTOBER TERM, 1886. Opinion of the Court. subject to forfeiture under that section, may, while owned by him or while in his possession, “ to double the amount claimed, be taken by the collector and held as security for the payment of any fine or fines incurred as aforesaid.” Section 14 provides that the omission, without intent thereby to defraud the revenue, to add, on entry, to the invoice, certain specified charges, shall not be a cause of forfeiture of the goods “ or of the value thereof.” Section 16 provides that, in suits to enforce the forfeiture of goods, “ or to recover the value thereof,” no fine, penalty, or forfeiture shall be imposed unless the jury shall find that the alleged acts were done with an actual intention to defraud the United States. Section 26 repeals all acts and parts of acts inconsistent with the provisions of that act. There is not in the act any other repealing provision, except that contained in the concluding words of § 12, above quoted. The act of June 22,1874, was passed on the same day with the Revised Statutes, § 5595 of which declares that the Revised Statutes embrace the general and permanent statutes of the United States which were in force on the 1st day of December, 1873. Section 5601 declares that the enactment of the revision is not to affect or repeal any act of Congress passed since the 1st day of December, 1873; that all acts passed since that date are to have full effect, as if passed after the enactment of the revision; and that, so far as such acts vary from or conflict with any provision contained in the revision, they are to have effect as subsequent statutes, and as repealing any portion of the revision inconsistent therewith. The act of June 22,1874, is, therefore, a subsequent statute to the Revised Statutes, and repeals any portion thereof which is inconsistent with such subsequent statute. On a full review of the above-recited provisions of the act of June 22, 1874, and of its other provisions, it is apparent that, so far, at least, as the acts subject to the penalties denounced in § 2864 are concerned, they are entirely covered by the provisions of § 12 of the act of June 22, 1874. There is no act denounced by § 2864 that is not embraced, both as to person and character of act, by the provisions of § 12. latter section adds, as a punishment for the offence, fine or UNITED STATES v. AUFFMORDT. 209 Opinion of the Court. imprisonment, or both, and a forfeiture of the merchandise, in addition to the fine. It leaves out a forfeiture of the value of the merchandise, and forfeiture of such value is inconsistent with the terms of § 12, and is, therefore, repealed by it. The absolute forfeiture of the merchandise, provided for by § 12, is inconsistent, also, with the alternative forfeiture of the merchandise or its value, provided for by § 2864. The provisions of the two statutes cannot stand together. Norris v. Crocker, 13 How. 429,438; United States v. Tynen, 11 WaH. 88,92; Murdoch v. City of Memphis, 20 Wall. 590, 617; United States v. Claflin, 97 U. S. 546, 552, 553 ; King n. Cornell, 106 U. S. 395, 396 ; Pana v. Bowler, 107 IT. S. 529, 538. The considerations covered by the foregoing views are so well discussed and enforced in the opinion of the District Judge in this case that it is not deemed necessary further to enlarge upon them. Section 2864 of the Revised Statutes, when originaHy enacted on the 22d of June, 1874, did not contain the words “ or the value thereof ” after the words “ such merchandise.” By the act of February 18,1875, c. 80, 18 Stat. 319, entitled “An Act to correct errors and to supply omissions in the Revised Statutes of the United States,” and which act. states “ that, for the purpose of correcting errors and supplying omissions in the act entitled ‘ An Act to revise and consolidate the statutes of the United States in force on the first day of December, Anno Domini one thousand eight hundred and seventy-three,’ so as to make the same truly express such laws, the following amendments are hereby made therein,” it is provided as follows : “ Section two thousand eight hundred and sixty-four is amended by inserting in the last line, after the word ‘merchandise,’ the words ⁴ or the value thereof.’ ” Section two of the act directs the Secretary of State, “ if practicable, to cause this act to be printed and bound in the volume of the Revised Statutes of the United States.” It is contended for the United States that this amendment 2864, made by the act of February 18, 1875, can be reasonably accounted for only upon the theory that, at the date ¹ W made, which was after the passage of the act of June VOL. CXXII—14 210 OCTOBER TERM, 1886. Opinion of the Court. 22, 1874, c. 391, Congress regarded § 2864, as thus amended, as a valid existing law, particularly in respect to the amendment, and intended to declare that the value of the merchandise should be forfeited under § 2864, notwithstanding the passage of the act of June 22, 1874, c. 391. But we are of opinion that the amendment made by the act of February 18, 1875, did not have the effect contended for. Its sole object was to correct errors and supply omissions in the text of the Revised Statutes, as its title indicates, so as to make the same truly express the statutes in force on the 1st of December, 1873, and it made special reference to the printed volume of the Revised Statutes. It was in no respect new legislation, nor a new law enacted to take effect from the date of its passage, in such wise as to alter any enactment made since the passage of the Revised Statutes. The intention was to make § 2864 read as it ought to have read in the printed volume, in the shape in which it was in force on the 1st of December, 1873, as a part of § 1 of the act of March 3, 1863, c. 76,12 Stat. 738. It left the act of June 22, 1874, c. 391, to have its full effect in respect to § 2864, in like manner as if the words “ or the value thereof ” had been contained in that section, in the printed volume of the Revised Statutes. There was a law in force on December 1, 1873, and subsequently thereto, down to June 22, 1874, authorizing a forfeiture of the value of merchandise for the causes stated in § 2864, and the fact that forfeitures of such value might have been incurred during the intervening period between December 1, 1873, and June 22, 1874, was a sufficient reason for the correction made in § 2864. The judgment of the Circuit Cov/rt is BENZIGER v. ROBERTSON. 211 Opinion of the Court. BENZIGER v. ROBERTSON. EBBOR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Argued May 2, 1887. — Decided May 27, 1887. Rosaries composed of beads of glass, wood, steel, bone, ivory, silver, or mother-of-pearl, each rosary having a chain and cross of metal, were, under the Revised Statutes, dutiable at 50 per cent ad valorem, under the head of “beads and bead ornaments,” in Schedule M of § 2504,2d ed., p. 473; the duty on manufactures of the articles of which the beads were composed, and on manufactures of the metal of the chain and cross, being less than 50 per cent ad valorem; and § 2499 requiring that “on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable and rosaries not being an enumerated article. This was an action at law to recover back duties alleged to have been illegally exacted. Judgment for defendant. Plaintiff sued out this writ of error. The case is stated in the opinion of the court. Jfr. II. D. Mussey for plaintiff in error. J/r. Solicitor General for defendant in error submitted on his brief. Mr. Justice Blatchford delivered the opinion of the court. This is an action at law, commenced in a court of the state of New York, and removed into the Circuit Court of the United States for the Southern District of New York, brought by the firm of Benziger Brothers against the collector of the port of New York, to recover back duties alleged to have been illegally exacted on importations made mt° the port of New York, in 1881, of articles which were entered as “ rosaries.” The duty exacted was 50 per cent ad valorem, under Schedule “M” of § 2504 of the Revised tatutes, 2d ed., p. 473, which provides for that rate of duty 212 OCTOBER TERM, 1886. Opinion of the Court. on “ all beads and bead ornaments.” At the trial, the court directed the jury to find a verdict for the defendant. The plaintiffs excepted to this direction and, after such a verdict and a judgment accordingly, brought this writ of error. The component materials of the rosaries in question were, 1. Beads, glass; chain and cross, metal. 2. Beads, wood; chain and cross, metal. 3. Beads, chain, and cross all of steel. 4. Beads, bone; chain and cross, metal. 5. Beads, ivory; chain and cross, metal. 6. Beads, chain, and cross all of silver. 7. Beads, mother-of-pearl; chain and cross, metal. It was proved at the trial that the rosaries are composed of beads, a metal chain, and a cross, the beads being fastened on the chain at regular intervals ; that a rosary is not complete without a cross; that they are used by Roman Catholics in counting their prayers; that they are carried in the pocket when not so in use, and are never used for ornament; that, in all cases, the beads are the component material of chief value; that they are dealt in only by dealers in religious and devotional articles pertaining to the Catholic Church, and are not dealt in by those who deal generally in beads and bead ornaments, and are not known to them; and that the expression “I say the beads,” is sometimes applied to the devotional exercises which are performed on rosaries. The witnesses for the plaintiffs testified that the articles in question are known to importers and wholesale dealers as rosaries, and are dealt in under that name, and are not dealt in under the name of beads; that dealers in rosaries also deal in the beads not made up into rosaries, but fastened together on a cotton string, which they sell to parties to be made up into rosaries; that an order for beads would be understood to mean these beads and not the ones made up into rosaries; and that the people who use rosaries sometimes call them “ beads and sometimes “ rosaries.” The witness for the defendant testified that they are called beads or rosaries, and are bought and sold under the name of beads; that, in point of fact, they are made of beads, and are called beads and rosaries, irrespective of the material of which the beads are composed. 0ⁿ cross-examination he testified as follows : “ Q. What class of BENZIGER v. ROBERTSON. 213' Opinion of the Court. people call them beads? A. Well, I think people in New York. Q. What class of people in New York? A. A great many Catholics call them beads, and a great many call them rosaries. Q. Don’t the dealers call them rosaries, and so catalogue them? A. Yes, sir.” The plaintiffs claim that the rosaries were not dutiable under the head of “beads and bead ornaments,” but were dutiable, under various provisions of the Revised Statutes, at 35 per cent, as manufactures of wood, bone, ivory, and shells; at 40 per cent, as manufactures of glass and silver; and at 45 per cent, as manufactures of steel. The principle adopted by the Treasury Department in directing the collector to assess a duty of 50 per cent on these rosaries, was that, as they were not enumerated as “ rosaries ” in the tariff act, and were composed of beads with steel, silver and other metals, the beads being the component material of chief value, although they might not be “ bead ornaments,” they were dutiable at the rate of duty imposed on beads, by virtue of the provision of § 2499 of the Revised Statutes, which enacts that “ on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable.” This provision does not apply to any enumerated articles, but applies only to non-enumerated articles. The articles in question were known to importers and dealers as “ rosaries.” As such, they were not an enumerated article, but were dutiable, under the above provision of § 2499, at the duty imposed on “ beads.” The cases of Lottimer n. Lawrence, 1 Blatchford, 613, and Arthur v. Sussfield, 96 IT. S. 128, cited by the plaintiffs, have no application to the present case. In the former case, the article in question, thread lace, was enumerated in the tariff by that name. In the second case, the article was spectacles, made of glass and steel. A duty of 45 per cent was exacted on the spectacles, as being “ manufactures of steel, or of which steel shall be a component part.” It was held by this court that the article was dutiable at only 40 per cent under the head of pebbles for spectacles and all manufactures of glass, or of 214 OCTOBER TERM, 1886. Argument "for Plaintiff in Error. which glass shall be a component material.” The ground of the decision was that, as there could be no spectacles without pebbles or glass, the duty of 40 per cent was imposed on the pebbles or glass as materials to aid the sight, the steel being incidental merely, and that, in fact, spectacles were designated under the description of “ pebbles for spectacles.” Judgment affirmed. WISNER v. BROWN. ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN. Submitted January 13, 1887. — Decided May 27, 1887. An assignee in bankruptcy cannot transfer to a purchaser the bankrupt’s adverse interest in real estate in the possession of another claiming title, if two years have elapsed from the time when the cause of action accrued therefor in the assignee; and the right of the purchaser in such case is as fully barred by the provisions of Rev. Stat. § 5057, as those of the assignee. It is unnecessary to decide in this case whether the provisions contained in Rev. Stat. § 5063 refer to a case in which only the interest of the bankrupt is ordered to be sold, without attempting to affect the title or interest of other persons. This was a writ of error to bring before the court for review a judgment rendered by the Supreme Court of .Michigan in an action of ejectment in which the plaintiff in error, who was plaintiff below, claimed title under a deed from an assignee in bankruptcy. The case is stated in the opinion of the court. Mr. 8. 8. Burdett and Mr. H. H. Hoyt, for plaintiff in error, submitted on their brief, which contained the following reference to the point on which it turned in the Supreme Court of Michigan, and which is referred to in the opinion of the court. We are not called upon to determine what the rights of the plaintiff would have been if the assignee had attempted to dispose of this property under § 5063, Rev. Stat., because WISNER v. BROWN. 215 Opinion of the Court. no such authority was asked for and no such proceedings were had. Hence the decisions of the court as to proceedings under that section of the statute have no force in determining the rights of the parties in this controversy. The case is simply this: The assignee being the legal owner of this property, and being in possession of it, (the presumption of law being that possession follows the legal title, and this presumption remains until an ouster has been shown,) he desired to dispose of the land, and for that purpose obtained the authority of the court to sell it, and by virtue of that authority did sell the same to the plaintiff. How can it be said that the assignee did not part with the legal title to it, because it subsequently appeared that some other person claimed an interest in the property under a void conveyance, and he had no notice of the application to the court by the assignee for an order to sell ? It will be observed, that the assignee in his petition did not ask, and the judge did not order the sale of the entire interest free from all claims, but only of the interest that was vested in the assignee, and what right had an adverse claimant to be heard on the question of making such an order ? or if he had notice, would he be allowed to oppose it ? Under such an order the adverse claimant loses no rights that he had to the land before the order and the sale under it were made. What rights he had in the land remain the same, and there is no evidence in the record that if he had had notice, and attended the sale, and the sale had been public, he would have given any more for the assignee’s title to the land than the plaintiff did, nor is there any evidence in the case that the interest that the assignee had in the land was worth any more than was given by the plaintiff in this case. No appearance for defendant in error. Mb. Justice Bradley delivered the opinion of the court. This is an action of ejectment, brought by Wisner, the plaintiff in error, against the defendants in error, for a lot of land 216 OCTOBER TERM, 1886. Opinion of the Court. in Isabella County, Michigan. The plaintiff claims the land as purchaser from one Gillette, assignee in bankruptcy of Alfred Willey. The defendants claim the same under a number of tax sales, and a deed from Willey, the bankrupt. It appeared on the trial that Willey filed his petition in bankruptcy September 19,1871, in the District Court of the United States for the Eastern District of Michigan, and set forth, in the schedule thereto annexed, the land in question (with other lands) as his property; and it was shown that he had purchased it several years before. He was decreed a bankrupt September 3, 1872, and Gillette was appointed his assignee February 21, 1873. On the 3d day of April, 1880, more than seven years after his appointment, Gillette filed a petition in the District Court, praying for leave to sell the land in question and the several other lots mentioned in the schedule at private sale for any sum not less than $100. The petition alleged that Willey, at the time of filing his petition in bankruptcy, claimed an interest in the lands, describing them, and then proceeded as follows : “ Your petitioner, having no funds belonging to said estate in his hands, did not investigate the title of said bankrupt to said land, and believing that said lands were of little value paid no attention to them until recently, when application was made to your petitioner to purchase the right of said bankrupt in said lands. From examination of the records it appears that the lands have been sold for taxes to private parties for a number of years, beginning in 1867; that the right acquired by virtue of the sale of said lands for delinquent taxes is held by one party; in addition to such title has been obtained a deed from the bankrupt of said lands; that another party has, by virtue of a sale on execution, based upon a judgment obtained against said bankrupt before he was adjudicated a bankrupt, acquired a title to said lands; that the title to said lands is complicated in this manner, both parties claiming to own said lands by virtue of the title they have acquired thereto in the manner above stated ; that, from inquiry and examination, your petitioner believes that the title which may be vested in him as assignee of said bankrupt is of but little value with- WISNER v. BROWN. 217 Opinion of the Court. out a lengthy litigation, and your petitioner has no funds in his hands to carry on such litigation or pay taxes that may be assessed thereon; that, from information, your petitioner sets forth that said lands were located for the pine timber that originally was on the land, which having been removed the lands were not considered by the bankrupt of sufficient value to pay taxes thereon; that petitioner is offered one hundred ■dollars for the conveyance of the title which he holds as assignee of the said bankrupt to said lands, and, upon information and belief, your petitioner affirms that said sum is al] the interest of said estate in said lands is worth, and that the acceptance of said offer and the conveyance of said title to said lands accordingly would be for the interest of the creditors of the estate of said bankrupt. And your petitioner prays that an order may be made in this case authorizing your petitioner to sell said lands at private sale as he may deem advisable, but not at a less sum than one hundred dollars.” The court, on the 5th of April, 1880, made an order authorizing Gillette, the assignee, to make the sale as proposed by this petition, and the same was made accordingly to the plaintiff in error for the sum of $100, and on the 13th of April, 1880, a deed was given to him by the assignee for the lands. No notice was given to the adverse claimants of the land, either of the application to the District Court for authority to sell, or of the intention to sell the same. The plaintiff in error, to sustain the action on his part, introduced proof of the proceedings in the bankrupt court, of the title of Willey, and of the deed from the assignee to himself. The defendants, on their part, deduced title to the premises in controversy by virtue of certain deeds made in pursuance of sales for taxes for the years 1867, 1868, and subsequent years ; and also by a quitclaim deed from Willey, the bankrupt, to the defendant, Brown, dated September 11, 1875, and duly recorded. The defendants also proved by the testimony of Brown that he had no notice of the proceedings in bankruptcy until after he had obtained the said deed from Willey, nor until after the plaintiff in error had purchased the land from the assignee. 218 OCTOBER TERM, 1886. Opinion of the Court. The plaintiff then proposed to go into the validity of the tax titles; but the judge before whom the case was tried, being of opinion that the plaintiff had shown no title, directed the jury to find a verdict for the defendant. A bill of exceptions was taken, and the case was carried to the Supreme Court of Michigan by writ of error; and that court affirmed the judgment of the court below. The present writ is brought to review the judgment of the Supreme Court, on the ground that its decision was against the validity of a title claimed under the laws of the United States, namely, under the proceedings in bankruptcy. The principal ground on which the Supreme Court of Michigan placed its decision was the want of notice by the assignee to the adverse claimants of the property. The petition of the assignee for authority to sell shows that the title to the land was in dispute, and that the adverse claimants were known to him; but he proceeded without giving them any notice, either of his intended application to the court, or of his intention to sell. The court inferred that notice was required by the 25th section of the Bankrupt law, § 5063 of the Revised Statutes, which provides that “ whenever it appears to the satisfaction of the court that the title to any portion of an estate, real or personal, which has come into the possession of the assignee, or which is claimed by him, is in dispute, the court may, upon the petition of the assignee, and after such notice to the claimant, his agent or attorney, as the court shall deem reasonable, order it to be sold under the direction of the assignee, who shall hold the funds received in place of the estate disposed of; and the proceeds of the sale shall be considered the measure of the value of the property in any suit or controversy between the parties in any court.” As it is a question of doubt whether § 5063 refers to a case in which only the interest of the bankrupt is ordered to be sold, without attempting to affect the title or interest of other persons; and as there was another ground on which the court of trial might unquestionably have instructed the jury to find a verdict for the defendants, and which also involved a ques tion of the plaintiff’s right of action under the bankrupt law; WISNER v. BROWN. 219 Opinion of the Court. we have deemed it unnecessary to consider the validity of the point on which the case was actually decided. The other ground to which we refer is that of the two years’ limitation within which the assignee can bring suit. It is declared by § 5057 of the Revised Statutes, that “ no suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such an assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.” This act, as well as the statute of limitations of Michigan, was pleaded by the defendants in bar of the action. Now, the assignee in the present case received his appointment on the 15th of February, 1873, and the property in question was at that time adversely held by the defendants under tax sales made by the auditor general of the state of Michigan, and continued to be so held until the commencement of this suit. It is clear, therefore, that, from and after the 15th of February, 1875, the assignee himself was precluded by the statute from bringing an action to recover the lands ; and he could not, after that time, by selling them to a third person, enable the latter to maintain an action therefor. The sale made by the assignee to the plaintiff in April, 1880, could have no such effect. This point was directly decided in Gifford v. Helms, 98 U. S. 248. The complainant in that case had purchased the lands from the assignee more than two years after the latter’s appointment, and they had been continuously held under an adverse title. In delivering the judgment of the court, Mr. Justice Clifford said: “Nothing can be plainer in legal decision than the proposition that the complainant did not acquire, by the conveyance made to him under that sale, any greater rights than those possessed by the grantor; ” and in conformity with that conclusion it was held that the complainant, equally with the assignee, his grantor, was bound by the limitation prescribed by the statute; and the bill was accordingly dismissed, without any attention being given to the question of the validity of the sale, — in that case, as in this, there having been, apparently, no notice of the application to sell, although the sale itself was by public auction. 220 OCTOBER TERM, 1886. Statement of the Case. Our conclusion, therefore, is that the instruction to find for the defendants was right, at all events; for they were entitled to such an instruction on the bar of the two years’ limitation, whether they were so for the reason assigned by the judge or not. The judgment is affirmed. SIMONTON v. SIBLEY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOB THE WESTERN DISTRICT OF NORTH CAROLINA. Argued December 16, 1886. — Decided May 27, 1887. By an agreement of partnership between A, B and C, A sold, for sums specified, to B one half, and to C one fourth, of his interest in certain bonds of a railroad corporation, secured by mortgage, retaining one fourth himself, and was to hold the bonds as collateral security for the payment of those sums; the whole amount of the bonds was to be held together, . and neither partner wTas to sell or dispose of the whole or any part of his interest without the consent of the others; “ but A shall have the privilege of selling the whole amount of bonds at his discretion at any time, and apply the proceeds to the payment of said sums due to him; ” or A might, if he deemed best, foreclose the mortgage; and the proceeds of a foreclosure, “ or, if the bonds are sold, the net proceeds of the sale, after paying the said sums of money and expenses of foreclosure, shall be considered as due to each party in proportion as the bonds are now held, but may be held by A as collateral security for the payment of the aforesaid sums respectively; ” and special provisions were made for the application to the payment of certain small debts, and for the distribution among the partners, of “ any profits arising from the sale, foreclosure, or any other disposition of said bonds.” Upon a contract made by A for a sale of the bonds, which was not carried out, he received in part payment stock in another corporation; and he afterwards sold the bonds to another person for cash, retaining this stock. Held, that he was not bound, on receiving the stock, to apply it at once to the payment of the sums due him from his copartners, but might hold it as the property of all the partners under the partnership agreement. This was a bill in equity by Hiram Sibley, a citizen of New York, and Paul P. Winston, assignee in bankruptcy of Lan- SIMONTON v. SIBLEY. 221 Statement of the Case. caster, Brown & Co., and a citizen of Virginia, against the executrix of Robert F. Simonton, a citizen of North Carolina, for a settlement of the accounts of a partnership formed June 20,1872, by Sibley, Simonton, and Lancaster, Brown & Co., for the purpose of speculating in certain railroad bonds and stock, as shown in the two following agreements signed by them: “New York, June 19, 1872. This agreement between Hiram Sibley, of Rochester, R. F. Simonton, of North Carolina, and Lancaster, Brown & Co., of New York, witnesseth: That the said Sibley agrees to sell to the said Simonton one half interest in all his right and title to $1,057,000 of the first mortgage bonds of the Western North Carolina Railroad Company now held by him, ($500,000 of said bonds being signed by only one trustee,) and now in hands of Lancaster, Brown & Co. for safe keeping, and eight thousand one hundred and -fifty-eight shares of stock in said company, for the sum of $135,633, payable on the 14th day of March, 1873, and the said Simonton agrees to buy the said interest and to pay as aforesaid; and the said Sibley also agrees to sell the said Lancaster, Brown & Co. one fourth of all his right and title to the said bonds and stock, for the sum of $67,817, payable on 14th March, 1873, and the said Lancaster, Brown & Co. agree to buy the same and to pay as aforesaid. It is expressly understood that the aforesaid bonds and stock sold each party are to be considered as held by Hiram Sibley as collateral security for the prompt payment of the said sums of money, and the whole amount of bonds and stocks shall be held together, and that neither party to this contract shall sell .or in any way dispose of the whole or any part of his interest mthe same, without the consent of all of the other parties. But Hiram Sibley shall have the privilege of selling the whole amount of both bonds and stock at his discretion at any time, and apply the proceeds to the payment of said sums due to him, allowing a rebate at the rate of seven per cent per annum if the payment shall be thus received before maturity. It is lurther agreed that Hiram Sibley may, if deemed best by him, proceed to foreclose the mortgage securing said bonds, and to 222 OCTOBER TERM, 1886. Statement of the Case. that end may employ counsel, the charge for which shall be borne by the parties in interest, in proportion to the amount of bonds and stock held by each; and whatever the proceeds of said foreclosure may be, or, if the bonds are sold, whatever the net proceeds of the sale may be, after paying the said sums of money and expenses of foreclosure, they shall be considered as due to each party in proportion as the bonds and stock are now held, but may be held by Hiram Sibley as collateral security for the payment of the aforesaid sums respectively. “ New York, June 20, 1872. Mr. Hiram Sibley having this day sold to R. F. Simonton one half of his interest in $1,057,000 first mortgage bonds of the Western North Carolina Railroad Company, and eight thousand one hundred and fifty-eight shares of the stock of said company, and to Lancaster, Brown & Co. one fourth interest in said bonds and stock, he himself holding the remaining one fourth interest, it is mutually agreed between all the parties that from any profits arising from the sale, foreclosure, or any other disposition of said bonds and stock, $25,103.75 shall be first set apart to be divided in three equals parts, Hiram Sibley, R. F. Simonton, and Lancaster, Brown & Co. each to have one third; from any profits remaining there shall be first paid to Lancaster, Brown & Co. the commission by them for sale of bonds and tax, amounting to $1348.20, and to the Western North Carolina Railroad Company $881.27 due to said company; and any balance remaining shall be divided as follows: Hiram Sibley one fourth; R. F. Simonton one half; Lancaster, Brown & Co. one fourth. In case of loss in this adventure, the amount due to Lancaster, Brown & Co. of $1348.20, and to the Western North Carolina Railroad Company of $881.27, shall be paid by each of the parties in proportion to their interest, and in the same proportion any deficiency that may exist in the proceeds, necessary to return to the said Hiram Sibley the sum of $271,266.” The other material facts, appearing by the master’s report and the evidence taken in the case, were as follows: Sibley brought a suit to foreclose the mortgage; and on SIMONTON v. SIBLEY. 223 Statement of the Case. November 7, 1872, by contract in writing with one Wilson, agreed to sell him the aforesaid bonds and stock, and his interest in that suit, for the sum of $370,000, and acknowledged the receipt of $100,000 in part payment, but in fact received instead stock of the Southern Railway Security Company of this amount at its par value, which afterwards became worthless. Sibley testified that he received this stock on the joint account of himself, Simonton, and Lancaster, Brown & Co. Lancaster, who had obtained his discharge in bankruptcy, testified that he knew and informed Simonton that this stock had been so received; and that Simonton was kept by him fully informed of all negotiations pending and concluded from time to time for the sale of the bonds and stock of the partnership, and personally approved of them. On April 25,1874, Simonton, in a letter to Lancaster, Brown on account of the sale of the bonds and the stock, with $97,500, as received by him November 7, 1872. William E. Earle for appeHee. , ^stice Gtray, after stating the case as above reported, I e vered the opinion of the court. 228 OCTOBER TERM, 1886. Opinion of the Court. The object of this bill is the settlement of the accounts of a partnership, the members of which were Sibley, Simonton, and the firm of Lancaster, Brown & Co. By the original agreement in writing, dated June 19,18?2, which took the place of articles of partnership, the partnership property was to consist of a large quantity of bonds and stock of the Western North Carolina Railroad Company, previously held by Sibley; Simonton bought one half of Sibley’s interest therein for the sum of $135,633, and Lancaster, Brown & Co. bought one fourth of Sibley’s interest for $67,817; Sibley was to hold the same as collateral security for the payment to him of those sums; the whole amount of the bonds and stock was to be held together, and neither partner was to sell or dispose of the whole or any part of his interest without the consent of his copartners; but there were provisions authorizing Sibley to sell the whole property of the partnership, which will be considered presently. Early in November, 1872, Sibley made a contract with Wilson to sell him the Western North Carolina Railroad bonds and stock, belonging to the partnership, for $100,000 in stock of the Southern Railway. Security Company, which Wilson transferred to him, and $270,000 in cash, which Wilson did not pay; and in the latter part of October, 1874, Sibley sold the Western North Carolina Railroad bonds and stock to Matthews for the like sum of $270,000 paid in cash, with a stipulation that Sibley should retain the $100,000 of Southern Railway Security stock that he had received from Wilson. Sibley never received any money from this stock, except one cash dividend of $3500. The master has treated this stock as partnership property, and has charged Simonton’s estate with his aforesaid debt to Sibley of $135,633, and interest, .and credited him with $136,-750, half of the sums received by Sibley in cash as aforesaid, showing, with the interest and expense account, a balance due Sibley of something more than $14,000. The argument of the appellant, that Sibley should have been charged with the $100,000 of stock of the Southern Railway Security Company at its par value, is based upon the SIMONTON v. SIBLEY. 229 Opinion of the Court. theory that Sibley, in selling the partnership property, acted, and was authorized to act, only as a creditor of his copartners, and not as a partner on behalf of the partnership. It cannot be denied that some of the provisions of the original agreement of partnership are consistent with this theory. The agreement provides that Sibley “ shall have the privilege of-selling the whole amount of both bonds and stock at his discretion at any time, and apply the proceeds to the payment of the said sums due to him.” If this were all, there might be some difficulty in construing Sibley’s authority to sell as absolute and unqualified; and his “privilege of selling” might perhaps be considered as so coupled with a duty to “ apply the proceeds ” of any sale “ to the payment of the said sums due to him,” that he would be bound, if he sold the property, to apply the proceeds at once to the payment of those sums. The agreement of June 19 next provides that Sibley may, if he thinks best, proceed to foreclose the mortgage by which the bonds were secured, “ and whatever the proceeds of said foreclosure may be, or, if the bonds are sold, whatever the net proceeds of the sale may be, after paying the said sums of money and expenses of foreclosure, they shall be considered as due to each party in proportion as the bonds and stock are now held.” This provision, again, if it had stopped here, might possibly have been understood as intended only to affirm the right of the partners to share, according to their respective interests, in the proceeds of either a foreclosure or a sale — the debt to Sibley, as well as the incidental expenses, being first paid out of those proceeds. But this provision goes on and ends with these words: hut may be held by Hiram Sibley as collateral security for the payment of the aforesaid sums respectively.” This clause, taken in connection with what goes before, cannot possibly meaⁿ that it is only the net proceeds, after deducting out of t em the sums due to Sibley from his copartners, together with the incidental expenses, in the event of a foreclosure, or er deducting the sums due him from his copartners in the 230 OCTOBER TERM, 1886. Opinion of the Court. event of a sale, that are to be held by him “ as collateral security for the payment of the aforesaid sums respectively;” for, after an application of the proceeds of a sale to the payment of those sums, either those sums would have been wholly paid if the proceeds were sufficient to pay them, or, if they were insufficient, no proceeds would remain to be held as collateral security. The only reasonable construction of the clause is, that Sibley, instead of immediately applying the proceeds, either of a sale or of a foreclosure, to the payment of the debts of his copartners to himself, may hold the whole proceeds, just as he previously held the bonds and stock, as collateral security for the payment of those debts, leaving the title to the proceeds after the sale or foreclosure, as the title to the bonds and stock was before, in the partners respectively, in the proportions determined by the partnership agreement. The supplemental agreement of June 20, 1872, also, making special provisions for the distribution of “any profits arising from the sale, foreclosure, or any other disposition of said bonds,” clearly implies, by the use of the word “ profits,” that any sale by Sibley might be made by him as a partner on behalf of the partnership, and not merely as a creditor enforcing his collateral security. The view that the partnership agreement empowered Sibley to sell the property as managing partner, independently of his right as a creditor, is confirmed by the terms of the power of attorney given him by his copartners on October 3, 1874, by which they recited that they had “ heretofore left to him the management of the adventure,” and authorized and requested him, either to prosecute the proceedings for foreclosure, “or to take such other action, by sale of bonds or otherwise, as may in his judgment appear for the best interest of all concerned.” The Southern Railway Security Company stock is now worthless; and it is not proved, nor even contended, that Sibley neglected any opportunity of selling it and turning if into money. The only exception to the master’s report, relied on at the argument, was that the master had not charged SHEPHERD v. THOMPSON. 231 Syllabus. Sibley with this stock at its par value, and interest. Upon the true construction of the partnership agreement, and the proofs in the case, this exception was rightly overruled by the Circuit Court, because this stock was never received by Sibley as cash, or accepted by him as his own property in part payment of the sums due him from the other partners, but was received and afterwards held by him as property of the partnership, belonging to all the partners in the proportions stipulated in the original agreement. The further objection has been taken for the first time in this court, that the bill cannot be maintained, because the evidence shows an account stated between Sibley and Simonton, on which an action at law would lie. It is a sufficient answer to this objection, that the evidence does not show, and the master has not found, that an account was rendered by the one party and assented to by the other, but only that Sibley rendered to Simonton a statement of the account between them, which was not treated by either as an account stated, nor ever agreed to or settled, but remained open at the death of Simonton, and until its truth was established by the evidence in this suit against his executrix to settle the accounts of the partnership. Decree affirmed. SHEPHERD v. THOMPSON. ERROR to THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Argued April 25, 26, 1887. —Decided May 27, 1887. A promissory note, secured by mortgage of the same date, is not taken out of the statute of limitations, as against the debtor, by a writing signed by him, by which “in consideration of the indebtedness described in the ” mortgage, a claim of his against the government, and its proceeds, are “ pledged and made applicable to the payment of said indebtedness, with interest thereon at the rate of eight per cent per annum until Paid,” and he promises that those proceeds shall “be applied to the payment of said indebtedness, with interest as aforesaid, or to so much thereof as ” those proceeds “ are sufficient to pay.” 232 OCTOBER TERM, 1886. Statement of the Case. When exceptions taken by the plaintiff to a ruling in favor of the defendant at one trial have been erroneously sustained and a new trial ordered, and a contrary ruling upon the same point at the second trial has been erroneously affirmed upon exceptions taken by the defendant, this court, upon a writ of error sued out by him, will not, on reversing the judgment of affirmance, direct judgment to be entered on the first verdict, but will only order that the second verdict be set aside and another trial had. This was an action brought March 11, 1880, by John W. Thompson against Alexander R. Shepherd, upon two promissory notes, dated March 10, 1873, made by the defendant and payable to the plaintiff, the one for $7000 in two years, and the other for $8000 in three years, with interest at the yearly rate of eight per cent. The defendant pleaded the statute of limitations. The record transmitted to this court showed that the case was tried twice, and that at each trial the plaintiff put in the following evidence: 1st. The notes sued on. 2d. A deed of trust of the same date, in the usual form of mortgages of real estate in the District of Columbia, and recorded in the land records for the District, liber 712, folio 128, by which the defendant conveyed to the plaintiff certain land described, in trust to secure the payment of these and one other note. 3d. A deed, dated November 15, 1876, by which the defendant conveyed his property and choses in action, including a claim against the United States for the use and occupation of the premises No. 915 E Street Northwest in the city of Washington, to George Taylor and others, in trust to apply for the benefit of his creditors. 