UNITED STATES REPORTS VOLUME 128 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1888 J. C. BANCROFT DAVIS REPORTER *7 NEW YORK AND ALBAN? J BANKS & BROTHERS, LAW PUBLISgERS 1889 Copyright, 1888, Br BANKS & BROTHERS JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MELVILLE WESTON FULLER, Chief Justice.1 SAMUEL FREEMAN MILLER, Associate Justice« STEPHEN JOHNSON FIELD, Associate Justice. JOSEPH P. BRADLEY, Associate Justice. JOHN MARSHALL HARLAN, Associate Justice. STANLEY MATTHEWS, Associate Justice.1 2 HORACE GRAY, Associate Justice. SAMUEL BLATCHFORD, Associate Justice. LUCIUS QUINTUS CINCINNATUS LAMAR, Associate Justice. AUGUSTUS HILL GARLAND, Attorney General. GEORGE AUGUSTUS JENKS, Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. 1 Mr. Chief Justice Fuller’s commission bears date July 20, 1888. He took the oath of office in open court October 8, 1888, and immediately took his seat on the bench. 2 Mr. Justice Matthews, by reason of illness, took no part in the decision of any of the cases reported in this volume, except Kidd V: Pearson, Leather Manufacturers’ Bank v. Merchants' Bank, and Robinson v. Fair, all argued at the last term. TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGB Ætna Insurance Company, Brodnax v......................236 Alabama, Nashville, Chattanooga and St. Louis Railway v. 96 Allen, W are v. ........ 590 American Bell Telephone Company, United States v. . 315 Arkansas Central Railway Company, Credit Company Limited v..........................................258 Asher v. Texas..........................129 Baker, Glasgow v.......................................560 Banks v. Manchester ....... 244 Bennett, Denny v. . ....................489 Black, Commissioner of Pensions, United States, ex rel. Dunlap v. ....... . 40 Black, Commissioner of Pensions, United States, ex rel. Miller v. ,. . . . . . . . .40 Black, Commissioner of Pensions, United States, ex rel. Rose v. . . . . . . . . . 40 Biackburn, Hunt v............* . . . 464 Boyd, Quimby v.........................................488 Bradshaw, Chappell v...................................132 Bradshaw, Chappell v...................................584 Brodnax -y. Ætna Insurance Company . . . . 236 Brown, Danville r......................................503 Brown v. Guarantee Trust and Safe Deposit Company 403 Brush Electric Association of St. Louis, Pollak v. . . 446 Bundy v. Cocke.........................................185 Callaghan v. Myers . . . . . . . . 617 Central Bank of Washington v. Hume . . . 195 Central Bank of Washington. Hume v. . . . . 195 vi TABLE OF CONTENTS. Table of Cases. PAGE Challenge Corn-Planter Company, Farmers’ Friend Manu- facturing Company v...............................506 Chappell v. Bradshaw .................................132 Chappell v. Bradshaw..................................584 Chateaugay Ore and Iron Company, Petitioner, The . 544 Christian, Johnson v..................................374 Clark v. Commonwealth of Pennsylvania . . . 395 Cocke, Bundy v........................................185 Cogswell v. Fordyce...................................391 Commonwealth of Pennsylvania, Clark v. . . . 395 Cook, United States v.................................254 Cornelius v. Kessel...................................456 Cragin u Powell . . .......................691 Credit Company Limited v. Arkansas Central Railway Company . ............................258 Crescent Brewing Co. u Gottfried......................158 Culliford v. Gomila............................. . 135 Danville v. Brown.................................. . 503 Denny v. Bennett . . . • , • • 489 DeWalt, United States v. . . . . . . 393 Dowd, Means v.........................................273 Dowd, Means v. .......................................583 Dublin Township v. Milford Savings Institution . . 510 East Tennessee, Virginia and Georgia Railroad Company, Jones v.....................................443 Estis v. Trabue.......................................225 Ex pa/rte Terry.......................................289 Fair, Robinson v........................................53 Farmers’ Friend Manufacturing Company v. Challenge Corn-Planter Company . . . . . . 506 Finzer, Liggett and Myers Tobacco Company v. . 182 Fire Insurance Association (Limited) v. Wickham . . 426 First National Bank of Portsmouth, New Hampshire, Livingston County, Missouri -y....................102 Fordyce, Cogswell v...................................391 TABLE OF CONTENTS. vii Table of Cases. PAGE Foster, United States v. ■ . . . ... 435 Franklin County, German Savings Bank v. . . . 526 Gaff, Executrix -v. Gottfried .......................170 Gazelle and Cargo, The . .......................474 Georgia Railroad and Banking Company w. Smith . 174 German Savings Bank -v. Franklin County . . . 526 Glasgow v. Baker ....... 560 Gomila, Culliford v..................................135 Goodyear’s India Rubber Glove Manufacturing Com- pany v. Goodyear Rubber Company . . . 598 Goodyear Rubber Company, Goodyear’s India Rubber Glove Manufacturing Company -v. 598 Gottfried, Crescent Brewing Co. v. . . . . .158 Gottfried, Gaff, Executrix v.........................170 Gottfried, Hack v. . . . . . . . .170 Guarantee Trust and Safe Deposit Company, Brown v. 403 Guarantee Trust and Safe Deposit Company, Wood -y. 416 Hack v. Gottfried....................................170 Hanbury, Hoyt’s Administrator v...... 584 Hazelton, Kennedy v..................................667 Hennessey v. Wool worth..............................438 Holt, Menendez v. ....... 514 Holt, Ryder v. ........ 525 Hoyt’s Administrator v. Hanbury . . . 584 Hume v. Central Bank of Washington .... 195 Hume, Central Bank of Washington v. . . . 195 Hunt v. Blackburn....................................464 Iron Silver Mining Company, United States v. . . 673 Jaehne v. New York . . . . . . 189 Johnson v. Christian ....... 374 Johnson, Ridings v. . . . . . . . . 212 Jones v. East Tennessee, Virginia and Georgia Railroad Company..........................................443 Kane v. Northern Central Railway Company ... 91 Kennedy v. Hazelton..................................667 viii TABLE OF CONTENTS. Table of Cases. PAGE Kessel, Cornelius ®...................................456 Kidd v. Pearson........................................ 1 Knox, United States v. . . . '. . . . 230 Lansing, Purdy v......................................557 Leather Manufacturers’ Bank v. Merchants’ Bank . . 26 Liggett and Myers Tobacco Company v. Finzer . . 182 Livingston County, Missouri v. First National Bank of Portsmouth, New Hampshire ..... 102 Lovejoy v. United States ...... 171 McDonald, United States v.............................471 Manchester, Banks v......................244 Marsh v. Nichols, Shepard and Company . . . 605 Marsh, Nichols, Shepard and Company v. . . . 605 Means v. Dowd.........................................273 Means v. Dowd ........................................583 Menendez v. Holt......................................514 Merchants’ Bank, Leather Manufacturers’ Bank v. . 26 Metcalf v. Watertown..................................586 Milford Savings Institution, Dublin Township v. . 510 Myers, Callaghan v....................................617 Nashville, Chattanooga and St. Louis Railway v. Alabama 96 Nevin, Roach v........................................578 Nevin, Walston v......................................578 New York, Jaehne v. ..................................189 Nichols, Shepard and Company v. Marsh . . . 605 Nichols, Shepard and Company, Marsh v. . . . 605 Northern Central Railway Company, Kane v. . . 91 O’Connor, Pacific Postal Telegraph Cable Company v. 394 Pacific Postal Telegraph Cable Company v. O’Connor 394 Palmer, United States v...............................262 Pearson, Kidd v........................................ 1 Pennsylvania, Western Union Telegraph Company v. . 39 Pollak v. Brush Electric Association of St. Louis . 446 Ponce, Stachelberg v..................................686 TABLE OF CONTENTS. ix Table of Cases. .. PAGE Powell, Cragin. v. ....................... 691 Purdy v. Lansing . . . . . . . . 557 Quimby v. Boyd . . . . ' . . . . 488 Reisinger, United States v.......................398 Ridings v. Johnson...............................212 Roach v. Nevin...................................578 Robinson v. Fair..................................53 Ryder v. Holt . . . . . . . . 525 Smith, Georgia Railroad and Banking Company v. . 174 Stachelberg v. Ponce.............................686 Stewart v. Wyoming Cattle Ranche Company . . 383 Terry, Ab parte .................................289 Texas, Asher v...................................129 The Chateaugay Ore and Iron Company, Petitioner . 544 The Gazelle and Cargo . . . . . . 474 Trabue, Estis v..................................225 United States v. American Bell Telephone Company . 315 United States v. Cook............................254 United States v. De Walt.........................393 United States v. Foster . . . ... . . 435 United States v. Iron Silver Mining Company . . 673 United States v. Knox............................230 United States, Lovejoy v.........................171 United States v. McDonald........................471 United States v. Palmer ...... 262 United States v. Reisinger.......................398 United States ex tel. Dunlap v. Black, Commissioner of Pensions......................................40 United States ex ret. Miller v. Black, Commissioner of Pensions............................. .40 United States ex rel. Rose v. Black, Commissioner of Pensions................40 Walston v. Nevin ........ 578 Ware v. Allen ........ 590 X TABLE OF CONTENTS. Table of Cases. PAGE Watertown, Metcalf -y................................586 Western Union Telegraph Company v. Pennsylvania . 39 Wickham, Fire Insurance Association (Limited) v. . . 426 Wood v. Guarantee Trust and Safe Deposit Company 416 Woolworth, Hennessey -v. . . . . , .438 Wyoming Cattle Ranche Company, Stewart w. . . 383 Appendix. Assignment to Circuits ..... 701 Index.............................................. 703 TABLE OF CASES CITED IN OPINIONS. PAGE Abbotsford (The), 98 U. S. 440 484 Adams & Co. v. Daunis, 29 La. Ann. 315 221 Addison ®. Walker, 4 Yo. & Col. Ch. 442 412 Adriatic (The), 107 U. S. 512 484 jEtna National Bank v. United States Life Insurance Co., 24 Fed. Rep. 770 208 Ala. Gold Life Insurance Co. v. Nichols, 109 U. S. 232 395 Albright v. Teas, 106 U. S. 613 269 Aldrich v. Butts, 5 R. I. 218 35 Alhambra (The), 6 P. D. 68 485, 486 Ambler v. Whipple, 20 Wall. 546 673 Ames v. Kansas, 111 U. S. 449 589 Amoskeag Manufacturing Co. v. Spear, 2 Sandf. 599 524, 604 Anderson v. Dunn, 6 Wheat. 204 303 Anderson v. Santa Anna, 116 U. S. 356 539 Anderson County v. Beal, 113 U. S. 227 94 Anderson’s Estate, Hay’s, and Kerr’s Appeal, 85 Penn. St. 202 205 Annie Lindsley (The), 104 U. S. 185 484 Anthony v. Jasper County, 101 U. S. 693 611 Ashburner v. Balchen, 7 N. Y. 262 487 Attorney General v. Cradock, 3 Myl. & Cr. 85 412 Attorney General v. Eastlake, 11 Hare, 205 523 Attorney General v. Poole, 4 Myl. & Cr. 17 412 Attorney General v. Vernon, 1 Vernon, 277 361, 365, 369 Augusta Insurance Co. v. Pack- wood, 9 La. Ann. 74 225 Ayers, In re, 123 U. S. 443 305 Bagnell v. Broderick, 13 Pet. 436 382 Baldwin v. Hale, 1 Wall. 223 497 PAGB Bank v. Hunt, 11 Wall. 391 282 Bank of America v. Fortier; 3d Opposition of Gay, 27 La. Ann. 243 223 Bank of British North America v. Merchants’ Bank, 91 N. Y. 106 37, 38 Bank of Columbia v. Hagner, 1 Pet. 455 455 Bank of United States v. Daniel, 12 Pet. 32 36 Banks v. Manchester, 128 U. S. 244 647 Barnard v. Kellogg, 10 Wall. 383 486 Barron v. Baltimore, 7 Pet. 243 101 Bates County v. Winters, 112 U. S. 325 126 Beauregard v. New Orleans, 18 How. 497 224 Beck v. Obst, 12 Bush, 268 581 Bedsole v. Monroe, 5 Iredell Eq. ‘ 313 412 Bell v. Hearne, 19 How. 252 614,698 Benefactor (The'), 102 U. S. 21'4 484 Bennett v. Denny, 33 Minn. 530 499 Birdsell v. Shaliol, 112 U. S. 485 665 Blacklock v. Small, 127 U. S. 96 587 Blanc v. Cousin, 8 La. Ann. 71 695 Blethen v. Lovering, 58 Maine, 437 37 Bollman, Ex parte, 4 Cranch, 75 303 Bondurant v. Watson, 103 U. S. 281 224 Bowman v. Chicago & Northwestern Railway Co., 115 U. S. 611 392 Brandies r. Cochrane, 105 U, S. 262 261 Brashear v. Mason. 