4th. An instrument signed by the defendant and A. C. Bradley, assented to in writing by Taylor and his co-trustees, the body of which was as follows : “ In consideration of the indebtedness described in the deed of trust to William Thompson, trustee, executed March 10, 1873, and recorded in liber No. 712, folio 128, of the land records of the District of Columbia, the demand and claim of A. C. Bradley to the use of A. R. Shepherd and others against the United States for the use and occupation of the premises No. 915 E Street Northwest, and all the proceeds SHEPHERD v. THOMPSON. 233 Argument for Defendant in Error. thereof and the moneys derived therefrom, are hereby pledged and made applicable to the payment of said indebtedness, with interest thereon at the rate of eight per cent per annum until paid; and it is hereby covenanted and agreed that any draft or check issued in payment or part payment of said claim shall be indorsed and delivered to the trustee named in said trust, and the proceeds thereof, less all proper costs and charges, be applied to the payment of said indebtedness, with interest as aforesaid, or to so much thereof as the sum or sums of money so received is or are sufficient to pay. Witness our hands this 21st day of June, 1877.” At the first trial, the judge ruled that this instrument was insufficient to take the case out of the statute of limitations, and a verdict and judgment were rendered for the defendant, which, upon a bill of exceptions of the plaintiff, were set aside at the general term. 1 Mackey, 385. At the second trial, the judge, against the objection and exception of the defendant, instructed the jury that this instrument was evidence of a new promise, which took the notes sued on out of the statute of limitations. A verdict and judgment were rendered for the plaintiff, and a bill of exceptions to this instruction was tendered and allowed. This judgment was affirmed in general term, and the defendant sued out this writ of error. Hr. Andrew C. Bradley and Air. William F. Alatti/ngly for plaintiff in error, among other points, made the following: It is submitted that the court below erred in setting aside the verdict in the first trial because of the rejection of the assignment by the trial justice, and that it erred in admitting the assignment in evidence, and that the judgment should be reversed and the cause remanded to the court below, with directions to enter judgment upon the first verdict. Coughlin v. District of Columbia, 106 U. S. 7. Air. Afartin II. Alorris for defendant in error {Air. H. H. Wells was with.him on the brief) among other points made the following; 234 OCTOBER TERM, 1886. Opinion of the Court. It is objected that the so-called assignment does not contain any such acknowledgment of the indebtedness as that the law would imply from it a new promise to pay it. The assignment distinctly acknowledges and recognizes the indebtedness by reference to another paper, in which that indebtedness is specifically described, and which is in evidence in the case. It distinctly promises to pay that indebtedness; and it distinctly gives security for the payment of it. What more than this could be required to constitute a new promise ? Was there ever a new promise more distinctly and unequivocally and solemnly evidenced ? The evidence is not by loose talk, but by a carefully drawn instrument in writing. If this paper is not evidence of a new promise, it is impossible to draw a paper that would be. If it be necessary to refer to elementary law on the subject of what constitutes a new promise, we would cite, among other authorities, the following: Moore v. Bank of Columbia, 6 Pet. 86; Bell v. Morrison, 1 Pet. 351; Bmr don n. Toby, 11 How. 493; Walsh v. Mayer, 111 U. 8. 31. Mr. Justice Gray, after stating the case as above reported, delivered the opinion of the court. The statute of limitations in force in the District of Columbia is the statute of Maryland, which, so far as applicable to this case, closely follows the language of the English St. 21 Jac. I, c. 16, § 3, but bars an action on a promissory note or other simple contract in three years after the cause of action accrues. Maryland Stat. 1715, c. 23, § 2,1 Kilty’s Laws; Dist. Col. Laws, 1868, p. 284. The promissory notes sued on were payable respectively on March 10, 1875, and March 10, 1876; and the action was brought March 11, 1880. The question is, therefore, whether the instrument signed by the defendant on June 21, 1877, is evidence of a sufficient acknowledgment or promise to take the case out of the statute. The principles of law, by which this case is to be governed, are clearly settled by a series of decisions of this court. The statute of limitations is to be upheld and enforced, not as rest- SHEPHERD v. THOMPSON. 235 Opinion of the Court. ing only on a presumption of payment from lapse of time, but, according to its intent and object, as a statute of repose. The original debt, indeed, is a sufficient legal consideration for a subsequent new promise to pay it, made either before or after the bar of the statute is complete. But in order to continue or to revive the cause of action, after it would otherwise have been barred by the statute, there must be either an express promise of the debtor to pay that debt, or else an express acknowledgment of the debt, from which his promise to pay it may be inferred. A mere acknowledgment, though in writing, of the debt as having once existed, is not sufficient to raise an implication of such a new promise. To have this effect, there must be a distinct and unequivocal acknowledgment of the debt as still subsisting as a personal obligation of the debtor. In King v. Riddle, 7 Cranch, 168, a deed, dated July 15, 1804, by which the defendant recited that certain persons had. become his sureties for a certain debt and had paid it, and that he was desirous to secure them as far as he could, and assigned to one of them certain bonds in trust to collect the money and distribute it equally among them, was admitted in evidence in an action by one of them against him for money paid, to take the case out of the statute of limitations of Virginia. The exact form of the deed is not stated in the report, but that it expressly recognized the debt to the plaintiff to be still due is evident from the opinion, in which Chief Justice Marshall said: “ Although the court is not willing to extend the effect of casual or accidental expressions farther than it has been, to take a case out of that statute, and although the court might be of opinion that the cases on that point have gone too far, yet this is not a casual or incautious expression: the deed admits the debt to be due on the 15th of July, 1804, and five years had not afterwards elapsed before the suit was brought.” 7 Cranch, 171. In Clementson v. Williams, 8 Cranch, 72, in an action on an account against two partners, one of whom only was served with process, a previous statement of the other, upon the account being presented to him, “ that the said account was 236 OCTOBER TERM, 1886. Opinion of the Court. due, and that he supposed it had been paid by the defendant, but had not paid it himself, and did not know of its being ever paid,” was held insufficient to take the account out of the stat ute; and Chief Justice Marshall said : “ The statute of limitations is entitled to the same respect with other statutes, and ought not to be explained away. In this case there is no promise, conditional or unconditional; but a simple acknowledgment. This acknowledgment goes to the original justice of the account; but this is not enough. The statute of limitations was not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. It is not then sufficient to take the case out of the act, that the claim should be proved or be acknowledged to have been originally just; the acknowledgment must go to the fact that it is still due.” 8 Cranch, 74. Chief Justice Marshall afterwards pointed out that in that case, although the partnership had been dissolved before the statement was made, the case was not determined upon that point, but upon the insufficiency of the acknowledgment; and added that, upon the principles there expressed by the court, “ an acknowledgment which will revive the original cause of action must be unqualified and unconditional. It must show positively that the debt is due in whole or in part. If it be connected with circumstances which in any manner affect the claim, or if it be conditional, it may amount to a new assumpsit for which the old debt is a sufficient consideration; or if it be construed to revive the original debt, that revival is conditional, and the performance of the condition, or a readiness to perform it, must be shown.” ~Wetzell v. Bussard, 11 Wheat. 309, 315. In Bell v. Morrison, 1 Pet. 351, Mr. Justice Story fully discussed the subject, and, after dwelling on the importance of giving the statute of limitations such support as to make it “ what it was intended to be, emphatically, a statute of repose,” and “not designed merely to raise a presumption of payment of a just debt, from lapse of time; ” and repeating the passages above quoted from the opinions in Clementson v. SHEPHERD v. THOMPSON. 237 Opinion of the Court. Williams and Wetzell v. Bussard, said: “We adhere to the doctrine thus stated, and think it the only exposition of the statute, which is consistent with its true object and import. If the bar is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and be in its terms unequivocal and determinate; and, if any conditions are annexed, they ought to be shown to be performed. If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous, subsisting debt, which the party is liable and willing to pay. If there be accompanying circumstances, which repel the presumption of a promise or intention to pay; if the expressions be equivocal, vague and indeterminate, leading to no certain conclusion, but at best to probable inferences, which may affect different minds in different ways; we think they ought not to go to a jury as evidence of a new promise to revive the cause of action.” 1 Pet. 362. Again, in Moore v. Bank of Columbia, 6 Pet. 86, the court, speaking by Mr. Justice Thompson, after referring to the previous cases, re-affirmed the same doctrine, and said: “The principle clearly to be deduced from these cases is, that in addition to the admission of a present, subsisting debt, there must be either an express promise to pay, or circumstances from which an implied promise may fairly be presumed.” 6 Pet. 93. In Randion v. Toby, 11 How. 493, cited for the plaintiff, the agreement, which was held to take a case out of the statute, contained not only a pledge of property to secure the notes sued on, but an express stipulation that the notes should remain in as full force and effect as if they were renewed. In Walsh v. Mayer, 111 U. S. 31, in answer to a letter from the holder of a note secured by mortgage, calling attention to the want of insurance on the mortgaged property, and saying, ‘The amount you owe me on the $7500 note is too large to be left in such an unprotected condition, and I cannot consent to Jt, the mortgagors wrote to him that they expected to insure 238 OCTOBER TERM, 1886. Opinion of the Court. in about four months for twice that amount, and added, “ We think you will run no risk in that time, as the property would be worth the amount due you if the building was to bum down.” This was held to be a sufficient acknowledgment, upon the ground that the words, both of the plaintiff’s letter and of the defendants’ reply, were in the present tense, and designated a subsisting personal liability, and that the unconditional acknowledgment of that liability, without making any pledge of property or other provision for its payment, carried an implication of a personal promise to pay it. The case was decided upon its own facts, and no intention to modify the principles established by the previous decisions was expressed or entertained by the court. Within a year afterwards, in the latest case on the subject, the court expressly re-affirmed those principles. Fort Scott v. Hickma/n, 112 IT. S. 150, 163, 164. In full accord with these views are the decisions in England under St. 9 Geo. IV, c. 14, known as Lord Tenterden’s Act, which only restricts the mode of proof by requiring that, in order to continue or revive the debt, an “ acknowledgment or promise shall be made by or contained in some writing to be signed by the party chargeable thereby.” The English judges have repeatedly approved the statement of Mr. (afterwards Chief Justice) Jervis, that the writing must either contain an express promise to pay the debt, or be “in terms from which an unqualified promise to pay it is necessarily to be implied.” Everett v. Robertson, 1 El. & El. 16, 19; Mitchell's Case, L. R. 6 Ch. 822, 828; Morgan v. Rowlands, L. R. 7 Q. B. 493, 497; citing Jervis’s New Rules (4th ed.), 350, note. And it has been often held that when the debtor, in the same writing by which he acknowledges the debt, without expressly promising to pay it, agrees that certain property shall be applied to its payment, there can be no implication of a personal promise to pay. Routledge n. Ra/msay, 8 Ad. & El. 221; N. C. 3 Nev. & Per. 319; Hon-cutt v. Bonser, 3 Exch. 491; Cawley v. Furnell, 12 C. B. 291; Everett v. Robertson, above cited. The law upon this subject has been well summed up by SHEPHERD v. THOMPSON. 239 Opinion of the Court. Vice Chancellor Wigram, as follows : “ The legal effect of an acknowledgment of a debt barred by the statute of limitations is that of a promise to pay the old debt, and for this purpose the old debt is a consideration in law. In that sense, and for that purpose, the old debt may be said to be revived. It is revived as a consideration for a new promise. But the new promise, and not the old debt, is the measure of the creditor’s right. If a debtor simply acknowledges an old debt, the law implies from that simple acknowledgment a promise to pay it; for which promise the old debt is a sufficient consideration. But if the debtor promises to pay the old debt when he is able, or by instalments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him.” Philips v. Philips, 3 Hare, 281, 299, 300; Buckmaster v. Pussell, 10 C. B. (N. S.) 745, 750. In the most recent English case that has come under our notice, Lord Justice Bowen said: “Now, first of all, the acknowledgment must be clear, in order to raise the implication of a promise to pay. An acknowledgment which is not clear will not raise that inference. Secondly, supposing there is an acknowledgment of a debt which would if it stood by itself be clear enough, still, if words are found combined with it which prevent the possibility of the implication of the promise to pay arising, then the acknowledgment is not clear, within the meaning of the definition; ” “ because the words express the lesser in such a way as to exclude the greater.” Green v. Humphreys, 26 Ch. D. 474, 479, 480; S. C. 53 Law Journal (N. S.) Ch. 625, 628. In the light of the principles established by the authorities above referred to, it is quite clear that the instrument signed by the defendant on June 21, 1877, did not take the plaintiff’s debt out of the statute. This instrument contains no promise of the defendant personally to pay that debt, and no acknowledgment or mention of it as an existing liability. It begins with a reference, by way of consideration only, to the original debt, designating it as “ the indebtedness described in the deed of trust ” executed to the plaintiff at the time when that debt was contracted. 240 OCTOBER TERM, 1886. Opinion of the Court. Then follows a pledge of a certain claim of the defendant against the government, and its proceeds, to secure the payment of “ said indebtedness, with interest thereon at the rate of eight per cent per annum until paid.” This interest is mentioned, not as part of the consideration, or of the original debt, or as anything for which the defendant is liable, but only as something to the payment of which the claim pledged shall be applied. And the instrument concludes with a promise of the defendant that the proceeds of the claim pledged shall “ be applied to the payment of said indebtedness, with interest as aforesaid, or to so much thereof as the sum or sums of money so received is or are sufficient to* pay.” Although the old debt is expressly called, as it is in law, the consideration for the new agreement, this agreement, and not the old debt, is the measure of the plaintiff’s right. The provisions for the payment of the debt and interest out of a particular fund exclude any impheation of a personal promise to pay either. The whole instrument clearly evinces the defendant’s intention in executing it to have been that the property pledged should be applied, so far as it would go, to the payment of the debt and interest, and not that his own personal liability should be increased or prolonged in any respect. To imply from the terms of this instrument a promise of the defendant to pay the debt himself would be, in our opinion, to construe it against its manifest intent, and to fritter away the statute of limitations. The result is, that the judgment below must be reversed, and the verdict against the defendant set aside. It was contended by his counsel that this court should now direct judgment to be entered upon a former verdict, which was returned for him under a correct ruling on the question of acknowledgment, and set aside by the court in general term upon a different view of the law. In support of this contention was cited Coughlin v. District of Columbia, 106 IT. S. 7. But the reason for ordering judgment upon the first verdict in that case was not that the court in general term had wrongly decided a question of law upon a bill of exceptions allowed at the first trial; but that, as appeared of record, independently of any bill of DREXEL v. BERNEY. 241 Syllabus. exceptions, the question had not been legally brought before it at all, thus leaving the first verdict in full force. In the present case, it had authority to entertain and pass upon the exceptions taken by the plaintiff at the first trial ; when, in the exercise of that authority, it had sustained those exceptions and ordered a second trial, the case stood as if it had never been tried before ; and only the rulings at the second trial, and no rulings, whether similar or different, at the former trial, could be brought , to the general term by the exceptions of the defendant, or to this court by his writ of error. Judgment reversed, and case remamded to the Supreme Court of the District of Columbia, with directions to set aside the verdict a/nd to order a new trial. DREXEL v. BERNEY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Argued May 11, 1887. — Decided May 27, 1887. In order to justify a resort to a court of equity for the enforcement of an equitable estoppel, some ground of equity, other than the estoppel itself, must be shown whereby the party entitled to the benefit of it is prevented from making it available in a court of law; and, that it must be made to appear that forms of law are being used to defeat that which, in equity, constitutes the right. When in a suit in equity brought to restrain the respondent from enforcing against the complainant in an action at law a demand against which the complainant claims to have an equitable defence which is set forth in the bill, it appears to be altogether uncertain whether the complainant can avail himself in the action at law of the defence asserted in the bill, the bill should not be dismissed upon general demurrer, but the respondent should be required to answer. £•, a citizen of the United States, died in France, having in Europe, lodged with bankers in London and elsewhere, a large amount of personal securities. He left a will naming his widow, his brother J. of Alabama, one S., a citizen of France, and others as executrix and executors. With the knowledge and consent of the widow and of the other parties interested J caused the will to be admitted to probate in Alabama, ob- vol. cxxii—16 242 OCTOBER TERM, 1886. Statement of the Case. tained a decree that the decedent was domiciled there, and letters testamentary were issued to J. only. The Surrogate of New York, upon this probate, issued ancillary letters testamentary to J.; and, under the same probate, S., likewise with the widow’s consent, received a power of attorney from J. as executor to take possession of the property in Europe and administer upon the estate there. In pursuance of this authority he, in company with the widow, proved the will in common form in England and took out letters testamentary there in the name of himself and the widow, and took possession of the property, among which were registered bonds of the United States to a large amount. These bonds were sent by him to D. in New York (the plaintiff in error) to be sold and the proceeds to be invested in coupon bonds of the United States. D. made this exchange, and transmitted the coupon bonds to S. as directed. S. made a settlement with J. as executor, and afterwards died; and after his death it appeared that he had diverted the coupon bonds to his own use. The widow then took out letters from the Surrogate in New York, in her own name, ancillary to the probate in England, and thereupon brought an action at law in the Circuit Court of the United States for the Southern District of New York, in her name, as sole executrix under and by virtue of the letters so issued to her, against the complainants for conversion of said United States bonds, alleging that the decedent was domiciled in France, and the Alabama probate was invalid for that reason, and that these letters testamentary to her were conclusive on D. so far as the right to maintain the action was concerned. D. thereupon filed a bill in equity against F-, in which the relief sought was an injunction against setting up or claiming in the action at law or elsewhere that the decedent was not domiciled in Alabama, that his will was not duly admitted to probate there, and that the administration thereunder of J. as sole executor and S. as his attorney were not valid and binding, and against using in support of such allegations the ancillary letters testamentary, which defendants had fraudulently and unlawfully procured to be issued to or in the name of the widow, discovery of the facts within defendants’ knowledge, &c. On general demurrer this bill was dismissed. Held, that the demurrer should have been overruled, and the defendant required to answer. This was a bill in equity filed by the appellants, some of whom are citizens of Pennsylvania and others of New York, against the appellee, who is an alien, a citizen of the Republic of France, and William Berney, a citizen of Texas, and Saffold Bemey, Chollet Berney, Robert Berney, Phillipa Rousseau, Sophia White, Ann M. Ball, Phillipa E. Harley, Laurent B. Hallonquist, Robert L. Hallonquist, and William C. Hallonquist, citizens of the state of Alabama. Of these defendants, none were served with process or appeared, except the appellee, DREXEL v. BERNEY. 243 Statement of the Case. Louise Berney. The cause was heard in the Circuit Court on a general demurrer filed by the appellee to the bill. The demurrer was sustained, and the bill dismissed for want of equity. The complainants appealed. The following statement of the case, as made by the bill, is taken from the brief filed by counsel for the appellants: “ The bill alleges in substance: “ 1. That said Robert Berney, the decedent, made his will November 2, 1864, at Croydon, England, whereby he bequeathed his residuary estate to his executors therein named as trustees and upon trusts, among others, for the benefit of his widow, the defendant Louise Berney, and of the other persons named as defendants; and afterwards, on the 25th of September, 1874, a codicil thereto, making changes in some of the bequests in his will, and appointing as executors and trustees of his will the defendant Louise Berney; also James Berney, his brother; a Mr. Messier de St. James, of Paris, France, and John Drummond and William Drummond. “ 2. That Robert Berney died at Paris, France, November 19, 1874, leaving him surviving his widow, the defendant Louise Berney, his said brother, James Berney, and nephews and nieces, who are named as defendants in the bill of complaint. His widow was a native of France, and was with him at the time of his death, but his said brother James and his nephew and nieces were all citizens and residents of Montgomery County, Alabama; said St. James was a resident of France, and the Messrs. Drummond, of England. The decedent left personal estate in France, England, and the United States. ¹3. At the time of his death, Robert Berney, the decedent, was a citizen of the United States, who had lived abroad for some years, but had never acquired a domicile in France under °r m accordance with its laws. Upon his death his widow, the defendant Louise Berney, presented the will and codicil of the decedent to the proper judicial authority in France, and, ¹¹¹ accordance with French law, the administration of the estate as committed to a notary by competent judicial authority, ■December 4,1874. 244 OCTOBER TERM, 1886. Statement of the Case. “ 4. Subsequently, and before anything else was done, and on the application of said Janies Berney, the brother of decedent, and one of his executors, the will and codicil were formally admitted to probate, and letters testamentary thereon issued to said James Berney alone, by competent judicial authority at Montgomery, Alabama, on the 8th of February, 1875, the decree of the Alabama court being that the decedent was domiciled at Montgomery, Alabama, and that it had full jurisdiction in the premises. All of the heirs at law and next of kin of the decedent, except the widow, the defendant Louise Berney, were at that time citizens and residents of Alabama, and by the laws of Alabama such probate and issue of letters testamentary cannot be impeached collaterally, and are conclusive upon all persons and parties. “ 5. That said James Berney, having been thus constituted sole executor, gave a full power of attorney to said St. James, empowering him, among other things, to reduce the decedent’s estate to possession, and to sell any and all property, Ac. About the same time and on the 9th of March, 1875, said James Berney, being thus sole executor by reason of the Alabama probate, obtained the issue to himself, by the Surrogate or Court of Probate in the city of New York, of ancillary letters testamentary, based upon the Alabama probate. This adjudication is in due form, and also remains unimpaired and in full force. All of the said proceedings of said James Berney were known to the defendant Louise Berney and the other persons named as executors, as well as to the legatees under the will, the other defendants in the bill of complaint. “ 6. That at the time of the decedent’s death, certain evidences of title of the personal property left by him were in his possession at Paris, France, and the purpose and intention of the proceedings above mentioned were to secure immunity of the decedent’s estate from taxation in France, and to pro-, vide for the due and lawful administration of the assets, which were then actually in the possession of the widow, the defendant Louise Berney, and said St. James, and by the joint action of the sole qualified executor, said James Berney, DREXEL v. BERNEY. 245 Statement of the Case. said St. James, and said defendant Louise Berney, before the notary to whom the matter had been so judicially committed in France, as aforesaid, the whole estate and its administration was entrusted to said St. James, as attorney for said James Berney, executor, with the knowledge and approval of all parties in interest, including the defendants. Formal proceedings were afterwards had before the notary at Paris, on the 30th and 31st of March and the 3d and 4th of May, 1875, and afterwards on the 11th of June, 1875, and on those dates formal documents or records were duly executed by the parties before the notary : the first, by the widow, the defendant Louise Berney, and said St. James ; and the second, by the same persons in connection with said James Berney, the qualified executor, in person. At these proceedings and in the notarial instruments or records it was formally evidenced and declared that the decedent was at the time of his death domiciled at Montgomery, Alabama, that the probate of the will in Alabama was regular and valid, and that said James Berney was the sole qualified executor, and his power of attorney substituted said St. James in all the executor’s functions and rights, and the defendant Louise Berney acknowledged receipt of the legacies given to her by the will from the administration of the estate thus constituted. By the laws of France, neither the defendant Louise Berney, nor any other of the persons named as executors in the will, nor any one claiming under them, are permitted to assert the contrary of any of the matters thereby established. “7. That among other assets the decedent left $200,000 in United States bonds, $12,500 in stock of the United States Mortgage Co., $58,200 in stock of the New York Central & Hudson River Railroad Co., £8000 in bonds of the New York & Canada Railroad Co., £3000 bond and mortgage on real estate in England, and moneys on deposit with bankers at London. Of these items said James Berney, m person, took possession of and sold the $12,500 in stock of United States Mortgage Co. and the $58,200 in stock of the New York Central & Hudson River Railroad Co. On the 5th of June, 1875, the defendant Louise Berney and said St 246 OCTOBER TERM, 1886. Statement of the Case. James procured proof of the will and codicil in common form, and the issue of letters testamentary to them by a competent court in England, and having taken possession of the £8000 in bonds of the New York & Canada Railroad Co., and the <£3000 bond and mortgage on real estate in England, by virtue of their English letters got in and converted into money the assets in England, as to the last-mentioned item, an instrument having been jointly executed by all three of the parties, Louise Berney, St. James and James Berney. All these proceedings were had without objection on the part of any of the defendants. The $200,000 of United States bonds were sent to this country, and by agents of said St. James at the city of New York presented to complainants, with directions to change the bonds from registered to bearer bonds by selling the registered bonds, and with the proceeds buying bearer or coupon bonds of the same issue, the only method of effecting such exchange. The agents of said St. James furnished to the officers of the United States Treasury satisfactory evidence of their authority to transfer the bonds, and upon which the bonds were transferred, and the complainants sold the registered bonds and with the proceeds bought $195,000 of coupon bonds, and with a sum in money representing the difference delivered the same to the agents of said St. James, who, in their turn, delivered the same to said St. James himself after he and the defendant Louise Berney had taken out their letters testamentary in England. “ 8. That legacies given by the will and codicil to several of the defendants were duly received by them from James Berney or said St. James under the administration of the estate so established, and during all the times mentioned said James Berney was the agent for, and actual guardian of, the defendants, and had full knowledge of all the aforesaid transactions. “ 9. That in the year 1880 said James Berney sent his son, the defendant Saifold Berney, to France, who then and there, acting as attorney and agent for his father in his quality of executor, and for himself and defendants as legatees, instituted judicial proceedings against said St. James for an account of his administration of the decedent’s estate, and finally received DREXEL v. BERNEY. 247 Statement of the Case. from said St. James, in full satisfaction and discharge of his liability to them, certain property. Because St. James has since died, and because of the laws and customs of France, complainants cannot ascertain the precise details of the transaction. “10. That the defendants now claim that said St. James diverted the $195,000 in coupon bonds and the money so received by him in exchange for the $200,000 United States registered bonds, and that the Alabama probate so obtained by said James Berney was invalid, because, as they now assert, the decedent was domiciled in France. The defendants have confederated together to assert and maintain this claim by means as follows : They have obtained from the Surrogate of New York County a second issue of ancillary letters testamentary to the defendant Louise Berney alone, based upon the false representation that the decedent’s will had been admitted to probate in England in such manner as to justify the issue of ancillary letters testamentary here, and the false representation that there were unadministered assets in New York, and the fraudulent suppression of the facts concerning the former issue of letters ancillary to James Berney, founded upon the Alabama probate, and thereupon have brought an action at law in the Circuit Court of the United States for the Southern District of New York, in the name of said defendant, Louise Berney, as sole executrix under and by virtue of the letters so issued to her, against the complainants, for conversion of said $200,000 United States bonds, and wherein they allege that said decedent was domiciled in France, and the said Alabama probate was invalid for that reason, and that the letters testamentary so issued to thé defendant, Louise Berney, are conclusive upon the complainants, so far as her right to bring and maintain said action is concerned. Complainants are not permitted by law to procure the cancellation of said letters, or to contest the validity thereof. In view of the foregoing, complainants insist that the defendants are estopped in equity from now asserting against them that said decedent was domiciled elsewhere than at Montgomery, Alabama, or that the proceedings of the executors at Paris are not binding upon 248 , OCTOBER TERM, 1886. , Statement of the Case. them. Complainants also allege that the several matters and things above mentioned may not be pleaded and do not constitute a defence to the action at law, &c. “ 11. That, in addition to the action at law in the Federal court before referred to, the defendants have brought another action in the Supreme Court of the state of New York in their own names as plaintiffs against the complainants, wherein they make the like claim as to Robert Berney’s domicile and the Alabama probate of his will, and assert that they are the owners of the $200,000 United States bonds, and that complainants have converted them, &c. “12. That, according to the French law, the defendant, Louise Berney, as the widow of the decedent, would have been entitled to a certain portion of his estate, had he been domiciled in France. The portion she would have received under the French law, had the right been claimed or asserted by her, was much more than the value of the $200,000 of United States bonds, and, consequently, she cannot maintain the action at law in the right or interest of her codefendants, if it be true that decedent was domiciled in France, until an accounting shall have been had between her and the legatees, under the will. “ 13. And that the defendants are all beyond the jurisdiction of the court, and the defendant Louise Berney is an alien and resident of France, where her testimony cannot be taken by any ordinary process because of the laws of France, that the facts are within the knowledge of defendants and a discovery is necessary, &c., &c. “ The relief sought was an injunction against setting up or claiming in the action at law or elsewhere that the decedent was not domiciled at Montgomery, Alabama; that his will was not duly admitted to probate there; and that the administration thereunder of said James Berney, as sole executor, and said St. James, as his attorney, were not valid and binding, and against using in support of such allegations the ancillary letters testamentary, which defendants have fraudulently and unlawfully procured to be issued to or in the name of the defendant, Louise Berney, discovery of the facts within defendants’ knowledge, Ac.” DREXEL v. BERNEY. 249 Argument for Appellee. Mr. Wayne Mac Veagh and Mr. C. E. Tracy for appellants. Mr. Franklin B. Lord {Mr. George De Forest Lord was with him on the brief) for appellee. I. The bill does not seek to enjoin the defendants from prosecuting any actions to recover from the complainants the United States bonds, or their value, but simply to enjoin the defendants from asserting in such action or actions, that Robert Berney was not domiciled in Alabama, or that his will was not duly proved, and letters testamentary, duly issued in that county, or that the power of attorney to St. James was not valid, or from using in support of the claim that Robert Berney was domiciled in Paris the proceedings before the Surrogate in New York County. The bill does not admit that Robert Berney was not domiciled in Alabama, but on the contrary, insists that the allegations of the defendants in that regard are false, nor does it anywhere appear that the complainants would have any difficulty in proving in any suit brought against them, what they claim to be the true facts in respect to such domicil. On the contrary, the complainants insist that in the two judicial proceedings, namely, the proceeding before the notary in France, and before the Probate Court in Alabama, it has been determined that Mr. Berney was domiciled in Alabama, and that these adjudications are binding. The only reason they assign for seeking the relief on the equity side of the court is, that they should not be put to the expense of defending the actions brought by the defendants. The matter in dispute is therefore not the bonds or their value, but the expense to the complainants of defending actions at law. As it does not appear that such expense will exceed $5000, the case is not appealable to this court. II. The only ground on which the complainants seek relief is that the defendants, by their conduct, are estopped from asserting that Robert Berney was not domiciled in Montgomery County, Alabama, or that James Berney, as executor under the probate of the will, and the letters issued to him in Alabama, and St. James as his attorney, had not the power to 250 OCTOBER TERM, 1886. Argument for Appellee. dispose of the bonds mentioned in the complaint, and that on account of an alleged fraudulent concealment by Saffold Ber-ney, upon his application for ancillary letters to the Surrogate of New York County, to be issued to Louise Berney, the defendants should be precluded from using the proceedings before said surrogate as evidence of Robert Berney’s domicil. If these matters could be availed of by the complainants, as matter of defence in the actions at law brought against them, the complaint was rightly dismissed, for they had on that assumption, “ a plain, adequate and complete remedy at law.” While the doctrine of equitable estoppel originated and was promulgated by courts of chancery, it is now recognized and enforced as liberally in courts of law as in courts of equity. Dickerson v. Colgrove, 100 IT. S. 578. The complainants, therefore, can avail themselves of the estoppel, even if it be of the character commonly known as equitable estoppel, as a defence at law, and there is no necessity for their seeking affirmative relief in equity, nor does the alleged fraud in obtaining letters testamentary to Madame Berney, furnish any ground for equitable interference, for the allegations in such proceedings only establish jurisdiction in the absence of fraud, and fraud, if it exists as the complainants allege, will undoubtedly be available to them in any action in which the proceedings may be used in evidence. New York Code of Procedure, § 2473, cited by appellant. In the Federal courts the proceedings under which letters testamentary or of administration are granted are not conclusive evidence even of the fact of the death of the alleged testator or intestate. Lcuvin v. Emigrant Industrial Savings Bank, 18 Blatchford, 1. III. The complainants have not made out a case of equitable estoppel. The very essence of such an estoppel is, that the party seeking to set it up should have done or omitted to do something relying upon statements or conduct of the adverse party, justifying him in the belief that a certain state of facts existed, which, on account of such action on his part, the other side should not be allowed to gainsay. The complainants allege that the defendants have by their acts conceded DREXEL v. BERNEY. 251 Opinion of the Court. that Robert Berney was domiciled in Alabama, but it does not appear that such action ever came to the knowledge of the complainants, or that their actions had been in the slightest degree affected by the proceedings in France, or by the part, if any, taken by the defendants therein. These proceedings in France furnish no defence to the action, or else constitute an estoppel of record. The complaint, instead of showing an equitable defence, which cannot be asserted at law, shows facts which, if they constitute a defence at all, are rather of legal than of equitable cognizance. IV. The bill cannot be sustained as one for discovery in aid of a defence at law, because the complainants have propounded no interrogatories as required by the rules when a discovery is desired. Bailey Washing Machine Co. v. Young, 12 Blatchford, 199, 200. Equity Rules, 40, 41. An application to restrain or interfere with an action at law is addressed to the discretion of the equity judge. Conceding for the moment that the circuit judge might have entertained the bill, if the convenient and orderly administration of justice would have been promoted by his so doing, it is insisted that such would not have been the case. If the bill had been sustained, the court would have had to hear the cause upon the question of estoppel alone, or else to have dragged in and determined the other issues involved in the legal actions. If the latter course were adopted, it would be necessary to dismiss the complaint in this case, unless the complainants establish an equitable defence, for otherwise, the defendants would have been deprived of a trial by jury in a purely common law action. To hear the case on the question of estoppel alone would be to try the controversy by piecemeal. All this is avoided by compelling the complainants to assert in the common law actions a defence, which, if a defence at all, is perfectly available to them at law. Mk. JusTicE Matthews, after stating the case as above reported, delivered the opinion of the court. It does not as distinctly appear from the bill itself as from the statement, that the first action at law, referred to, was 252 OCTOBER TERM, 1886. Opinion of the Court. brought and is pending in the Circuit Court of the United States for the Southern District of New York. It may, however, perhaps be fairly inferred from the allegations of the bill that such is the fact, and as it has been so assumed in the argument of the cause, no question is made upon the sufficiency of the bill in that respect. The only ground here urged in sup port of the decree and of the demurrer to the bill is, that the complainants, upon the case made in the bill, have a complete and adequate defence at law, and that, consequently, they do not bring themselves within the jurisdiction of a court of equity. If the decedent, Robert Berney, at the time of his death was domiciled in France, and not in Alabama, the letters testamentary issued to his brother, James Berney, as executor in Alabama, were void, and the authority given by James Berney to St. James by the power of attorney was also invalid, and the payment made by the appellants to St. James of the proceeds of the sales of the bonds which belonged to the estate does not bind the rightful executor or protect the complainants. The ground of the bill, therefore, is, that, upon these facts, an action at law may be successfully maintained by the appellee as executrix of Robert Berney against the complainants for the value of the bonds. The question is, whether the other facts set up in the bill furnish a complete and adequate defence to such an action at law, or whether they establish a right in equity to relief. The rule as laid down by this court in Boyce’s Executors v. Grundy, 3 Pet. 210, 215, is, that “ it is not enough that there is a remedy at law. It must be plain and adequate; or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.’” And, as appears by that case, the principle is as applicable in cases where a complainant resorts to a court of equity to enforce a defence to an action at law, as where he seeks by a bill in equity other relief. This is illustrated by the case of Grand Chute v. Winegar, 15 Wall. 373, 377. That was a case of a bill in equity by a municipal corporation to procure the cancellation of bonds on which an .action at law had been brought, alleged to be void in the hands of the DREXEL v. BERNEY. 253 Opinion of the Court. holder. The court said: “ A judgment against Winegar in the suit brought by him would be as conclusive upon the invalidity of the bonds, would as effectually prevent all future vexatious litigation, would expose the fraud, and prevent future deception as perfectly and thoroughly, as would a judgment in the equity suit. Under such circumstances, there is no authority for bringing this suit in equity.” The ground of relief alleged in the present bill is, that by her acts and conduct the appellee has estopped herself, as against the complainants, from asserting any fact which annuls the executorship of James Berney under the Alabama probate, and the authority of St. James as his attorney in fact. Estoppels of this character, as distinguished from estoppels by record or by deed, are called equitable estoppels. It is not meant thereby that they are cognizable only in courts of equity, for they are commonly enforced in actions at law, as was fully shown in Dickerson n. Colgrove, 100 U. S. 578. But it does not follow, because equitable estoppels may originate legal, as distinguished from equitable rights, that it may not be necessary in particular cases to resort to a court of equity in order to make them available. All that can properly be said is, that in order to justify a resort to a court of equity, it is necessary to show some ground of equity other than the estoppel itself, whereby the party entitled to the benefit of it is prevented from making it available in a court of law. In other words, the case shown must be one where the forms of the law are used to defeat that which, in equity, constitutes the right. Such a case is one for equitable interposition. A close analogy is found in the doctrine of equitable set-off. The rule regulating the right of set-off is the same both at law and in equity, and yet there are many cases where setoffs not permissible at law may be enforced in equity. As was said by Mr. Justice Story in Greene v. Darling, 5 Mason, 201, 209: “ Now, the general rule in equity is, like that at law, that there can be no set-off of joint debts against separate debts, unless some new equity justify it. Such an equity may arⁱse under circumstances of fraud; or where the party seeking relief is only a surety for a debt really separate; or where 254 OCTOBER TERM, 1886. Opinion of the Court. there are a series of transactions in which joint credit is given with reference to the separate debt.” And at page 212: “Since the statutes of set-off of mutual debts and credits, courts of equity have generally followed the course adopted in the construction of the statutes by courts of law; and have applied the doctrine to equitable debts; they have rarely, if ever, broken in upon the decisions at law, unless some other equity intervened which justified them in granting relief beyond the rules of law, such as has been already alluded to.” In Downer v. Dana^ 17 Vt. 518, 523, Judge Redfield said: “ Although a court of equity will not, any more than a court of law, allow a set-off of joint debts against separate debts, yet there are many exceptions. One important exception is where the debts are in reality mutual, although not so in form, as where one of the joints debtors is a mere surety.” In Smith v. Felton, 43 N. Y. 419, the court said: “ Equity will look through the form of the transaction, and adjust the equities of the parties with a view to its substance, rather than its form, so long as no superior equities of third persons wifi be affected by such adjustment.” In such cases, equity looks to the beneficial ownership of the debt. Kerr on Injunctions, 64, chap. 4, § 5. The principle of these cases applies, we think, to the present. The ground of equity jurisdiction asserted in the bill is that the estoppel relied on would be good at law as against Louise Berney in her individual right, but not against her in her representative capacity as executrix of the estate of her deceased husband under the New York letters testamentary; but that it is good against her in equity in that capacity to the extent of her own individual interest, and the interest of any distributees of the estate equally bound thereby, in the fund which she is seeking as executrix at law to recover. She sues at law as executrix for the purpose of recovering a sum in dispute for the general benefit of the estate to be applied to the payment of creditors, legatees, and other distributees. Under the law of France as widow, and under the will as beneficiary, she is individually entitled to some as yet undetermined portion of the assets of the estate, after the pay- DREXEL v. BERNEY. 255 Opinion of the Court. ment of creditors, if there are any unpaid. Others named as defendants, similarly bound by the transactions relied upon as an estoppel, are also beneficially interested in the distribution of the estate in some yet unascertained proportions. There may be others entitled to some portion of the estate on distribution, in respect to whom the defence relied upon does not apply. As between them and the appellee and other beneficiaries, it may be necessary to have an account of what they have received, and of what they are still to receive, and an adjustment upon equitable grounds, based on the right of the appellants to enforce the recognition of their payment to St. James as an agent whose authority the appellee and some of the other distributees cannot in equity be allowed to question. In the action at law, the appellee represents the whole estate, and every one interested in its collection and distribution. It may very well happen, therefore, that in the action at law the right to prove the facts on which the estoppel rests may be questioned and denied on the ground that the plaintiff in the action at law is not bound as executrix for what she did and assented to in her character as widow and legatee. On this ground, therefore, and because it appears to be altogether uncertain whether the appellants can avail themselves in the action brought against them at law of the defence asserted in this bill, and admitted by the demurrer to be true, we think the demurrer should have been overruled, and the defendant required to answer. For error in this particular, The decree of the Circuit Court is reversed, and the cause remanded, with di/rections to take further proceedings therein as equity and justice may requi/re. It is accordingly so ordered. 256 OCTOBER TERM, 1886. Statement of the Case. IRVINE u THE HESPER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TEXAS. Argued May 6, 1887. — Decided May 27, 1887. On an appeal by the libellants in a cause of salvage, from a decree of the Circuit Court which awarded to them a less amount than the District Court had awarded, on an appeal from that court taken only by the libellants, this court, being unable to say, from the findings of fact by the Circuit Court, that that court did not properly exercise its discretion in making the allowance it did, affirmed its decree. An appeal in admiralty from a District Court to a Circuit Court vacates altogether the decree of the District Court, and the case is tried de novo; and this is true, whether both parties appeal, or whether only the one or the other appeals. This was a libel in rem, in admiralty, brought in the District Court of the United States for the Eastern District of Texas, by Robert Irvine and Charles L. Beissner, owners of the steam lighter Buckthorn and the steam tug Estelle, against the steamship Hesper, in a cause of salvage. The libel set forth salvage services rendered to the Hesper by the Buckthorn and the Estelle, in pulling her off from the shore, at Galveston Island, about twenty-five miles from Galveston, Texas, where she had grounded on her voyage from Liverpool to Galveston, with a cargo of salt, in December, 1882. The answer of the owners of the Hesper averred their readiness to pay a reasonable compensation for the services actually rendered by the two vessels, but denied that more than compensation for actual services and time was due, and denied that the services rendered were salvage services. Proofs were taken, and the District Court, in April, 1883, 18 Fed. Rep. 692, made a decree adjudging that the libellants were entitled to compensation in the nature of salvage, for the saving of the Hesper and her cargo, and allowing to the libellants, for the services of each of the two vessels, $3000, IRVINE v. THE HESPER. 257 Statement of the Case. and to the owners of the schooner Mary E. Clark, and men who had been employed to load upon her part of the cargo of the Hesper, and to jettison such cargo, $2000; and, the claims of the owners of that schooner and of those men having been settled by the Hesper, it was ordered that the $2000 should go to the Hesper. Both parties gave notice of appeal from this decree to the Circuit Court. The libellants perfected their appeal, but the claimants of the Hesper did not perfect theirs. Some further proof was taken in the Circuit Court, and, on the 13th of November, 1883, that court, having heard the cause, filed the following findings of fact and conclusions of law: “This cause came on to be heard on the transcript and evidence, and was argued. Whereupon, the court, being advised of the evidence, finds the following as the facts of the case: “ 1st. That, about 5.45 a.m. of the 12th day of December, a.d. 1882, the steamship Hesper, bound on a voyage from Liverpool to Galveston, being out of her course, ran aground at the southwest side of Galveston Island, about twenty miles southwest from Galveston, and nearly opposite the life-saving station. The Hesper was an iron propeller, and built in Hartlepool, England, in 1881, at a cost of twenty-two thousand pounds; her registered tonnage is, gross, 1654 tons; net, 1069 tons. Her freight capacity is 1950 tons. She has powerful engines of 750 horse-power, with steam windlasses and winches, and on said 12th of December was well found and well manned in every respect. She was ladened with a cargo of about 900 tons of salt. “ 2d. That, when the Hesper went ashore, her engines were slowed down and she was making about four knots per hour. She struck easily without shock and remained upright. Her draft was then thirteen feet nine inches. The sea was smooth and there was very little wind; what there was was from the south, and the ship headed, when she struck, northeast by north. Kedge-anchors were immediately put out to the east southeast, and efforts made to get the ship off in that direction, with the ship’s engines heaving on those anchors. At vol. cxxn—17 258 OCTOBER TERM, 1886. Statement of the Case. the same time, a message was sent overland to Galveston, the nearest port, to the ship’s agent, to send assistance. “ 3d. That the agent of the ship applied to the agent of the tug Estelle, and procured that tug to go to the assistance of the Hesper. The Estelle was a long, narrow, deep boat, drawing about eight feet eight inches, and was the most powerful tow-boat in Galveston harbor, and had aboard the usual appliances of such boats. The Estelle reached the Hesper about 5 p.m. of the 12th of December and reported. The master of the Hesper endeavored to bargain with the master of the Estelle as to the cost of pulling the Hesper off, but the master of the Estelle refused to make any agreement, on the ground that he did not know how much labor and time it would take. A line was then given the Estelle, from the stern of the Hesper, which was then more off the shore than the bow, and the Estelle hauled on said line for about two hours, during which time the crew of the Hesper, with some four or five hands from the life-saving station, were throwing over cargo. No appreciable result came from this towing of the Estelle, and she desisted on the orders of the master of the Hesper. “ 4th. That, in the meantime, the sea, which had been smooth, with very little swell, had become more turbulent, and there was a very decided increase in the ground swell from the southeast. Not so much, however, but that small boats were flying around the Hesper, and life-boats were running easily to and from shore. At this time of stopping hauling by the Estelle the master of the Hesper requested the Estelle to come alongside and run a heavy anchor out seaward from the Hesper, both to keep the Hesper from drifting further in, and for the Hesper to heave on to pull herself off. This the master of the Estelle refused to do, on the ground that there was too much sea on, and that he would thereby endanger his own boat, and thereupon the Estelle, taking aboard the Hesper’s agent, who had come overland, proceeded back to Galveston, to procure more assistance. It was then found that the Estelle was making some water from a leak caused by a defect in the staff of the stuffing-box, which was not tight enough, and was worked loose by the strain m IRVINE v. THE HESPER. 259 Statement of the Case. hauling on the Hesper. However, the Estelle proceeded that night (of the 12th) to Galveston bar, where she laid until morning, reaching Galveston wharves about noon of the 13th of December. The Estelle lay at the wharves repairing until the morning of the 14th of December, when she took the schooner Clark, which had been engaged by the Hesper’s agent to lighter cargo, in tow, and towed her down to the Hesper. “ 5th. That, on the 13th of December, the ship Hesper was lively, though still aground, shifting her position slightly, but not affecting her safety, some 450 tons of water having been pumped into her ballast tanks to put her down and keep her from going nearer in shore, and her crew being engaged in throwing over cargo, while waiting for assistance. And, on the same day, the agent engaged the Buckthorn, a steam lighter, belonging to libellants, of lighter draft and power than the Estelle, to proceed to the Hesper, which she did, taking down a heavy anchor and cables, and two new hawsers, (the latter purchased by the Hesper’s agent,) and a gang of men employed by the Hesper’s agent, to help lighter cargo and generally assist, and also provisions and other necessaries, arriving in the night and lying by until morning. “ 6th. That, on the morning of the 14th of December, the position and condition of the Hesper was much the same as on the preceding day, the weather being calm and the sea smooth.. About nine o’clock in the morning, the gang of men brought down by the Buckthorn, after breakfasting aboard the Hesper,, commenced to jettison cargo, and the Buckthorn carried out seaward and dropped the heavy anchor brought down from Galveston, in about 18 feet of water, connecting the same, by hawsers and cables of about 210 fathoms in length, with the steam-winch of the Hesper. The Buckthorn then also took a line from the Hesper, and pulled on her, while the machinery of the Hesper was heaving on the hawsers leading to the heavy anchors, but no relief was given. Towards noon on the 14th the Estelle arrived, with the Clark in tow. The Clark Was placed alongside of the Hesper, and cargo was transferred to her by the crew and the gang aforesaid. This lightering 260 OCTOBER TERM, 1886. Statement of the Case. was kept up until about four o’clock in the afternoon, when about one-third of the cargo was removed, and nearly all the ballast water pumped out, and then the Estelle took a line from the Buckthorn, and a general effort was made by the Buckthorn, the Estelle, and the Hesper’s engines, to get the Hesper off, which succeeded, whereupon the Hesper, which was uninjured, steamed to Galveston. “7th. Where the Hesper went aground, the slope of the ground seaward is gradual, and the bottom is sand. “8th. The prevailing and probable winds on that shore, during the month of December, are from the south and southeast, sometimes of great violence. “ 9th. During the three days the Hesper was aground, there was no wind nor sea of any danger to ships, large or small, and the services rendered to the Hesper, aiding her to get safely off, were not attended with any hazard or danger, or any circumstances unusual to the towage and lighterage business, as carried on in Galveston roads, when the wind is moderate and the sea smooth. “ 10th. That the value of the Hesper, which was entirely uninjured by going ashore, was one hundred thousand dollars, and the value of her cargo saved was six thousand five hundred dollars. The value of libellants’ two boats, the tug Estelle, and the lighter Buckthorn, was thirty-five thousand dollars. “ 11. That the Hesper, when aground as aforesaid, was in a condition of peril and distress, hardly likely to be able to get out of danger by her own efforts, even if the weather had been certain to continue favorable for many days, and certain to be wrecked if the weather should prove to be bad. “ 12th. That the services rendered the Hesper by the libellants’ boats, the Estelle and Buckthorn, were salvage services, but of the lowest grade, involving neither risk of property, peril of life or limb, nor unusual expense, nor gallantry, courage, or heroism, and the same will be fully compensated, by double compensation on the basis of towage and lighterage services. “ 13th. The Estelle was engaged in these services three days IRVINE v. THE HESPER. 261 Argument for Appellants. and one night, and the Buckthorn two days and one night. The outside earnings of either of these boats, with their appliances, is three hundred dollars per day, which, allowing as much for night work, would make the sum of twenty-one hundred dollars compensation, and double compensation is the sum of forty-two hundred dollars. “ And the court finds the following as conclusions of law: “1. The services rendered by the libellants’ boats, the Estelle and the Buckthorn, and their respective masters and crews, were salvage services of the lowest grade. “ 2. That the court should award for said services the sum of forty-two hundred dollars. “ 3. That libellants should have judgment for the sum of forty-two hundred dollars and costs incurred in the District Court. “4th. That the libellants should pay the costs of this court.” Thereupon a decree was made by the Circuit Court in favor of the libellants, for $4200 and the costs of both courts. 18 Fed. Rep. 696. From this decree the libellants appealed to this court. Their notice of. appeal stated that they claimed, as their compensation for the salvage services to the vessel and cargo, one-fourth of the sum of $106,500, found by the Circuit Court as the value of the Hesper and her cargo. Mr. Eppa Hunton for appellants. These services of salvage were rendered with skill and enterprise, and with a probable risk of fives and property. The vessels used by the salvors were steam vessels. In The BlackwaU, 10 Wall. 1, 13, it is said: “ Steam vessels are always considered as entitled to a liberal reward, not only because the service is usually rendered by a costly instrumentality, but because the service is generally rendered with greater promptitude and is of a more effectual character. . . . Courts of admiralty usually consider the following circumstances as the main ingredients in determining the amount of the reward to be decreed for salvage service: (1) The labor expended by the salvors in rendering salvage ser- 262 OCTOBER TERM, 1886. Argument for Appellants. vice. (2) The promptitude, skill, and energy displayed in rendering the service and saving the property. (3) The value of the property employed by the salvors in rendering the service, and the danger to which it was exposed. (4) The risk incurred by the salvors in securing the property from the impending peril. (5) The value of the property saved. (6) The degree of danger from which the property was rescued.” It will be found that every one of these circumstances formed ingredients in this case. Labor expended. — The salvors had two powerful and costly steam vessels engaged two or three days, one of which was injured in this salvage service. The promptitude, skill, and energy are apparent by the evidence and findings. The Estelle went to the rescue of the Hesper as soon as she was informed of her danger, and was followed by the Buckthorn as soon as it was apparent the Estelle needed further help. The skill and energy are apparent from the success of the efforts. The value of the property employed by salvors was greater than in most cases, — $35,000. The risk incurred. — This, as stated above, was the risk of wrecking the lighter and steam-tug, and the possible risk of life. Risk of life is not a necessary ingredient, but it places the salvors in a higher position of merit and entitles them to a more liberal compensation. Spencer v. The Charles Avery, 1 Bond, 117; The William Beckford, 3 C. Rob. 356; The Emulous, 1 Sumner, 207. The value of the property saved. — This is found to be $106,500. The da/nger from which the property was rescued.—This, according to the 11th finding, was very great, and involved the probable total loss of the ship. It will be seen that all the ingredients for a liberal allowance existed in this case. In The Blackwall, the ship was on fire in the harbor of San Francisco; the owners of the tug got up steam; took two fire-engines on board with firemen enough to work them, and Jay alongside the burning ship, and in a little more than half IRVINE v. THE HESPER. 263 Argument for Appellants. an hour the flames were entirely extinguished. Decree for salvage for ten thousand dollars, — one-half to the owners of the tug. Now, compare this case of The Blackwall with the one under consideration. In the former, the time was a half-hour; in the latter, two days and nights; in the former, there was but one tug; in the latter, a lighter and a tug; in the former, there was no danger; the only danger feared was the falling of the spars, which were supposed to be burning, but really were not; in the former but a small portion of the salvage service was performed by the libellants; in the latter, the whole service was performed by libellants, except in jettisoning the cargo. Judge Story, in Tyson v. Prior, 1 Gallison, 133, says: “ In general, salvage ought not to be less than one-third, unless the property saved be very valuable and the service very inconsiderable.” In the case of the ship Henry Ewba/nk, 1 Sumner, 400, the court says: “ In the distribution of salvage the owner of the salvor ship ought, under ordinary circumstances, to be allowed one-third of the salvage.” In Bearse v. 3^0 Pigs of Copper, 1 Story, 314, 326, the court says: “ The maritime policy is to make a liberal allowance for salvage — the highest compensation in most meritorious cases being one moiety.” In the case of The Ship Blaireau, 2 Cranch, 240, 266, Chief Justice Marshall lays down the doctrine of salvage with his usual force and clearness. He says : “ If we search for the motives producing this apparent prodigality in rewarding services rendered at sea, we shall find them in a liberal and enlarged policy. The allowance of a very ample compensation for those services (one very much exceeding the mere risk encountered and labor employed in effecting them) is intended as an inducement to render them, which it is for the public interests and for the general interests of humanity to hold forth to those who navigate the ocean.” In Desty’s Shipping and Admiralty the doctrine of salvage mid the rate of allowance is treated very deafly and all the 264 OCTOBER TERM, 1886. Opinion of the Court. authorities cited. See §§ 318, 319, and 320, and the authorities cited in the notes. These authorities are very numerous, and it will be seen that in no case, having the circumstances of this case, has less been awarded as salvage than one-fourth. The allowance for salvage is in the discretion of the court, but this is a legal discretion, regulated and governed by the law and the evidence. If this discretion is not properly exercised, it is the duty of appellate courts to correct its improper exercise. It is maintained that this discretion was not properly exercised by the Circuit Court for Texas; that great injustice was done to the libellants; and that this small allowance of salvage will discourage the efforts of salvors, and break up what has been declared very important to commerce. It is believed.the decision of the court below is erroneous, and that the same should be reversed with directions to decree to the libellants one-fourth of the value of the ship and cargo saved. J/?. John H. Thomas for appellees. Mr. Justice Blatchfoed, after stating the case as reported above, delivered the opinion of the court. It is assigned for error, that the Circuit Court erred in deciding that the services rendered by the Estelle and the Buckthorn were salvage services of the lowest grade. This is found by the Circuit Court both as a conclusion of fact and a conclusion of law. Regarding it as a conclusion of fact, it is not reviewable here. Regarding- it as a conclusion of law, it is based upon the finding of fact that the salvage services involved “neither risk of property, peril of life or limb, nor unusual expense, nor gallantry, courage or heroism. The Estelle having been engaged in the services three days and one night, and the Buckthorn two days and one night, the court, treating the whole service as a service for seven days, and finding that the outside earnings of either of the boats, with its appliances, was $300 per day, being $2100 for seven days, doubled the compensation, and made it $4200, IRVINE v. THE HESPER. 265 Opinion of the Court. stating that that would be a full compensation, on the basis of towage and lighterage services. The Circuit Court, in its opinion, 18 Fed. Rep. 698, says: “Proctor for respondents in this case admits in argument, that, by reason of the service of the extra anchor furnished by the libellants, the service amounts to salvage service. But for this admission I have grave doubts whether I could have found as a fact that the services ranked above towage and lighterage service, to be compensated on the principle of a quantum, meruit. But salvage services being taken as established, the question is one solely of amount. As a fact in the case, I have found that there was neither risk of property, peril of life or limb, nor unusual expense, nor gallantry, courage or heroism. The evidence shows there was no enterprise in going out in tempestuous weather, as the weather was moderate and the libellants’ tug only went out when called upon and employed so to do. The labor and skill furnished were of the ordinary kind, such as libellants’ boats were seeking as ordinary employment. Salvage, then, is to be determined entirely by the distress in which the salved property was. The distress of the Hesper was the salvors’ opportunity, and the amount of salvage, on this point, determines the whole case.” The principle upon which the Circuit Court proceeded, as stated in its opinion, was, that, although storms might have come which would have destroyed the Hesper, the services actually rendered to her by the tug and the lighter were ordinary services, and that, if storms had come, the tug and the lighter might easily have sought safety. We recently had occasion to fully consider the question of salvage in the case of The Connemara, 108 U. S. 352, where it was contended that the facts found by the Circuit Court did not constitute salvage service, and that, if a salvage service, it was salvage of the lowest grade, and the amount allowed was exorbitant. Holding the services to have been salvage services, this court, speaking by Mr. Justice Gray, said, (p. 359): “The amount of salvage to be awarded, although stated by the Circuit Court in the form of a conclusion of law, is largely 266 OCTOBER TERM, 1886. Opinion of the Court. a matter of fact and discretion, which cannot be reduced to precise rules, but depends upon a consideration of all the circumstances of each case.” It is further there said, that, by the uniform course of decision in this court, during the period in which it had jurisdiction to reverse decrees in admiralty upon both facts and law, the amount decreed below was never reduced unless for some violation of just principles, or for clear and palpable mistake, or gross over-allowance; and that, since the act of Congress of February 16, 1875, c. 77, restricting the appellate power of this court within narrower bounds, and limiting its authority to revise any decree in admiralty of the Circuit Court to questions of law, this court may, in cases of salvage as in other admiralty cases, “ revise the decree appealed from for matter of law, but for matter of law only; and should not alter the decree for the reason that the amount awarded appears to be too large, unless the excess is so great that upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case.” The decree appealed from in that case was affirmed, upon the ground that this court could not say, upon the findings of facts, that the amount awarded was so excessive as to violate any rule of law. The same principle was applied in The Tornado, 109 U. S. 110, 115. These views are equally sound in the case of an alleged under-allowance. We cannot say, from the facts found in the case at bar, that the Circuit Court did not properly exercise its discretion in making the allowance it did, even though that amount was less than the amount allowed by the District Court. The claimants not having appealed to the Circuit Court, it is suggested that they are liable for at least the amount awarded by the District Court and that the Circuit Court could not reduce that amount, but had jurisdiction, on the actual appeal, only to increase it. It is well settled, however, that an appeal in admiralty from the District Court to the Circuit Court vacates altogether the decree of the District Court, and that the case is tried de novo in the Circuit Court. Yeaton n. United States, 5 Cranch, 281; Anonymous, 1 Gallison, PORTER v. PITTSBURG STEEL CO. 267 Petitions for Rehearing. 22; The Roarer, 1 Blatchford, 1; The Saratoga v. f38 Bales of Cotton, 1 Woods, 75 ; The Lucille, 19 Wall. 73; The Charles Morgan, 115 U. S. 69, 75. We do not think that the fa*ct that the claimants did not appeal from the decree of the District Court alters the rule. When the libellants appealed, they did so in view of the rule, and took the risk of the result of a trial of the case de novo. The whole case was opened by their appeal, as much as it would have been if both parties had appealed, or if the appeal had been taken only by the claimants. The decree of the Circuit Court is affirmed, with costs, a/nd without i/nterest to the libellants on that decree. PORTER v. PITTSBURG BESSEMER STEEL CO. (LIMITED). APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. Submitted May 3, 1887. — Decided May 27, 1887. The decision in this case, 120 U. S. 649, affirmed, on an application for a rehearing. The lien law and the redemption law of the state of Indiana considered. The effect of a redemption under the Revised Statutes of Indiana, §§ 770 to 776 considered. Rails and other articles which become affixed to and a part of a railroad covered by a prior mortgage, will be held by the lien of such mortgage in favor of bona fide creditors, as against any contract between the furnisher of the property and the railroad company, containing a stipulation that the title to the property shall not pass till the property is paid for, and reserving to the vendor the right to remove the property. Notice of such a contract to a purchaser of bonds covered by such mortgage will not affect his rights if he purchased the bonds from those who were bona fide holders of them, free from any such notice. Petitions for a rob oaring of the case decided at this term and reported 120 U. S. 649. The petitions were as follows, omitting the titles : 268 OCTOBER TERM, 1886. Petitions for Rehearing. And now come again The Pittsburg Bessemer Steel Company (Limited), The Cleveland Rolling Mill Company, Crerar, Adams & Company, and Volney Q. Irwin, appellees in the case above entitled, and jointly and severally petition this Honorable Court for a rehearing of the judgment which has heretofore been entered by this court in said cause, .as contained in the Opinion of the Court filed herein, and for a rehearing of said cause; and they state the following grounds for such rehearing : First. Your petitioners aver that there is manifest error in the opinion and judgment of this court in the above cause in this: In holding and adjudging that the appellant was entitled as against these petitioners to the entire proceeds derived from the sale of the property of the Chicago and Great Southern Railway Company, then being insolvent, by virtue of being the owner of all the bonds of that company, secured by its mortgages upon such property ; whilst at the same time such appellant was himself liable to said corporation for the use and benefit of petitioners and other creditors of said company in the sum of $707,550, by reason of his ownership of the unpaid capital stock of said company to that amount, and which he acquired and became the owner of along with said bonds, and for a consideration common to both ; and this in a cause to which all the creditors of the corporation were parties, and in which the court had appointed a receiver of the company and its property before appellant had either paid a dollar for said capital stock and mortgage bonds or filed his bill for foreclosure of the mortgage. Second. They further aver that there is manifest error in the opinion and judgment of this court in the above cause m this: In holding that appellant acquired said bonds from Drexel, Morgan & Co. as pledgees thereof, and not from Henry Crawford as owner; the evidence in said cause, and also the written agreement between said appellant and Crawford, dated December 26, 1884, showing that appellant bought said bonds from said Crawford, as owner, and for a consideration more than $300,000 greater than appellant and Samuel M. Nickerson had agreed to pay Drexel, Morgan & Co. therefor; PORTER V. PITTSBURG STEEL CO. 269 Petitions for Rehearing. and which written agreement, by its terms, superseded and became a substitute for the former agreements of June 25, 1884, between said appellant, Nickerson, Crawford, and Drexel, Morgan & Co. And your petitioners respectfully refer to said agreement of December 26, 1884, called the “ Syndicate Agreement,” as conclusive evidence of this, their contention. Third. They further aver that there is manifest error in the opinion and judgment of this court in this: That it is held by this court that appellant succeeded to the rights of Drexel, Morgan & Co., as pledgees of the bonds, and that appellant was an innocent holder thereof; and that inasmuch as the remaining proceeds of sale of the railway property in the registry of the Circuit Court is only $325,194.27, and that appellant’s claim on January 12, 1885, for the amount he paid Drexel, Morgan & Co. on that day, was $392,363.24, there was no surplus to be paid to your petitioners. Whereas, your petitioners show that the amount of appellant’s purchase price from Henry Crawford was $750,000, or an amount exceeding that paid by appellant to Drexel, Morgan & Co. with interest thereon to the date of the decree of the Circuit Court, of over $300,000, which sum was part and parcel of the said moneys in the registry of the court by the terms of said contract of December 26, 1884, between said Porter and Crawford, and for which said Porter was and is in fact a mere stakeholder as between said Crawford on the one side, and these petitioners and the other creditors of said railway company on the other. And your petitioners aver that as between themselves and said Crawford and the First National Bank of Chicago, as his assignee with notice, they have an equity to be paid out of said sum, in the registry of the court in preference to said Crawford or said bank, and prior to said appellant as representing them. Fourth. They further aver that there is manifest error in the opinion and judgment of this court in this: That it is held hy the court, 1st, that there was no bad faith, irregularity, deceit or fraud in the execution of the mortgages, or in issuing °f the bonds thereunder; and 2d, that such bonds represented 270 OCTOBER TERM, 1886. Petitions for Rehearing. all the money that had ever been paid by the railway company for the Chicago and Block Coal Railroad, and for the construction of the sixty miles of the new road from Attica to Fair Oaks, excepting only some $40,000 or $50,000 received from aid voted by townships. As to the first point, Henry Crawford, to whom the first million dollars of bonds were delivered in the latter part of December, 1881, was at the time of their delivery, the owner, by purchase and assignment, of all the shares of stock of the corporation, (including the shares of five out of nine directors composing the board,) with the exception of $10,000 of stock owned by William Foster; and was such owner and holder of said stock, including that of such five directors, on the 29th day of October, 1881, when the directors passed the resolution authorizing the execution of the mortgages and bonds. At the same time the laws of the state of Indiana, under which the company was incorporated, required that every director should be the owner, in good faith, of stock in the corporation, and Henry Crawford himself knew that five out of the nine directors had no stock, because he himself held and owned it. From the 23d day of June, 1881, until the 15th day of March, 1882, (whilst the original board of directors were in office,) Crawford had in fact the actual domination and control of this corporation, whose board of directors and officers did precisely as he dictated, with the one exception of refusing to authorize a proposed construction contract between the company and him. The reason for such refusal, as found by this court in its opinion, was, because Foster prevented it for the purpose of compelling Crawford to buy the remaining $10,000 of stock of the company still owned by Foster; and yet the court cites in the opinion, this one exception to Crawford’s domination and control of the board of directors, as evidence that Crawford did not have such domination or control. Whilst during the period above, Crawford made contracts for purchases of material in the name of the corporation, appointed officers for it, superintended the construction of the road, and was recognized by the board of directors as in authority and control of the construction of the road, PORTER V. PITTSBURG STEEL CO. 271 Petitions for Rehearing. although he, as yet, had no contract with the company therefor. And during the same period he prepared and caused to be passed the resolution of the directors of October 29, 1881, authorizing the mortgage and bonds, and prepared the mortgage and bonds; and by reason of his control he procured the delivery of the million dollars of the bonds to himself. ■* As to the 2d point, the bonds in suit represent, not only the money paid for the Chicago and Block Coal road, the money paid by Drexel, Morgan & Co., and the money paid by Crawford, but also, it is submitted by your petitioners, represent the indebtedness due to your petitioners and other creditors of said company, who furnished material and did labor, amounting in the aggregate to over $200,000. The fourth condition in the memorandum delivered by Foster to Crawford’s representative along with the million dollars of bonds, provided that out of the proceeds of such bonds, Crawford should furnish the necessary amount of money to pay the debts contracted since the 1st of July, 1881, and to complete the grading and superstructure, and to finish and equip the line of road from the junction with the Air Line road to Attica, being the fine of road upon which the material and labor of your petitioners was expended. Your petitioners, therefore, respectfully submit that even upon the principle that the bonds were valid, they were placed in said Crawford’s hands in trust for the very purpose of paying to your petitioners and other creditors the moneys now due them. Fifth. They further aver that there is manifest error in the judgment and opinion of this court in this: In holding that the decree of the Circuit Court, which directed payment out of the proceeds of the railroad property to your petitioners on account of their just debts against the corporation, in preference to the bonds held by the appellant, should be reversed, and that petitioners should receive no part of such proceeds, because the appellant succeeded to the equities of Drexel, Morgan & Co., and Dull & McCormick, held by this court, in the opinion, to have been pledgees in good faith. Whereas, your petitioners submit, as herein above suggested, OCTOBER TERM, 1886. 