6 How. 92 ' 48 Bree r. Holbech, 2 Doug. 654 35 Brinckerhoff v. Brown, 7 Johns. Ch. 217 251 Britton & Koontz v. Janey, 21 La. Ann. 204 221 xii TABLE OF CASES CITED. PAGE Broadway Baptist Church v. Mc- Atee, 8 Bush, 508 581 Brooks v. Norris, 11 How. 203 259, 260 Buck v. Colbath, 3 Wall. 334 499, 502 Burgess v. Seligman, 107 U. S. 20 538 Burns Case, 4 C. CL 113 270 Burroughs v. De Couts, 70 California, 361 83,87 Burton v. Stratton, 12 Fed. Rep. 696 521 Butterworth v. Hoe, 112 U. S. 50 48, 49 Butterworth v. Robinson, 5 Ves. 709 650 Cabot Bank v. Morton, 4 Gray, 156 35 Cambridge (The), 2 Lowell, 21 487 Cameron v. Hodges, 127 U. S. 322 587 Canal Company v. Clark, 13 Wall. 311 603 Carpenter v. Superior Court of San Joaquin County, California, S. C. April, 1888 90 Carr v. Duval, 14 Pet. 77 442 Carrol v. Safford, 3 How. 440 460 Cartwright’s Case, 114 Mass. 230 303 Cary v. Longman, 1 East, 358 650 Castro v. United States, 3 Wall. 46 259 Caulfield v. Stevens, 28 California, 4J8 80, 81, 83 Charter Oak Life Insurance Co. v. Brant, 47 Missouri, 419 206 Cheely v. Clayton, 110 U. S. 701 87 Chicago, Burlington and Quincy Railroad Co. v. Iowa, 94 U. S. 155 23 Chiles, In re, 22 Wall. 157 310 Choyniski v. Cohen, 39 California, 501 604 Churchill v. Bertrand, 3 Q. B. 568; S. C. 2 Gale & Dav. 548 37 Churton v. Douglas, Johnson, V. C. 174 522 City Council of Montgomery v. Montgomery Water Works, 77 Alabama, 248 454 Clark v. People, Breese, 266; S. C. 12 Am. Dec. 177 304 Clark v. Valentino, 41 Georgia, -143 241 Clawson v. United States, 114 U/ S. 477 173 Clyde v. United States, 13 Wall. 38 234, 235 Coats v. Holbrook, 2 Sandf. Ch. 586 521 Coe v. Errol, 116 U. S. 517 24 Colorado Coal Co. v. United States, 123 U. S. 307 366, 677 PAGE Colson v. Thompson, 2 Wheat. 336 442 Columbine v. Chichester, 2 Phil- lips, 27; S. C. 1 Coop. Temp. Cottenham, 295 671 Commissioner of Patents v. Whitely, 4 Wall. 522' 48 Commonwealth v. Dandridge, 2 Va. Cases; 408 304 Concord v. Robinson, 121 U. S. 165 543 Connemara (The), 108 U. S. 352 484 Continental Insurance Co. v. Rhoads, 119 U. S. 237 588 Continental Life Insurance Co. v. Palmer, 42 Conn. 60 205 Cooley v. Board of Wardens, etc., 12 How. 299 23 Cooper v. Reynolds, 10 Wall. 308 87 Cooper’s Case, 32 Vermont, 253 303 Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74 38 Cornish v. Clark, L. R. 14 Eq. 184 204 County of Bates v. Winters, 97 U. S. 83 118, 123, 126 County of Mobile v. Kimball, 102 U. S. 691 20, 21 Countv of Randolph v. Post, 93 U. S. 502 543 County of Scotland v. Thomas, 94 U. S. 682 115, 116,118, 120,126 Courtwright v. Bear River, &c., Mining Co., 30 California, 573 80, 82, 83 Covell v. Heyman, 111 U. S. 176 502 Cowdrey v. Galveston Railroad, 93 U. S. 352 421 Cowper v. Godmond, 9 Bing. 748; N. C. 3 Moore & Scott, 219 37 Craig v. Radford, 3 Wheat. 594 699 Crane, Ex parte, 5 Pet. 190 557 Croft v. Day, 7 Beavan, 84 604 Crow v. Oxford, 119 U. S. 215 541 Cruttwell v. Lye, 17 Vesey, 335 521 Cumming v. Forrester, 2 Jac. & Walk. 334 362 Curtis, Ex parte, 106 U. S. 371 305 Dahl v. Nelson, 6 App. Cas. 38 485 Dale Tile Man’f’g Co. v. Hyatt, 125 U. S. 46 269 Dallas v. Heard, 32 Georgia, 604 240 Davenport v. Fletcher, 16 How. 142 229, 230 Davidson v. New Orleans, 96 U. S. 97 582 Davis v. Jones, 17 C. B. 625 597 Davis v. Ransom, 18 Illinois, 396 282 Decatur v. Paulding, 14 Pet. 497 45, 46 Deneale v. Archer, 8 Pet. 526 229 Dexter v. Munroe, 2 Sprague, 39 487 TABLE OF CASES CITED. xiii PAGE Dial v. Reynolds, 96 U. S. 340 413 Dill v. Wareham, 7 Met. 438 36 District of Columbia v. McElli- gott, 117 U. S. 621 94, 95 Dixon County v. Field, 111 U. S. 83 541 Douglass v. County of Pike, 101 U. S. 677 538 Dow v. Beidelman, 125 U. S. 680 179 Dupasseur v. Rochereau, 21 Wall. 130 225 Dupont v. Vance, 19 How. 162 487 Earle v. Bickford, 6 Allen, 549 ; . Hooper, 9 Rob. La. 248 695 Stanford v. Taylor, 18 How. 409 699 Stanley v. Supervisors, 121 U. S. 535 582 Stark v. Starrs, 6 Wall. 402 461 State v. Demarest, 110 U. S. 400 259 State v. Garroutte, 67 Missouri, 445 128 State v. Greene County, 54 Missouri, 540 116 TABLE OF CASES CITED. xvii PAGE State v. Morrill, 16 Arkansas, 384 304 State v. Woodfin, 5 Iredell’s Law, 199; 8. C. 42 Am. Dec. 161 308 State Tax on Railway Gross Re- ceipts, 15 Wall. 284 23 Steamer Virginia, 19 How. 182 259 Steel v. Smelting Co., 106 U. S. 447 611, 699 Stevens v. Gladding, 17 How. 447 663 Stigler’s Executor v. Stigler, 77 Virginia, 163 208 Stone v. Farmer’s Loan and Trust Co., 116 U. S. 307 179 Sturgess v. Crowninshield, 4 Wheat. 122 497 Sturgis v. Preston, 134 Mass. 372 36 Succession of Hearing, 26 La. Ann. 326 208 Succession of Marc, 29 La. Ann. 412 223 Succession of Simon, 23 La. Ann. 533 221 Sun Insurance Co. v. Ocean In- surance Co., 107 U. S. 485 484, 485 Susquehanna Boom Co. v. West Branch Boom Co., 110 U. S. 57 897 Sutton v. Aiken, Trustee, 62 Georgia, 733 242 Suydam v. Williamson, 24 How. 427 • 224 Swan v. Moore, 14 La. Ann. 833 220 Sweet v. Benning, 16 C. B. 491 650 Syracuse (The), 12 Wall. 167 487 Taylor v. Brown, 5 Cranch, 234 699, 700 Taylor v. Carpenter,'3 Story, 458; 2 Woodb. & M. 1 524 Telegraph Company v. Texas, 105 U. S. 460 40 Telephone Cases, 126 U. S. 1 353 Thatcher v. Powell, 6 Wheat. 119 224 Thomas v. Lansing, 21 Blatch- ford, 119 559 Thompson v. American Insurance Company, 46 N. Y. 674 210 Thompson v. Butler, 95 U. S. 694 395 Thompson v. Cundiff, 11 Bush, 567 208 Thomson v. Bank of British North America, 82 N. Y. 1 37 Tilghman v. Proctor, 125 U. S. 136 666 Todd v. Daniel, 16 Pet. 521 230 Tornado (The), 109 U. S. 110 259 Town of Eagle v. Kohn, 84 Illi- nois, 292 538, 539, 542, 543 Town of East Lincoln v. Daven- port, 94 U. S. 801 118, 126 Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 495 Turner v. Robinson, 1 Sim. & St. 313 412 PAGE United States v. Baker, 125 U. S. 646 255 United States v. Briggs, 5-How. 208 514 United States v. Burns, 12 Wall. 246 269, 270 United States v. Flint, 4 Sawyer, 42 699 United States v. Hendee, 124 U. S. 309 257 United States v. Hudson, 7 Cranch, 32 302 United States v. Hughes, 11 How. 552 365, 368 United States v. Hughes, 4 Wall. 232 366 United States v. Memphis, 97 U. S. 284 582 United States v. Minor, 114 U. S. 233 366 United States v. Northway, 120 U. S. 327 514 United States v. Rose, 6 Fed. Rep. 136 173 United States v. San Jacinto Tin Co., 10 Sawyer, 639 699 United States v. San Jacinto Tin Co., 125 U. S. 273 366,699 United States v. Schurz, 102 U. S. 378 45, 363 United States v. Stone, 2 Wall. 525 364 United States v. Train, 12 Fed. Rep. 852 555 United States v. Throckmorton, 98 U. S. 61 699 United States v. Ulrici, 3 Dillon, 532 402 United States v. Wallace, 116 U. S. 398 233 United States, ex rel. Goodrich v. Guthrie, 17 How. 284 48 United States, ex rel. McBride v. Shurz, 102 U. S. 378 . 48, 49 University v. People, 99 U. S. 309 495 Utica Bank v. Van Gieson, 18 Johns. 485 35 Villabolos v. United States, 6 How. 81 261 Villavaso v. Walker, 28 La. Ann. 775 221 Wales v. Stetson, 2 Mass. 143; 8. C. 3 Am. Dec. 39 495 Wales v. Whitney, 114 U. S. 564 302 Walker v. Powers, 104 U. S. 245 352, 588 Wallis v. Little, 11 C. B. (N. S.) 369 597 Warfield v. Chaffe, 91 U. S. 690 397 Washington Packet Co. v. Sickles, 10 How. 419 473 xviii TABLE OF CASES CITED. PAGE Waterman v. Lawrence, 19 California, 210; 8. C. 79 Am. Dec. 212 89 Waters v. Howard, 1 Maryland Ch. 112 443 Watkins, Ex parte, 3 Pet. 193 301 Watson v. Bondurant, 30 La. Ann. 1 221 Watson v. Williams, 36 Mississippi, 331 303 Weeks v. Sego, 9 Georgia, 199 241 Weil v. Greene County, 69 Missouri, 281 128 West v. Cochran, 18 How. 403 699 Whalen v. Sheridan, 18 Blatch-ford, 324 555 Wheaton v. Peters, 8 Pet. 591 252, 253, 254, 647, 649, 650, 652 White v. Continental Bank, 64 N. Y. 316 35 White v. Damon, 7 Ves. 30 442 Whittem v. State, 36 Indiana, 311 308 Wilburn ». Wilburn, 83 Indiana, 55 206 PAGE Willard v. Tayloe, 8 Wall. 557 442 Williams v. Bank of United States, 11 Wheat. 414 230 Willson v. Blackbird Creek Marsh Co., 2 Pet. 245 23 Wilson v. Powers, 131 Mass. 539 597 Wilson v. Salamanca, 99 U. S. 499 119, 126 Wilson v. Sanford, 10 How. 99 269 Windsor v. McVeigh, 93 U. S. 274 307 Witherspoon v. Duncan, 4 Wall. 210 460 Worthy v. Johnson, 8 Georgia, 236 ; 8. C. 52 Am. Dec. 399 412 Wright, Ex parte, 65 Indiana, 504 309 Wurts v. Hoagland, 114 U. S. 606 582 Wylly v. Collins, 9 Georgia, 223 241 Yolo County v. City of Sacra- mento, 36 California, 193 83 Zander v. Coe, 5 California, 230 79, 80 Zeringue v. Harang, 17 Louisiana, 349 695 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. PAGE 1789, Sept. 24,1 Stat. 83,134, 304, 504 1794, March 27, 1 Stat. 350....... 256 1812, June 13, 2 Stat. 748, c. 99, 571, 572, 573, 574, 575, 577 1820, March 6, 3 Stat. 545, c. 22, 570, 575, 578 1831, Feb. 3, 4 Stat. 436, c. 16, 651, 655, 663 1831, March 2, 4 Stat. 487 ....... 304 1849, March 2,9 Stat. 352......... 695 1860, June 14, 12 Stat. 33, c. 128, 697 1864, July 1, 13 Stat. 332, c. 194, 697 1870, July 8, 16 Stat. 198........ 371 1870, July 15, 16 Stat. 334 ...... 255 1872, June 1, 17 Stat. 198, c. 255, § 3...................229, 505 1873, March 3,17 Stat. 569, c. 234, 41 1874, June 16, 18 Stat. 72, c. 285, 472, 474 1874, June 18, 18 Stat. 78, c. 298, 42 1875, Feb. 16, 18 Stat. 315, c. 77, 392, 484 1875, Feb. 22, 18 Stat. 333.. .231, 234 1875, March 3, 18 Stat. 470. .359, 587, 588, 590 1876, 'June 30, 19 Stat. 65, c. 100, 472, 473 1877, Feb. 28, 19 Stat. 264, c. 73, 42 1879, June 30, 21 Stat. 43, c. 52, 173 1880, June 16,21 Stat. 281, c. 236, 42 1881, March 3,21 Stat. 502, c. 138, 525 1882, August 5, 22 Stat. 284, c. 391, 437 1883, March 3, 22 Stat. 473, c. 97, 254, 255, 437 1884, June 26, 23 Stat. 57, c. 121, 133 1884, July 4, 23 Stat. 98........ 401 1885, March 3,23 Stat. 437, c. 353, 301, 302 1887, Feb. 3, 24 Stat. 378, c. 93, 610, 616 Revised Statutes. § 13...............401, 402, 403 § 177...................... 615 § 453...................... 698 § 563...................... 134 § 658...................... 556 § 690...................... 392 Revised Statutes (coni.) page § 691........................... 392 § 699....................... 392 § 709....................... 133 § 725....................... 304 § 751....................... 301 § 752....................... 301 § 753....................... 301 § 754....................... 301 § 755...................... 301 § 764....................... 302 § 804..................... 173 § 846...................233, 234 § 914...................553, 554 § 916....................... 554 § 953....................... 555 § 1005...................... 229 § 1007..................504, 505 § 1008...................... 260 § 1012..................260, 504 § 2320...................... 680 § 2322...................... 680 § 2325................. 680, 685 § 2329...................... 678 § 2333............ 678, 679, 680 § 2395...................... 697 § 2396...................... 697 § 2478...................... 698 § 4698....................... 41 § 4883..................363, 612 § 4885...................... 616 § 4886...................... 672 § 4888...................... 672 § 4892...................... 672 § 4895...................... 672 § 4896..................... 672 § 4915.................* .... 363 § 4920....... 269, 370, 371, 672 § 4952..................252, 253 § 4954................ 252, 253 § 5209...................... 393 § 5541...................... 393 § 5598...................... 402 Sup. Rev. Stat, p. 39....................... 42 p. 136...................... 392 p. 282....................... 42 p. 560..................... 42 (B.) Statutes of the States. Alabama. 1887, June 1............'... 97 Code, 1886. § 2675.................. 453 § 2770................... 453 A rk an s as Digest, 1874, c. 93, p. 756, §4194 188 California. 1850, April 22, c. 129...... 77 Compiled Laws, 1850, c. 120, 77, 81 XX TABLE OF STATUTES CITED California (coni.) page Code. § 1581.....•............... 