272 Petitions for Rehearing. that appellant is the representative of Henry Crawford and his assignee with notice, the First National Bank of Chicago, and that this controversy should be treated as one between Henry Crawford and your petitioners. In such view of the case, your petitioners submit, that, as Henry Crawford, by his construction contract with the corporation, had agreed to build the railroad in question, as a condition and consideration for receiving any bonds whatsoever, he should furnish the material and the labor, and pay therefor; and that your petitioners, as against said Crawford and his assignee with notice, said bank, have a prior equity and lien upon the proceeds derived from the sale of said railroad property to the said Crawford and said bank. Sixth. They further aver that there is manifest error in the opinion and judgment of this court in this: In holding and decreeing that petitioners can have no part of the proceeds of the.railroad property in payment of their claims for its construction, and the securities representing which were owned by Henry Crawford, who employed these petitioners to furnish labor and material used in such construction, and who, after making the two successive pledges to Dull & McCormick and Drexel, Morgan & Co., of such securities, finally sold them to appellant under a written agreement of sale, by the terms of which all the purchase money — after the payment of the amount for which they were pledged — was to be held by appellant (to an amount exceeding $300,000) to abide the adjudication of the court, as to whether such proceeds should be paid to said Crawford or to these petitioners and other creditors of the railroad company. And your petitioners humbly submit that in this controversy over the moneys in question, they have a prior equity to said Crawford, for the building of whose railroad they furnished their material and labor; and that this prior equity exists in their favor, not only by the principles of courts of equity, (which look through the forms, to the substance of things done,) but rests upon natural justice. Seventh. They further aver that there is manifest error in the opinion and judgment of this court in this: In holding PORTER V. PITTSBURG STEEL CO. 273 Petitions for Rehearing. that it does not lie in the mouths of these petitioners to raise the objection as to the absence of a legal board of directors, because, if, as held by the court, the mortgages and bonds are invalid for want of such legal board, and for want of the legal existence of the corporation, the contracts of these petitioners are invalid for the same reason, and the consolidation with the Chicago and Block Coal Company’s road would be void, and that road would be freed from all debts incurred by the Chicago and Great Southern Railway Company; whereas your petitioners show: 1st. That they were strangers to the Chicago and Great Southern Railway Company, and dealt with it at arm’s-length. 2d. That the respective amounts decreed to them by the Circuit Court was upon evidence of what the labor and materials furnished by them — and which actually went into the construction of the road, and of which appellant and Henry Crawford got the benefit—were reasonably worth, regardless of any contracts with the company therefor, and as upon a quantum meruit. 3d. That every person to whose possession said bonds came, either as owners, pledgees, or purchasers, knew that a majority of the members of the board of directors were not the owners of any capital stock of said railway company, for the reason that each one of them — Dull & McCormick, Drexel, Morgan & Co., and appellant — as stated in the opinion of the court, successively contracted in writing for every share of stock of the corporation along with the bonds; and every share of stock, save four, and said bonds, were successively delivered to them respectively. Wherefore your petitioners submit that whilst they were each dealing with said corporation in good faith, without knowledge that a majority of its board of directors held no stock in the company, and that Henry Crawford dominated and controlled the corporation, the several holders of the bonds had such knowledge, and were not, nor were any of them, innocent holders of said bonds in good faith. Wherefore, your petitioners respectfully pray that a rehear-lⁿg in this cause may be granted and such further order and vol. cxxn—18 274 OCTOBER TERM, 1886. Petitions for Rehearing. decree made as to your Honors shall seem meet. And your petitioners will ever pray, &c. The Cleveland Rolling Mill Co. filed the following petition: And your petitioner, The Cleveland Rolling Mill Company, severally petitions for a rehearing of said cause, and of the judgment and opinion rendered therein against it; and as grounds for such rehearing, states: First. Your petitioner avers that there is manifest error in the opinion and judgment of this court in the above cause of your petitioner, in this: In finding, as a fact in said cause, against your petitioner, that it knowingly received, on account of its claim, money, which came directly from Drexel, Morgan & Co., as a result of the pledge of the bonds to them. And your petitioner states that the only evidence in said cause to that effect was introduced by said appellant, and was the testimony of Henry Crawford, who testified that he told your petitioner’s president, William Chisholm, in the banking office of Drexel, Morgan & Co. in the city of New York, whilst he was negotiating for the loan from them, just exactly what his business there was, and the full and precise nature of it. But said Chisholm testified that whilst he did meet said Crawford at that place, that said Crawford only told him, Chisholm, that he was negotiating with Drexel, Morgan & Co. to get money to pay the indebtedness due to your petitioner, but that he, said Crawford, did not refer to any negotiation on the pledge of the bonds of said railway company in any way whatsoever. And your petitioners submit that, under the facts in the record in this cause, and without any reference to the credibility of the two witnesses, inasmuch as no evidence whatever has been introduced, showing that your petitioner, or any of its officers or agents knew anything about the construction contract between said Crawfford and the railway company, and that the testimony of said Crawford was introduced by the appellant, by way of estoppel upon your petitioner, that under the rules of courts of equity the testimony of one witness affirming the fact, and the other denying the same, such fact was not proven, and that the whole recor shows that such was not the truth. PORTER v. PITTSBURG STEEL CO. 275 Petitions for Rehearing. Second. It further avers that there is manifest error in the opinion and judgment of this court in this: In holding that the lien of the bonds of appellant upon the proceeds of the sale of said railroad property is superior to the claim of your petitioner, for the just indebtedness due to it. And your petitioner shows that its indebtedness had wholly accrued on the Sth of December 1881; and that the first million of dollars of bonds delivered to Henry Crawford were not delivered until after that time; that at the time the bonds were so delivered, in the latter part of December, 1881, to said Crawford, he, by his own testimony had been furnishing money and making contracts for material and labor for the construction of the road, without any contract for repayment thereof with the company. As stated by him under oath, when being examined as a witness for appellant: “I went on and furnished the money at first, simply because I was acting under the impression that I practically owned that piece of property, and while I was not formally in control of it, yet that whenever I desired to control it, that the control was obtainable.” And your petitioner submits that under such circumstances, the said Crawford had no right in equity to obtain a first lien upon said railroad property, by procuring the bonds, secured by mortgage thereon, as against your petitioner’s just claims against said railroad company. Third. Your petitioner avers that there is manifest error in the judgment and opinion of this court in decreeing that your petitioner shall not be allowed any part of the proceeds derived from the sale of said railroad property, in this: That by the memorandum agreement between the said railway company and Henry Crawford, as to applying proceeds of the issue of the million dollars of bonds delivered to said Crawford’s representative by William Foster, as president of said railroad company, in the fourth clause thereof, it was provided, that said Crawford should furnish the necessary amount of money to pay the debts contracted since the first of July, 1881, included in which, was the debt due your petitioner, and unpaid at that time. 276 OCTOBER TERM, 1886. Petitions for Rehearing. Wherefore your petitioner humbly prays this court that a rehearing may be granted to it of the judgment and opinion of this court, pronounced against it, and that it may have such further and other relief as to your Honors shall seem meet. Volney Q. Irwin also filed the following separate petition: And your petitioner, Volney Q. Irwin, severally petitions the court for a rehearing of the judgment and opinion rendered against him by this court in the above cause, and as grounds for such rehearing respectfully shows : First. Your petitioner avers that there is manifest error in the opinion and decree of this court in the above cause in this: In holding that your petitioner had no lien upon the said railroad property, nor upon the proceeds of the sale thereof, for the reason that the mortgages securing said bonds were valid liens thereon, as against your petitioner, for the reasons and because of the facts as stated in said opinion. But your petitioner respectfully shows that he had a special ground of lien for the amount of his claim against the said railroad property prior to the mortgages thereon, the facts of which are not stated in the opinion filed herein, nor any specific judgment or conclusion of the court given thereon, in said opinion. That your petitioner, by virtue of the lien laws of the state of Indiana, recovered a judgment for the amount of his said claim against said railway company, which is admitted to have been prior to the lien of said mortgages. That by virtue of said judgment and lien a sale of a section of said railroad, extending through the county where said judgment was rendered, was made for the sum of $500, from which redemption was attempted to be made, by John C. New, trustee in the mortgages ; and your petitioner claimed in the brief filed by his counsel in this case, that said redemption did not destroy the lien of his judgment, at least for the said amount of over $11,000: 1st. Because the redemption laws of the state of Indiana were wholly inapplicable to such a case; and 2d, that John C. New, the trustee in said mortgage (who attempted to redeem from said judgment) never complied with the redemption law of Indiana so as to destroy the lien of your petitioner. PORTER v. PITTSBURG STEEL CO. 277 Petitions for Rehearing. And your petitioner respectfully submits to the court that his said judgment was and continued to be a lien upon said railroad, prior to the lien of said mortgages, securing the bonds of said appellant, and that he was and is entitled, by reason thereof, to be paid the amount of his said claim, as decreed by the Circuit Court. Wherefore your petitioner humbly prays this Honorable Court that a rehearing of said cause, as against him, may be had, and that such other order or decree may be made therein as to your Honors shall seem meet. The Pittsburg Bessemer Steel Company (Limited) also filed the following separate petition: And your petitioner, the Pittsburg Bessemer Steel Company (Limited), for itself, separately, petitions this Honorable Court for a rehearing of the judgment which has been entered by this court against it in this cause, as contained in the opinion filed herein, and for a rehearing of said cause as to it; and it states the following special grounds for such rehearing: First. Your petitioner submits that there is manifest error in the opinion and decree of this court in the above cause in this: In deciding and holding that said cause should be reversed as to your petitioner for error of the Circuit Court contained in the sixth paragraph of the interlocutory decree of the Circuit Court of February 16, 1886; whereas your petitioner maintains and submits, that under the issue made by the intervening petition of your petitioner and the evidence relative thereto in the record, the final decree of the Circuit Court of October 9, 1886, was as to your petitioner a just and proper decree, free from error and in consonance with all legal and equitable principles. » Second. Your petitioner submits that there is manifest error lⁿ the opinion and decree of this court in the above cause in this: In deciding and holding that the principles and rules stated in the opinion of the court are controlling in respect of . ® issues and grounds upon which your petitioner claimed and listed that there are, in the above cause, special equities rest-lⁿg with your petitioner in virtue of which it was entitled to 278 OCTOBER TERM, 1886. Petitions for Rehearing. preference of payment out of the fund in the registry of the Circuit Court, whereas your petitioner maintains and submits that irrespective of the validity of the mortgage and bonds of the Chicago and Great Southern Railway Company, and conceding the fact that the appellant, Henry H. Porter, was a bona fide purchaser of said bonds for value, and the further fact that said mortgage and bonds were executed, and said mortgage was recorded and $1,000,000 of said bonds were issued before your petitioner’s contract for the sale of rails to said railway company was consummated, and the further fact that the railroad of said railway company was in process of construction at the time of the consummation of said contract for the sale of said rails, still said Henry H. Porter, as mortgagee, took and held a lien under said mortgage upon the rails sold by your petitioner to said railway company, that was subordinate and junior to the lien of your petitioner thereon, which was secured by the retention of physical possession of said rails by your petitioner, until without its consent or knowledge, said physical possession of said rails was fraudulently taken from it by said railway company, and your petitioner’s said lien should in equity be preserved and protected. Wherefore, your petitioner respectfully prays that as to it a rehearing in this cause may be granted, and such further order and decree made as to your Honors shall seem meet. The Smith Bridge Company also filed the following petition: Your petitioner, the Smith Bridge Company, for itself, separately, petitions this Honorable Court for a rehearing of the judgment which has been entered in this cause as contained in the opinion filed herein, and for a rehearing of said cause as to it; and it states the following grounds for such rehearing : That in its intervening petition, filed in this cause in the Circuit Court, no issue was made in regard to the validity of the bonds held by the complainant Porter, nor were the said bonds in any manner contested by your petitioner in its petition, but your petitioner has relied solely upon the special equities of its claim. And your petitioner may now concede PORTER V. PITTSBURG STEEL CO. 2Ï9 Petitions for Rehearing. that the opinion and decree of this court, as announced, is correct, so far as it holds that said appellant’s bonds are valid; and still your petitioner avers that in holding that said appellant’s bonds are prior and superior to the equity of your petitioner’s lien, there is manifest error in said opinion and decree, for the following reasons: First. Your petitioner avers that there never was any delivery of the said bridges or bridge material by your petitioner to said Chicago and Great Southern Railroad Company. The contract between your petitioner and said railroad company required the bridges to be completed where they now stand; and that upon completion your petitioner was to retain the possession and title until payment was made in full. The evidence (p. 823) shows that your petitioner has never consented to any delivery. And your petitioner, therefore, avers that in holding said bonds of appellant to be a prior lien on said bridges to the claims of your petitioner, there is manifest error. Second. Your petitioner avers that at the time the appellant, Porter, purchased said bonds, and long prior thereto, he had full knowledge and notice of your petitioner’s equities under said contract and lien; and that the First National Bank of Chicago likewise had such knowledge and notice. (Evidence, pages 911, 925, 926.) And your petitioner therefore avers that there is error in the decree of this court in holding that said Porter was an innocent holder of said bonds as against your petitioner’s claim. Third. Your petitioner avers that the syndicate agreement, so called, by which the appellant, Porter, became the purchaser and owner of said bonds, recognized the equities of your petitioner’s claim, and especially provided for its payment (Record, page 912); that the Circuit Court having found that your petitioner’s claim was paramount and prior to said bonds, the provisions of said syndicate agreement for the payment of your petitioner’s claim then became operative and conclusive. And your petitioner avers that there is error in the decree of this court in holding that the said bonds in the hands of said Porter are a superior lien to your petitioner’s 280 OCTOBER TERM, 1886. Opinion of the Court- claim, notwithstanding the provisions of said agreement to pay the same. Fourth. There is error in said opinion and decree in holding that your petitioner had any knowledge of the loan from Drexel, Morgan & Co.; or knew that they were receiving money obtained from a pledge of the bonds to Drexel, Morgan & Co. Wherefore, your petitioner respectfully prays that as to it a rehearing in this cause may be granted, and such further order and decree made as to your Honors shall seem meet. And your petitioner will ever pray, &c. Briefs in support of these petitions were filed by the following counsel. Mr. J. & Cooper, Mr. A. C. Harris, and Mr. W. H. Calkins for all the petitioners. Mr. F. W. Tolerton for the Smith Bridge Company. Me. Justice Blatchfoed delivered the opinion of the court. The appellees in this case petition for a rehearing. The case was decided at the present term, and is reported in 120 U. 8. 649. The application for a rehearing covers all the grounds discussed in the opinion of this court, and others which, though not touched upon in the opinion, were fully considered by the court in arriving at its judgment. Upon all the questions covered by the opinion we adhere to our conclusions, and we see nothing in the special grounds taken in regard to the cases of some of the appellees to warrant a different result from that arrived at on the former hearing. It is proper, however, to notice two of the grounds urged in respect to two of the appellees. The appellee Irwin claims that, by virtue of the lien laws of the state of Indiana, he recovered a judgment for the amount of his claim against the railway company, which became a hen prior to the hen of the mortgages, and that, notwithstanding an attempted redemption by John C. New, the trustee in the PORTER v. PITTSBURG STEEL CO. 281 opinion of the Court. mortgages, the lien of the judgment remained good (1) because the redemption laws of the state of Indiana did not apply to the case; and (2) because New did not comply with such laws in regard to redemption, in such manner as to destroy the lien of the judgment. It is contended on the part of Irwin, that the Indiana statute does not authorize a redemption from a sale of railroad property; that New had no lien on the property sold; and that a redemption redeems simply from the sale and does not discharge the property from the lien, but only postpones any balance remaining due on the lien to the amount paid for redemption. The decree of the Circuit Court of Warren County, made in April, 1884, in the suit to foreclose the lien, brought by Irwin, forecloses the lien for $11,815.70, as a lien on the line of the railway for a certain distance in Warren County. In June, 1884, execution was issued for a sale, and on the 12th of July, 1884, the property was sold by the sheriff to Irwin for $500, and a certificate of purchase was issued to Irwin, stating that he would be entitled to a deed of the property in fee simple in one year from the 12th of July, 1884, if the same should not be redeemed by the defendant, or any other person entitled thereto, paying the purchase money, with interest at eight per cent per annum, before the expiration of the one year. On the 10th of July, 1885, and within the year, New, as trustee in the mortgages, paid to the clerk of the Circuit Court $539.78, in redemption of the property so sold, that being the amount necessary at that date to redeem the property. It is very clear, that, by the sale of the property on the execution, the lien of Irwin upon the property was exhausted, as a Hen superior to the mortgages, upon that .part of the railway which was covered by such superior lien. The property redeemed by New was the property sold under the decree in favor of Irwin. The redemption by New did not have the effect to restore the lien of the decree upon the property sold and redeemed. The redemption was not made by the judgment debtor, so as to vacate the sale and reinstate the hen for Mie balance of the judgment which the purchase money of the sale did not pay. The redemption was made by another and 282 OCTOBER TERM, 1886. Opinion of the Court. a subsequent lien holder, who redeemed for his own benefit and the benefit of those for whom he was trustee, and not for the benefit of Irwin. This we understand to be the meaning and effect of the statute of Indiana in regard to redemption. Rev. Stat, of Indiana of 1881, §§ 770 to 776. We are not referred to any decisions of the courts of Indiana, giving any other construction to these provisions. Section 774 gives the right to redeem to a person having a hen otherwise than by judgment. Thè statute gives no right to Irwin to redeem from New. The sale of the property on the foreclosure of the mortgages given to New, subsequently to the redemption by New, conveyed the redeemed property to its purchaser on the sale, free and discharged from the lien under the decree in favor of Irwin, on which the sale redeemed from was made, and none of the proceeds of the sale on the foreclosure of the mortgages given to New can be applied to pay the unpaid portion of Irwin’s decree. If the grading, embankment and excavation done by Irwin was subject to a sale on execution under his judgment, the redemption law applies to the case, and was complied with by New. It is claimed on behalf of the Smith Bridge Company, that the contracts between it and the railway company, for the construction of the bridges, provided that the bridges should remain the property of the Smith Bridge Company until the contract price for them should have been fully paid, and that, in default of such payment, the Smith Bridge Company should have the right to remove the bridges and bridge material; that the mortgages became a lien on the bridges only as the bridges became the rightful and legal property of the railway company; that Porter, before he purchased the bonds, had notice of the equities of the Smith Bridge Company growing out of their contracts ; and that the First National Bank of Chicago had like notice before it acquired any interest in the bonds. The contracts of the Smith Bridge Company were made in October, 1882, and in July, 1883. The bonds were pledged to Dull & McCormick in January, 1882, and passed from them to Drexel, Morgan & Co., in January, 1883. Th® PORTER V. PITTSBURG STEEL CO. 283 Opinion of the Court. bridges became a part of the permanent structure of the railroad, as much so as the rails laid upon the bridges or upon the railroad outside of the bridges. Whatever is the rule applicable to locomotives and cars, and loose property susceptible of separate ownership and of separate hens, and to real estate not used for railroad purposes, as to their being unaffected by a prior mortgage given by a railroad company, covering after acquired property, it is well settled, in the decisions of this court, that rails and other articles which become affixed to and a part of a railroad covered by a prior mortgage, will be held by the hen of such mortgage in favor of bona fide creditors, as against any contract between the furnisher of the property and the railroad company, containing stipulations like those in the contracts in the present case. Dunham v. Railway Co., 1 Wall. 254; Galveston Railroad n. Cowdrey, 11 Wall. 459, 480,482; United States v. New Orlea/ns Railroad, 12 Wall. 362, 365; Dillon v. Barna/rd, 21 Wall. 430, 440; Fosdick v. Schall, 99 U. S. 235, 251. In regard to the alleged notice to Porter and to the First National Bank of Chicago, no such notice was given until after Dull & McCormick, and Drexel, Morgan & Co. had acquired their rights as bona fide holders of the bonds; and Porter, by purchasing the bonds from Drexel, Morgan & Co., acquired all their rights and those of Dull & McCormick, as shown in the former opinion, and those rights were free in their hands from any notice of any claim of the Smith Bridge Company. Commissioners v. Bolles, 94 U. S. 104, 109; Montclair v. Raumsdell, 107 U. S. 147. An error was committed in the former opinion, p. 657, in stating that each of the five appellees knew of the pledge of the bonds to Drexel, Morgan & Co. for the loan, and knew that they were getting a part of the money loaned by Drexel, Morgan & Co. This was not true in regard to all of the five appellees, but was true in regard to only some of them. The error does not affect the result on the merits. The application for a rehea/ri/ny is denied 284 OCTOBER TERM, 1886. Statement of the Case. SEIBERT u LEWIS. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. Argued May 10, 11, 1887. — Decided May 27, 1887. It being the settled doctrine of this court that “ the remedy subsisting in a state when and where a contract is made and is to be performed is a part of its obligation, and” that “any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is therefore void; ” and the legislature of Missouri having, by the act of March 23, 1868, to facilitate the construction of railroads, enacted that the county court should from time to time levy and cause to be collected, in the same manner as county taxes, a special tax in order to pay the interest and principal of any bond which might be issued by a municipal corporation in the state on account of a subscription, authorized by the act, to the stock of a railroad company, which tax should be levied on all the real estate within the township making the subscription, in accordance with the valuation then last made by the county assessors • for county purposes, Held: (1) That it was a material part of this contract that such creditor should always have the right to a special tax to be levied and collected in the same manner as county taxes at the same time might be levied and collected; (2) That the provisions contained in §§ 6798, 6799, and 6800 of the Re- vised Statutes of Missouri of 1879 respecting the assessment and collection of such taxes are not a legal equivalent for the provisions contained in the act of 1868; and (3) That the law of 1868, although repealed by the legislature of Mis- souri, is still in force for the purpose of levying and collecting the tax necessary for the payment of a judgment recovered against a municipal corporation in the state, upon a debt incurred by subscribing to the stock of a railroad company in accordance with its provisions. This was a proceeding by mandamus in the Circuit Court of the United States for the Eastern District of Missouri. The alternative writ recited that in 1883 a peremptory writ of mandamus was issued by the court, commanding the county court of Cape Girardeau County and the judges thereof to make a levy on all the real estate and personal property in SEIBERT v. LEWIS. 285 Statement of the Case. Cape Girardeau township subject to taxation, including statements of merchants and manufacturers doing business in said township, and that thereupon the county court, in obedience to the command of said writ, on the 23d day of May, 1883, during a regular term of said county court, made an order on their records, whereby it was ordered that, for the purpose of of paying the judgments of Elisha Foote, the Ninth National Bank of New York, John T. Hill, Valentine Winter, and George W. Harshman, amounting to $14,288.20, and interest and costs, a tax of two per cent be levied on all the real estate and personal property in Cape Girardeau township subject to taxation, including statements of merchants and manufacturers doing business in said township, and the clerk of the county court was ordered to extend said tax in a separate column on the tax book of said county for the year 1883. That, in obedience to said order, the special tax ordered to be levied as aforesaid was, by the clerk of said court, entered upon and extended in a separate column of the regular tax book of Cape Girardeau County for the year 1883; and, upon the completion of said tax book, the same was delivered in the time and in the manner required by law for the year 1883 to James M. Seibert, collector, who was then and there the collector of taxes, duly elected and qualified as such, and acting therein for the year 1883; and the said collector was then and there ordered by the county court to proceed and collect the said special tax in the same manner as other taxes, state and county, were authorized to be collected for the said year 1883 in said county; and that after the receipt of the said tax book, the said collector, claiming to be prevented from proceeding m the collection of said tax by an injunction issued by the judge of the Tenth Judicial Circuit of the state of Missouri, upon a petition therefor, filed in the name of the state of Missouri upon the relation of the prosecuting attorney of that county, announced his determination to abstain from all efforts to demand, sue for, or collect any part of said special tax, and refused to proceed farther therein. The return of the respondent, Seibert, to the alternative writ admitted the facts therein stated, and set out at length 286 OCTOBER TERM, 1886. Statement of the Case. the petition for injunction referred to therein, filed on the 29th of December, 1883. The petition, filed in the name of the state of Missouri by the prosecuting attorney of the county, prayed for an injunction against the collection of the tax, on the ground that it was not a state tax, nor a tax necessary to pay the funded or bonded indebtedness of the state, nor a tax for current county expenses or schools, or either, and “ that said county court, before making the levy and order as aforesaid, did not make or cause to be made an application to the circuit court of said county, nor to the judge thereof, in vacation, for an order to have assessed, levied, and collected said two per cent tax, nor was any such order in fact made by such court or the judge thereof, in vacation. That, on the contrary, said county court, in violation of the statutes in such cases made and provided and in usurpation of their power, have assessed and levied, and are now trying to have collected, said two per cent tax at its assessed valuation of all the taxable property of said township, without said permission or order of said court, in violation of their duties and without authority of law.” And further, that the levy of the two per cent tax was made for the purpose of paying off a portion of a bonded debt contracted in behalf of Cape Girardeau township by virtue of the act of the General Assembly of the state of Missouri, approved March 23,1868, [see post, page 290,] in aid of railroads, and was in violation of that act because levied on the personal property within said township as well as on the real estate therein. The return further set out that the injunction as prayed for was granted, and the respondent said that, in obedience to the said writ of injunction, he had ceased to collect or to endeavor to collect said special tax, the said injunction being still m force. The respondent in his return further stated, “ that he is ready and willing to do and perform every duty devolved upon him as collector as aforesaid, so far as he legally may, but submits whether he ought to be required to collect the said special tax so as aforesaid levied by the said county court SEIBERT v. LEWIS. 287 Argument for Plaintiff in Error. of Cape Girardeau County, because, as he is informed by counsel, the same was not levied in the mode and manner required by the laws of the state of Missouri, as set forth in §§ 6798 and 6799 of the Revised statutes, [see post, page 292,] concerning the assessment and collection of the revenue, and it is made a criminal offence, punishable by fine of not less than five hundred dollars and forfeiture of office, for any officer in the state of Missouri to collect or attempt to collect any tax or taxes other than those specified and enumerated in § 6798 of the Revised Statutes of Missouri without being ordered so to do by the circuit court of the county, or the judge thereof in vacation, in the manner provided and directed in § 6799 of said Revised Statutes. And respondent submits that the said special tax is not a tax specified and enumerated in § 6798 of the Revised Statutes of Missouri, and that no order was made by the circuit court of Cape Girardeau County directing the said county court to have assessed, levied, and collected such special tax as required by § 6799 of the Revised Statutes of Missouri, and that he is informed by counsel that the said levy of such special tax so as aforesaid made by said county court is illegal and void, and that respondent cannot collect or attempt to collect the same without violating the criminal laws of the state of Missouri.” To this return, the relator demurred generally. The demurrer was sustained, and a peremptory writ ordered to issue, and thereupon the respondent sued out the present writ of error. Mr. D. A. Me Knight for plaintiff in error. The return sets out facts sufficient to constitute a return, oecause it shows that the respondent was proceeding in good faith under the order of the county court to collect the tax, when he was advised that said proceeding was illegal under the statute of Missouri, and this information was enforced by the issue of an injunction from a court of competent jurisdiction. His primary defence, therefore, is that the writ of manda- 288 OCTOBER TERM, 1886. Argument for Plaintiff in Error. mus has commanded him to do an illegal act, and this is sufficient in law. State v. Perrine, 34 N. J. Law (5 Vroom), 254; Johnson v. Lucas, 11 Humph. 306 ; Knox County n. Aspinwall, 24 How. 376. The purpose of the provisions of the statutes of Missouri is to protect the people of the state from the imposition of unjust and illegal taxes by the county courts, which are not judicial tribunals. Those statutes are constitutional, and they were binding upon the county court and the plaintiff in error. State v. Hannibal de St. Joseph Railroad, 87 Missouri, 236; State v. Seibert (a certified copy of which is herewith filed). The Federal courts will lean towards an agreement with the decisions of the state courts in the matter of the construction of their statutes. Burgess v. Seligman, 107 U. S. 20, 33; An-derson v. Santa Anna, 116 U. S. 356; Norton v. Shelby County, 118 U. S. 425. Where this court has ignored certain preliminary requirements of the statutes of a state, in the matter of levying and collecting taxes, it has been where they were non-essentials, and not (as in this case) where they were commanded under penalty of criminal punishment. Hawley v. Fairbanks, 108 U. S. 543; Labette County v. Houlton, 112 U. S. 217. In directing the plaintiff in error by this writ of mandamus to do an unlawful act, expressly forbidden, the Circuit Court exceeded its jurisdiction. Knox County v. Aspinwall, 24 How. 376; Supervisors v. United States, 18 Wall. 71; Barkley v. Levee Commissioners, 93 IT. S. 258; United States n. Clark Country, 95 U. S. 769; Memphis v. United States, 97 IT. S. 293; United States v. Macon County, 99 IT. S. 582; Meriwether v. Garrett, 102 IT. S. 472; Ex pa/rte Rowland, 104 IT. S. 604. The writ of the Circuit Court, directing the plaintiff in error to collect the tax illegally levied under the statute, was in effect a levy and collection by the Circuit Court, and was, therefore, beyond its power. Rees v. Watertown, 19 Wall. 107; Heine n. Levee Commissioners, 19 Wall. 655 ; Meriwether v. Garrett, 102 IT. S. 472; People v. Chicago & Alton Railroad, 55 Ill. 96; Williams v. Cov/nt/y Commit SEIBERT v. LEWIS. 289 Argument for Plaintiff in Error. sioners, 35 Maine, 345. A writ of mandamus cannot compel a levy in any other time or manner than that provided by law. Supervisors v. Klein, 51 Mississippi, 807; People v. Westford, 53 Barb. 555. In this case, by the enactment in the Revision of 1879 of the provisions cited, there was no impairment of the obligation of the contract entered into when the bonds were issued, as will appear from a comparison of said sections with § 2, act approved March 23, 1868. When this court has held the legislative action of a state, enacted subsequently to the issue of the bonds, to be void, it has been in cases where the new law substantially prevented the satisfaction of the judgment. Board of Liquidation v. McComb, 92 U. S. 531; Cass County v. Johnston, 95 IT. S. 360; Murray v. Charleston, 96 U. S. 432; Memphis v. United States, 97 U. S. 293; United States v. Mayor, 103 U. S. 358; Palls County v. United States, 105 IT. S. 733; Louisia/na v. Jumel, 107 IT. S. 711; Louisiana v. Police Jury, 116 U. S. 131; but here a substantial equivalent for the original manner of levying the tax has been furnished, by which the judgment may be fully satisfied, and hence the obligation of the 'contract is unimpaired. Palls County v. United States, 105 IT. S. 733; Wolff v. New Orleans, 103 IT. S. 358; Antoni v. Greenhow, 107 IT. S. 769; Port of Mobile v. Tatson, 116 IT. S. 289; United States v. Mobile, 12 Fed. Rep. 768; Curtis v. Whitney, 13 Wall. 68. The new method of levying the tax, prescribed in the Revised Statutes of 1879, was simple and efficacious, and the Circuit Court’s writ of mandamus to the county court wTas a perfect means of setting the machinery in motion. The State v. Rainey, 74 Missouri, 229. This court has recognized the right of the state of Missouri to amend the act of 1868, under which these bonds were issued, in matters within its discretion. Cape Girardeau v. United States, 118 IT. S. 68. It is within the discretion of the legislature of a state io change tile form of levying and collecting taxes, and of this the bondholders cannot complain. Ton Hoffman v. Quincy, 4 Wall. 535. The states have the right to determine the manner of as-vol. cxxn—19 290 OCTOBER TERM, 1886. Opinion of the Court. sessing and levying taxes, and the decisions of their courts on these questions is binding on the Federal courts. Bailey v. Magwire, 22 Wall. 215. In this case the validity of the judgment on these bonds, and the obligation of the mandamus to the county court, are not denied. But the collector, an officer of the state, has, at the suit of the state, been enjoined from violating a positive law of the state, and the injunction has been sustained by its Supreme Court. In the cases below, and other cases, the injunction, which this court has said could not be set up as a defence against a writ of mandamus from a Federal court, was issued at the suit of the defaulting debtor. Biggs v. Johnson County, 6 Wall. 166; The Mayor v. Lord, 9 Wall. 409 ; Supervisors v. Dura/nt, 9 Wall. 415; Hawley v. Fairbanks, 108 U. S. 543, 546. Mr. J. B. Henderson and Mr. James M. Lewis for defendant in error. Mr. Justice Matthews, after stating the case as above reported, delivered the opinion of the court. It is conceded that the relator’s judgment, which he is now seeking to collect, was founded upon municipal obligations of Cape Girardeau County, issued under the authority of an act to facilitate the construction of railroads in the state of Missouri, which took effect March 23, 1868. Missouri Laws of 1868, p. 92. The second section of that act is as follows: “ Sec. 2. In order to meet the payments on account of the subscription to the stock, according to its terms, or to pay the interest and principal on any bond which may be issued on account of such subscription, the county court shall, from time to time, 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.” It will be observed that the tax authorized by this section o the statute of 1868, under which the bonds were issued, is to SEIBERT v. LEWIS. 291 Opinion of the Court. be levied on the real estate within the township only, and not upon the personal property, including statements of merchants and manufacturers doing business in the township. But this levy upon personal property and merchants’ licenses, in addition to real estate, is authorized by an amendment passed March 10, 1871. 1 Wagner’s Statutes, 1872, 313, § 52. As thus amended, the section reads as follows : “ In order to meet the payments on account of the subscription to the stock according to its terms, or to pay the interest and principal on any bond which may be issued on account of such subscription, the county court shall, from time to time, 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 and personal property, including all statements of merchants doing business within said . . . township, . . . lying and being within the township making the subscription, in accordance with the valuation then last made by the county assessor for county purposes,” &c. That the relator was entitled to a tax levied in pursuance of this amended section, his judgment having been obtained while it was in force, was adjudged in his favor by the Circuit Court when he obtained his peremptory mandamus against the judges of the county court, requiring them to levy the tax, the collection of which he is now seeking to enforce by the present proceeding. The question was also directly adjudged in his favor by this court in the case of Cape Girardeau County Court v. Hill, 118 IT. S. 68. In that case it was said: “ 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 the township that was subject to taxation for public purposes.” Having obtained his judgment while that act remained in torce, and having obtained by the judgment of the Circuit Court an actual levy of a tax according to its provisions, his right thereto became thereby vested so as not to be affected y a subsequent repeal of the statute. But on March 8, 1879, bbe General Assembly of the state of Missouri passed an act, 292 OCTOBER TERM, 1886. Opinion of the Court. found in §§ 6798, 6799, and 6800 of the Revised Statutes of Missouri of 1879, which read as follows: “Sec. 6798. Taxes, how assessed, levied, and collected.— The following-named taxes shall hereafter be assessed, levied, and collected in the several counties in this state, and only in the manner and not to exceed the rates prescribed by the constitution and laws of this state, viz.: the state tax and the tax necessary to pay the funded or bonded debt of the state, the tax for current county expenditures, and for schools. “Sec. 6799. Procedure, limitations, and conditions. — No other tax for any purpose shall be assessed, levied, or collected, except under the following limitations and conditions, viz.: The prosecuting attorney or county attorney of any county — upon the request of the county court of such county, which request shall be of record with the proceedings of said court, and such court being first satisfied that there exists a necessity for the assessment, levy, and collection of other taxes than those enumerated and specified in the preceding section — shall present a petition to the circuit court of his county, or to the judge thereof in vacation, setting forth the facts and specifying the reasons why such other tax or taxes should be assessed, levied, and collected ; and such circuit court, or judge thereof, upon being satisfied of the necessity for such other tax or taxes, and that the assessment, levy, and collection thereof will not be in conflict with the constitution and laws of this state, shall make an order directed to the county court of such county, commanding such court to have assessed, levied, and collected such other tax or taxes, and shall enforce such order by mandamus or otherwise. “ Sec. 6800. Assessment, levy, and collection not to be TM™ except as provided. — Any county court judge, or other county officer in this state, who shall assess, levy, or collect, or who shall attempt to assess, levy, or collect, or cause to be assessed, levied, or collected, any tax or taxes other than those specified and enumerated in section six thousand seven hundred and ninety-eight, without being first ordered so to do by the Circuit Court of the county or the judge thereof, in the expres manner provided and directed in section six thousand seve SEIBERT v. LEWIS. 293 Opinion of the Court. hundred and ninety-nine, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by fine not less than five hundred dollars, and, in addition to such punishment, his office shall become vacant; and the method herein provided for the assessment, levy, and collection of any tax or taxes not enumerated and specified in section six thousand seven hundred and ninety-eight, shall be the only method known to the law whereby such tax or taxes may be assessed or collected, or ordered to be assessed, levied, or collected.” By these provisions, it appears that the state tax and the tax necessary to pay the funded or bonded debt of the state, the tax for the current county expenditures, and for schools, are to be assessed, levied, and collected in the several counties of the state as a matter of positive duty by the county courts of the several counties, according to their previous practice, without the intervention of any other authority. All other taxes, which include the tax sought to be collected in this proceeding, can be assessed, levied, and collected only under the limitations and conditions therein prescribed; that is to say, the county court being first satisfied that there exists a necessity for the assessment, levy, and collection of such other tax, shall request the prosecuting attorney for the county to present a petition to the circuit court of the county, or to the judge thereof in vacation, setting forth the facts, and specifying the reasons why such other tax or taxes should be assessed, levied, and collected. In pursuance of that request the prosecuting attorney is required to present such a petition, and the circuit court, or judge thereof, to whom such petition is presented,' shall make an order directed to the county court of such county, commanding such court to have assessed, levied, and collected such tax, “ upon being satisfied of the necessity for such other tax or taxes, and that the assessment, levy, and collection thereof will not be in conflict with the constitution and laws of this state.” Section 6800 provides, that any county court judge, or other county officer, who shall assess, levy, or collect, or attempt so to do, or cause to be assessed, levied, or collected, any tax, without being first ordered so to do by circuit court of the county, in the express manner pro- 294 OCTOBER TERM, 1886. Opinion of the Court. vided and directed in the preceding section shall be guilty of a misdemeanor, to be punished on conviction by a fine of not less than $500 and a forfeiture of his office; and it is therein declared that “ the method herein provided for the assessment, levy, and collection of any tax or taxes not enumerated and specified in § 6798, shall be the only method known to the law whereby such tax or taxes may be assessed or collected, or ordered to be assessed, levied, or collected.” It is because of these provisions of the law that the respondent herein, as he sets out in his return, has been restrained by an injunction from the circuit court of Cape Girardeau County from further proceeding in the collection of the tax heretofore levied by the county court by virtue of a writ of mandamus from the Circuit Court of the United States. The question presented for our determination is, whether, by virtue of this statute of the state, he is justified in his disobedience to the judgment and mandate of the Circuit Court of the United States. It is well settled by the decisions of this court that “the remedy subsisting in a state, when and where the contract is made and is to be performed, is a part of its obligation, and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is therefore void.” Edwards v. Kearzey, 96 U. S. 595, 607. It had been previously said upon a review of the decisions of the court, in Von Hoffma/n v. City of Quincy, 4 Wall. 535, 553: “ It is competent for the states to change the form of the remedy, or to modify it otherwise as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy which are to be deemed legitimate and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances. Whenever the result last mentioned is produced the act is within the prohibition of the Constitution, and to that extent void.” In Bronson v. Kinzie, 1 How. 311, 317, Chief Justice Taney said: “ It is difficult, perhaps, to draw a line that would be SEIBERT v. LEWIS. 295 Opinion of the Court. applicable in all cases between legitimate alterations of the remedy and provisions which, in the form of remedy, impair the right. But it is manifest that the obligation of the contract, and the rights of a party under it, may, in effect, be destroyed by denying a remedy altogether; or may be seriously impaired by burdening the proceedings with new conditions and restrictions, so as to make the remedy hardly worth pursuing.” In Louisiana n. N&jo Orleajns, 102 U. S. ’203, 206, Mr. Justice Field, in the opinion of the court, said: “ The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced — by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tend to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened.” In various forms, but with the same meaning, this rule has been often repeated in subsequent decisions by this court. It is, therefore, not denied in argument in the present case that § 2 of the act of March 23, 1868, under which the municipal obligations of the relator which had passed into judgment were issued, constitutes a part of the contract to the benefit of which he is entitled. That section, it will be remembered, provides that to pay the interest and principal on any bond which may be issued under the authority thereof, “ the county court shall from time to time levy and cause to be collected, in the same manner as county taxes, a special tax,” &c. The precise question, therefore, for present adjudication is, whether the provisions for levying and collecting such a tax, contained in the sections of the Revised Statutes above quoted, are, m view of the doctrine of this court on that subject, a legal equivalent for the provision contained in the act of March 23, 1868. The affirmative of that proposition is contended for by the plaintiff in error. The argument in support of that position is, that the machinery provided for the collection of such a tax lⁿ § 6799 is purely formal; that it does not touch the substance of the right to have the tax levied and collected, nor does it embarrass and impede it by any unreasonable hindrance 296 OCTOBER TERM, 1886 Opinion of the Court. or delay. It is said that, according to its terms, under a judgment upon such municipal bonds and coupons in a Circuit Court of the United States, it would be the duty of the county court to enter of record that it was satisfied of the existence of the necessity for the levy and collection of such a tax, and thereupon to request the prosecuting attorney to file his petition to the circuit court of the county to obtain the proper order therefor; that it would then be the duty of the prosecuting attorney to file such a petition, and that the circuit court, or a judge thereof, on the production of the judgment required to be paid, would be satisfied of the necessity for such tax, and that the assessment, levy, and collection thereof would not be in conflict with the constitution and laws of the state, even although he might be of the opinion that the bonds themselves were not valid according to the laws of the state; and that, accordingly, the order would be made and directed to the county court, commanding that court to have assessed, levied, and collected the tax, the necessity for the collection of which they had already declared upon their own records. The point of the argument pressed upon us seems to be, that the judgment of the Circuit Court of the United States upon the bonds and coupons would necessarily be conclusive, in the opinion of the county court and of the prosecuting attorney and of the circuit court of the county, upon all matters of law and of fact which otherwise, by this section of the statute, would be committed to the exercise of their judicial discretion. And that, consequently, everything to be done by them under the provisions of that section would thereby become merely ministerial, so that, in case of their refusal to act, they would be subject, at the suit of the judgment creditor, to a proceeding by mandamus to compel them to proceed in the assessment, levy, and collection of the tax to which he was entitled. But the contract which the relator is entitled to insist upon under the act of March 23, 1868, is, that he shall have a special tax for the payment of the principal and interest due him, to be levied from time to time “ in the same manner as county taxes.” It may be admitted that the legislature, from time to time, notwithstanding this provision, might by subsequent SEIBERT v. LEWIS. 297 Opinion of the Court. legislation change the mode and the means for the assessment, levy, and collection of county taxes, as in its judgment the public interests should require. Any such changes, made in view of public interests, not substantially to the prejudice of public creditors, might be considered, in respect to them, as the legal equivalent for the particular mode in force in 1868, and a fair and reasonable substitute therefor. Ordinarily, it would be true that such altered provisions would not be injurious to any private rights, for the creditor would at all times have the guaranty of as prompt and speedy a collection of a tax in satisfaction of his claim as is secured by law for the collection of the revenues of the county, most important for the support of its government. It may, therefore, be considered as a most material and important part of the contract contained in the second section of the act of March 23,1868, not, perhaps, that the creditor shall always have a right to have taxes for his benefit collected in the same manner in which county taxes were collectible at that date, but that he shall at least always have the right to a special tax to be levied and collected in the same manner as county taxes at the same time may be levied and collected. In other words, the essential part and value of the contract is, that he shall always have a special tax to be collected in a manner as prompt and efficacious as that which shall at the time, when he applies for it, be provided by law for the collection of the general revenue of the county. His contract is not only that he shall have as good a remedy as that provided by the terms of the contract when made, but that his remedy shall be by means of a tax, in reference to which the levy and collection shall be as efficacious as the state provides for the benefit of its counties, without any discrimination against him. It is in this vital point that the obligation of the contract with the relator has been impaired by the section of the law under which the respondent seeks to justify his disobedience of the mandate of the Circuit Court. Those sections provide °ne mode for the collection of county taxes by the direct action of the county court; they provide another mode for 298 OCTOBER TERM, 1886. Opinion of the Court. the collection of the special tax for the payment of obligations such as those held by the relator and merged in his judgment. They expressly declare that he shall not be entitled to a tax collected in the same manner as county taxes, but add limitations and conditions which, whatever may have been the legislative motive, compared with the original remedy provided by the law for the satisfaction of his contract, cannot fail seriously to embarrass, hinder, and delay him in the collection of his debt, and which make an express and injurious discrimination against him. We are referred by counsel for the plaintiff in error to the case of Hawley v. Fairbanks108 U. S. 543, as an authority in support of his contention. In that case, however, a peremptory mandamus was awarded to compel the levy and collection of a tax for the payment of a judgment of the Circuit Court of the United States, notwithstanding an injunction to the contrary issued out of the state court. And it was there held that the judgment of the Circuit Court of the United States against the municipality was a sufficient warrant and authority to the county clerk to make the assessment of a tax for its payment, notwithstanding the omission of the preliminary certificates of the town clerk and the allowance by the board of auditors of the town, which in other cases the law made necessary to the orderly levy and collection of the tax. We have also been furnished with the opinion of the Supreme Court of the State of Missouri, in the case of State ex rd. Cror mer v. Judges of the County Court of Cape Girardeau County, 8 Western Reporter, 626, delivered March 21, 1887, affirming the judgment of the circuit court of Cape Girardeau County, perpetuating the injunction set up in the return of the respondent in this case as an answer to the alternative manda-mus. The judge delivering the opinion of the court says: has been ruled by this court that taxes of the nature now m question can only be levied and collected in the manner provided in said section (§ 6799), and that unless the methods prescribed are pursued, the failure to pursue them, when, as here, they are the conditions essential to the exercise of the power, will render the tax invalid. State v. Hannibal & St. Joseph SEIBERT v. LEWIS. 299 Opinion of the Court. Bailroad, 87 Missouri, 236. Here, those methods, those conditions precedent, were not followed ; and hence the county court, having no inherent power to levy a tax, and deriving its only authority from the state, must of necessity pursue the course in this regard marked out by the sovereign authority — by its laws.” The court further proceeds to say that the matter is not affected by the mandate of the Federal court, in reference to which the opinion proceeds as follows : “ If, as already seen, the county court was powerless to act, except when acting in conformity to express statutory conditions, it was still the duty of the judges to comply with those conditions while yielding obedience to the mandate aforesaid ; for, outside of those statutory conditions, they were utterly powerless to act. Indeed, under § 6800, they were punishable for a misdemeanor in failing to comply with the provisions of § 6799 before levying the tax. It does not stand to reason that their act could be valid, and at the same time punishable as a crime. State v. Gaproute, 67 Missouri, 445, 456. If the statutory provisions being discussed were of such a nature as to cut off those who obtained the judgments from enforcing the obligations held by them,, then the authorities cited on their behalf might apply. I understand that it is within the power of the state to change the remedy, so long as it does not essentially affect the right embodied in the contract ; and that such change, thus made, does not infract the rule that forbids the contract to be impaired.” The opinion assumes that the remedy for the collection of the tax provided by the sections of the Revised Statutes of Missouri referred to is legally equivalent to that contained in § 2 of the act of March 23, 1868, the differences between them not appearing to have been considered. It also assumes, for that reason, that those provisions of the Revised Statutes are the only laws in force for the collection of such a tax — those in force in 1871, when the judgment of the Circuit Court was rendered, having been repealed. For the reasons which we have pointed out, we are unable to concur in the judgment of the Supreme Court of Missouri, and are constrained to hold that the sections of the Revised tatutes in question impair the obligation of the contract with 300 OCTOBER TERM, 1886. Statement of the Case. the relator under the act of March 23,1868, and as to him are, therefore, null and void by force of the Constitution of the United States; and that the laws of Missouri, for the collection of the tax necessary to pay his judgment, in force at the time when it was rendered, continue to be and are still in force for that purpose. They are the laws of the state which are applicable to his case. When he seeks and obtains the writ of mandamus from the Circuit Court of the United States, for the purpose of levying a tax for the payment of the judgment which it has rendered in his favor, he asks and obtains only the enforcement of the laws of Missouri under which his rights became vested, and which are preserved for his benefit by the Constitution of the United States. The question, therefore, is not whether a tax shall be levied in Missouri without the authority of its law, but which of several of its laws are in force and govern the case. Our conclusion is, that the statutory provisions relied upon by the respondent in his return to the alternative writ of mandamus do not apply, and do not, therefore, afford the justification which he pleads. The judgment of the Circuit Court is accordi/ngl/y affirmed. MINNEAPOLIS GAS LIGHT COMPANY v. KERR MURRAY MANUFACTURING COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOB THE DISTRICT OF MINNESOTA. Argued May 9, 1887. — Decided May 27, 1887. From the evidence in this case the court is satisfied that the verbal contract which forms the subject of the controversy did not fix any time for the completion of the work, and that the work was completed within a reasonable time; and it affirms the decree of the court below. In equity to enforce a mechanics’ lien. Decree for the complainant. The respondent appealed. The case is stated in the opinion of the court. MINNEAPOLIS GAS CO. v. KERR MURRAY CO. 301 Opinion of the Court. Mr. Anson B. Jackson for appellant. Mr. P. M. Babcock was with him on the brief. Mr. George C. Squires for appellee. Mr. Justice Matthews delivered the opinion of the court. This is a bill in equity filed by the appellee, who was complainant below, a corporation of Indiana, and a citizen of that state, for the purpose of enforcing a mechanics’ lien under the laws of Minnesota for the price and value of a certain gasholder, alleged to have been constructed and erected by it upon the premises of the appellant. The bill avers that on or about the 19th day of February, 1881, at the instance and request of the defendant, the plaintiff erected and constructed for the defendant one telescopic gas-holder, at the city of Minneapolis, Minnesota, at the agreed price of $9070, and that said gas-holder was in all things manufactured, put up, and erected in a good, substantial, and workmanlike manner, and was reasonably worth said sum of $9070; that the defendant also agreed to pay the plaintiff the expense of labor and material expended by the plaintiff in erecting the scaffolding for the construction of said gas-holder, and that said cost was the sum of $138.25, and that said gas-holder was erected upon certain described real estate belonging to defendant ; that the defendant has paid on account of the construction of said gas-holder and cost of said scaffolding the sum of $3792.74, and no more, and demands judgment against the defendant for the sum of $5415.51, and that such judgment Hlay be decreed to be a lien upon the said gas-holder and the lands upon which the same is situated. The answer admits that the contract price of said gas-holder was the sum of $9070; denies that the defendant agreed to pay for such scaffolding, and denies that said gas-holder was worth the sum of $9070, and avers that the same was of no greater value than the sum of $4070; avers that the defendant ^as paid the plaintiff on account of said gas-holder, in cash, the sum of $4953.84; that the defendant delivered the plaintiff 302 OCTOBER TERM, 1886. Opinion of the Court. coke on account of said gas-holder of the value of $1440.46; denies that said gas-holder was erected upon the lands of the defendant, and avers that the same is personal property, and avers that the same was erected and constructed under an express contract, by the terms of which said gas-holder was to 'be constructed in exact accordance with certain plans and specifications which form a part of said contract; avers that said gas-holder was not constructed according to said contract or said plans and specifications, or in a good and workmanlike manner; avers that by reason of the same not having been constructed according to said contract, plans, and specifications, the same has never been fit for the purpose for which it was built, and has never worked in a manner contemplated by said contract, and has always been an imperfect holder; avers that the difference in value between said holder as constructed and what it would have been if constructed in accordance with said contract is the sum of $5000 ; avers that by the terms of said contract it was expressly agreed that the plaintiff should have the iron and other material necessary to build, construct, and fully complete said holder in the city of Minneapolis within sixty days after being notified by the defendant to produce the same, and to fully complete said gas-holder on or before the 15th day of November, 1880. That the defendant notified the plaintiff on or about the 1st day of July, 1880, that it was ready for it to ship said material, and that the defendant, at great cost, erected and fully completed the tank and building, in which said gas-holder was to be placed, on the 1st day of September, 1880, so far as the defendant had agreed to construct the same, but that the plaintiff, disregarding its contract, did not ship to and produce said material at the city of Minneapolis until the winter of 1880 and 1881, and did not pretend to have completed said holder until the 19th day of February, 1881, and that the defendant has never consented to or waived the breach of said contract, as above alleged; avers that between the 15th day of November, 1880, and the 19th day of February, 1881, the defendant was engaged in the business of manufacturing, furnishing, and selling gas to the city of Mm- MINNEAPOLIS GAS CO. v. KERR MURRAY CO. 303 Opinion of the Court. neapolis and the citizens thereof, and that, had the plaintiff constructed and completed said gas-holder on or before said 15th day of November, 1880, the defendant would have made a large amount of profit upon the gas it could and would have manufactured, furnished, and sold between said 15th day of November, 1880, and the 19th day of February, 1881, to wit, the sum of $6757.89, and that, by reason of said plaintiff not completing said gas-holder within the time specified in the contract, the defendant was deprived of such profit and was thereby directly damaged in the sum of $6757.89, and demands judgment against the plaintiff for the sum of $9082.19, with interest thereon since the 19th day of February, 1881. The replication denies all the averments of the answer. On final hearing the court below found the facts to be as follows: “ On May 28,1880, the complainant concluded a verbal contract with the defendant for the construction and completion, ready for use, of a telescopic gas-holder at Minneapolis, according to certain written specifications furnished by the complainant. The defendant was to notify the complainant when to purchase the sheet-iron to be used in manufacturing the holder, and was to have the benefit of any fluctuation in the price of the iron between the date of the contract and the day when notice was given. No time was fixed when the gas-holder should be completed ready for use, though the defendant was anxious it should be ready by November 1, 1880, or in the early fall. The contract price was $9070, and the holder was completed and accepted about February 19, 1881, and has been in part paid for. It is not constructed of the material required by the specifications, and does not fulfil in «very respect the requirements of the contract. “The complainant, by the terms of the contract, was required to erect the gas-holder at Minneapolis and complete it ready for use, and this necessitated scaffolding as the work progressed. Although there is a conflict of testimony about furnishing the scaffolding, I am of the opinion that the com-P ainant waived the clause in the original specifications, which require ‘ the gas company to furnish the necessary scaffolding, 304 OCTOBER TERM, 1886. Opinion of the Court. &c.’ The iron used in the manufacture of the holder is not of the kind and quality called for in the specifications, and the difference in price is three-quarters of a cent per pound. The complainant did not furnish guard-rails and braces, as required, which were worth about $50, and has not paid for stoves it used during the construction of the holder, which were purchased by the defendant at the price of $61.30. It would also require an expenditure of $10 to properly adjust the holder, which slightly tipped. The defendant has paid on account of construction $3792.74, to which complainant concedes in addition a credit of $894.” A decree was rendered in favor of the complainant for $3586.96, with interest from February 19, 1881, being for the amount of the contract price, less deductions on account of payments and the allowances mentioned. In opposition to the conclusions of the Circuit Court, the appellant now insists: 1st. That, by the terms of the contract between the parties, the gas-holder was to have been finished and in place on or before the 15th of November, 1880. 2d. That, on account of the delay between that date and February 19, 1881, when the work was completed, the appellant was entitled to the profit it would have made on the manufacture and sale of gas during that interval, amounting, as is claimed, to the sum of $6757.89. The rule for the ascertainment of these profits, as stated and claimed by counsel for the appellant, is as follows: “ Given a fixed number of pipes of given dimensions for conducting the illuminating fluid from a holder of ample storage capacity to a given number of consumers, who desire and are ready to pay for all the gas which the standard pressure can supply during certain hours, and it becomes a mere matter of mathematics to ascertain the precise number of thousand feet which would be thus supplied and sold. It is equally a matter of arithmetic to ascertain the number of feet supplied through the same pipes, with one-half or one-third the proper pressure. And the difference multiplied by the net profit per thousan feet gives the precise amount lost by the loss of pressure an storage capacity.” MINNEAPOLIS GAS CO. v. KERR MURRAY CO. 305 Opinion of the Court. It was in testimony on the part of the appellant, that the gas cost for its manufacture $1.50 per 1000 feet, and that the company obtained from its customers $3.50 per 1000 feet, making a profit of $2.00 on every 1000 feet. The assumption was that the whole amount of gas which could have been made by the use of the new gas-holder during the period of delay, by the increased pressure, would have been forced through the pipes into consumption, without addition to the number of consumers, and that it would have amounted to the sum mentioned. 3d. That a much larger sum than $675, being at the rate of three-fourths of a cent per pound on the quantity of iron used, should have been allowed for the difference in value between the gas-holder as constructed, and its value if it had been constructed according to the contract; the claim being, under this head, that the contract called for annealed iron, whereas that actually furnished was common iron, and not suitable for the purpose. We have carefully examined and weighed all the evidence in the case bearing on the facts in dispute. We are clearly of opinion that the contract as made did not fix any time for the completion of the work. On the contrary, it was left indefinite at the time of the making of the contract at the request of the appellant itself, who desired to postpone the time for ordering the iron as long as possible, so that it might get the benefit of any fluctuation in the price. After the final order was given, it is true that the appellant endeavored to hasten the period for the final completion of the work; but there was no subsequent agreement fixing any precise date, and its actual completion, which took place on February 19, 1881, we find to have been within a reasonable time. As, therefore, there was no delay beyond the time fixed for its completion by the proper construction of the terms of the agreement, we are relieved from the necessity of considering the question of the alleged loss of profits. An allowance was made by the Circuit Court in the decree °f $675 as a difference in value between the gas-holder as furnished, and as required by the contract, on account of inferi- vol. cxxn—20 306 OCTOBER TERM, 1886. Statement of the Case. ority in the quality of the material used and of the workmanship. We are satisfied, from an examination of the testimony, that this allowance ought not to be increased. There is no sufficient proof that the iron used was not annealed iron. The decree of the Circuit Court is, therefore, affirmed. HARSHMAN v. KNOX COUNTY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. Submitted April 22, 1887. — Decided May 27, 1887. Allegations of material facts and of traversable facts in a declaration which are necessary to be proved in order to support a recovery, are confessed by a default; and in mandamus against the proper municipal officers to enforce the collection of a tax to pay the judgment entered against a municipal corporation upon such default, the respondent is estopped from denying such allegations. Mandamus to enforce the collection of a tax to pay a judgment against a municipal corporation being a remedy in the nature of an execution, nothing can be alleged by the respondent to contradict the record of the judgment. Halls County n. United States, 105, U. S. 733, explained. This was a proceeding by mandamus against the Justices of the county court of Knox County to compel them to levy a tax sufficient to pay a judgment for $77,374.46, obtained by the relator, Harshman, on the 28th of March, 1881, against that county, in the Circuit Court for the * Eastern District of Missouri. The information alleged that “ said judgment was recovered upon bonds and coupons issued by the said county in part payment of a subscription made by the said county on the 9th day of June, 1867, to the capital stock of the Missouri and Mississippi Railroad Company, a railroad company duly organized under the laws of the state of Missouri; that sai subscription was authorized by a vote of the people of sai county at a special election held pursuant to an order of the HARSHMAN v. KNOX COUNTY. 307 Statement of the Case. county court of said county, on the 12th day of March, 1867, under the 17th section of c. 63 of the general statutes of Missouri of 1866, then in force; that at said election two-thirds of the qualified voters of said county voted in favor of and assented to the making of said subscription; that relator has requested the said county court and the justices thereof to levy a special tax upon all property in said county made taxable by law for county purposes, and upon the actual capital that all merchants and grocers and other business men may have invested in business in said county, and to cause the said tax to be collected in money, and when collected to be applied in payment and discharge of said judgment; that the said county court and the justices thereof have refused and neglected to levy the said tax; that the said county has no property out of which the said judgment can be levied, and that relator has no other adequate remedy at law.” The respondents made return to the alternative writ substantially as follows: They admitted that the judgment of the relator was recovered upon bonds and coupons issued by the county of Knox in part payment of two subscriptions made by said county to the capital stock of the Missouri and Mississippi Railroad Company; but they denied that said subscriptions or either of them were authorized by a vote of the people of that county at either a general or special election held pursuant to an order of the county court of said county on the 12th day of March, 1867, or at any other time, under the 17th section of c. 63 of the General Statutes of Missouri, then in force. They denied that two-thirds of the qualified voters of Knox County ever voted in favor of or assented to making any subscription to the capital stock of the Missouri and Mississippi Railroad Company. They averred that, in point of fact, on the 13th of May, 1867, the county court of said county made a subscription to the capital stock of §uid company in the sum of $100,000, and on the 2d of May, 1810, the said court made a further subscription to the capital stock of said company in the sum of $55,000. That in payment ° both of these subscriptions, the said court issued bonds in the dominations of $500 and $50 , that fifty-eight of the relator’s 308 OCTOBER TERM, 1886. Statement of the Case. said bonds were of the first of these issues, and sixty were of the second; that both of these subscriptions were made without the assent of two-thirds of the qualified voters of the county, and, indeed, without any vote being taken at all, and against the will of said qualified voters; that they were made by authority only of § 13 of the charter of the Missouri and Mississippi Railroad Company, being an act of the General Assembly of the state of Missouri, entitled “ An act to incorporate the Missouri and Mississippi Railroad Company,” approved February 20, 1865; that each of relator’s said bonds contained a recital that it was issued under and pursuant to orders of the county court of Knox County to the Missouri and Mississippi Railroad Company, for subscription to the capital stock of said company, as authorized by said act, to incorporate the Missouri and Mississippi Railroad Company, approved February 20, 1865; and that said court had each year since the issue of said bonds levied a tax of one-twentieth of one per cent, upon the assessed value of all the taxable property in said county, and had caused the same to be extended on the tax books of said county for each year, and had had said tax collected for the purpose of paying said bonds and coupons; that Knox County had no money in its treasury with which to pay the relator’s judgment, and that the judges of Knox County had no legal authority to levy any other or greater taxes than the taxes as hereinbefore stated, and no legal authority or power to levy or cause to be collected the special tax which the relator sought to have imposed. On the coming in of this return, the relator moved the court to quash the same on the ground that the matters and things therein set forth were inconsistent with and contradictory to the record of the judgment in the case. This motion was overruled by the court, to which ruling an exception was taken. An answer to the return was filed by the relator, in which were set forth the various steps and proceedings taken, as therein alleged, by the authorities and people of the county oi Knox, in respect to the issue of the bonds on which the judg ment was founded, claiming that an election was duly had by HARSHMAN v. KNOX COUNTY. 309 Statement of the Case. an order of the county court under the authority of the general laws of Missouri, in virtue of which the subscription to the stock of the railroad company was made and the bonds in question issued. To this answer a replication was filed, and the case was submitted to a jury. On the trial, as appeared by a bill of exceptions duly taken, the relator offered to read in evidence the petition, summons, marshal’s return, and judgment referred to in the information. On objection made by the respondents, the court ruled that these papers could not be read unless the relator would also read the bonds filed with said petition, to which ruling the relator excepted. The relator then put in evidence the said papers and also the said bonds. The petition in the original action set out, “ that on the 9th day of June, 1867, defendant subscribed to the capital stock of the Missouri and Mississippi Railroad Company, a railroad company duly organized under the laws of this state, the sum of one hundred thousand dollars; that said subscription was authorized by a vote of the people of said county of Knox at a special election held pursuant to an order of the county court of said county on the 12th day of March, 1867, under the 17th section of c. 63 of the General Statutes of Missouri of 1866, then in force; that at said election two-thirds of the qualified voters of said county voted in favor of and assented to the making of said subscription ; that in part payment of said subscription defendant, by its county court, executed and issued divers bonds with coupons for interest attached; that by each of said bonds defendants promised to pay to bearer, at the National Bank of Commerce, in the city of New York, on the first day of February, 1878, the sum of five hundred o lars, with interest at the rate of seven per cent per annum; at said coupons for interest were made and are payable on o first day of February of each year between the issuing of said bonds and the maturity thereof; that by each of said coupons defendant promised to pay bearer the sum of thirty-Ve dollars, being one year’s interest on the bond to which it was attached. That, in further payment in part of said subscription, defendant executed and issued divers other bonds 310 OCTOBER TERM, 1886. Statement of the Case, with coupons for interest attached ; that by each of said bonds defendant promised to pay to bearer, at the National Bank of Commerce, in the city of New York, on the first day of February, 1880, the sum of five hundred dollars, with interest at the rate of seven per cent per annum; that said coupons for interest were made payable on the first day of February of each year, between the issuing of said bonds and the maturity thereof; that by each of said coupons defendant promised to pay to bearer the sum of thirty-five dollars, being one year’s interest on the bond to which it was attached.” The petition also set out that the plaintiff was the bearer and owner of divers of said bonds and coupons, designated by numbers. The return of the summons showed that the writ was duly served, and judgment was rendered thereon March 28, 1881, by default, which set forth that “ this action being founded upon certain bonds and coupons for interest thereon, issued by said defendant, and described in the petition, the court finds that the plaintiff has sustained damages by reason of the non-payment thereof in the sum of $77,374.46. It is, therefore, considered by the court, that the plaintiff, George W. Harshman, have and recover of the defendant, the county of Knox, as well the said sum of $77,374.46, the damages aforesaid by the court assessed, as also the costs herein expended, and have thereof execution.” Each of the bonds contained the following recital: “This bond being issued under and pursuant to order of the county court of Knox County for subscription to the stock of the Missouri and Mississippi Railroad Company, as authorized by an act of the General Assembly of the state of Missouri, entitled ‘ An act to incorporate the Missouri and Mississippi Railroad Company,’ approved February 20, 1865.” The issues of fact submitted to the jury were as follows: “First. Was there an election held under the orders of the county court read in evidence, and did two-thirds of the qualified voters voting at said election cast their votes in favor o the subscription by the county court to the stock mentione in said orders ? “ Second. Was the subscription to stock to the railroad com HARSHMAN v. KNOX COUNTY. 