77 § 1634..................... 77 § 1665..................... 77 § 1666..................... 77 § 1675..................... 77 § 1676-1686................ 77 § 1678..................... 81 Code of Civil Procedure. §§ 20-23.................... 89 § 372................89, 90, 91 § 373...................... 89 § 1718...................89, 91 Georgia. 1879, Oct. 14............... 177 Code, 1863 (1867), § 1773... 241 Code, 1863 (1882), § 1783... 241 Code, 1882, Appendix, Art. IV, § 2................... 177 Illinois. 1849, Nov. 6... .531, 532, 533, 534 1861, Feb. 22......531, 532, 533, 534, 539 1869, April 16, Laws, 1869, p. 316.. .535, 536, 537, 538, 539, 540, 541, 542, 543 Rev. Stat. 1845, ch. 29. .645, 646 Indiana. Stat. Frauds, §§ 10,21, 1 R. S. 1852, p. 299.............. 285 Iowa. Code. § 1523..................... 19 § 1524................... 19 § 1526..................... 19 § 1530..................... 19 Kentucky. 1882, March 24, 1 Session Laws, 1881-82, p. 990. .579, 580 Louisiana. 1810, March 24, 3 Martin’s Digest, 138; 2 Moreau-Lis- let, 285 ................. 219 1827, March 20, 2 Moreau- Lislet, 303............... 220 1855, p. 335 ............220, 221 Civil Code. Art. 845 ................. 694 Art. 1768 ................ 216 Art. 2045 ................ 216 Art. 2046 ................ 216 Art. 2561 ................ 216 Art. 2562 ................ 216 Louisiana {coni.j page Code of 1808, Art. 52.........219 Code of 1825. Arts. 3238-3241 .......... 222 Art. 3314................. 219 Art. 3315................. 219 Code of 1870. Arts. 2264, 2265, 2266.... 220 Arts. 3241 (3274)......... 323 Rev. Stat. 1870, p. 617.... . 220 Minnesota. 1881, March 7, Laws, 1881, c. 148..............491, 500, 501 Gen. Stat. 1878, c. 69, §§ 2, 4, 442 Missouri. 1868, March 23.........114, 127 1869, March 2..........113, 115 Gen. Stat. 1865, Title XXIV, ch. 62, 63................ 124 1 Wagner’s Missouri Statutes, 1870, p. 314, § 56.... 113 New York. 1871, April 5, c. 298....558, 559 1873, April 30, ch. 335, § 100, 191, 193 1882, July 1. § 58................. 192, 193 § 2143................191, 193 Code of Civil Procedure. 1855, § 91................ 34 1876, § 382.......,....... 34 Penal Code. § 72.............191, 193, 194 § 725 ................192, 193 Ohio. 1881, Jan. 17, 78 Laws of Ohio, 14................ 245 1882, April 17, 79 Laws of Ohio, 249 ............... 246 Rev. Stat. 1879, Tit. 4, ch. 1. §§ 426-435 ................. 245 § 436............245, 247, 249 § 437....... 245, 247, 249, 250 Texas. 1882, May 4................ 129 Penal Code, Tit. 4, ch. 5, Art. 110................ 130 Wisconsin. Rev. Stat. 1858, c. 138, §§ 1, 14, 15, 16............... 587 Rev. Stat. 1878, c. 177, §§ 4206, 4219, 4220, 4221.....587 (C.) Foreign Statutes. France. Great Britain. Code Napoléon, Art. 2106.. 224 13 Elizabeth, c. 5. .203, 280, 285 Art. 2134................... 221 CASES ADJUDGED £ ” ■Fm o' SUPREME COURT OF THE UNITED S^ATO, AT ft* £ OCTOBER TERM, 1888. ■' iww ---------------1" 1 1 KIDD ®. PEARSON. S' ERROR TO THE SUPREME COURT OF THE STATE OF IOWA. No. 779. Argued and submitted April 4, 1888. — Decided October 22, 1888. Following Mugler v. Kansas, 123 U. S. 623 ; Held, that a State has the right to prohibit or restrict the manufacture of intoxicating liquors within its limits ; to prohibit all sale and traffic in them in the State ; to inflict penalties for such manufacture and sale ; and to provide regulations for the abatement, as a common nuisance, of the property used for such forbidden purposes ; and that such legislation does not abridge the liberties or immunities of citizens of the United States, nor deprive any person of property without due process of law, nor contravene the provisions of the Fourteenth Amendment of the Constitution of the United States. A statute of a State which provides (1) that foreign intoxicating liquors may be imported into the State, and there kept for sale by the importer, in the original packages, or for transportation in such packages and sale beyond the limits of the State ; and (2) that intoxicating liquors may be manufactured and sold within the State for mechanical, medicinal, culinary, and sacramental purposes, but for no other, not even for the purpose of transportation beyond the limits of the State—does not conflict with Section 8, Article 1, of the Constitution of the United States by undertaking to regulate commerce among the States. The right of a State to enact a statute prohibiting the manufacture of intoxicating liquors within its limits, is not affected by the fact that the manufacturer of such spirits intends to export them when manufactured. The police power of a State is as broad and plenary as the taxing power (as defined in Coe v. Errol, 116 U. S. 517), and property within the State is subject to the operation of the former, so long as it is within the reg ulating restrictions of the latter. $ vol. cxxvni—J. 2 OCTOBER TERM, 1888. Statement of the Case. The case, as stated by the court, was as follows: This is a writ of error to the Supreme Court of the State of Iowa, allowed by the Chief Justice thereof, upon the ground that the judgment in the case affirmed the validity of a statute of that State, which the plaintiff in error claimed to be in conflict with the Federal Constitution. The case arose upon a petition in equity, filed December 24, 1885, in the Circuit Court of Polk County, Iowa, by defendants in error, I. E. Pearson and S. J. Loughran against the plaintiff in error, J. S. Kidd, praying that a certain distillery erected and used by said Kidd for the unlawful manufacture and sale of intoxicating liquors be abated as a nuisance; and that the said Kidd be perpetually enjoined from the manufacture therein of all intoxicating liquors. The provisions of the law under which these proceedings were instituted are found in Chapter 6, Title 11, of the Code of Iowa, amended by Chapter 143 of the acts of the General Assembly in 1884. The sections necessary to be quoted for the purposes of this decision are as follows: Section 1523 provides: “Ko person shall manufacture or sell by himself, his clerk, steward, or agent, directly or indirectly, any intoxicating liquors, except as hereinafter provided. And the keeping of intoxicating liquors, with the intent on the part of the owner thereof, or any person acting under his authority or by his permission, to sell the same within this State contrary to the provisions of this chapter, is hereby prohibited, and the intoxicating liquor so kept, together with the vessels in which it is contained, is declared a nuisance, and shall be forfeited and dealt with as hereinafter provided.” Section 1524 provides: “Nothing in this chapter shall be construed to forbid the sale by the importer thereof of foreign intoxicating liquor imported under the authority of the laws of the United States regarding the importation of such liquors and in accordance with such laws: Provided, That the said liquor at the time of said sale by said importer remains in the original casks or packages in which it was by him imported, and in quantities not less than the quantities in which the laws of the United States require such liquors to be imported, and is KIDD v. PEARSON. 3 Statement of the Case. sold by him in said original casks or packages and in said quantities only; and nothing contained in this law shall prevent any persons from manufacturing in this State liquors for the purpose of being sold, according to the provisions of this chapter, to be used for mechanical, medicinal, culinary, or sacramental purposes.” Section 1525 prescribes a penalty for a violation of the law by manufacturers, as follows: “Every person who shall manufacture any intoxicating liquors as in this chapter prohibited, shall be deemed guilty of a misdemeanor, and upon his first conviction for said offence shall pay a fine of two hundred dollars and costs of prosecution, or be imprisoned in the county jail not to exceed six months ; and on his second and every subsequent conviction for said offence he shall pay a fine of not less than five hundred dollars, nor more than one thousand dollars, and costs of prosecution, and be imprisoned in the county jail one year.” Section 1526 defines who may be permitted to manufacture under the law, and for what purpose the manufacture may be carried on, as follows: “ Any citizen of the State, except hotel keepers, keepers of saloons, eating houses, grocery keepers, and confectioners, is hereby permitted, within the county of his residence, to manufacture or buy and sell intoxicating liquors for mechanical, medicinal, culinary, and sacramental purposes only, provided he shall first obtain permission from the board of supervisors of the county in which such business is conducted, as follows.” Sections 1527 and 1529 provide for the manner of obtaining the permit and § 1530 sets out the conditions under which it may be gramted. It is as follows: “ At such final hearing, any resident of the county may appear and show cause why such permit should not be granted; and the same shall be refused, unless the board shall be fully satisfied that the requirements of the-law have, in all respects, been fully complied with, that the applicant is a person of good moral character, and that, taking into consideration the wants of the locality, and the number of permits already granted, such permit would be necessary and proper for the accommodation of the neighborhood.” 4: OCTOBER TERM, 1888. Statement of the Case. The manufacturer, like the seller, is required to make monthly reports to the county auditor, the evident purpose of the requirement being to show whether or not the holder of a permit was manufacturing or selling in compliance with the law. Section 1543 provides for proceedings in equity to abate and enjoin unlawful manufacture. The averments of the petition are, in substance, that the distillery described therein was erected by said J. S. Kidd for the manufacture of intoxicating liquors, contrary to the statute of Iowa; that said Kidd had been, ever since the 4th of July, 1884, and is still, engaged in the manufacture of intoxicating liquors, upon the premises aforesaid, for other than mechanical, medicinal, culinary, and sacramental purposes ; with the concluding averment “ that the defendant manufactures, keeps for sale, and sells within this State, and at the place aforesaid, intoxicating liquors, to be taken out of that State and there used as a beverage, and for other purposes than for mechanical, medicinal, culinary, and sacramental purposes, contrary to the statute of Iowa.” Kidd in his answer specifically pleaded that he is now, and has been ever since the 4th of July, 1884, authorized by the board of supervisors to manufacture and sell intoxicating liquors, except as prohibited by law, and that, in the manufacture and sale of liquors, this defendant has at all times complied with the requirements of the law in that behalf. Upon the trial it was proved by undisputed evidence that Kidd held each year, from July 4th, 1884, a permit regularly issued from the board of supervisors of Polk County, covering the period of the alleged violations of law, authorizing him to manufac-ture and sell intoxicating liquors for mechanical, medicinal, culinary, and sacramental purposes ; that his monthly reports, made on oath, in compliance with the requirements of the law, show that there were no sales for mechanical, medicinal, culinary, and sacramental, or any other purpose, in the State of Iowa ; and that all the manufactured liquors were for exportation and were sold outside of the State of Iowa. A decree was rendered against Kidd, ordering that the said dis- KIDD v. PEARSON. 