311 Statement of the Case. pany actually made, not, as recited in said bonds, under the charter of the Missouri & Mississippi Railroad Co., but under the general law, whereby the authority to make such subscription and issue bonds therefor was dependent on the vote of the people; in other words, has the relator proved that, despite the recitals in the bonds, they were not issued as recited, but under the general law, and that said recitals in the bonds were made through mistake or inadvertence.” At the conclusion of the evidence the court instructed the jury, “that to overcome the recitals in the bonds issued by the county court under its seal, the evidence must be clear and positive, full and explicit, and that the burden of proving the alleged mistake, so as to overthrow the said recitals, is upon the relator in this case,” and “ that the evidence to overcome said recitals is insufficient.” In answer to these questions, the jury found in the affirmative on the first, and in the negative on the second; and thereupon the court entered a judgment in favor of the respondents, in which it was recited that it appeared to the court “ that there was an election held under orders of the county court of Knox County, and that two-thirds of the qualified voters voting at said election cast their votes in favor of the subscription by the said court to the stock mentioned in its orders, but that the subscription to the stock of the Missouri and Mississippi Railroad Company was actually made and the bonds issued, .not as alleged in the petition and alternative writ in this case, under the general law of the state of Mis-soun, but solely under and by virtue of an act of the General Assembly of the state of Missouri, entitled ‘ An act to incorporate the Missouri and Mississippi Railroad Company,’ approved February 20, 1865.” Laws of Missouri, 1865, p. 86. The charter of the Missouri and Mississippi Railroad Company, referred to, incorporated it with power to construct a railroad from the town of Macon, in the county of Macon, in the state of Missouri, through the town of Edina, in the coun-y of Knox, in said state, and thence to or near the northeast corner of said state, in the direction of Keokuk, in Iowa, or Alexandria, Missouri. The 13th section was as follows: 312 OCTOBER TERM, 1886. Counsel for Defendants in Error. “ Sec. 13. It shall be lawful for the corporate authorities of any city or town, the county court of any county desiring so to do, to subscribe to the capital stock of said company, and may issue bonds therefor, and levy a tax to pay the same, not to exceed one-twentieth of one per cent upon the assessed value of taxable property for each year.” Ib. p. 88. On the other hand, §§ IT and 18 of the General Railroad Law (Gen. Stat. Missouri, 1865, p. 338) provide as follows: “Sec. 17. It shall be lawful for the county court of any county, the city council of any city, or the trustees of any incorporated town, to take stock for such county, city, or town in, or loan the credit thereof to, any railroad company, duly organized under this or any other law of the state: provided, that two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent to such subscription. “ Sec. 18. Upon the making of such subscription by any county court, city, or town, as provided for in the previous section, such county, city, or town shall thereupon become, like other subscribers to such stock, entitled to the privileges granted and subject to the liabilities imposed by this chapter, or by the charter of the company in which such subscriptions shall be made; and in order to raise funds to pay the instalments which may be called for from time to time by the board of directors of such railroad, it shall be the duty of the county court, or city council, or trustees of such town, making such subscription, to issue their bonds or levy a special tax upon all property made taxable by law for county purposes, and upon the actual capital that all merchants and grocers and other business men may have invested in business in the county, city, or town, to pay such instalments, to be kept apart from other funds, and appropriated to no other purpose than the payment of such subscription. . . .” Mr. T. K. Skinner and Mr. J. B. Henderson each filed a brief for plaintiff in error. Mr. Jan/nes Carr and Mr. George D. Reynolds for defendants in error. . HARSHMAN v. KNOX COUNTY. 313 Argument for Defendants in Error. There were two laws under which the subscription could be made, and the bonds in question issued in payment of said subscription by Knox County to the Missouri and Mississippi Railroad Company. The one was the charter of the railroad company, and the other was the general railroad law. Under the charter of the Missouri and Mississippi Railroad Company the county court of Knox County could make a valid subscription to said company without the assent of two-thirds of the qualified voters of said county, but the County Court in levying a tax to pay the same was limited to a sum not to exceed one-twentieth of one per cent upon the assessed value of the taxable property for each year. Under the general railroad law it was not lawful for the county court of Knox County, or any other county, to subscribe to the capital stock of any railroad company, without the assent of two-thirds of the qualified voters of the county; but there was no restriction upon the amount of the levy which it was the duty of the county court to make. Only parties and privies are estopped by a judgment. Stacy v. Thrasher, 6 How. 44. The defendants were neither parties nor privies to the judgment which the relator recovered against Knox County. They had no right to call witnesses to testify in their favor, to cross-examine the witnesses introduced by the opposite side; to control the defence, or to sue out a writ of error. As they were not parties to said judgment, they are not estopped from showing that the allegations in the relator’s petition, upon which he recovered said judgment by default, are false. Hale v. Finch, 104 U. S. 261; Railroad Co. v. Nat. Bank, 102 U. S. 14; Wood v. Davis, 7 Cranch, 271. Even if the defendants had been parties to said action in which said judgment was recovered, they would not be estopped from showing the actual contract between Knox ounty on one side and the Missouri and Mississippi Railroad ompany and the holders of the bonds issued to it under and jn pursuance of said contract on the other side. It has already een shown that the county court of Knox County had no au-ority or power to subscribe to the capital stock of the Missouri 314 OCTOBER TERM, 1886. Argument for Defendants in Error. and Mississippi Railroad Company under the General Statutes of Missouri without the assent of two-thirds of the qualified voters of the county. And if the county court had put such a recital into the bonds, it could not by such false recital create an obligation to levy a tax under the General Statutes, and thereby estop the defendants from showing that the subscription was made and the bonds issued under the charter of the Missouri and Mississippi Railroad Company. Rights cannot be created and duties imposed by false recitals, where there is a total want of power. Carroll County v. Smith, 111 U. S. 556 ; School District v. Stone, 106 IT. S. 183; Norton v. Shelby County, 118 IT. S. 425; Dwoiess County v. Dickinson, 117 U. S. 657. The judgment by default being rendered on a false allegation, the respondents have a clear right to disprove them and to show the actual contract between the parties. Davis v. Brown, 94 IT. S. 428; Packet Co. v. Sickles, 5 Wall. 580. When the well settled canon of construction, expressio unius est exclusio alterius, is applied to this recital, it is conclusive that the subscription was made and the relator’s bonds issued in part payment thereof, under and by authority of the 13th section of the charter of the Missouri and Mississippi Railroad Company only. United States v. Macon County Court, 99 IT. S. 582. Estoppels must estop both parties, or they will not estop either party. They must be mutual. Bigelow on Estoppel, 98 (4th ed.); Pet/rie v. Nuttall, 11 Exch. 569; Bail/road Co.n. National Ba/nk, 102 IT. S. 14; Carroll County v. Smith, 111 IT. S. 556, 562 ; School District v. Stone, 106 IT. S. 183. The relator having partially opened the record is estopped from objecting to the defendants’ treating the whole record as opened. This is the practice in courts of equity where a complainant seeks the means of carrying into effect a decree or judgment rendered in another litigation between the same parties, or parties claiming under them when the decree or judgment does not provide the means of execution. In such case the court will look into the original cause of action an ascertain whether the complainant is entitled to have the court HARSHMAN v. KNOX COUNTY. 315 Argument for Defendants in Error. aid him in carrying into effect the original decree or judgment. The general rule of res judicata has the foregoing qualification. Bigelow on Estoppel, 96, 97 (4th ed.); O’ Connell v. MacNamara, 3 Drury & Warren, (Sugden Dec.) 411; Hamilton v. Houghton, 2 Bligh, 169; Bean v. Smith, 2 Mason, 299. The relator’s own bonds showed on their face that they had been issued under and by authority of the charter of the Mis-souri and Mississippi Railroad Company. They imparted full notice to him of the authority under which they had been issued. If he had followed up the notice he would have ascertained that the county court of Knox County is restricted in levying “ a tax to pay the same not to exceed one twentieth of one per cent upon the assessed value of taxable property for each year.” State v. Shortridge, 56 Missouri, 126; United States v. Macon County, 99 U. S. 582; State v. Macon Cou/nt/y, 68 Missouri, 29. The defendants, as justices of Knox county court, are officers of the state of Missouri with their powers and duties well defined. Reardon v. St. Louis County, 36 Missouri, 552, 561; St. Louis, <&c. v. County Court, 34 Missouri, 546; Steines v. Franklin County, 48 Missouri, 167, 188 ; Ray County v. Bentley, 49 Missouri, 236 ; Ralls County Court v. United States, 105 U. S. 733; Anthony v. County of Jasper, 101 U. S. 693. The county court of Knox County has annually levied a special tax of one twentieth of one per cent as authorized by the charter of the Missouri and Mississippi Railroad Company, which is all it is required or has authority to do. See Super-visorsN. United States, 18 Wall. 71. As soon as the Supreme Court of Missouri decided in 1874 that the county court of Macon County — and the Knox County bonds were the same in form, mutatis mutandis, as the Macon County bonds, and issued under the same charter — had no legal authority to levy any other or greater tax than one twentieth of one per cent, the county court of Knox County ceased to levy any other or greater tax than one twentieth of one per cent. This it has levied every year. Daviess County v. Dickinson, 117 U. S. 657 ; Mercha/nts¹ Bank v. Bergen County, 115 U. S. 384; Marsh n. Fulton County, 10 Wall. 676 ; Norton v. Shelby County, 118 U. S. 425. 316 OCTOBER TERM, 1886. Opinion of the Court. If the defendants were required by mandamus to levy a special tax to pay the relator’s judgment, it would be a direct violation of the laws of the state of Missouri. Mr. Justice Matthews, after stating the case as above reported, delivered the opinion of the court. It is not denied, and has been so decided by the Supreme Court of Missouri, that, under § 17 of the General Railroad Law, just cited, the county court of a county was authorized to subscribe to the stock of railroad companies, though created by special charter, provided the requisite assent of the qualified voters was duly obtained. Cape Girardeau, dec., County v. Dennis, Cl Missouri, 438; Chouteau v. Allen, 70 Missouri, 290. It is also not denied, that, by virtue of § 18 of the General Railroad Law, the special tax therein provided may be levied for the purpose of paying bonds issued in pursuance thereof, and that without limit as to its amount. United States n. The County of Macon, 99 IT. S. 582. As the limit of taxation prescribed and permitted under § 13 of the act incorporating the Missouri and Mississippi Railroad Company, to be levied in payment of bonds issued thereunder, was not to exceed one-twentieth of one per cent upon the assessed value of the taxable property for each year, the contention of the respondents in the Circuit Court was, that they were entitled to show by the recitals in the bonds themselves, in contradiction to those contained in the judgment founded upon them, that they were in fact issued under the charter of the corporation, and not under the general law. On this point, the judgment of the Circuit Court was in their favor, denying to the relator the peremptory writ of mandamus, and this decision is now alleged as error, for which the judgment should be reversed. The question is, whether the respondents below are estopped in this proceeding by the judgment in favor of the relator against the county of Knox on the bonds, to deny that the bonds were issued in pursuance of § 17, c. 63, of the Genera Statutes of Missouri of 1866. The averment to that effect in HARSHMAN v. KNOX COUNTY. 317 Opinion of the Court. the petition in the action, if material and traversable, 'was confessed by the default. The judgment recites that the action is founded upon certain bonds and coupons for interest thereon issued by said defendant and described in the petition. The averment as to the character of the bonds, and the grounds and authority upon which they were founded, so as to constitute them legal obligations of the county of Knox, contained in the petition, was clearly material to the plaintiff’s cause of action. If the defendant had denied it by a proper pleading, the fact would have been put in issue, and the plaintiff would have been bound to prove it. It was part of the plaintiff’s case to show, not merely the execution of the bonds by the county authorities, but that they were issued in pursuance of a law making them the valid obligations of the county. The power to issue such securities does not inhere in a municipal corporation, so as to be implied from its corporate existence; it must be conferred, either in express words, or by reasonable intendment; and if the authority to issue them in a given case is challenged by a proper denial, the plaintiff is put to the proof. What it is necessary for him to prove, it is proper for him to allege, and the allegation must be proven as made. It follows, therefore, that if a denial had been made in the action on the bonds in question, the averment that they were issued under § 17, c. 63, of the General Statutes of Missouri of 1866, would have been material and traversable, and proof of the fact would have been necessary to support the recovery. In the absence of a denial, the fact as stated in the petition of the plaintiff is confessed by the default, and stands as an admission on the record, of its truth by the defendant. It is quite true that the judgment would have been the same whether the authority to issue the bonds was derived under the general statutes or under the charter of the railroad company, but good pleading required that the fact, whichever way it was, should be stated, and when stated the averment must be proved as laid. As this is a direct proceeding upon the judgment, its effect as an estoppel is determined by the first branch of the rule as laid down in Crom/well v. County of Sac, 94 IT. S. 351, 352. 318 OCTOBER TERM, 1886. Opinion of the Court. That is: • “ It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and.received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” And as stated in Burien v. Shannon, 99 Mass. 200, 203, “ The estoppel is not confined to the judgment, but extends to all facts involved in it, as necessary steps or the groundwork upon which it must have been founded.” It is none the less conclusive because rendered by default. “ The conclusiveness of a judgment upon the rights of the parties does in nowise depend upon its form or upon the fact that the court investigated or decided.the legal principles involved; a judgment by default or upon confession is in its nature just as conclusive upon the rights of the parties before the court as a judgment upon a demurrer or verdict.” Gifford v. Thorn, 9 N. J. Eq. (18 Stockton) 702, 722. The bar is all the more perfect and complete in this proceeding because it is not a new action. Mandamus, as it has been repeatedly decided by this court, in such cases as the present, is a remedy in the nature of an execution for the purpose of collecting the judgment. Biggs v. Johnson County, 6 Wall. 166; Supervisors v. Durant, 9 Wall. 415; Thompson v. United States, 103 IT. S. 480, 484. Certainly nothing that contradicts the record of the judgment can be alleged in a proceeding at law for its collection by execution. In Balls County v. United States, 105 IT. S. 733,734, the Chief Justice said: “ In the return to the alternative writ many defences were set up which related to the validity of the coupons on which the judgment had been obtained, as obligations of the county. As to these defences, it is sufficient to say it was conclusively settled by the judgment, which lies at the foundation of the present suit, that the coupons were binding obligations of the county, duly created under the authority of the charter of the railroad company, and as such entitled to payment out of any fund that could lawfully be raised for that purpose. It has been in effect so decided by the Supreme Court of Missouri in State v. Bainey, 74 Missouri, 229, and the principle on which the decision rests is elementarv ” HARSHMAN v. KNOX COUNTY. 319 Opinion of the Court. As the execution follows the nature of the judgment, and its precept is to carry into effect the rights of the plaintiff as declared by the judgment, with that mode and measure of redress which in such cases the law gives, so the mandamus in a case like the present can be limited in its mandate only by that which the judgment itself declares. It was said, however, in Ralls County v. The United States, 105 U. S. 733, 735, that “ while the coupons are merged in the judgment, they carry with them into the judgment all the remedies which in law formed a part of their contract obligations, and these remedies may still be enforced in all appropriate ways, notwithstanding the change in the form of the debt.” It is argued from this, that, as the remedies to be resorted to for the purpose of enforcing the judgment are those given by the original contract, it is necessary to ascertain from the contract itself what those remedies are; but that is the very matter which has been already passed upon in the judgment, which decides, in the present case, by its recital, the character and extent of the obligation created by the law of the contract. It may well be that in a case where the record of the judgment is silent on the point, the original contract may be shown, notwithstanding the merger, to determine the extent of the remedy provided by the law for its enforcement; but that is not admissible where, as in this case, the matter has been adjudged in the original action. Indeed, in view of the nature of the remedy by mandamus, as the means of executing the judgment, it is all the more material and important that the judgment itself should determine the nature of the contract and the extent of its obligation. The averment in the original petition that the bonds were issued under the authority of a particular statute becomes, therefore, an additional element in the plaintiff’s case in that action for the purpose of showing with certainty what is the mode and measure of redress after judgment. By the terms of the judgment in favor of the relator it was determined that the bonds sued on were issued under the authority of a statute which prescribed no mnt to the rate of taxation for their payment. In such cases, the law which authorizes the issue of the bonds gives also the 320 OCTOBER TERM, 1886. Syllabus. means of payment by taxation. The findings in the judgment on that point are conclusive. They bind the respondents in their official capacity, as well as the county itself, because, as was said in Labette County Commissioners v. Moulton, 112 U. S. 217, they are “ the legal representatives of the defendant in that judgment, as being the parties on whom the law has cast the duty of providing for its satisfaction. They are not strangers to it as being new parties on whom an original obligation is sought to be charged, but are bound by it as it stands without the right to question it, and under a legal duty to take those steps which the law has prescribed as the only mode of providing means for its payment.” The return of the respondents, therefore, to the alternative writ of mandamus is insufficient in law, and the Circuit Court erred in not awarding to the relator a peremptory writ of mandamus. For that error . The judgment is reversed, and the cause remanded, with directions to award a peremptory ma/ndamus. WALTER v. BICKHAM. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF MISSISSIPPI. Submitted May 11, 1887. — Decided May 27, 1887. B. and M. sued out an attachment against the property of L. and A., who had made an assignment for the benefit of creditors. The writ coming to the hands of a marshal of the United States, he indorsed thereon an appointment of a special deputy, leaving the name of the latter blank, and verbally authorizing the attorney of the attaching creditors to fill the blank with the name of some “ bonded officer.” The blank wras filled by the attorney with the name of a sheriff; and, he declining to act, his name was erased by the attorney, who then inserted the name of a town mar shal. The latter having executed the writ by seizing the property of t e debtors, on the same day turned over both the property and the writ o a regular deputy of the marshal. Subsequently the court, with the co sent of the attaching creditors, the debtors and the assignee of t e WALTER v. BICKHAM. 321 Statement of the Case. debtors, ordered the property to be sold, and the proceeds to be brought into court for the benefit of all their attaching creditors, in their order. After the money was paid to the clerk of the court, other creditors of the same debtors obtained judgments against them, and, having procured writs of garnishment to be served on the marshal and clerk, moved to discharge the levy under the attachment, on the ground that it was made by an unauthorized person and was void. Held, that the attaching creditors, the debtors, and the assignee of the debtors having, in effect, waived their objections to the manner in which the property was seized, and the consent order of sale not being impeached for fraud, subsequent judgment creditors could not question the validity of the levy, or the disposition made of the proceeds of the property. On the 29th of September, Bickham & Moore, creditors of Lake & Austin, sued out from the court below an attachment against the property of said debtors, directed to the marshal of the United States for the Northern District of Mississippi. The writ came to the hands of that officer for execution. The attorney of the plaintiffs informed him that “he wanted a blank deputization on a writ of attachment to send to Grenada,” which was the place of the residence of the debtors. This request was at first denied, but finally the following indorsement was made on the writ: “ I hereby appoint----------- my special deputy to execute this writ, the plaintiff not holding me for the acts of such deputy. J. L, Morphis, U. S. Marshal.” The writ, so indorsed, was delivered to the attorney of the attaching creditors and he proceeded to Grenada with it. The marshal testified that he made the above indorsement with the understanding that the blank should be filled up with the name of a “ bonded officer.” Application being made to R- A. Hall, sheriff of Grenada County, to execute the writ, that officer agreed to do so. His name was accordingly inserted in the blank left in the indorsement thereon. He subsequently declined to act. Thereupon, the attorney for the attaching creditors erased the name of Hall and filled the blank with the name of Samuel Ladd, who was a town marshal. The latter executed the attachment on the 2d of October, 1883, by levying upon certain property belonging to Lake, and to Lake & Austin. At a late hour of the same day, a regular deputy of the marshal appeared at Grenada, and took vol. cxxn—21 322 OCTOBER TERM, 1886. Statement of the Case. possession of the personal property which had been previously seized by Ladd under the writ of attachment. The writ was also delivered to him by Ladd. On the 19th day of October, 1883, the following order of sale was made in the cause: “ Upon the application and consent, by attorneys, of all the creditors who have heretofore sued out attachments in this court against Lake & Austin, defendants, and upon consent of said defendants and A. 0. Hebron, claimant, as assignee in the deed of assignment executed by said Lake & Austin, and with the consent of all other and non-attaching creditors of said Lake & Austin, who are this day represented by Messrs. Sullivan & Sullivan and Slack & Longstreet, and it appearing unto the court that an immediate sale of the effects so assigned and attached will best promote and subserve the interests of all and each and every the creditors of said Lake & Austin; therefore it is ordered, adjudged, and decreed by the court that the marshal of this judicial district shall sell at public auction, for cash, to the highest bidder, in one bulk, all the dry goods, groceries, and all other merchandise assigned by said Lake & Austin and subsequently attached and seized under writs issued from this court as aforesaid, . . . and when so sold the proceeds of such sale said marshal shall immediately pay to the clerk of this court, and be held subject to the orders of this court. The proceeds of such sale shall stand in all respects in lieu of and represent the goods and effects assigned and attached, and be liable as said property and effects now, and to said attachments liens iti their order, and not further or otherwise ; and the rights of the parties claiming said goods and effects to replevy the same or to reduce the same or any part thereof upon claim made and the execution of bond, as required by law, shall be in nowise prejudiced or affected by said sale, nor shall the consent to said sale in anywise operate as a waiver of or to the prejudice of any right, benefit, or advantage now held, possessed, or claimed by said parties or any of them, but all and singular the same shall be preserved, this being simply a consent order, and intended to convert the property into money in order to protect the same from waste and great WALTER v. BICKHAM. 323 Statement of the Case. depreciation, and to let the money represent the property in all respects in the litigation. It is further ordered that said marshal do keep accounts of his said sales, showing the amount of proceeds of the several assets sold in the several bulks.” A sale was had pursuant to that order, and the sum of $24,550 — not more than sufficient to satisfy the claim of the plaintiffs and their costs — was realized, and paid over to the clerk of the court. The return of sale showed that so much of the order as required the sale of the books of account and choses in action was rescinded, and the notes levied on were delivered to A. C. Hebron “in accordance with an agreement between counsel for plaintiff and defendants.” On the 20th day of December, 1884, the plaintiffs in error, creditors of Lake & Austin, procured a judgment against the latter for $6300.26, and obtained thereon a writ of garnishment against the marshal and clerk of the court. On the 2d of January, 1884, the same judgment creditors moved the court to discharge the levy made in behalf of Bickham & Moore upon the following grounds : “ 1st. Because said alleged levy was not made by the U. S. marshal or any of his deputies, or by any one duly authorized to execute said writ of attachment. “ 2d. Because the writ of attachment in this cause was levied and executed by Samuel Ladd, who was not and is not an officer of this court from which said writ emanated and was returnable, said Ladd not being either a regular deputy U. S. marshal or a special deputy. “ 3d. Because Mr. H. M. Sullivan, one of the attorneys for plaintiffs in this cause, appointed said Samuel Ladd to execute the said writ of attachment. “4th. Because J. L. Morphis, the U. S. marshal for the Northern District of Mississippi, appointed R. N. Hall, sheriff of Grenada County, his deputy, to execute the said writ of attachment in this cause by his written deputation upon the hack of and on the said writ of attachment, which said writ Was sued put in the IT. S. court for the Northern District of Mississippi, and said writ was not executed by said Hall, who Was so appointed, but was executed by said Samuel Ladd upon 324 OCTOBER TERM, 1886. Opinion of the Court. the appointment of Mr. H. M. Sullivan as aforesaid, without any further authority from said U. S. marshal, by striking out the name of said Hall, upon his own motion, upon said Hall’s declining to act, and substituting the name of Samuel Ladd in place and stead thereof. “ 5th. Because said levy was not made by any lawful officer whatever, or by any one duly appointed to make said levy.” The motion was denied, and the present writ of error was brought to reverse that judgment. JZA R. Walter for plaintiffs in error. I. Congress never intended to authorize any one to serve writs directed to the marshal, other than the marshal himself or those of his appointees who may have duly qualified as deputies by taking the required oath or affirmation ; and service by any one else must be void. Schwabacher v. Reilly, 2 Dillon, 127; Wintemute v. Smith, 1 Bond, 210; Spafford v. Goodell, 3 McLean, 97. II. But assuming that an appointee of the marshal, who has not qualified, can serve process directed to the marshal, it has always been held that there is no power in the marshal to delegate his power of appointment, and that he cannot ratify such an appointment, nor a levy made in his name by one not lawfully appointed. Perkins v. Hopkins, 14 Ala. 536; Montgomery v. Scanland, 2 Yerger, 337; Meyer v. Bishop, N J. Eq. (12 Green) 141, 143. III. Assuming that the marshal had the right to delegate his power of appointment, the power conferred on Sullivan was exhausted after Hall was appointed and agreed to serve. No appearance for defendants in error. Mr. Justice Harlan, after stating the case as above reported, delivered the opinion of the court. On behalf of the plaintiff it is insisted: 1. That the law does not authorize any one to serve writs directed to a marshal, ex- WALTER v. BICKHAM. 325 Opinion of the Court. cept that officer himself, or such of his appointees as may have duly qualified as deputies, by taking the oath or affirmation prescribed by § 782 of the Revised Statutes of the United States; and that service by any one else is void. 2. Assuming that an appointee of the marshal, who was not thus qualified, can serve process directed to the marshal, the latter has no right to delegate to another his power of appointment; and he cannot ratify such an appointment, nor validate a levy made in his name by one not lawfully appointed. 3. Assnm-ing that the marshal has the right to delegate his power of appointment, the authority conferred by him on the attorney of Bickham & Moore was exhausted after Hall’s appointment and agreement to serve. On the other hand, it may be claimed that, if the appointment of Ladd to execute the attachment was illegal, and if his levy was void, the subsequent action of a regular deputy of the marshal in taking possession of the attached property, and holding it under the writ delivered to him by Ladd, made the levy from that time so far valid, that the property was thereafter to be deemed in the lawful custody of such deputy, under the writ of attachment. It is unnecessary to determine any of these questions; for, the record shows that on the 19th of October, 1883 — before the plaintiffs in error obtained their judgment against Lake & Austin, and, therefore, before they had acquired any special interest in the property —in the court below, upon the application and with the consent of all the creditors who had theretofore sued out attachments, and with the consent, as well of the debtors themselves as of Hebron, the assignee in the deed of assignment executed by the debtors, the attached effects were sold, by order of the court, and the proceeds paid, pursuant to that order, to the clerk. Thus, every person, who was m a position, in reference to the property, to object to the manner in which the writ of attachment was executed, consented that the property be placed under the control of the court, the proceeds of the sale to be applied to the attach-Bent liens in their order. Under these circumstances, creditors who did not obtain 326 OCTOBER TERM, 1886. Statement of the Case. judgments until after such consent order was made, cannot be heard to object to the manner in which the property was originally seized and brought into court, and made subject to its orders. The attaching creditors, the debtors, and the assignee of the debtors, having all approved what was done, subsequent judgment creditors—the consent order of sale not being impeached on the ground of fraud—acquired no such rights in the property as entitled them to question the disposition made of it or of the proceeds of sale. The judgment is affirmed. PHILADELPHIA AND SOUTHERN STEAMSHIP COMPANY v. PENNSYLVANIA. ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA. Argued April 7, 1887.—Decided May 27, 1887. A state tax upon the gross receipts of a steamship company incorporated under its laws, which are derived from the transportation of persons and property by sea, between different states, and to and from foreign countries, is a regulation of interstate and foreign commerce, in conflict with the exclusive powers of Congress under the Constitution. State Tax on Railway Gross Receipts, 15 Wall. 284, considered and questioned. The question in this case was, whether a state can constitutionally impose upon a steamship company, incorporated under its laws, a tax upon the gross receipts of such company derived from the transportation of persons and property by sea, between different states, and to and from foreign countries. By an act of the legislature of Pennsylvania, passed March 20, 1877, it was, amongst other things, enacted as follows, to wit: “ That every railroad company, canal company, steamboat company, slack-water navigation company, transportation company, street passenger railway company, and every other company now or hereafter incorporated by or under any law o this commonwealth, or now or hereafter incorporated by any PHILA. STEAMSHIP CO. v. PENNSYLVANIA. 327 Statement of the Case. other state, and doing business in this commonwealth, and owning, operating, or leasing to or from another corporation or company any railroad, canal, slack-water navigation, or street passenger railway, or other device for the transportation of freight or passengers, or in any way engaged in the business of transporting freight or passengers, and every telegraph company incorporated under the laws of this or any other state, and doing business in this commonwealth, and every express company, and any palace-car and sleeping-car company, incorporated or unincorporated, doing business in this commonwealth, shall pay to the state treasurer, for the use of the commonwealth, a tax of eight tenths of one per centum upon the gross receipts of said company for tolls and transportation, telegraph business, or express business.” A similar act was passed by the same legislature on the 7th of June, 1879. By the terms of these acts, returns of the gross receipts are required to be made every six months to the Auditor General, upon which the tax is assessed by him and charged against the company. Under and by virtue of these acts, the Auditor General of the state, in October:, 1882, charged the appellant, The Philadelphia and Southern Mail Steamship Company, taxes upon its gross receipts for the years 1877, 1878, 1879, 1880, and 1881, all of which receipts were derived from freight and passage money between the ports of Philadelphia and Savannah, and m foreign trade from New Orleans, and a small amount for charter parties in the like trade. The tax thus charged against the company for the five years in question amounted to about $6500, and, with accumulated interest and penalties, to over $9000. After serving the account upon the company, an action was brought for its recovery in the Common Pleas of Dauphin County, at Harrisburg. The defendant pleaded that it was a steamship company, “ operating sea-going steamships engaged in the business of ocean transportation between different states of the United States and between the United States and foreign countries, and that all the said steamships °f the said defendant were duly enrolled or registered under 328 OCTOBER TERM, 1886. Argument for Defendant in Error. the laws of the United States for the coasting or foreign trade of the United States, and that the gross receipts so returned to the Auditor General, upon which a tax had been levied by the .Commonwealth of Pennsylvania, were received by defendants for freight and passengers carried in the said steamships on the ocean and on the navigable waters of the United States, between the state of Pennsylvania and other states of the United States, and between the states of the United States and foreign countries, and for the charter and hire of the said steamships to other parties in such trade and business, and that no part of the said gross receipts was received for the transportation of freight and passengers between places within the state of Pennsylvania, or for the hire and use of the said steamships within the state of Pennsylvania.” On the trial of the cause the parties entered into an agreement as to the facts, showing the gross receipts for each year, in each branch of the company’s trade; which facts supported the allegations of the plea. A trial by jury was dispensed with, and the court gave judgment for the commonwealth for the principal of the tax and interest from the time of commencing suit. Exceptions were taken on the ground that the judgment was in conflict with the clause of the Constitution of the United States giving to Congress the power to regulate commerce with foreign nations and among the several states. The judgment being removed by writ of error to the Supreme Court of Pennsylvania, was affirmed by that court; and its judgment was brought before this court for review by writ of error. JZr. Morton P. Henry for plaintiff in error. Mr. TF. S. Kirkpatrick, Attorney General of Pennsylvania, for defendant in error. Mr. John F. Sanderson, Deputy Attorney General of the State, was with him on the brief. The relation of the corporation to the state certainly affects the question at issue. If a domestic corporation, it is the creature of the state, a resident of the same, and deriving its privileges from such state. A foreign corporation deriving PHILA. STEAMSHIP CO. v. PENNSYLVANIA. 329 Argument for Defendant in Error. franchises from extra-territorial authority is not subject to taxation thereon, and is only taxable as to its property whose situs is within the limits of the taxing state. The tax in question is sustainable upon the assumption that it is a tax upon the franchises of the corporation, such corporation being the creature of the taxing power, having its principal place of business within the limits of the state creating it, and its franchises being a valuable interest, property or commodity subject to taxation. Portland Bank, v. Apthorp, 12 Mass. 252 ; Commonwealth v. Peoples'¹ Five Per Cent Ba/nk, 5 Allen, 431; Savings Bank v. Coit, 6 Wall. 606; Provident Institution v. Massachusetts, 6 Wall. 623. The right of a corporation to exist and exercise the powers vested in it by its charter is called its franchise. Burroughs on Taxation, p. 164, § 85. In The Delaware Railroad Tax Case, 18 Wall. 206, it was decided that a tax may be imposed upon a corporation itself, measured by an arbitrary rule. It was there held that a tax may be imposed by a state upon a corporation as an entity existing under its laws, as well as upon the capital stock of the corporation or its separate corporate property. And the manner in which its value is assessed, and the rule of taxation, however arbitrary or capricious, are mere matters of legislative discretion : that a tax upon a corporation may be graduated upon income received, as well as the value of the franchises granted or the property possessed. And that the exercise of the authority which every state possesses to tax its corporations and their property and their franchises, and to graduate the tax upon the corporations according to their business or income or the value of their property, when this is not done by discriminating against rights held in other states, and the tax is not on imports or tonnage, or transportation to other states, cannot be regarded as conflicting with any constitutional power of Congress. The fact that the corporation, plaintiff in error, uses vessels and navigates the natural highways of the country, makes it no less liable to a corporation tax than if it were a railroad company, nor does it affect our position, that the taxation may indirectly or ultimately affect • e commerce carried on, or the instrument used therein. 330 OCTOBER TERM, 1886. Argument for Defendant in Error. Cooley on Taxation, 61 ; Howell v. Maryland, 3 Gill, 14 ; Morgan v. Parham, 16 Wall. 476 ; Transportation Co. v. Wheeling, 99 U. S. 273. The steamship company in the present case is a corporation of Pennsylvania, receiving from that state its corporate existence and franchises, and in contemplation of law it is a citizen and inhabitant of that state. Its franchises, as we have already shown, are property subject to taxation. The employment of its vessels in trade, along the coast and with foreign ports, does not take away the liability of the franchises of the corporation to be taxed where that property is regarded as situated any more than the employment of its vessels outside of the limits of the state would deprive that state of the power to tax them as another species of personal property of the same owner. The corporation owns vessels and it owns its franchises as a corporation. These are two kinds of personal property, and each is taxed as such without regard to the fact that it is involved in and devoted to the pursuit of interstate and foreign commerce. Indeed, the corporation may be taxed as such in consideration of its receiving its corporate existence and privileges, and as possessing therein an interest, or item of property, and there would be even a less direct interference with its operations in commerce than in the taxation of its vessels. The mistake of the opposing counsel is that he fails to observe the distinction between a franchise or privilege to sail a ship or engage in commerce by the employment of any of its usual instrumentalities, and the franchise or liberty to sail ships or engage in commerce as a corporate body. The right to navigate the seas is a natural right, just as is the right to travel upon land in carriages, stages, or by foot, and to carry packages and merchandise for hire. Both are subject to regulation. In the first case the Federal government exercises the right to regulate for the purpose of conserving and controlling this right, as also it has recently done, to some extent, in the case of railroad carriage in the enactment of the interstate commerce bill. The power of the state to tax in the one case is no more taken away than it is in the other. PHILA. STEAMSHIP CO. v. PENNSYLVANIA. 