5 Argument for Plaintiff in Error. tillery be abated as a nuisance, according to the prayer of the petitioner, and enjoining said Kidd from the manufacture therein of any and all intoxicating liquors. On appeal to the Supreme Court of Iowa this decree was affirmed by that court. Hence this writ of error. JZr. F. W. Lehmann for plaintiff in error. JZr. Benjamin Ha/rris Brewster was with him on the brief. Alcohol is universally admitted to be a useful and indispensable commodity. For some purpose and to some extent, as a prime or subordinate element, it is used in nearly every art and manufacture. Next to water it is the most general solvent. In the manufacture of chemicals and drugs it is absolutely indispensable. The whole art of pharmacy, it may be said, is based upon the use of alcohol as a solvent. It enters largely into the composition of paints, varnishes, perfumes, fine soaps, stearine candles, and many other articles of daily use. It is used in all dyeing and lacquering establishments, as a preservative in all museums, and as a fuel and cleansing material by jewellers, dentists, photographers and many other workers in mechanical arts. Its many beneficial uses in the sick room are well known and need not be recited. The amount of alcohol annually required in this country for these and other like legitimate uses is variously estimated by good authorities at from nine to twenty millions of gallons. The laws of every State in the Union and of every civilized country recognize the beneficial properties of alcohol, and all legislation touching the subject, whether prohibitory or restrictive merely, deals only with intoxicating liquors designed for use as a beverage. The statute of Iowa which is in question makes no distinction between alcohol and intoxicating drinks. The question presented by this case is, can a State prohibit traffic with other States and foreign countries in an article which it recognizes to be a useful commodity and the subject of lawful traffic among its own people ? It is not in the power of a State to prohibit exportation of any commodity whatever. Section 8, of Art. 1, of the Fed- 6 OCTOBER TERM, 1888. Argument for Plaintiff in Error. eral Constitution, provides: “ The Congress shall have power to regulate commerce with foreign nations and among the several States.” As to certain subjects which are local in their nature, and affect commerce but incidentally, the State may make proper regulations, until Congress acts with reference to them. Where, however, the subject is national in its character, or of such nature as to admit of uniformity of regulation, the power of Congress is exclusive of all state authority. Welton v. Missouri, 91 IT. S. 275 ; County of Mobile v. Kimball, 102 IT. S. 691. That portion of commerce with foreign countries and between the States which consists in the transportation and exchange of commodities is of national importance, and admits and requires uniformity of regulation. Welton v. Missouri, supra: County of Mobile v. Kimball, supra: Brown v. Houston, 114 U. S. 622. The non-exercise of its power by Congress is tantamount to a declaration that such commerce shall be free. Wabash, <&c. Railway Co. n. Illinois, 118 U. S. 557. We have only to Consider, then, whether commerce in alcohol is included within the term “ commerce ” as used in the Constitution. In the Passenger Cases, 7 How. at page 416, it is said: « Commerce consists in selling the superfluity; in purchasing articles of necessity, as well productions as manufactures; in buying from one nation and selling to another, or in transporting the merchandise from the seller to the buyer to gain the freight.” In Welton v. Missouri, supra, it is said that “ the main object of that (inter-state) commerce is the sale and exchange of commodities.” No exceptions are admitted to this general character of commerce, as to the articles which may enter into it. Every species of property, everything which has beneficial uses and exchangeable value, is included. That alcohol is property, that it has value in use and exchange, is everywhere admitted. In the License Cases, 5 How. 504, all the judges concurred in treating alcohol as property and commerce in it, as much aS commerce in any other commodity, when carried on among KIDD v. PEARSON. 7 Argument for Plaintiff in Error. the States or with foreign countries, as within the scope of the constitutional provision. Chief Justice Taney and those concurring with him did indeed hold that the laws involved regulated commerce as between the States, and that regulations of that character might be made by the States so long as Congress failed to act. This, in view of later decisions, was not tenable ground. The other judges sustained the laws as to liquors brought from other States upon the same ground as that upon which they sustained the laws as to imported liquors, viz. : That they were domestic regulations purely, and affected only domestic commerce. That intoxicating liquors are property and traffic in them as much as in any other species of property within the meaning of the term “commerce” in the Federal Constitution is plainly implied in Beer Co. v. Massachusetts, 97 U. S. 25. The Supreme Court of Iowa itself, in deciding a case arising under the very law in question, laid down the same doctrine. Monty v. Arenson, 25 Iowa, 383. Commerce in alcohol being within the constitutional provision, it remains to determine how far that provision is operative as a limitation upon the power of the States. The License Cases settled that a State could not, in virtue of its police power, prohibit importation of liquors from foreign lands, and the several States have since that time framed their enactments in this view. Imported liquors are not, as a consequence, exempted from all police supervision, but the power of Congress and the power of the States are each given effect within their respective spheres. So long as the liquors retain their character as imports they are under the authority of Congress; when they lose that character and become mingled with the general property of the State they become subject to its police restrictions. Imports and exports stand upon the same footing. No warrant for any distinction between them can be found in either the letter or the reason of the constitutional provision. In Gibbons v. Ogden, 9 Wheat. 1, Ch. J. Marshall said : “It has, we believe, been universally admitted that these words (commerce with foreign nations, etc.) comprehend every 8 OCTOBER TERM, 1888. Argument for Plaintiff in Error. species of commercial intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and any other, to which this power does not extend. It has been truly said that commerce, as the word is used in the Constitution, is a unit, every part of which is indicated by the term,” pp. 193-4. Yet the Iowa statute absolutely prohibits the exportation of the product of one of its lawful manufactures, or at least attempts to restrict its sale abroad by a limitation of the uses for which it may be there sold. Whatever doubt may have once existed on the subject, it is now a settled doctrine that as to the paramount authority of Congress commerce among the several States stands upon the same footing as commerce with foreign nations. The States may not in the exercise of their many undoubted powers to tax, to pass quarantine and inspection laws, and other needful measures of internal police, trench upon this authority. There is involved in this no impairment of the power of the States over purely domestic concerns, but there is involved and required by it a limitation of state interference to purely domestic concerns A consideration of some of the leading cases in which there was either a real or supposed conflict of state and national authority will serve to point out the rightful limits of each. [Counsel then referred (with comments and quotations) to Gibbons1?. Ogden, supra j Almy n. California,^ How. 169 ; State Freight Tax, 15 Wall. 232; State Tax on Railway Gross Receipts, 15 Wall. 284, as affected by Philadelphia, dec. Steamship Co. v. Pennsylvania, 122 U. S. 326 ; Robbins v. Shelby County Taxing District, 120 U. S. 489 ; Hall v. De Cuir, 95 U. S. 485 ; Western Union Tel. Co. v. Pendleton, 122 U. S. 347 ; Tiernan v. Rinker, 102 U. S. 123; Walling v. Michigan, 116 U. S. 446 ; Railroad Co. v. Husen, 95 U. S. 465 ; City of New York v. Miln, 11 Pet. 102 ; Chy Lung v. Freeman, 92 U. S. 275 ; People v. Compagnie Générale, 107 U. S. 59.] None of these cases were overruled by Mugler v. Kansas 123 U. S. 623. The commercial power of Congress was not involved in them. The point ruled was simply that the Four- KIDD v. PEARSON. 9 Argument for Plaintiff in Error. teenth Article of Amendment did not operate to impair the police power of the States. The doctrine of the Husen Case, that the States under cover of exerting their police powers, may not substantially prohibit or burden inter-state or foreign commerce, was not denied. Under the laws of Iowa, intoxicating liquors are noty?er se a nuisance. The mere possession of them is not a crime. To make the possession criminal, it is essential that it be with intent to sell them within the State. Alcohol not being per se a nuisance, but recognized as property and as the subject of lawful commerce by the laws of the United States and of every State in the Union, to prohibit its transportation from one State, by one who has the legal right there to own and keep it, to another State, with intent there to sell it to a person and for a purpose authorized by the laws of that State, is to prohibit, to that extent, commerce among the States. It is prohibiting “ the transmission of subjects of trade from the State to the buyer, or from the place of production to the market,” which this court said, in the case of the State Freight Tax, it was absurd to suppose, was not contemplated by the Constitution, “ for without that there could be no consummated trade either, with foreign nations or among the States.” The peculiar quality of the commodity does not affect the constitutional principles involved. All commodities are subject to a proper exercise of the police power of the States, and all commodities in their relation to inter-state and foreign commerce are subject to the paramount and exclusive authority of Congress. The shipment of liquors from without the State to within it, was, in Walling v. Michigan, held to be a matter of commerce among the States, and we take it for granted that a shipment from within to without the State is no less so. The rule of law applicable does not depend upon the direction of the shipment, and change as that changes. It will be said, however, that the question in this case is not whether the alcohol after it was manufactured could be shipped from the State, but whether it could be manufactured for the purpose of so shipping it. The difference suggested is one of form, 10 OCTOBER TERM, 1888. Argument for Plaintiff in Error. and not of substance. The manufacture of alcohol was not per se illegal. It was expressly authorized by the law. Now, unless the shipment was itself illegal, how could it make the manufacture so ? Two acts, each lawful in itself, are not made unlawful when brought into conjunction, simply because of that conjunction. The act of transporting the alcohol from the State in the course of lawful commerce with other States not being a crime, the intent to perform that act was not a criminal intent, no matter when formed, whether before or after the alcohol was manufactured. If in the operation of this distillery there was a crime committed, it was committed by doing a lawful act, by lawful means, for lawful purposes. Such a conclusion discredits the premises from which it is derived. We confidently submit that Mr. Kidd could not, by force of the Iowa statute, be enjoined from the further pursuit of his business unless he had, either in the manufacture or in the sale of his product, done something which the State had prohibited and had authority to prohibit. It had not prohibited the manufacture, and it had no authority to prohibit the foreign sales. We concede what the court claims for the power of the State to suppress conspiracies, no mattpr against whom directed. We concede the power to suppress the publication of obscene literature, no matter where it is to be circulated. We concede the power to prohibit the manufacture of unwholesome foods, no matter upon whom they are to be imposed. These things are inherently and absolutely wrong. The common sense of mankind condemns them. Nothing can justify a toleration of them to any extent or for any purpose. But the power of a State to punish acts clearly criminal in themselves, when committed within its jurisdiction, does not include the power to prescribe the mode in which a useful commodity, the subject of lawful commerce, shall be dealt with in another State in relation to the domestic concerns of that State. The fault of the court’s argument, its fundamental weakness, is that it does not distinguish between crime and commerce. We admit the authority of the State of Iowa to punish crimes committed within its own borders, and we deny only KIDD v. PEARSON. ’ 11 Argument for Plaintiff in Error. what only is here involved, its authority to regulate commerce with foreign nations and among the several States. The principles contended for by us have been recognized and upheld in a number of cases in Iowa arising under this very law. Niles v. Fries, 35 Iowa, 41 ; Becker v. Betten, 39 Iowa, 668. It is claimed, however, that the State may absolutely prohibit the traffic in intoxicating liquors, and that it may, therefore, do anything which is less than such absolute prohibition. That is to say, the State may prohibit all commerce in alcohol, domestic and external ; it may, therefore, prohibit any part of such commerce, either the domestic or the external. We have no occasion to consider the claim of power to impose an absolute prohibition, because the consequence contended for by no means follows. There is no such thing as arbitrary power in our system of government. Every function possessed by the State was conferred by the people, to be exercised in their interest and for their welfare, and it is limited in its scope by the necessity for its exercise. An absolute prohibition of the manufacture and sale of alcohol involves a finding by the legislature that alcohol is wholly bad, and incapable of any good uses whatsoever. Such a prohibition being imposed, and in such a view, it may be that no exception could be claimed against it. That question is not in the case, and so we need not discuss it. A prohibition upon the manufacture and sale of alcohol only for certain uses, involves a legislative finding that so far as not prohibited alcohol is beneficial, and hurtful alone when applied to the prohibited uses. This legislative finding is conclusive until reversed, and is binding upon the legislature itself ; and it cannot by sheer force of authority do aught that is inconsistent therewith. This finding indicates the limits of the legisla-tive power over alcohol, because it indicates the extent to which alcohol is hurtful to the State. To prohibit its manufacture, sale, or use beyond the requirements of the public welfare, is arbitrary and absurd, quite as much so as would be a like prohibition against the growing of corn or other staple production of the State. What we are contending for was the very point of the decision in Preston v. Drew, 33 Maine, 558 ; A. C. 54 Am. Dec. 639. 12 OCTOBER TERM, 1888. Argument for Plaintiff in Error. We again invite comparison with the limitations upon the taxing power of the States. These were carefully considered in McCulloch v. Maryland, 4 Wheat. 316. Chief Justice Marshall there said: “ It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which government may choose to carry it. . . . “ The people of a State, therefore, give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right. . . . “ It may be objected to this definition, that the power of taxation is not confined to the people and property of a State. It may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace this right ? It is obvious that it is an incident of sovereignty, and is co-ex-tensive with that to which it is an incident.” See also Cra/n-dall v. Nevada, 6 Wall. 35. No more comprehensive scope than this has ever been assigned to the police power. The power to tax implies the power to destroy, as does the power to regulate the power to prohibit; but the State cannot be permitted to exercise these powers, dr either, of them, to the destruction of, or interference with interests confided exclusively to the care of the national authority. See also Loan Association v. Topeka, 20 Wall. 655; Kansas v. Saunders, 19 Kansas, 127. It is claimed that even if alcohol may, after it is manufactured, be freely exported, nevertheless the manufacture for such exportation may be prohibited, because that is a purely domestic process, begun and completed within the State, and therefore subject to its authority. That manufactures may per se be the subject of regulation, nobody denies. But the reason for such regulation wherever it has been attempted is obvious. There may be, incident to the process, noxious smells, and the generation of poisonous gases, as in the case of rendering and fertilizing establishments. KIDD v. PEARSON. 13 Argument for Plaintiff in Error. There may be danger of fire or explosion, as in the manufacture of burning fluids or explosive powders. In all these cases the provisions of the law are adapted to reducing the peculiar perils of the trade to a minimum. The state court say that the evils flowing from intoxicating liquor arise wholly from its use as a beverage. As the law attempts not directly to inhibit that use, but indirectly by inhibiting the sale for such use, we may say that it is the sale alone which the law has in view. From that all the apprehended evils flow, and the sole reason for imposing any restrictions upon the manufacture is, that all manufacture is for purpose of sale, and carries with it the right of sale, and therefore a limitation is imposed upon it correspondent with that upon the sale. The commerce and the manufacture stand upon the same footing. Wherever commerce is lawful, manufacture to supply that commerce is also lawful. From all the legislation of all the States, and from all the adjudication upon such legislation by the courts, we challenge the' citation of another instance wherein the limitations upon the production of an article which might be hurtful in use, were broader than the limitations on the sale. Under whatever class of regulations the manufacture may fall, conforming to them, it may be carried on to whatever extent the requirements of lawful commerce may justify, and any regulation in denial or limitation of that right, is a regulation, not of manufacture, but of commerce, and must be considered in that view. Granting therefore that the State did intend a limitation upon the manufacture of alcohol, considered merely as an industrial process, it would have no authority to effect that limitation by a restriction to manufacture for domestic uses. The object of all labor is to supply the wants of the laborer. In civilized society, however, labor alone cannot accomplish this object. There must be exchange of the products of labor. Commerce is industry. It is in every just sense a part of the purpose and process of production. The commodity must not only be made, but it must be brought to the consumer, and the cost of this is added to the price paid by the consumer for the 14 OCTOBER TERM, 1888. Argument for Plaintiff in Error. commodity. So, too, industry, save that limited amount of labor which in the very performance gratifies an ultimate want, is commerce. It is the prospect of exchange that incites to labor and determines its direction and extent. Commerce and industry are thus essential parts of one great plan. The ligament that binds them together is vital to each. What affects the one, affects the other. Nevertheless, regulations that go to the mere modes or processes of industry have but an incidental effect upon commerce, and the power to make them, in so many cases vitally essential to the welfare of their people, was not withdrawn from the States. But regulations that in terms limit the purposes for which and the markets in which the products of labor may be offered in exchange are commercial regulations, and it is a mere quibble to speak of them as anything else. Railroad Co. v. Husen, supra', Philadelphia Steamship Co. v. Pennsylvania, supra; Almy v. California, supra ; Woodruff v. Parham, 8 Wall. 123 ; Brown v. Maryland, 12 Wheat. 419; Welton v. Missouri, supra; Robbins v. Shelby County Taxing District, supra. These cases establish that a regulation of industry in its relation to commerce is a commercial regulation and is to be so considered, no matter by what indirection it is imposed. That the State is not restrained from making such regulations by the Fourteenth Article of Amendment may be true, but that is nothing to our present purpose, which is to determine the effect of the commercial clause. The proposition must be maintained broadly that the State may by limitations imposed upon the commercial purposes for which production is carried on, effect the entire destruction of its external commerce, or the law here in question must be limited to its domestic traffic. We are concerned to know if a power exists «and not whether it has been reasonably exercised. Authority is removed above the necessity of giving reasons and needs not even to resort to Falstaff’s shift of declining to give them on compulsion. Counsel also argued as a second point that the statute contravenes the Fourteenth Article of Amendment to the Constitution ; but, as the opinion of the court treats this question as KIDD v. PEARSON. 15 Opinion of the Court. settled, this portion of the argument is omitted. Indeed it has been necessary to curtail and condense the argument on the first point. Jfr. C. C. Cole and AZ>. John & Runnells^ for defendants in error, submitted on their brief. Me. Justice Lamae, having stated the case as above reported, delivered the opinion of the court. The Supreme Court of Iowa, in its opinion, a copy of which, duly authenticated, is found in the record, having been transmitted according to our 8th Rule of Practice, held the sections in question to mean: (1) That foreign intoxicating liquors might be imported into the State, and there kept for sale by the importer, in the original packages (or for transportation in such packages and sale beyond the limits of the State); (2) That intoxicating liquors might be manufactured and sold within the State for mechanical, medicinal, culinary, and sacramental purposes, but for no other — not even for the purpose of transportation beyond the limits of the State; (3) That the statute thus construed raised no conflict with the Constitution of the United States, and was therefore valid. As the record presents none of the exceptional conditions which sometimes impel this court to disregard inadmissible constructions given by State courts to even their own State statutes and State constitutions, we shall adopt the construction of the statute of Iowa under consideration, which has been given it by the Supreme Court of that State. The questions then, for this court to determine are: (1) Does the statute as thus construed conflict with Section 8, Article 1, of the Constitution of the United States by undertaking to regulate commerce between the States; and (2) Does it conflict with the Fourteenth Amendment to that Constitution by depriving the owners of the distillery of their property therein without “due process of law.” All of the assignments of error offered are but variant statements of one or the other of these two propositions. The second of the propositions has been disposed of by this 16 OCTOBER TERM, 1888. Opinion of the Court. court in the ease of Mugler v. .Kansas, 123 U. S. 623, wherein this very question was raised upon a statute similar, in all essential respects, to the provisions of the Iowa code whose validity is contested. The court decided that a State has the right to prohibit or restrict the manufacture of intoxicating liquors within her limits; to prohibit all sale and traffic in them in said State; to inflict penalties for such manufacture and sale, and to provide regulations for the abatement as a common nuisance of the property used for such forbidden purposes ; and that such legislation by a State is a clear exercise of her undisputed police power, which does not abridge the liberties or immunities of citizens of the United States, nor deprive any person of property without due process of law, nor in any way contravenes any provision of the Fourteenth Amendment to the Constitution of the United States. Upon the authority of that case and of the numerous cases cited in the opinion of the court, we concur in the decision of the Iowa courts that the provisions here in question are not in conflict with the said amendment. The only question before us, therefore, is as to the relation of the Iowa statutes to the regulation of commerce among the States. The line which separates the province of federal authority, over the regulation of commerce, from the powers reserved to the States, has engaged the attention of this court in a great number and variety of cases. The decisions in these cases, though they do not in a single instance assume to trace that line throughout its entire extent, or to state any rule further than to locate the line in each particular case as it arises, have almost uniformly adhered to the fundamental principles which Chief Justice Marshall, in the case of Gibbons v. Ogden, 9 Wheat. 