331 Argument for Defendant in Error. We fail to see the difference between the case of vessels ply* ing upon the navigable waters of the United States and a railroad company operating over an artificial highway for the purposes of the present argument. If there is, and steamship companies are exempt for that reason from taxation upon their franchises, then an express company, or messenger company, or stage coach company would be exempt for the same reason if their business embraced interstate traffic; for they, as in the case of vessel owners, use the natural or artificial highways of the country already at hand, and which all may use. The use of a public road or a river by travellers engaged in business, or in pursuit of recreation, is in all essential respects the same. The mere accident that one is solid and the other liquid, does not affect the similarity of conditions in respect to the question now before us. The case of the State Tax on Railway Gross Receipts, 15 Wall. 284, clearly controls and rules the present case. The fact that it was a railroad company is only an incidental and non-essential difference, as will readily be seen by a mere reading of the case. It was there held that the tax in question being under a statute in all material respects identical with the present one, and intended to embrace all transportation companies, was a tax upon the corporation, measured by the fruits of its business, as ascertained after they were mingled with its property in the possession of the company, and at intervals of six months. It is better to quote from the opinion than to attempt to give its substance in order to develop the true ground upon which it was based. This court there said, with reference to the question as to whether the tax in controversy was an invasion upon the Federal power to regulate commerce, “ The answer which must be given to it depends upon the prior question whether a tax upon gross receipts of a transportation company is a tax upon commerce so far as that commerce consists in moving goods or passengers across state lines. No doubt every tax upon personal property or upon occupations, business or franchises, affects, more or less, the subjects and the operations of 332 OCTOBER TERM, 1886. Argument for Defendant in Error. commerce. Yet it is not everything that affects commerce that amounts to a regulation of it, within the meaning of the Constitution. We think it may safely be asserted that the states have authority to tax the estate, real and personal, of all their corporations, including carrying companies, precisely as they may tax similar property when belonging to natural persons, and to the same extent. We think, also, that such taxation may be laid upon a valuation, or may be an excise, and that in exacting an excise tax from their corporations the states are not obliged to impose a fixed sum upon the franchises, or upon the value of them, but they may demand a graduated contribution, proportioned either to the value of the privilege granted, or to the extent of their exercise, or to the results of such exercise. No mode of effecting this, and no forms of expression which have not a meaning beyond this, can be regarded as violating the Constitution.” Then, after adverting to the distinction between tax on freight, or the price of transportation, and tax upon gross receipts, ascertained at semiannual periods, after they have come into the possession of the company, and showing that such tax in the latter is not upon commerce, but upon a subject which has lost its distinctive character as freight and become mingled with the property of the corporation, the court thereby shows that it is practically upon the fruits of the business, and not upon the business itself. It is not necessary to determine whether the court meant to place this part of its opinion upon the idea of its being a property tax, or as an argument to show that the basis of the taxation was analogous to such tax, and that such basis was withdrawn from the conditions of a tax upon freight. The court finally goes on to say, however: “ It is not to be questioned, however, that the states may tax the franchises of companies created by them, and that the tax may be proportioned either to the value of a franchise granted or to the extent of its exercise; nor is it deniable that gross receipts may he a measure of proximate value, or if not, at least of the extent of the enjoyment. If the tax be, in fact, laid upon the companies adopting such a measure, it imposes no greater burden upon any freight or business from which the receipts came than worn PHILA. STEAMSHIP CO. v. PENNSYLVANIA. 333 Argument for Defendant in Error. be an equal tax laid upon a direct valuation of the franchise. In both cases the necessity of higher charges to meet the exaction is the same.” Commerce over the railroads of the country is just as much commerce within the meaning of the Constitution as commerce over the water ways. The question to be determined is not whether commerce is affected, but whether it is controlled or operated upon directly by the taxing power. The character of the highway cannot determine this question, nor can it depend upon whether the traffic is carried on by a boat or a car. If the taxation is upon the tonnage or freights or fares, it is an interference with the commercial power. If it be taxation upon a valuation of the fruits of the business after they have become mingled with its property, it is not obnoxious to the Federal prohibition. In the present case the greater part of the trade was between the cities of Philadelphia and Savannah. Now, suppose the same trade, involving precisely the same merchandise, had been carried on by means of railway cars between the same points, it would unquestionably have been within the ruling of the Railway Gross Receipts Case. Surely it cannot be successfully contended that because it was carried in a ship instead of a railway car a different principle will be applied, and that for that reason alone it is not governed by the last cited case. The inconsequential character of such an argument will more forcibly appear when it is remembered that the ship itself may be taxed as personal property. The case of Railroad Compa/n>y v. Maryland, 21 Wall. 456, does not justify the use made of it by the other side. It must be borne in mind that in that case the right claimed by the state was to take and receive from the company, which was conceded as having been largely devoted to interstate travel, one-fifth of the total amount received for the transportation of passengers under a stipulation in its charter received from the state of Maryland, and which was a condition ⁰ its corporate existence. For the privilege of being endowed with the right of eminent domain and the power to construct a which the state itself might build, the corporation as a 334 OCTOBER TERM, 1886. Argument for Defendant in Error. part of its charter agreed to give to the state a part of what the state might have wholly reserved. The state gave up its power to construct the highway itself to the corporation, and as a price therefor reserved a portion of the tolls which it might have earned for itself if it had itself commenced and operated the railroad. The opinion of Judge Bradley is with reference to this aspect of the case, and the remarks as to the difference between artificial highways such as railroads, and natural highways such as rivers and seas, were evidently with reference to the fact that the state had delegated a part of its power to construct, control, and reap profits from an artificial highway, reserving a part of the profit to itself. There is nothing in that case that can be construed into a departure from the case of the Railway Gross Receipts or as laying down the doctrine that the right of the state to tax a corporation or its franchises generally upon the basis of the gross receipts is limited to the case of railroad companies or companies having the power to construct and operate an artificial highway. The Railway Gross Receipts Case and the present case are both under a general statute imposing a tax upon transportation companies generally. They are both alike cases of taxation upon the franchises of carrying companies according to a certain measurement, and therefore the remarks of Judge Bradley in the case in 21 Wallace would not be directly applicable here. The cases of Grover & Baker Sewing Machi/ne Co. n. Butler, 53 Ind. 454; Shook v. Singer Manufacturing Co., 61 Ind. 520, and Ex parte Robinson, 2 Bissell, 309, are clearly not applicable. The present case is not in any way analogous to the case of an attempt to restrain, limit, or regulate the transaction of business in manufacturing and selling patents. It may be even conceded that the imposition of conditions and restrictions upon corporations exercising such business would not be valid, without in any way affecting our present contention. Granted that the right to navigate the navigable waters o the United States is free to all, subject only to the regula- PHILA. STEAMSHIP CO. v. PENNSYLVANIA. 335 Opinion of the Court. tions imposed by the navigation laws, the right to tax the property or franchises is not a restraint, condition, or limitation on the operations or business of navigating any more than such tax is a limitation on the operation of, or carriage upon, a train of railway cars. Any restriction or limitation, such as requiring a license or enrolment, or payment of port fees for the privilege of passing through the harbors, rivers, or other waters of a state would be an analogous case, and these requirements of course could not be sustained. That a tax might indirectly affect the commerce in question, by increasing its burdens or rates, is, as shown in the cases cited, no valid objection to its collection, and therefore, for that reason, could not be an objection in the present case. This would be so even if the United States conferred the right of navigation instead of merely licensing and regulating it. Whether, therefore, the Railway Gross Receipts CaSe and others which have followed and accepted its conclusions, be regarded as sustaining such a tax upon the corporation franchises whose value is measured thereby, or upon such receipts as property received into its possession, the right of taxation m the present case may be regarded as having been thereby finally settled. To refuse to sustain the right of taxation upon the gross receipts of steamship companies would necessitate a direct overruling of the solemn adjudications of this court, for there is no rational distinction which can be drawn to take this case out of the operation of the principles heretofore announced. Mr. Justice Bradley, after stating the case as above reported, delivered the opinion of the court. The question which underlies the immediate question in the case is, whether the imposition of the tax upon the steamship company’s receipts amounted to a regulation of, or an interference with, interstate and foreign commerce, and was thus in conflict with the power granted by the Constitution to Congress ? The tax was levied directly upon the receipts derived 336 OCTOBER TERM, 1886. Opinion of the Court. by the company from its fares and freights for the transportation of persons and goods between different states, and between the states and foreign countries, and from the charter of its vessels which was for the same purpose. This transportation was an act of interstate and foreign commerce. It was the carrying on of such commerce. It was that, and nothing else. In view of the decisions of this court, it cannot be pretended that the state could constitutionally regulate or interfere with that commerce itself. But taxing is one of the forms of regulation. It is one of the principal forms. Taxing the transportation, either by its tonnage, or its distance, or by the number of trips performed, or in any other way, would certainly be a regulation of the commerce, a restriction upon it, a burden upon it. Clearly this could not be done by the state without interfering with the power of Congress. Foreign commerce has been fully regulated by Congress, and any regulations imposed by the states upon that branch of commerce would be a palpable interference. If Congress has not made any express regulations with regard to interstate commerce, its inaction, as we have often held, is equivalent to a declaration that it shall be free, in all cases where its power is exclusive ; and its power is necessarily exclusive whenever the subject matter is national in its character and properly admits of only one uniform system. See the cases collected in Roboins v. Shelby Taxing District, 120 IT. S. 489, 492, 493. Interstate commerce carried on by ships on the sea is surely of this character. If, then, the commerce carried on by the plaintiff in error in this case could not be constitutionally taxed by the state, could the fares and freights received for transportation in carrying on that commerce be constitutionally taxed? If the state cannot tax the transportation, may it, nevertheless, tax the fares and freights received therefor ? Where is the difference. Looking at the substance of things, and not at mere forms, it is very difficult to see any difference. The one thing seems to be tantamount to the other. It would seem to be rather metaphysics than plain logic for the state officials to say to the company: “We will not tax you for the transportation you PHILA. STEAMSHIP CO. v. PENNSYLVANIA. 337 Opinion of the Court» perform, but we will tax you for what you get for performing it.” Such a position can hardly be said to be based on a sound method of reasoning. This court did not so reason in the case of Brown v. Mary-land, 12 Wheat. 419. The state of Maryland required all importers of foreign goods and other persons, selling the same by wholesale, bale or package, to take out a license and pay $50 therefor, subject to a penalty and forfeiture for selling without such license. It was contended on the part of the state that this was a mere tax on the occupation of selling foreign goods, affecting only the person and not the importation of the goods themselves, or the occupation of importing them. Chief Justice Marshall met this objection by showing that the attempt to regulate the sale of imported goods was as much in conflict with the power of Congress to regulate commerce as a regulation of their importation itself would be. “ If this power,” said he, (referring to the power of Congress,) “reaches the interior of a state, and may be there exercised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse : one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point when its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation, and is an essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an in-gradient, as indispensable to the existence of the entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right, not only to authorize importation, but to authorize the importer to sell. . . . Any penalty inflicted on the importer for selling the article in his character of importer must be in opposition to the act of Congress which authorizes importation. . . . The distinction between a tax on the thing imported, and on the person of the importer, can have vol. cxxn—22 338 OCTOBER TERM, 1886. Opinion of the Court. no influence on this part of the subject. It is too obvious for controversy that they interfere equally with the power to regulate commerce.” pp. 446-448. The application of this reasoning to the case in hand is obvious., Of what use would it be to the ship-owner, in carrying on interstate and foreign commerce, to have the right of transporting persons and goods free from state interference, if he had not the equal right to charge for such transportation without such interference ? The very object of his engaging in transportation is to receive pay for it. If the regulation of the transportation belongs to the power of Congress to regulate commerce, the regulation of fares and freights receivable for such transportation must equally belong to that power; and any burdens imposed by the state on such receipts must be in conflict with it. To apply the language of Chief Justice Marshall, fares and freights for transportation in carrying on interstate or foreign commerce are as much essential ingredients of that commerce as transportation itself. It is necessary, however, that we should examine what bearing the cases of the State Freight Tax and Railway Gross Receipts, reported in 15th of Wallace, have upon the question in hand. These cases were much quoted in argument, and the latter was confidently relied on by the counsel of the Commonwealth. They both arose under certain tax laws of Pennsylvania. The first, which is reported under the title of Case of the State Freight Tax, 15 Wall. 232, was that of the Reading Railroad Company, and arose under an act passed in 1864, which imposed upon every railroad, steamboat, canal and slack-water navigation company a tax of a certain rate per ton on every ton of freight carried by or upon the works of said company; with a proviso directing, in substance, that every company, foreign or domestic, whose line extended partly m Pennsylvania, and partly in another state, should pay for the freight carried over that portion of its line in Pennsylvania the same as if its whole fine were in that state. Under this law the Reading Railroad Company was charged a tax o $38,000 for freight transported to points within Pennsylvania, and of $46,000 for that exported to points without the state. PHILA. STEAMSHIP CO. v. PENNSYLVANIA. 339 Opinion of the Court. The latter sum the company refused to pay; and the question in this court was, whether that portion of the tax was constitutional; and we held that it was not. Mr. Justice Strong delivered the opinion of the court. It was held that this was not a tax upon the franchises of the companies, or upon their property, or upon their business, measured by the number of tons of freight carried; but was a tax upon the freight carried, and because of its carriage: that transportation is a constituent of commerce: that the tax was, therefore, a regulation of commerce, and a regulation of commerce among the states: that the transportation of passengers or merchandise from one state to another is, in its nature, a matter of national impor-tance, admitting of a uniform system or plan of regulation, and therefore, under the rule established by Cooley v. The Port Wardens, 12 How. 299, exclusively subject to the legislation of Congress. The inevitable conclusion was, that the tax then in question was in conflict with the exclusive power of Congress to regulate commerce among the states, and was, therefore, unconstitutional. Referring to the decision in Cra/n-dall v. Nevada, 6 Wall. 35, in which this court had decided that a state cannot tax persons for passing through or out of it, Justice Strong said: “ If state taxation of persons passing from one state to another, or a state tax upon interstate transportation of passengers, is unconstitutional, a fortiori, if possible, is a state tax upon the carriage of merchandise from state to state in conflict with the Federal Constitution. Merchandise is the subject of commerce. Transportation is essential to commerce; and every burden laid upon it isyw tanto a restriction. Whatever, therefore, may be the true doctrine respecting the exclusiveness of the power vested in Congress to regulate commerce among the states, we regard it as established that no state can impose a tax upon freight transported from state to state, or upon the transporter because of such transporta- The court in its opinion took notice of the fact that the aw was general in its terms, making no distinction between eight transported wholly within the state and that which was destined to, or came from, another state. But it was held 340 OCTOBER TERM, 1886. Opinion of the Court. that this made no difference. The law might be valid as to one class, and unconstitutional as to the other. On this subject Justice Strong said: “ The state may tax its internal commerce, but if an act to tax interstate or foreign commerce is unconstitutional, it is not cured by including in its provisions subjects within the jurisdiction of the state. Nor is a rule prescribed for carriage of goods through, out of, or into a state, any the less a regulation of transportation because the same rule may be applied to carriage which is wholly internal.” This last observation meets the argument that might be made in the present case, namely, that the law is general in its terms, and taxes receipts for all transportation alike, making no discrimination against receipts for interstate or foreign transportation, and hence cannot be regarded as a special tax on the latter. The decision in the case cited shows that this does not relieve the tax from its objectionable character. If this case stood alone, we should have no hesitation in saying that it would entirely govern the one before us; for, as before said, a tax upon fares and freights received for transportation is virtually a tax upon the transportation itself. But at the same time that the Case of State Freight Tax was decided, the other case referred to, namely, that of State Tax on Railway Gross Receipts, was also decided, and the opinion was delivered by the same member of the court. 15 Wall. 284. This was also a case of a tax imposed upon the Reading Railroad Company. It arose under another act of Assembly of Pennsylvania, passed in February, 1866, by which it was enacted that “ in addition to the taxes now provided by law, every railroad, canal and transportation company incorporated under the laws of this commonwealth, and not liable to the tax upon income under existing laws, shall pay to the commonwealth a tax of three-fourths of one per centum upon the gross receipts of said company; the said tax shall be paid semiannually.” Under this statute the accounting officers of Pennsylvania stated an account against the Reading Railroa Company for tax on gross receipts of the company for the ha year ending December 31, 1867. These receipts were derive partly from the freight of goods transported wholly within PH1LA. STEAMSHIP CO. v. PENNSYLVANIA. 341 , Opinion of the Court. the state, and partly from the freight of goods exported to points without the state, which latter were discriminated from the former in the reports made by the company. It was the tax on the latter receipts which formed the subject of controversy. The same line of argument was taken at the bar as in the other case. This court, however, held the tax to be constitutional. The grounds on which the opinion was based, in order to distinguish this case from the preceding one, were two: first, that the tax, being collectible only once in six months, was laid upon a fund which had become the property of the company, mingled with its other property, and incorporated into the general mass of its property, possibly expended in improvements, or otherwise invested. The case is likened, in the opinion, to that of taxing goods which have been imported, after their original packages have been broken, and after they have been mixed with, the mass of property in the country, which, it was said, are conceded in Brown v. Maryland to be taxable. This reasoning seems to have much force. But is the analogy to the case of imported goods as perfect as is suggested? When the latter become mingled with the general mass of property in the state, they are not followed and singled out for taxation as imported goods, and by reason of their being imported. If they were, the tax would be as unconstitutional as if imposed upon them whilst in the original packages. When mingled with the general mass of property in the state they are taxed in the same manner as other property possessed by its citizens, without discrimination or partiality. We held in Welton v. Missouri, 91 U. S. 275, that goods brought into a state for sale, though they thereby become a part of the mass of its property, cannot be taxed by reason of their being introduced into the state, or. because they are the products of another state. To tax them as such was expressly eld to be unconstitutional. The tax in the present case is aⁱd upon the gross receipts for transportation as such. Those receipts are followed and caused to be accounted for by the company, dollar for dollar. It is those specific receipts, or the amount thereof, (which is the same thing,) for which the com- 342 OCTOBER TERM, 1886. Opinion of the Court. pany is called upon to pay the tax. They are taxed not only because they are money, or its value, but because they were received for transportation. No doubt a ship-owner, like any other citizen, may be personally taxed for the amount of his property or estate, without regard to the source from which it was derived, whether from commerce, or banking, or any other employment. But that is an entirely different thing from laying a special tax upon his receipts in a particular employment. If such a tax is laid, and the receipts taxed are those derived from transporting goods and passengers in the way of interstate or foreign commerce, no matter when the tax is exacted, whether at the time of realizing the receipts, or at the end of every six months or a year, it is an exaction aimed at the commerce itself, and is a burden upon it, and seriously affects it. A review of the question convinces us that the first ground on which the decision in State Tax on Railway Gross Receipts was placed is not tenable; that it is not supported by anything decided in Brown v. Maryland,; but, on the contrary, that the reasoning in that case is decidedly against it. The second ground on which the decision referred to was based was, that the tax was upon the franchise of the corporation granted to it by the state. We do not think that this can be affirmed in the present case. It certainly could not have been intended as a tax on the corporate franchise, because, by the terms of the act, it was laid equally on the corporations of other states doing business in Pennsylvania. If intended as a tax on the franchise of doing business, — which in this case is the business of transportation in carrying on interstate and foreign commerce, — it would clearly be unconstitutional. It was held by this court in the case of Gloucester Ferry Gompa/ny v. Pennsylvania, 114 U. S. 196, that interstate commerce carried on by corporations is .entitled to the same protection against state exactions which is given to such commerce when carried on by individuals. In that case the tax was laid upon the capital stock of a ferry company incorporated by New Jersey, and engaged in the business of transporting passengers and freight between Camden, in New Jer- PHILA. STEAMSHIP CO. v. PENNSYLVANIA. 343 Opinion of the Court. sey, and the city of Philadelphia. The law under which the tax was imposed was passed by the legislature of Pennsylvania on the 7th of June, 1879, and declared “ that every company or association whatever, now or hereafter incorporated by or under any law of this commonwealth, or now or hereafter incorporated by any other state or territory of the United States, or foreign government, and doing business in this commonwealth,” . . . [with certain exceptions named,] “ shall be subject to and pay into the treasury of the commonwealth annually* a tax to be computed as follows, namely: ” the amount of tax is then rated by the dividends declared, and imposed upon the capital stock of the company at the rate of so many mills, or fractions of a mill, for every dollar of such capital stock. It was contended that the ferry company could not hold property in Philadelphia for the purpose of carrying on its ferrying business, and could not carry on its said business there without a franchise, express or implied, from the state of Pennsylvania. But this court held, in its opinion, delivered by Mr. Justice Field, that the business of landing and receiving passengers and freight at the wharf in Philadelphia was a necessary incident to, and a part of, their transportation across the Delaware River from New Jersey, that without it, that transportation would be impossible; that a tax upon such receiving and landing of passengers and freight is a tax upon their transportation, that is, upon the commerce between the two states involved in such transportation; and that Congress alone can deal with such transportation; its non-action being equivalent to a declaration that it shall remain free from burdens imposed by state legislation. The opinion proceeds as follows : “Nor does it make any difference whether such commerce is carried on by individuals or corporations. Welton v. Missouri, 91 U. S. 275 ; Mobile v. Kimball, 102 U. S. 691. As was said in Paul v. Virgi/nia, 8 Wall. 168, at the time of the formation of the Constitution, a large part of the commerce of the world was carried on by corporations; and the East India Company, the Hudson Bay Company, the Hamburgh Company, the Levant Company, and the Virginia Company were mentioned as among the corporations which, from 344 OCTOBER TERM, 1886. Opinion of the Court. the extent of their operations, had become celebrated throughout the commercial world. The grant of power [to Congress] is general in its terms, making no reference to the agencies by which commerce may be carried on. It includes commerce by whomsoever conducted, whether by individuals or corporations.” p. 204. Again, “While it is conceded that the property in a state belonging to a foreign corporation engaged in foreign or interstate commerce may be taxed equally with like property of a domestic corporation engaged in that business, we are clear that a tax or other burden imposed on the prop erty of either corporation because it is used to carry on that commerce, or upon the transportation of persons or property, or for the navigation of the public waters over which the transportation is made, is invalid and void as an interference with, and obstruction of, the power of Congress in the regulation of such commerce.” p. 211. It is hardly necessary to add that the tax on the capital stock of the New Jersey Company, in that case, was decided to be unconstitutional, because, as the corporation was a foreign one, the tax could only be construed as a tax for the privilege or franchise of carry ing on its business, and that business was interstate commerce. The decision in this case, and the reasoning on which it is founded, so far as they relate to the taxation of interstate commerce carried on by corporations, apply equally to domestic and foreign corporations. No doubt the capital stock of the former, regarded as inhabitants of the state, or their property, may be taxed as other corporations and inhabitants are, provided no discrimination be made against them as corporations carrying on foreign or interstate commerce, so as to make the tax, in effect, a tax on such commerce. But their business as carriers in foreign or interstate commerce cannot be taxed by the state, under the plea that they are exercising a franchise. There is another point, however, which may properly deserve some attention. Can the tax in this case be regarded as an income tax ? and, if it can, does that make any difference as to its constitutionality ? We do not think that it can properly be regarded as an income tax. It is not a general tax on PHILA. STEAMSHIP CO. v. PENNSYLVANIA. 345 Opinion of the Court. the incomes of all the inhabitants of the state; but a special tax on transportation companies. Conceding, however, that an income tax may be imposed on certain classes of the community, distinguished by the character of their occupations; this is not an income tax on the class to which it refers, but a tax on their receipts for transportation only. Many of the companies included in it may, and undoubtedly do, have incomes from other sources, such as rents of houses, wharves, stores, and water-power, and interest on moneyed investments. As a tax on transportation, we have already seen from the quotations from the State Freight Tax Case that it cannot be supported where that transportation is an ingredient of interstate or foreign commerce, even though the law imposing the tax be expressed in such general terms as to include receipts from transportation which are properly taxable. It is unnecessary, therefore, to discuss the question which would arise if the tax were properly a tax on income. It is clearly not such, but a tax on transportation only. * The corporate franchises, the property, the business, the income of corporations created by a state may undoubtedly be taxed by the state ; but in imposing such taxes care should be taken not to interfere with or hamper, directly or by indirection, interstate or foreign commerce, or any other matter exclusively within the jurisdiction of the Federal government. This is a principle so often announced by the courts, and especially by this court, that it may be received as an axiom of our constitutional jurisprudence. It is unnecessary, therefore, to review the long list of cases in which the subject is discussed. Those referred to are abundantly sufficient for our purpose. We may add, however, that since the decision of the Ranlway T'. The water column or vessel C has a aucet, d, to draw off water, when desired to decrease the pressure. A depending branch-pipe, manufactures of the articles of which the beads were composed, and on manufactures of the metal of the chain and cross, being less than 50 per cent ad valorem; and § 2499 requiring that “ on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable; ” and rosaries not being an enumerated article. Benziger v. Robertson, 211. See Treaty. 666 INDEX. DAMAGES. See Collision, 4; Trespass on the Case, 2, 3. DEFAULT. See Mandamus, 1. DES MOINES VALLEY IMPROVEMENT GRANT. See Public Land, 1. DIVISION OF OPINION. See Jurisdiction, A, 1. EQUITY. 1. The court finds no fraud or irregularity in the transactions assailed in the bill to warrant a reversal of the decree. Sanger v. Nightingale, 176. 2. In order to justify a resort to a court of equity for the enforcement of an equitable estoppel, some ground of equity, other than the estoppel itself, must be shown whereby the party entitled to the benefit of it is prevented from making it available in a court of law; and it must be made to appear that forms of law are being used to defeat that which, in equity, constitutes the right. Drexel s. Berney, 241. 3. When in a suit in equity brought to restrain the respondent from en- forcing against the complainant in an action at law a demand against which the complainant claims to have an equitable defence which is set forth in the bill, it appears to be altogether uncertain whether the complainant can avail himself in the action at law of the defence asserted in the bill, the bill should not be dismissed upon general demurrer, but the respondent should be required to answer, lb. 4. B., a citizen of the United States, died in France, having in Europe, lodged with bankers in London and elsewhere, a large amount of personal securities. He left a will naming his widow, his brother J. of Alabama, one S., a citizen of France, and others as executrix and executors. With the knowledge and consent of the widow and of the other parties interested J. caused the will to be admitted to probate in Alabama, obtained a decree that the decedent was domiciled there, and letters testamentary were issued to J. only. The Surrogate of New York, upon this probate, issued ancillary letters testamentary to J.; and, under the same probate, S., likewise with the widow’s consent, received a power of attorney from J. as executor to take possession of the property in Europe and administer upon the estate there. In pursuance of this authority he, in company with the widow, proved the will in common form in England and took out letters testamentary there in the name of himself and the widow, and took possession of the property, among which were registered bonds of the United States INDEX. 667 to a large amount. These bonds were sent by him to D. in New York (the plaintiff in error) to be sold and the proceeds to be invested in coupon bonds of the United States. D. made this exchange, and transmitted the coupon bonds to S. as directed. S. made a settlement with J. as executor, and afterwards died; and after his death it appeared that he had diverted the coupon bonds to his own use. The widow then took out letters from the Surrogate in New York, in her own name, ancillary to the probate in England, and thereupon brought an action at law in the Circuit Court of the United States for the Southern District of New York, in her name, as sole executrix under and by virtue of the letters so issued to her, against the complainants for conversion of said United States bonds, alleging that the decedent was domiciled in France, and the Alabama probate was invalid for that reason, and that these letters testamentary to her were conclusive on D. so far as the right to maintain the action was concerned. D. thereupon filed a bill in equity against F., in which the relief sought was an injunction against setting up or claiming in the action at law or elsewhere that the decedent was not domiciled in Alabama, that his will was not duly admitted to probate there, and that the administration thereunder of J. as sole executor and S. as his attorney were not valid and binding, and against using in support of such allegations the ancillary letters testamentary, which defendants had fraudulently and unlawfully procured to be issued to or in the name of the widow, discovery of the facts within defendants’ knowledge, &c. On general demurrer this bill was dismissed. Held, that the demurrer should have been overruled, and the defendant required to answer, lb. 5. In this case the bill having called for answers under oath, and such answers having been made denying each and every allegation of fraud, and the evidence of two witnesses, or of one witness corroborated by circumstances, being wanting in support of the charges of fraud, this court wall not reverse the decree dismissing the bill. Morrison v. Durr, 518. See Limitation, Statutes of, 1, 2; Tax and Taxation, 1. EQUITY PLEADING. 1. If a decree in equity be broader than is required by the pleadings, it will be so construed as to make its effect only such as is needed for the purpose of the case made by the pleadings, and of the issues which the decree decides. Barnes n. Chicago, Milwaukee if St. Paul Railway, 1. 2. The decree entered in accordance with the opinion of this court in James n. Railroad Co., 6 Wall. 752, when properly construed, invalidated the foreclosure of the mortgage made by the La Crosse and Milwaukee Railroad Company to the plaintiff in error only as to the creditors of the company subsequent to the mortgage who assailed it in €68 INDEX. that suit, but did not affect it as to the rights of the plaintiff in error or of the bondholders secured by the mortgage, which were acquired under that foreclosure, lb. 3. On a bill in equity filed under § 4915 of the Revised Statutes, to obtain an adjudication in favor of the granting of a patent, the plaintiff must allege and prove that a delay of two years and more in prosecuting the application after the last action therein of which notice was given to him was unavoidable, or the application will be regarded as having been abandoned, within the provision of § 4894. Gandy v. Marble, 432. ESTOPPEL. See Equity, 2, 3, 4; Insurance, 1, 2. EVIDENCE. The letter of the defendant in error of March 20, 1876, was admissible in evidence. Struthers v. Drexel, 487. See Insurance, 3, (1) (2); Trespass on the Case, 2; Warranty. EXCEPTION. 1. No question is presented for the decision of this court by a bill of ex- ceptions which does not state any rulings in matter of law, or any exceptions to such rulings, otherwise than by referring to an exhibit annexed, containing the whole charge of the court to the jury, and notes of a conversation ensuing between the judge and the counsel of both parties as to the meaning and effect of the charge, interspersed with remarks of either counsel that he excepted to that part of the charge which bore upon a certain subject, or to the refusal of the court to charge as orally requested in the course of that conversation. Hanna v. Maas, 24. 2. When a bill of exceptions is so framed as not to present any question of law in a form to be revised by this court, the judgment must be affirmed. Ib. 3. Where a bill of exceptions is signed after the beginning of the term of this court when the writ of error is returnable, and during a term of the Circuit Court succeeding that at which the case was tried, but was seasonably submitted to the judge for signature, and the delay w’as caused by the judge and not by the plaintiff in error, the bill of exceptions will not be stricken out. Davis v. Patrick, 138. See Practice, 3, 7. EXECUTIVE. See Court-Martial. INDEX. 669 FIXTURES: See Railroad, 4. FRAUD. The transcript of the evidence at the trial of this case, which is contained in the bill of exceptions, does not connect the defendant in error with the frauds which gave rise to this suit. McLeod v. Fourth National Bank of St. Louis, 528. FRAUDULENT CONVEYANCE. K. owing property of the value of $91,400, and owing individually $3400 of debts, and about $3000 more as a member of a firm, conveyed land in Alabama, to his daughter, in 1866, as an advancement on her marriage. In 1876, K. was adjudged a bankrupt. His assignee in bankruptcy sued the daughter in equity, to set aside the deed of the land, alleging in the bill that the deed, being voluntary, was void under the laws of Alabama. No fraud as to creditors was alleged: Held, that the assignee did not represent the prior creditors, because the land was not conveyed in fraud of creditors, within the meaning of § 14 of the Bankruptcy Act of March 2, 1867, c. 176, 14 Stat. 522, now §§ 5046 and 5047 of the Revised Statutes. Warren v. Moody, 132. See Bankruptcy. HUSBAND AND WIFE. See Assignment for Benefit of Creditors, 1, 2, 3. INSURANCE. 1. An owner of one-fourth interest in a vessel took out a policy of insur- ance on his interest in the vessel, which contained these words : “ Warranted by the assured that not more than $5000 insurance, including this policy, now exists, nor shall be hereafter effected on said interest, either by assured or others, to cover this or any other insurable interest in said interest, during the continuance of this policy.” The acceptors of drafts drawn by the master effected for their own protection insurance on the freight and earnings of the vessel in excess of this amount, and a like insurance on freight and earning in excess was effected on account of other owners: Held, that this was no breach of the covenant of warranty. Merchants’ Ins. Co. v. Allen, 376. 