1, laid down as to the nature and extent of the grant of power to Congress on this subject, and also of the limitations, express and implied, which it imposes upon state legislation with regard to taxation, to the control of domestic commerce, and to all persons and things within its limits, of purely internal concern. According to the theory of that great opinion, the supreme authority in this country is divided between the government KIDD ». PEARSON. 17 Opinion of the. Court. of the United States, whose action extends over the whole Union, but which possesses only certain powers enumerated in its written Constitution, and the separate governments of the several States, which retain all powers not delegated to the Union. The power expressly conferred upon Congress to regulate commerce is absolute and complete in itself, with no limitations other than are prescribed in the Constitution; is to a certain extent exclusively vested in Congress, so far free from state action; is co-extensive with the subject on which it acts, and cannot stop at the external boundary of a State, but must enter into the interior of every State whenever required by the interests of commerce with foreign nations, or among the several States. This power, however, does not comprehend the purely internal domestic commerce of a State which is carried on between man and man within a State or between different parts of the same State. The distinction is stated in the following comprehensive language : ° The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.” p. 195. Referring to certain laws of state legislatures which had a remote and considerable influence on commerce, the court said that the acknowledged power of the State to regulate its police, its domestic trade, and to govern its own people may enable it to legislate over this subject to a great extent; but these and other state laws of the same kind are not considered as an exercise of the power to regulate commerce with foreign nations and among the several States, or enacted with a view to it; but, on the contrary, are considered as flowing from the acknowledged power of a State to provide for the safety and welfare of its people, and form a part of that legislation which vol. cxxvni—2 18 OCTOBER TERM, 1888. Opinion of the Court. embraces everything within the territory of a State not surrendered to the general government. Sacred, however, as these reserved powers are regarded, the court is particular to declare with emphasis the supreme and paramount authority of the Constitution and laws of the United States, relating to the regulation of commerce with foreign nations, and among the several States; and that whenever these reserved powers, or any of them, are so exercised as to come in conflict with the free course of the powers vested in Congress, the law of the State must yield to the supremacy of the Federal authority, though such law may have been enacted in the exercise of a power undelegated and indisputably reserved to the States. In the light of these principles, and those which this court in its numerous decisions has added in illustration and more explicit development, it will not be difficult to determine whether the law of Iowa under consideration invades, either in purpose or effect, the domain of Federal authority. To support the affirmative, the plaintiff in error maintains that alcohol is, in itself, a useful commodity, not necessarily noxious, and is a subject of property; that the very statute under consideration, by various provisions, and especially by those which permit, in express terms, the manufacture of intoxicating liquors for mechanical, medicinal, culinary, or sacramental purposes, recognizes those qualities, and expressly authorizes the manufacture; that the manufacture being thus legalized, alcohol not being per se a nuisance, but recognized as property and the subject of lawful commerce, the State had no power to prohibit the manufacture of it for foreign sales. The main vice in this argument consists in the unqualified assumption that the statute legalizes the manufacture. The proposition that, supposing the goods were once lawfully called into existence, it would then be beyond the power of the State either to forbid or impede their exportation, may be conceded. Here, however, the very question underlying the case is whether the goods ever came lawfully into existence. It is a grave error to say that the statute “ expressly authorized ” the manufacture, for it did not; to say that it had not prohibited the manufacture, for it had done so; to say that the goods were KIDD v. PEARSON. 19 Opinion of the Court. of Iowa’s lawful manufactures, for that is substantially the very point at issue. The exact statute is this: “No person shall manufacture or sell, . . . directly or indirectly, any intoxicating liquors, except as hereinafter provided.” In a subsequent section it is provided further, that “ nothing contained in this law shall prevent any persons from manufacturing in this State liquors for the purpose of being sold according to the provisions of this chapter, to be used for mechanical, medicinal, culinary, or sacramental purposes.” Here then is, first, a sweeping prohibition against, not the manufacture and sale; not a dealing which is composed of both steps, and consequently must include manufacture as well as sale, or, e con-verso, sale as well as manufacture, in order to incur the denunciation of the statute, but against either the sale or the manufacture. The conjunction is disjunctive. The sale is forbidden, the manufacture is forbidden; and each is forbidden independently of the other. Such being the case, on the subject of the lawfulness or unlawfulness of the manufacture (which is the point before the court), it is useless to argue as to the conditions under which it is permissible to hold intoxicating liquors in possession, or to sell them. Looking again to the statute, we find that the unqualified prohibition of any and all manufacture made by § 1523 is by the joint operation of a proviso in § 1524 and of §§ 1526. and 1530, modified by four exceptions, viz.: Sale for mechanical purposes, to an extent limited by the wants of the particular locality of the seller; sale for medicinal purposes, to the same extent; sale for culinary purposes, to the same extent; and sale for sacramental purposes, to the same extent. The Supreme Court of the State held (and we agree with it) that these exceptions do not include sales outside of the State. The effect of the statute, then, is simply and clearly to prohibit all manufacture of intoxicating liquors except for one or more of the four purposes specified. “ For the purpose,” says the statute. The excepted purpose is all that saves it from being db initio and, through each and every step of its progress, unlawful. It is a mistake to say, as to this case, that the act of trans- 20 OCTOBER TERM, 1888. Opinion of the Court. porting the alcohol from the State in the course of lawful commerce with other States not being a crime, to perform that act was not a criminal intent, no matter when formed, whether before or after the alcohol was manufactured. It is not the criminality of the intent to export that is here the question, but it is the innocence or criminality, under the statute of the manufacture, in the absence of all four of the specific exceptions to the prohibition, the actual and controlling and bona fide presence of at least one of which was indispensable to the legality of the manufacture. We think the construction contended for by plaintiff in error would extend the words of the grant to Congress, in the Constitution, beyond their obvious import, and is inconsistent with its objects and scope. The language of the grant is, “Congress shall have power to regulate commerce with foreign nations and among the several States,” etc. These words are used without any veiled or obscure signification. “ As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense and to have intended what they have said.” Gibbons v. Ogden, supra, at page 188. No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufactures and commerce. Manufacture is transformation — the fashioning of raw materials into a change of form for use. The functions of commerce are different.. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation o at least of such transportation. The legal definition of the term', as given by this court in County of Mobile v. Kimball, 102 U. S. 691, 702, is as follows: “ Commerce with foreign countries, and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation, and the transportation and transit of persons and property, KIDD v. PEARSON. 21 Opinion of the Court. as well as the purchase, sale, and exchange of commodities.” If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is. impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining — in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market ? Does not the wheat grower of the Northwest, and the cotton planter of the South, plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York, and Chicago ? The power being vested in Congress and denied to the States, it would follow as an inevitable result that the duty would devolve on Congress to regulate all of these delicate, multiform, and vital interests — interests which in their nature are and must be, local in all the details of their successful management. It is not necessary to enlarge on, but only to suggest the impracticability of such a scheme, when we regard the multitudinous affairs involved, and the almost infinite variety of their minute details. It was said by Chief Justice Marshall, that it is a matter of public history that the object of vesting in Congress the power to regulate commerce with foreign nations and among the several States was to insure uniformity of regulation against conflicting and discriminating state legislation. See also County of Mobile v. Kimball, supra, at page 697. This being true, how can it further that object so to interpret the constitutional provision as to place upon Congress the obligation to exercise the supervisory powers just indicated ? The demands of such a supervision would require, not uniform legislation generally applicable throughout the United States, but a swarm of statutes only locally applicable and utterly inconsistent. Any movement toward the establishment of rules of production in this vast country, with its many dif 22 OCTOBER TERM, 1888. Opinion of the Court. ferent climates and opportunities, could only be at the sacrifice of the peculiar advantages of a large part of the localities in it, if not of every one of them. On the other hand, any movement toward the local, detailed, and incongruous legislation required by such interpretation would be about the widest possible departure from the declared object of the clause in question. Nor this alone. Even in the exercise of the power contended for, Congress would be confined to the regulation, not of certain branches of industry, however numerous, but to those instances in each and every branch where the producer contemplated an interstate market. These instances would be almost infinite, as we have seen; but still there would always remain the possibility, and often it would be the case, that the producer contemplated a domestic market. In that case the supervisory power must be executed by the State; and the interminable trouble would be presented, that whether the one power or the other should exercise the authority in question would be determined, not by any general or intelligible rule, but by the secret and changeable intention of the producer in each and every act of production. A situation more paralyzing to the state governments, and more provocative of conflicts between the general government and the States, and less likely to have been what the framers of the constitution intended, it would be difficult to imagine. We find no provisions in any of the sections of the statute under consideration, the object and purpose of which are to exert the jurisdiction of the State over persons or property or transactions within the limits of other States; or to act upon intoxicating liquors as exports, or while they are in process of exportation or importation. Its avowed object is to prevent, not the carrying of intoxicating liquors out of the State, but to prevent their manufacture, except for specified purposes, within the State. It is true that, notwithstanding its purposes and ends are restricted to the jurisdictional limits of the State of Iowa, and apply to transactions wholly internal and between its own citizens, its effects may reach beyond the State by lessening the amount of intoxicating liquors exported. But it does not follow that, because the products of a domestic KIDD v. PEARSON. 23 Opinion of the Court. manufacture may ultimately become the subjects of interstate commerce, at the pleasure of the manufacturer, the legislation of the State respecting such manufacture is an attempted exercise of the power to regulate commerce exclusively conferred upon Congress. Can it be said that a refusal of a State to allow articles to be manufactured within her borders (for export) any more directly or materially affects her external commerce than does her action in forbidding the retail within her borders of the same articles after they have left the hands of the importers? That the latter could be done was decided years ago; and we think there is no practical difference in principle between the two cases. “ As has been often said, ‘ legislation [by a State] may in a great variety of ways affect commerce and persons engaged in it, without constituting a regulation of it within the meaning of the Constitution,’ ” unless, under the guise of police regulations, it “ imposes a direct burden upon interstate commerce,” or “interferes directly with its freedom.” Hall v. De Cuir, 95 IT. S. 485, 487, 488, Chief Justice Waite delivering the opinion of the court in that case, citing Sherlock v. Alling, 93 U. S. 99, 103; State Tax on Railway Gross Receipts, 15 Wall. 284; Munn v. Illinois, 94 U. S. 113; Chicago, Burlington and Quincy Railroad Co. v. Iowa, 94 U. S. 155; Willson v. BlackUrd Creek Harsh Co., 2 Pet. 245 ; Pound v. Turck, 95 U. S. 459; Gilman v. Philadelphia, 3 Wall. 713; Gibbons v. Ogden, supra; and Cooley v. Board of Wardens, etc., 12 How. 299. We have seen that whether a State, in the exercise of its undisputed power of local administration, can enact a statute prohibiting within its limits the manufacture of intoxicating liquors, except for certain purposes, is not any longer an open question before this court. Is that right to be overthrown by the fact that the manufacturer intends to export the liquors when made ? Does the statute, in omitting to except, from its operation the manufacture of intoxicating liquors within the limits of the State for export, constitute an unauthorized interference with the power given to Congress to regulate commerce ? These questions are well answered in the language of the 24 OCTOBER TERM, 1888. Opinion of the Court. court in the License Tax Cases, 5 Wall. 462, 470: “ Over this commerce and trade [the internal commerce and domestic trade of the States] Congress has no power of regulation, nor any direct control. This power belongs exclusively to the States. No interference by Congress with the business of citizens transacted within a State is warranted by the Constitution, except such as is strictly incidental to the exercise of powers clearly granted to the legislature. The power to authorize a business within a State is plainly repugnant to the exclusive power of the State over the same subject.” The manufacture of intoxicating liquors in a State is none the less a business within that State, because the manufacturer intends, at his convenience, to export such liquors to foreign countries or to other States. This court has already decided that the fact that an article was manufactured for export to another State does not of itself make it an article of interstate commerce within the meaning of § 8, Art. 1, of the Constitution, and that the intent of the manufacturer does not determine the time when the article or product passes from the control of the State and belongs to commerce. We refer to the case of Coe v. Errol, 116 U. S. 517. In that case certain logs cut at a place in New Hampshire had been hauled to the town of Errol on the Androscoggin River, in that State, for the purpose of transportation beyond the limits of that State to Lewiston, Maine; and were held at Errol for a convenient opportunity for such transportation. The selectmen of the town assessed on the logs State, county, town, and school taxes; and the question before the court was whether these logs were liable to be taxed like other property in the State of New Hampshire. The court held them to be so liable, and said, Mr. Justice Bradley delivering the opinion: “ Does the owner’s state of mind in relation to the goods, that is, his intent to export them, and his partial preparation to do so, exempt them from taxation ? This is the precise question for solution. . . . There must be a point of time when they cease to be governed exclusively by the domestic law and begin to be governed and protected by the national law of KIDD v. PEARSON. 25 Opinion of the Court. commercial regulation, and that moment seems to us to be a legitimate one for this purpose, in which they commence their final movement for transportation from the State of their origin to that of their destination. When the products of the farm or the forest are collected and brought in from the surrounding country to a town or station serving as an entrepôt for that particular region, whether on a river or a line of railroad, such products are not yet exports, nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier foi transportation out of the State to the State of their destination, or have started on their ultimate passage to that State. Until then it is reàsonable to regard them as not only within the State of their origin, but as a part of the general mass of property of that State, subject to its jurisdiction, and liable to taxation there, if not taxed by reason of their being intended for exportation, but taxed without any discrimination, in the usual way and manner in which such property is taxed in the State. . . . The point of time when State jurisdiction over the commodities of commerce begins and ends in not an easy matter to designate or define, and yet it is highly important, both to the shipper and to the State, that it should be clearly defined so as to avoid all ambiguity or question. . . . But no definite rule has been adopted with regard to the point of time at which the taxing power of the State ceases as to goods exported to a foreign country or to another State. What we have already said, however, in relation to the products of a State intended for exportation to another State, will indicate the view which seems to us the sound one on that subject, namely, that such goods do not cease to be part of the general mass of property in the State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey. . . . It is true, it was said in the case of The Daniel Ball, 10 Wall. 557, 565 : ‘Whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced.’ 26 OCTOBER TERM, 1888. Statement of the Case. But this movement does not begin until the articles have been shipped or started for transportation from the one State to the other.” The application of the principles above announced to the case under consideration leads to a conclusion against the contention of the plaintiff in error. The police power of a State is as broad and plenary as its taxing power; and property within the State is subject to the operations of the former so long as it is within the regulating restrictions of the latter. The judgment of the Supreme Court of Iowa is Affirmed. Mr. Chief Justice Fuller was not a member of the court when this case was argued and submitted, and took no part in its decision. LEATHER MANUFACTURERS’ BANK v. MERCHANTS’ BANK. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 10. Argued December 2, 5,1887. — Decided October 22, 1888. If a bank, upon which a check is drawn payable to a particular person or order, pays the amount of the check to one presenting it with a forged indorsement of the payee’s name, both parties supposing the indorsement to be genuine, a right of action to recover back the money accrues at the date of the payment, and the statute of limitations begins to run from that date. The original action was brought December 7, 1877, by the Merchants’ National Bank of the city of New York against the Leather Manufacturers’ National Bank to recover back the sum of $17,500 paid on March 10, 1870, to the defendant, the holder of a check drawn upon the plaintiff for that amount, with interest from June 20, 1877. The defendant, among other defences, pleaded the statute of limitations, and also that the plaintiff never demanded repayment or tendered the check to the defendant until long since the commencement of this LEATHER MANF.’ BANK v. MERCHANTS’ BANK. 27 Statement of the Case. action. At the trial before a jury the following facts were proved or admitted: On March 9, 1870, the Bank of British North America, having a larger amount on deposit with the Merchants’ Bank, drew upon that bank a check for $17,500, payable to Margaret G. Halpine or order, and delivered it to Thomson & Ramsay ; and this check, with the names of Mrs. Halpine and of William C. Barrett indorsed thereon, came to the hands of Howes & Macy, private bankers, who deposited it with the Leather Manufacturers’ Bank. On March 10, 1870, the Merchants’ Bank paid the amount of the check to the Leather Manufacturers’ Bank through the clearing-house, and charged the amount on its own books to the Bank of British North America. By the usual course of dealing between the Bank of British North America and the Merchants’ Bank, the passbook containing entries of the deposits made by the one, and of the payments made by the other on account thereof, was written up and returned to the Bank of British North America fortnightly, together with the checks and other vouchers for such payments; and on March 17, 1870, the pass-book, containing the charge of the payment of the check in question, was so balanced and returned with the check. The account between the Bank of British North America and the Merchants’ Bank continued to exist until February 21, 1881, the day of the trial of the action brought by the former bank against the latter, mentioned below. At the time of the payment by the Merchants’ Bank to the Leather Manufacturers’ Bank, both parties believed Mrs. Hal-pine’s indorsement to be genuine, whereas in fact it had been forged by Barrett, the second indorser, who afterwards absconded. Howes & Macy failed in 1873. The Bank of British North America, on or about January 24, 1877, first learned that Mrs. Halpine contended that her indorsement was forged; and on