2. P., as agent for an insurance company in Hartford, Connecticut, received at Southbridge, in Massachusetts, the application of E. for an insurance upon his life, and the premium therefor (paid May 24, 1882) ’ transmitted both to the company; received from the company a policy, and delivered the latter to E. The policy contained a provision that in case of death of the assured, his representatives should “ give immediate notice in writing to the company, stating the time, place, and cause of death,” and should “ within seven months thereafter, by direct 670 INDEX. and reliable evidence, furnish the company with proofs of the same, giving full particulars.” E. died June 19, 1882. P. was verbally informed of it on the same day, and a day or two afterwards informed the family that he was going to Hartford, and would notify the company of the death, and would procure the necessary blanks for proof. He went there, gave the notice to the company, with all the information in his possession, obtained the blanks, and gave them to a representative of the administratrix, telling him to return them to him (P.) when completed. The blanks were filled in and were returned to P. on the 3d of July, 1882. When more than seven months had expired after the death, P., who had not forwarded the papers to Hartford returned them to the administratrix, saying that they were incomplete and asking for fuller information. The papers were then completed in accordance with P.’s directions, were returned to him January 29, 1883, and were by him transmitted to the company February 7, 1883, and received by it without objection. Held, that without deciding whether the verbal notice to P. was a sufficient compliance with the terms of the contract in that respect, or whether it would have been sufficient to deliver the proofs of death to P., if there were no more than that in the case, the action of the company, upon P.’s communicating the death of E., and its delivering to him of blank affidavits and forms to be filled up, together with the subsequent correspondence, showed that P. was regarded throughout by the company as its agent; and the company is therefore bound by what he did. Travellers' Ins. Co. v. Edwards, 457. 3. An application for a policy of life insurance contained these questions and answers: Q. “ Are you, or have you ever been, in the habit of using alcoholic beverages or other stimulants?” A. “Yes, occasionally.” Q. “ Have you read and assented to the following agreement?” A. “ Yes.” The agreement referred to contained the following: “ It is hereby declared that the above are the applicant’s own fair and true answers to the foregoing questions, and that the applicant is not, and will not become, habitually intemperate or addicted to the use of opium.” The policy declared that if the assured should become intemperate so as to impair his health or induce delirium tremens, or if any statement in the application, on the faith of which the policy was made, should be found to be in any material respect untrue, the policy should be void. The assured having died, his creditor for whose benefit the insurance was made sued the insurer to recover on the policy. The defendant set up (1) that at the time of making the policy the insured was and had been habitually intemperate, and that his statements on which the policy had been issued were fraudulent and untrue ; (2) That after the policy was issued he became so intemperate as to impair his health and to induce delirium tremens. On both these issues the insurer assumed the affirmative, taking the opening and close at the trial. Held: (1) That the opinion of a witness as to the INDEX. 671 effect upon the assured at the time of the issue of the policy, of a habit of drunkenness five years before that date (the witness knowing nothing of them during the intervening period), was properly excluded. (2) That under the 1st issue the defendant was bound to prove that the assured was habitually intemperate when the policy issued; and under the 2d, that he was so after it issued. (3) That while in a very clear case a court may assume on the one hand that certain facts disclose a case of habitual intemperance, or on the other that they warrant the opposite conclusion, in the main these are questions of fact to be submitted to the jury. (4) That the charge of the court contained all that it was necessary to say by way of assisting the jury to arrive at a just verdict, and that he was not required to give them the same instructions over again in language selected by the defendants’ counsel. (5) That other requests made by defendant’s counsel took from the jury the decision of the question which should be left to them. Northwestern Ins. Co. v. Muskegon Bank, 501. INTEREST. See Collision, 3. INTERSTATE COMMERCE. See Constitutional Law, 2. JUDGMENT. See Jurisdiction, A, 4. JURISDICTION. A. Jurisdiction of the Supreme Court. 1. The question whether, upon all the facts specially found by the Circuit Court when a trial by jury has been waived, the plaintiff has the legal right to recover, is not one which can be brought to this court by a certificate of division of opinion. State Bank v. St. Louis Rail Fastening Co., 21. 2. In a suit in equity brought in the Circuit Court by two or more persons on several and distinct demands, the defendant can appeal to this court as to those plaintiffs only, to each of whom more than $5000 is decreed. Gibson v. Shufeldt, 27. 3. A debtor having made an assignment of his property to a trustee to secure a preferred debt of more than $5000, other creditors filed a bill in equity in the Circuit Court against the debtor, the trustee, and the preferred creditor; the defendants denied the allegations of the bill, but asked no affirmative relief; and the decree adjudged the assignment to be fraudulent and void as against the plaintiffs, and ordered the property to be distributed among them. Held, that this court had no jurisdiction of an appeal by the defendants, except as to those plaintiffs who had recovered more than $5000 each. Ib. 672 INDEX. 4. Proceedings were commenced to foreclose a railroad mortgage in which the trustee of the mortgage, the railroad company, and others were respondents, and one bondholder originally, and another by intervention, were complainants. A decree was entered that the complainants were entitled to have a sale of the mortgaged property upon failure of the company to pay an amount to be fixed by reference to a master within a time to be named by the court, and an order of reference was made. The master reported, and a decree of foreclosure was entered in which the trustee was directed to sell the mortgaged property, “ at such time and place and in such manner as the court may hereafter determine: ” and a reference was ordered to a master to report the extent and amount of the prior liens on the mortgaged property, “ full and detailed statements ” of the property “ subject to the lien of said general mortgage,” and “ what liens, if any, are upon the several properties” of the railroad company, “junior to said general mortgage and the order of their priority.” Held, that this was not a final decree, which terminated the litigation between the parties on the merits of the case, and that the appeal must be dismissed. Parsons v. Robinson, 112. 5. On the 6th of October, 1880, a decree was entered in a Circuit Court of the United States dismissing a bill brought to quiet title. Complainant appealed, and the appeal was dismissed at October Term, 1880, it not appearing that the matter in dispute exceeded $5000. In the Circuit Court W. then suggested the complainant’s death, appeared as sole heir and devisee, filed affidavits to show that the amount in dispute exceeded $5000, and took another appeal August 30, 1881, which appeal was docketed here September 24, 1881, and was dismissed April 5, 1884, for want of prosecution. Another appeal was allowed by the Circuit Court in September, 1884, and citation was issued and served, and the case was docketed here again. Held, that the decree appealed from being rendered in 1880, an appeal from it taken in 1884 was too late. Whitsitt v. Union Depot Co., 363. 6. This court has no power to review a judgment of the Superior Court of the state of Kentucky, unless it appears not only that the judgment is one of the class in which the statute of that state provides that the judgment of that court may be final, but also that an application was made, within proper time, for an appeal to the Court of Appeals, and that the application was refused by the Superior Court. Fisher v. Perkins, 522. 7. This court cannot dismiss a case for want of jurisdiction here, because the court below ought to have dismissed it. Lanier n. Nash, 630. See Exception, 1, 2, 3; Practice, 7. B. Jurisdiction of Circuit Courts of the United States. 1. If a bill in equity to restrain an infringement of letters-patent be filed before the expiration of the patent, the jurisdiction of the Circuit INDEX. 673 Court is not defeated by the expiration of the patent by lapse of time before the final decree. Beadle v. Bennett, 71. See Removal of Causes. C. Jurisdiction of District Courts of the United States. When an assignee in bankruptcy files a petition in the District Court, sitting in bankruptcy, under § 5063 of the Revised Statutes, showing a dispute between him and others, as to property which has come into his possession, or which is claimed by him, the court—all parties interested appearing, and asking a determination of the dispute — has power to determine, at least, the question of title. Adams v. Collier, 382. LA CROSSE AND MILWAUKEE RAILROAD FORECLOSURE. 1. The consent of bondholders required by the statute of Wisconsin to enable the plaintiff in error to commence proceedings for the foreclosure of the mortgage of the La Crosse and Milwaukee Railroad was duly given; and the outstanding bonds which were not actually surrendered and exchanged for stock were held by persons who, in law, must be regarded as consenting by silence to the proceedings, and the present holders took them with full notice of that fact. Barnes v. Chicago, Milwaukee St. Paul Railroad, 1. 2. The plaintiff in error has no title under which he can maintain a bill in equity to take advantage of alleged frauds or irregularities in the foreclosure of prior liens upon the La Crosse and Milwaukee Railroad; or to recover money paid by the Milwaukee and Minnesota Railroad Company to redeem the Bronson and Soutter mortgage of that railroad. lb. See Equity Pleading, 2. LIMITATION, STATUTES OF. 1. Following the decisions of the Supreme Court of Georgia, this court holds that the act of the legislature of Georgia, of March 16, 1869, which provided that actions upon contracts or debts “ which accrued prior to the 1st of June, 1865, and are now barred, shall be brought by 1st January, 1870, or both the right and right of action to enforce it shall be forever barred ” is an ordinary statute of limitations; that it was a personal privilege of the debtor to plead it; and that to avail himself of it he must plead it. Sanger v. Nightingale, 176. 2. The proposition that a purchaser with the legal title, whose right ac- crued subsequent to a mortgage debt barred by the statute of limitations, can avail himself of the statute, when sued to foreclose the equity of redemption, has been sustained in Georgia only in cases where the party setting it up has become the owner of the title or of the entire equity of redemption, or has been found in possession of the mortgaged property. Ib. vol. cxxn—43 674 INDEX. 3. An assignee in bankruptcy cannot transfer to a purchaser the bank- rupt’s adverse interest in real estate in the possession of another claiming title, if two years have elapsed from the time when the cause of action accrued therefor in the assignee; and the right of the purchaser in such case is as fully barred by the provisions of Rev. Stat. § 5057, as those of the assignee. Wisner v. Brown, 214. 4. It is unnecessary to decide in this case whether the provisions contained in Rev. Stat. § 5063 refer to a case in which only the interest of the bankrupt is ordered to be sold, without attempting to affect the title or interest of other persons. Ib. 5. A promissory note, secured by mortgage of the same date, is not taken out of the statute of limitations as against the debtor, by a writing signed by him, by which “ in consideration of the indebtedness described in the ” mortgage, a claim of his against the government, and its proceeds, are “pledged and made applicable to the payment of said indebtedness, with interest thereon at the rate of eight per cent per annum until paid,” and he promises that those proceeds shall “be applied to the payment of said indebtedness, with interest as aforesaid, or to so much thereof as ” those proceeds “ are sufficient to pay.” Shepherd v. Thompson, 231. 6. Section 5057 of the Revised Statutes, prescribing the limitation of two years as to suits touching any property or rights of property transferable to or vested in an assignee in bankruptcy, applies as well to suits by the assignee as to suits against him. Adams v. Collier, 382. 7. When an assignee files his petition in the District Court, sitting in bankruptcy, showing a dispute between him and others as to property in his possession as such assignee, and the parties sued appear and unite in the prayer for the determination of the suit, and the assignee, after the expiration of two years, without the consent of the defendants dismisses his suit and files a bill in equity in the Circuit Court covering substantially the same object, the latter suit is to be deemed a continuation of the former for the purposes of limitation prescribed by § 5057 of the Revised Statutes. Ib. See Court of Claims; Equity Pleading, 3. LIMITED LIABILITY. See Collision, 2, 3. LOCAL LAW. 1. In Illinois, under an unverified plea of the general issue in assumpsit against a common carrier for goods lost, the defendant may at the trial deny his liability under the bill of lading; § 34 of the Practice Act having no application to such a denial. St. Louis, Iron Mountain if Southern Railway v. Knight, 79. INDEX. 675 2. The lien law and the redemption law of the state of Indiana considered. Porter v. Pittsburg Bessemer Steel Co., 267. ,3. The effect of a redemption under the Revised Statutes of Indiana, §§ 770 to 776, considered. Ib. 4. In Pennsylvania a private survey cannot be received in evidence for the purpose of making out a title from the proprietaries, even though it may have been referred to in other surveys; and parol and circumstantial evidence is inadmissible to establish such a survey. Paxton v. Griswold, 441. 5. The non-return of a survey to the land office in Pennsylvania for one hundred and thirty years is proof of abandonment. Ib. 6. The rules adopted in the land office in Pennsylvania in 1765 made no alteration as to returns of surveys, which before that date were required to be returned to the land office, in order that it might appear by the records of that office what lands were alienated, and what not. Ib. ,7. In Pennsylvania, unless a survey is returned to the land office in a reasonable time, which time has been fixed by the courts of that state, at seven years, it is regarded as abandoned. Ib. 8. In Mississippi an insolvent debtor may make a general assignment of his property for the benefit of his creditors, with preferences. Estes v. Gunter, 450. 9. A deed by an insolvent debtor in Mississippi to secure securities on his note made in advance of, and in contemplation of, a general assignment for the benefit of creditors is valid under the laws of that state, although containing a provision that the grantor shall remain in possession until the maturity of the note. Ib. 10. The sixty days during which a right of appeal is given by the statutes of Nebraska from the assessment of damages by commissioners appointed under proceedings for the condemnation of land for the use of a railroad, begin to run when the commissioners’ report is filed. Clinton v. Missouri Pacific Railway, 469. See Constitutional Law, 1; Limitation, Statutes of, 1,2; Corporation, 1; Tax and Taxation, 4, 5, 6. MANDAMUS. 1. Allegations of material facts and of traversable facts in a declaration which are necessary to be proved in order to support a recovery, are confessed by a default; and in mandamus against the proper municipal officers to enforce the collection of a tax to pay the judgment entered against a municipal corporation upon such default, the respondent is estopped from denying such allegations. Harshman v. Knox County, 306. 2. Mandamus to enforce the collection of a tax to pay a judgment against a municipal corporation being a remedy in the nature of an execution, 876 INDEX. nothing can be alleged by the respondent to contradict the record of the judgment. Ib. 3. An application for mandamus against the head of an executive department abates on his retirement from office. Warden v. Chandler, 642. MASTER AND SERVANT. When a servant, in the execution of his master’s business, receives an injury which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself. Tuttle v. Detroit, Grand Haven if Milwaukee Railway, 189. See .Railroad, 3. MAXWELL LAND GRANT. See Public Land, 2-6. MINERAL LAND. 1. When there are surface outcroppings from the same vein within the boundaries of two claims, the one first located necessarily carries the right to work the vein. Argentine Mining Co. v. Terrible Mining Co., 478. 2. When a mining claim crosses the course of the lode or vein instead of being “ along the vein or lode,” the end lines are those which measure the width of the claim as it crosses the lode: and thus the lines which separate the locations of the parties in this case are end lines across which, as they are extended downward vertically, the defendant canriot follow a vein, even if the apex or outcropping is within its surface boundaries. Ib. See Practice, 5. MORTGAGE. See Equity Pleading, 2; Limitation, Statutes of, 2; Jurisdiction, A, 4; Railroad, 4, 5; La Crosse and Milwaukee Railroad Foreclosure. MOTION TO DISMISS. A motion to dismiss a case in which the record has not been printed will not be granted if the motion papers present the case in a way requiring the court to refer to the transcript on file. Maag v. Hyde, 632. MUNICIPAL BONDS. See Constitutional Law, 1; Mandamus, 1, 2. MUNICIPAL CORPORATION. See Constitutional Law, 1; Mandamus, 1. INDEX. 677 NATIONAL BANK. See Tax and Taxation, 3. NEGLIGENCE. See Railroad, 6. PARTNERSHIP. 1. By an agreement of partnership between A, B, and C, A sold, for sums specified, to B one half, and to C one fourth, of his interest in certain bonds of a railroad corporation, secured by mortgage, retaining one fourth himself, and was to hold the bonds as collateral security for the payment of those sums; the whole amount of the bonds was to be held together, and neither partner was to sell or dispose of the whole or any part of his interest without the consent of the others; “ but A shall have the privilege of selling the whole amount of bonds at his discretion at any time, and apply the proceeds to the payment of said sums due to him; ” or A might, if he deemed best, foreclose the mortgage ; and the proceeds of a foreclosure, “ or, if the bonds are sold, the net proceeds of the sale, after paying the said sums of money and expenses of foreclosure, shall be considered as due to each party in proportion as the bonds are now held, but may be held by A as collateral security for the payment of the aforesaid sums respectively; ” and special provisions were made for the application to the payment of certain small debts, and for the distribution among the partners, of “ any profits arising from the sale, foreclosure, or any other disposition of said bonds.” Upon a contract made by A for a sale of the bonds, which was not carried out, he received in part payment stock in another corporation; and he afterwards sold the bonds to another person for cash, retaining this stock. Held, that he was not bound, on receiving the stock, to apply it at once to the payment of the sums due him from his copartners, but might hold it as the property of all the partners under the partnership agreement. Simonton v. Sibley, 220. 2. A person who conducts himself with reference to the general public in such a way as to induce a person, acting with reasonable caution, to believe that he is a partner in a partnership, is liable as such to a creditor of the partnership who contracted with it under such belief, although he may not be in fact a partner. Sun Insurance Co. v. Kountz Line, 583. 3. The conduct of the several appellees towards the general public in their business relations with each other was such as to induce a shipper, , acting with reasonable caution, to believe that they had formed a combination in the nature of a partnership, or were engaged as joint traders under the name of the Kountz Line. Ib. PATENT FOR INVENTION. 1. The reissued letters-patent No. 4372, issued to Nelson W. Green, May 9, 1871, for an improved method of constructing artesian wells, are for 678j INDEX. the process of drawing water from the earth by means of a well driven in the manner described in the patent, and are for the same invention described and claimed in the original letters-patent issued to Green, January 14, 1868. It is a reasonable inference from the language employed in the original description that the tube, in the act of being driven into the earth, to and into a water-bearing stratum, would form an air-tight connection with the surrounding earth, and that the pump should be attached to it by an air-tight connection. The changes made in the amended specification did not enlarge the scope of the patent, or describe a different invention; but only supplied a defi-- ciency in the original description, by describing with more particularity and exactness the means to be employed to produce the desired result. The omission in the second claim of the words, “ where no rock is to be penetrated,” which are found in the first claim, did not change the obvious meaning of the original claim. Eames v. Andrews, 40. 2. The reissued letters-patent No. 4372, to Nelson W. Green, were not for ' the same subject as the letters-patent issued to James Suggett, March 29, 1864, and do not conflict with them; nor was the invention ; patented in them anticipated in any of the publications referred to in the opinion of the court within the rule as to previous publications laid down in Seymour v. Osborne, 11 Wall. 516; Cohn v. United States Corset Co., 93 U. S. 366; and Downton v. Yeagher Milling Co., 108 U. S. 466. lb. 8.« The evidence shows a clear case of infringement on the part of the defendant in error, lb. 4. The case of Eames v. Andrews, just decided, is applied to the issues in this case, so far as they are identical with those in that case. Beedle t v. Bennett, 71. 5. The use of this invention by the inventor in the manner stated in the opinion of the court, and his delay in applying foi' a patent under the circumstances therein detailed for more than two years prior to his application, did not constitute an abandonment of his invention, or a ’ dedication of it to the public, and did not forfeit his right to a patent under the law, as it stood at the time of his application. Ib. 6. The use by the respondents of driven wells for their personal use on their farms, which ■wells were operated by means of the process patented to . Green, constituted an infringement of that patent. Ib. 7. Claim 3 of letters-patent No. 215,679, granted to George Bartholomae, as assignee of Leonard Meller and Edmund Hoffman, as inventors, - May 20, 1879, for an “ improvement in processes for making beer,” namely, “3. The process of preparing and preserving beer for the market, which consists in holding it under controllable pressure of carbonic acid gas from the beginning of the kraeusen stage until such time as it is transferred to kegs and bunged, substantially as described,” is a valid claim to the process it purports to cover. New Process Fer mentation Co. v. Maus, 413. INDEX. 679 8. The state of the art of brewing beer, so far as it concerns the invention' of the patentees, explained, lb. See Contract, 2; Equity Pleading, 3; Jurisdiction, B. PRINCIPAL AND AGENT. See Insurance, 2. PLEADING. S. contracted with D. in writing, in which, after reciting that D. had purchased 400 shares of a certain stock at $50 per share, S., in consideration of one dollar, agreed at the end of one year from date if D. desired to sell the shares at the price paid, to purchase them of him and pay that amount with interest. When the time expired, D. elected to sell, and tendered the stock; and, S. refusing to take it and pay for it, D. sued him for the contract price, declaring on a contract whereby the plaintiff sold and agreed to deliver the defendant 400 shares of the stock at $50 per share, to be paid by defendant on delivery, in consideration whereof the defendant undertook and promised to accept the stock and pay for the same on delivery. Held, That this declaration set forth properly the legal effect of the contract, and the omission of the statement of the nominal consideration was immaterial, and need not be proved. Struthers v. Drexel, 487. See Local Law, 1; Trespass on the Case, 2; Mandamus, 1, 2; Warranty. PRACTICE. 1. When exceptions taken by the plaintiff to a ruling in favor of the defendant at one trial have been erroneously sustained and a new trial ordered, and a contrary ruling upon the same point at the second trial has been erroneously affirmed upon exceptions taken by the defendant, this court, upon a writ of error sued out by him, will not, * on reversing the judgment of affirmance, direct judgment to be entered on the first verdict, but will only order that the second verdict be set aside and another trial had. Shepherd v. Thompson, 231. 2. The assignment or error in this case is precise and specific, and com- plies with the requirement of the rule in that respect. Clinton v. Missouri Pacific Railway, 469. 3. No exceptions were necessary to bring before this court the judgment of the Circuit Court below dismissing the appeal from the Cass County Court to the District Court of that county. Ib. 4. When a cause is removed from a state court to a Circuit Court of the United States, the transcript from the state court forms part of the record in the Circuit Court, and in any writ of error from this court necessarily becomes a part of the record here. Ib. 680 INDEX. 5. V. sued, to recover mining ground. Defendant answered, and V. filed a replication. V. transferred his interest in the mine to a company. The company appeared, was substituted as plaintiff, and filed a new complaint, substantially identical with the first, to which the defendant filed a new answer, substantially like the first answer. No replication was filed to this. The parties went to trial without objection for want of a plea of replication, and judgment was entered for plaintiff. Held, That it was too late to take the objection in this court. Argentine Mining Co. v. Terrible Mining Co., 478. 6. The instructions asked by the defendant below were sound in law; but their refusal worked him no injury, as, when the jury found the disputed fact in favor of the plaintiff, the principle involved in the instruction asked cut off the right asserted by the defendant. Ib. 7. If a record in error contains the charge in full, with a memorandum at the close that certain portions are excepted to, but they are not verified or included in a proper bill of exception, it is not part of the record for any purpose. Struthers v. Drexel, 487. See Exception, 1, 2, 3; Mandamus, 1; Public Land, 5. PUBLIC LAND. 1. The joint resolution of the two Houses of Congress of March 2, 1861% 12 Stat. 251, relinquishing to the state of Iowa certain lands along tin. Des Moines River above the mouth of Raccoon Fork, did not operate to determine the withdrawal of all the lands on that river above Raccoon Fork from entry and preemption which was originally made in 1850, and which was continued in force from that time and of which renewed notice was given in May, 1860: that resolution was only a congressional recognition of the title which had passed to grantees of the state of Iowa to lands certified to the state under the act of 1846, which certificates had been held by this court in Dubuque if Pacific Railroad v. Litchfield, 23 How. 66, to have been issued without authority of law. Bullard v. Des Moines if Fort Dodge Railroad, 167. 2. The court rested its judgment in this case, 121 U. S. 325, not upon the fact of the grant to Beaubien and Miranda being an empresario grant, but upon the fact that Congress, having confirmed it as made to Beaubien and Miranda, and as reported for confirmation by the Surveyor General of New Mexico to Congress, without qualification as to its extent, acted in that respect entirely within its power, and that its action was conclusive upon the court. Maxwell Land-Grant Case, 365. 3. The court stated in its former opinion, and repeats now, its conviction that the grant by Armijo to Beaubien and Miranda described the boundaries in such a manner that Congress must have known that the grant so largely exceeded twenty-two leagues that there could be no question upon that subject, and it must have decided that the grant should not be limited by the eleven leagues of the Mexican law. lb. INDEX. 681 4. The court repeats the conviction expressed in its former opinion, with further reasons in support of it, that Beaubien, in the petition which he presented against the intrusion of Martinez, did not refer to his own grant as being only fifteen or eighteen leagues, but to the grant under which Martinez was claiming, lb. 5. The court assumes that references in the petition to newly discovered and material evidence touching the fraudulent character of the grant are addressed to the Secretary of the Interior and the Attorney General, as the rehearing in this court can be had only on the record before the court, as it came from the Circuit Court, lb. 6. The court remains entirely satisfied that the grant, as confirmed by Congress, is a valid grant; that the survey and the patent issued upon it, as well as the original grant by Armijo, are free from fraud on the part of the grantees or those claiming under them; and that the decision could be no other than that made in the Circuit Court, and affirmed by this court, lb. See Mineral Land. RAILROAD. 1. There is no rule of law to restrict railroad companies as to the curves they shall use in its freight stations and its yards, where the safety of passengers and of the public are not involved. Tuttle v. Detroit, Grand Haven Milwaukee Railway, 189. 2. The engineering question as to the curves proper to be made in the track of a railroad within the freight stations or the yards of the railroad company is not a question to be left to a jury to determine, lb. 3. Brakemen and other persons employed by a railroad company within the freight stations and the yards of the company, when they accept the employment assume the risks arising from the nature of the curves existing in the track, and the construction of the cars used by the company; and they are bound to exercise the care and caution which the perils of the business demand, lb. 4. Rails and other articles which become affixed to and a part of a railroad covered by a prior mortgage, will be held by the lien of such mortgage in favor of bona fide creditors, as against any contract between the furnisher of the property and the railroad company, containing a stipulation that the title to the property shall not pass till the property is paid for, and reserving to the vendor the right to remove the property. Porter v. Pittsburg Bessemer Steel Co., 267. 5. Notice of such a contract to a purchaser of bonds covered by such mort- gage will not affect his rights if he purchased the bonds from those who were bona fide holders of them, free from any such notice. Ib. 6. The foreman of a section gang on a railway, knowing that a train was approaching, ran his hand-car into a deep cut, and was struck by the train and injured. He sued the company to recover damages for the injury, claiming that there was negligence on the part of the engineer 682 index: and firemen in not seeing him and arresting the train* Held, that he had been guilty of contributory negligence, and that the court below had properly directed the jury to find a verdict for the defendant. Goodlett v. Louisville if Nashville Railroad, 391. See Common Carrier ; La Crosse and Milwaukee Railroad Constitutional Law, 1 ; Foreclosure ; Corporation, 1 ; Local Law, 10 ; Equity Pleading, 2; Tax and Taxation, 4, 5, 6; Jurisdiction, A, 4; Trespass on the Case, 1. REMOVAL OF CAUSES. 1. When a petition for a removal of the cause to a Circuit Court of the United States is filed in a cause pending in a state court, the only question left for the state court to determine is the question of law whether, admitting the facts stated in the petition to be true, it appears on the face of the record, including the petition, the pleadings and the proceedings down to that time, that the petition is entitled to a removal ; and if an issue of fact is made upon the petition, that issue must be tried in the Circuit Court. Burlington if Cedar Rapids Railway v. Dunn, 513. 2. If a cause pending in a state court against several defendants is removed thence to the Circuit Court of the United States on the petition of one of the defendants under the act of 1875, 18 Stat. 470, on the grounds of a separate cause of action against the petitioning defendant, in which the controversy was wholly between citizens of different states, it should be remanded to the state court if the action is discontinued in the Circuit Court as to the petitioning defendant. Texas Transportation Co. v. Seeligson, 519. 3. An Illinois corporation recovered judgment against P., a citizen of Minnesota, in a court of that state. An execution issued therein was placed in the sheriff’s hands with directions to levy on property of P. which had been transferred to F., and was in F.’s possession, the corporation giving the officer a bond with sureties. F. sued the officer in trespass, and he answered, setting up that the goods were the property of the execution debtor. Thè corporation and the sureties then intervened as defendants, and answered, setting up the same ownership of the property, and further, that the sheriff had acted under their directions, and that they were the parties primarily liable. The plaintiffs in that suit replied, and the intervenors then petitioned for the removal of the cause to the Circuit Court of the United States, setting forth as a reason therefor that the plaintiff and the sheriff were citizens of Minnesota, the intervenors and petitioners citizens of Illinois ; that the real controversy was between the plaintiff and the petitioners ; and that the petitioners believed that through prejudice and local influence they could not obtain justice in the state court. The cause was removed on this petition, and a few days later was remanded to the INDEX. 683> state court on the plaintiff’s motion. Held, that, on their own,showing the intervenors wfere joint trespassers with the sheriff, if any trespass • had been committed, and by their own act they had made themselves joint defendants with him, and that on the authority of Pirie v. Tvedt, 115 U. S. 41, and Sloane v. Anderson, 117 U. S. 275, the cause was not removable from the state court. Thorn Wire Hedge Co. v. Fuller, 535. See Practice, 4. SALVAGE. See Admiralty, 1. SCIENTER. See Warranty. SERVICE OF PROCESS. See Attachment. SHIP. See Collision. STATUTE. A. Statutes of the United States. See Court-Martial, 1; Fraudulent Conveyance ; Court of Claims. Jurisdiction, C; Customs Duty, 1, 2, 3, 4, 5; Limitation, Statutes of, 3,4,6,7; Equity Pleading, 3; Public Land, 1. • B. Statutes of States and Territories. Alabama. See Fraudulent Conveyance. Georgia. See Limitation, Statutes of, 1, 2. Illinois. See Local Law, 1. Indiana. See Constitutional Law, 3; Local Law, 2, 3. Kentucky. See Corporation. Missouri. See Constitutional Law, 1; Tax and Taxation, 4, 5. Nebraska. See Local Law, 10. New York. See Tax and Taxation, 3. Tennessee. See Corporation. SUPERSEDEAS. 1. When a supersedeas has been obtained on an appeal to this court, it is to be presumed that parties submit to it; and an order to stay execution will not be granted in the absence of proof of its necessity. Lanier v. Nash, 630. 2. There is no such merger of the judgment nor supersedeas in this case as will operate to stay a proceeding against other property not involved herein. Lanier v. Nash, 637. 084 INDEX. TAX AND TAXATION. 1. Stanley v. Supervisors of Albany, 121 U. S. 535, affirmed to the point that a party who feels himself aggrieved by overvaluation of his property for purposes of taxation, and does not resort to the tribunal created by the state for correction of errors in assessments before levy of the tax, cannot maintain an action at law to recover the excess of taxes paid beyond what should have been levied on a just valuation. His remedy is in equity, to enjoin the collection of the illegal excess upon payment or tender of the amount due upon what is admitted to be a just valuation. Williams v. Albany, 154. 2. The mode in which property shall be appraised; by whom and when that shall be dono; what certificate of their action shall be furnished by the board which does it; and when parties may be heard for the correction of errors, are all matters within legislative discretion; and it is within the power of a state legislature to cure an omission or a defective performance of such of the acts required by law to be performed by local boards in the assessment of taxes as could have been in the first place omitted from the requirements of the statute, or which might have been required to be done at another time than that named in it; provided always, that intervening rights are not impaired. lb. 3. The statute passed by the legislature of New York, April 30, 1883, to legalize and confirm the assessments in Albany for the years 1876, 1877, and 1878, was not in conflict with the acts of Congress respecting the taxation of shares of stock in national banks, and was a *valid exercise of the power of the legislature to cure irregularities in assessments. lb. 4. It being now conceded that the taxes in suit in this case refer not only to the branch referred to in the former opinion of the court in this case, reported in 120 U. S. 569-575, but to the taxes assessed upon that part of the main line which extends from Unionville in Putnam County to the boundary line between Missouri and Iowa, the court now decides, on an application for a rehearing of this case: (1) That it is satisfied with the construction which it has already given to the statute of the legislature of Missouri of March 21, 1868; (2) That the statute of that legislature enacted March 24, 1870, as interpreted by the court, in its application to the main line, does not impair the obligation of any contract which the St. Joseph and Iowa Railroad Company had, by its charter, with the state of Missouri. Chicago, Burlington Kansas City Railroad v. Guffey, 561. 5. The statute of Missouri of March 24, 1870 (Art. 2, c. 37, § 57, Wagner’s Statutes of Missouri, 1872), subjecting to taxation railroads acquired by a foreign corporation by lease, also applies to roads acquired by such corporations by purchase. Ib. 6. No question arises in this case under the provision in the charter of the St. Joseph and Iowa Railroad Company which authorizes it to pledge INDEX. 685 its property and franchises to secure an indebtedness incurred in the construction of its road. lb. See Constitutional Law, 1, 2; Mandamus, 1, 2. TELEGRAPH COMPANIES AND TELEGRAMS. See Constitutional Law, 3, 4, 5. TREATY. The provisions in the treaty of friendship, commerce, and navigation with the king of Denmark, concluded April 26, 1826, and revived by the convention of April 11, 1857, do not, by their own operation, authorize the importation, duty free, from Danish dominions, of articles made duty free by the convention of January 30, 1875, with the king of the Hawaiian Islands, but otherwise subject to duty by a law of Congress, the king of Denmark not having allowed to the United States the compensation for the concession which was allowed by the king of the Hawaiian Islands. Bartram v. Robertson, 116. TRESPASS ON THE CASE. 1. The Atchison, Topeka and Santa Fe Railway Company was in peace- able possession of a railroad from Alamosa to Pueblo, and while so in possession the Denver and Rio Grande Railway Company, by an armed force of several hundred men, acting as its agents and employes, and under its vice-president and assistant general manager, attacked with deadly weapons the agents and employes of the Atchison, Topeka and Santa Fe Railway Company having charge of the railroad, and forcibly drove them from the same, and took forcible possession thereof. There was a demonstration of armed men all along the line of the railroad seized, and while this was being done, and the seizure was being made, the plaintiff, an employe of the Atchison, Topeka and Santa Fe Railway Company, while on the track of the road, in the line of his employment, was fired upon by men as he was passing, and seriously wounded and injured. Immediately upon the seizure of the railroad as aforesaid the Denver and Rio Grande Company accepted it, and entered into possession and commenced and for a time continued to use and operate it as its own. The plaintiff brought this suit to recover damages for his injuries. Held, that the Denver and Rio Grande Company was liable in tort for the acts of its agents, and that the plaintiff could recover damages for the injuries received, and punitive damages under the circumstances. Denver Rio Grande Railway v. Harris, 597. 2. In trespass on the case to recover for injuries caused by gunshot wounds inflicted by defendant’s servants, evidence of the loss of power to have offspring, resulting directly and proximately from the nature 686 INDEX. ; of the wound, may be received and considered by the jury, although the declaration does not specify such loss as one of the results of the wound. Ib. 3. In an action of trespass on the case against a corporation to recover damages for injuries inflicted by its servants in a forcible and violent seizure of a railroad, punitive damages, within the sum claimed in the declaration, may be awarded by the jury, if it appears to their satisfaction that the defendant’s officers and servants, in the illegal assault complained of, employed the force with bad intent, and in pursuance of an unlawful purpose, wantonly disturbing the peace of the community and endangering life. lb. USURY. The transaction between the parties, so far as disclosed by the record, was not a loan of money, and consequently no question of usury could arise. Struthers v. Drexel, 487. WAREHOUSEMAN. See Common Carrier, 2. WARRANTY. In an action in tort for the breach of an express warranty, in the sale of bonds of a municipality, that they were genuine and valid bonds of the municipality, when in fact they were forgeries, and false and fraudulent, the warranty is the gist of the action, and it is not necessary to allege or to prove a scienter. Shippen n. Bowen, 575. See Common Carrier, 1, 2; Insurance, 1.