January 26, 1877, notified that fact to the Merchants’ Bank; and on June 2, 1877, demanded of that bank payment of the amount of the check, and left the check with it that it might look into the matter. On the same day, the Merchants’ Bank showed the check to the 28 OCTOBER TERM, 1888. Statement of the Case. Leather Manufacturers’ Bank, informed it that the Bank of British North America had demanded repayment of the money because the indorsement of Mrs. Halpine’s name was a forgery, and made a like demand upon the Leather Manufacturers’ Bank, which declined to pay. On June 20, 1877, the Merchants’ Bank returned the check to the Bank of British North America, and that bank again demanded of the Merchants’ Bank payment of the amount, and tendered it the check, and it refused to pay. On August 10, 1877, the Bank of British North America gave written notice to the Merchants’ Bank that it had been sued for the amount of the check, by reason of the Merchants’ Bank having paid the same upon a forged indorsement, and that, iii the event of being held liable for the amount, it should hold the Merchants’ Bank to its strict legal liability. The action against the Bank of British North America is reported as Thomson v. Bank of British North America, 82 N. Y. 1. On November 7, 1877, the Bank of British North America brought an action in a court of the State of New York against the Merchants’ Bank for the amount of the check, upon the ground that the payment thereof by the Merchants’ Bank had been made upon a forged indorsement of the payee’s name, and that the amount had been demanded of the Merchants’ Bank by the Bank of British North America on June 20, 1877, and refused, and still remained to its credit. In that action, the Merchants’ Bank pleaded that the indorsement was genuine, and that the cause of action was barred by the statute of limitations; and, before that case came to trial, gave written notice of its having been so sued to the Leather Manufacturers’ Bank, in order that it might defend the suit or protect its rights as it might deem proper, and that the judgment, if adverse, might be conclusive upon it. On March 7, 1881, the Bank of British North America recovered judgment against the Merchants’ Bank, which was affirmed by the Court of Appeals. 91 N. Y. 106. The Merchants’ Bank, on January 25,1883, paid the amount of that judgment, and received the check from the Bank of LEATHER MANF.’ BANK v. MERCHANTS’ BANK. 29 Citations for Plaintiff in Error. British North America, and on March 15, 1883, gave notice to the Leather Manufacturers’ Bank of having so paid, and tendered the check to it, and demanded payment of that amount, with interest from June 20, 1877, which was refused. In the present action, the defendant, at the close of the whole evidence, asked the court to instruct the jury to return a verdict for the defendant, upon the grounds “ that the cause of action, if complete, did not accrue within six years before the commencement of this action; ” and “ that the cause of action, if a demand and tender were necessary, had not accrued when the suit was commenced.” The court declined so to instruct the jury, directed a verdict for the plaintiff for the amount of the check, with interest from June 20, 1877, and gave judgment thereon. The defendant sued out this writ of error. J/r. John E. Parsons, for plaintiff in error, cited Leonard v. Piimey, 5 Wend. 30; Allen v. Alille, 17 Wend. 202; Foot v. Farrington, 41 N. Y. 164; Miller v. Wood, 41 Hun, 600; Central National Bank v. North Biver Bank, 44 Hun, 114; Troup v. Smith, 20 Johns. 33; United States Bank v. Daniel, 12 Pet. 32; Bree v. Holbeck, 2 Doug. 654; Howell v. Young, 5 B. & C. 259; Graves v. American Exchange Bank, 17 N. Y. 205; White v. Continental Bank, 64 N. Y. 316; Espy v. Bank of Cincinnati, 18 Wall. 604; Boston and Albany Bailroad v. Bichardson, 135 Mass. 473; Davie v. Briggs, 97 IT. S. 628; Barrett v. Holmes, 102 U. S. 651; Henderson v. Griffin, 5 Pet. 151; Argali v. Bryant, 1 Sandf. (N. Y.) 98; Bordwell v. Collie, 45 N. Y. 494; Wilcox v. Plumber, 4 Pet. 172; Case v. Hall, 24 Wend. 102; & C. 35 Am. Dec. 605; Sweetman v. Bunce, 26 N. Y. 224; Burt v. Dewey, 40 N. Y. 283; S. C. 100 Am. Dec. 482; McGiffin v. Baird, 62 N. Y. 329; Converse v. Hiner, 21 Hun, 367; Bandon v. Toby, 11 How. 493 ; Southwick v. First National Bank, 84 N. Y. 420; Spoley v. Halsey, 72 N. Y. 578; Stephens v. Boa/rd of Education, 3 Hun, 712 ;> Abbott v. Draper, 4 Denio, 51; Grymes v. Sanders, 93 U. S. 55. 30 OCTOBER TERM, 1888. Argument for Defendant in Error. J/>. John E. Burrill for defendant in error. I. The cause of action in favor of the defendant in error did not accrue until June, 1877, when the Bank of British North America for the first time objected to being charged with the amount of the check. The action was commenced December 7, 1877. The answer admits that that bank did not object to be charged with the check at the time it was made, and it was admitted on the trial that the check was charged 10 March, 1870, and returned to that bank 17 March, 1870, and that the first notification was given to the Merchants’ Bank in June, 1877. • The precise point was decided in Merchants’ Bank v. First National Bank, in U. S. Circuit Court (Opinion Waite, C. J.), reported in 3 Fed. Rep. p. 66; in which latter report the syllabus of the case is as follows: “ In a suit by the drawee of a bill of exchange against an indorser, where such bill was drawn by the Treasurer of the United States, and the name of the payee forged, the statute of limitations does not begin to run until judgment has been obtained by the United States against the drawee.” United States v. Park Bank, 6 Fed. Rep. 852; Coviper v. Godmond, 9 Bing. 748; Churchill v. Bertrand, 2 Gale & Dav. 548, 551; Ripley v. Withee, 27 Texas, 14. As was well said in one of the cases, the cause of action arose when the defendant held the money for the use of the plaintiff, and this it did not do when the money was paid, but when it became wrong for the defendant to withhold it, and this was when the mistake was ascertained and communicated to the defendant, and it was called upon to refund. II. It is clear from the undisputed evidence that the money was paid by the Merchants’ Bank to the Leather Manufacturers’ Bank under a mistake of fact as to the genuineness of the indorsement of the check by the payee. The principle is well established by the highest court of the State of New York that an action to recover back money paid under a mistake of fact cannot be maintained until notice of the mistake has been given and a demand for repayment of the money made. Southwick v. First National Bank, 84 N. Y. LEATHER MANF.’ BANK v. MERCHANTS’ BANK. 31 Argument for Defendant in Error. 420, 430; Sharkey v. Mansfield, 90 N. Y. 227, 229; Stephens v. Board, 3 Hun, 712, 715; United States v. Park Bank, 6 Fed. Rep. 852; Freeman v. Jeffries, L. R. 4 Exch. 189; Marine Bank v. City Bank, 59 N. Y. 67. It is well settled by the highest courts in New York that where demand is an essential ingredient of the cause of action the action does not accrue and the statute of limitations does not begin to run until the demand made. This was decided in the case between the Merchants’ Bank and the Bank of British North America, where the court overruled the defence of the statute, and held that it did not begin to run until after the discovery of the mistake and notice thereof anil demand. Bank v. Bank, 91 N. Y. 108; Ganley v. Bank, 98 N. Y. 487. In the latter case the court say: “ It is universally true that the statute of limitations does not commence to run upon a cause of action upon contract until it has accrued, and that when a demand is necessary before an action can be commenced the statute does not begin to run until after the demand. ... In this case the contract was not completely broken until the demand.” The same principle was established in Smiley v. Fry, 100 N. Y. 262. III. The cases which hold that a transferee of securities is not bound to notify the transferer*of a lack of genuineness of the securities or of the title thereto until the lapse of a reasonable time after the discovery of the fact, and that until such discovery he owes no duty to the transferer, have an important bearing on the questions in this case. United States v. Park Bank, 6 Fed. Rep. 856; Frank v. Lanier, 91 N. Y. 116 (Opinion Danforth, J.); Heiser v. Hatch, 86 N. Y. 614; Canal Bank \T. Bank of Albany, 1 Hill, 287. So also do the cases which held that the Leather Manufacturers’ Bank owed no duty to the plaintiff in error to examine and ascertain whether the indorsement was genuine before the check was paid. Corn Exchange Bank v. Nassau Ba/nk, 91 N. Y. 74; Crawford v. Westside Bank, 100 N. Y. 50; White v. Bank, 64 N. Y. 316; Holt v. Ross, 54 N. Y. 472; Marine Bank v. City Bank, 59 N. Y. 67. And the cases which held that negligence in making a pay- 32 OCTOBER TERM, 1888. Argument for Defendant in Error. ment is no defence to an action to recover back money paid under a mistake of fact, especially where both parties were equally bound to inquire. Kingston Bank v. Eltinge, 40 N. Y. 391; N. C. 100 Am. Dec. 516; Mayer v. Mayor, 63 N. Y. 455. IV. The decision of the Court of Appeals in rendering the judgment in favor of the Bank of British North America against the defendant in error, reported in 91 N. Y. 106, settled the question in controversy here against the plaintiff in error, and notice of the institution of that action having been given to it, the judgment recovered in that action is conclusive as to the right of the Merchants’ Bank to recover in this action. Bobbins v. Chicago, 4 Wall. 657 ; Chicago v. Bobbins, 2 Black, 418; Heiser v. Hatch, ubi supra. V. It was not necessary that the Merchants’ Bank, to entitle it to maintain the action, should have actually paid the money to the Bank of British North America, because the action is not brought to recover the money paid to that bank, but is brought to recover the money which it paid to the Leather Manufacturers’ Bank, and its right to recover this was complete, when it had within a reasonable time after the discovery notified the Leather Manufacturers’ Bank of the mistake and demanded repayment of the money. (See cases under first and third points.} Nor was it necessary, to entitle the plaintiff to maintain the action, that it should have acquired the title to the check by repayment and should have tendered the check before action commenced. A tender of the check was not necessary as an ingredient of the cause of action {United States v. Park Bank, 6 Fed. Rep. 852, 855), because the action was not based on the check, nor was the possession of the check necessary to enable the Merchants’ Bank to maintain the action, or the Leather Manufacturers’ Bank to recover against those to whom it had paid. Notice of the mistake and demand were all which were necessary to constitute the cause of action. The plaintiff in error could have given notice and made demand when notice was given to and demand made upon it. It could also have given notice of the action against it, so as to make the judgment LEATHER MANF.’ BANK v. MERCHANTS’ BANK. 33 Opinion of the Court. thereon binding on the parties with whom it dealt. For its failure to discover the forgery at the time it received the check, the Leather Manufacturers’ Bank was responsible, and not the defendant in error. (See cases under third point.) Had the defendant been willing to pay and refused on the ground that the check was not tendered, the case might be different, as in that case the defendant in error could have paid the money and acquired the title to the check; but the refusal was absolute and not put on that ground, and a tender was thereby waived. Defendant could not compel the plaintiff to pay the amount of the check so as to acquire the actual ownership of it for the purpose of going through the useless formality of tendering it to defendant. But if a tender were necessary, then we submit; (1) That the tender made on June 20, 1877, was sufficient. The Merchants’ Bank had the possession of the check which had been left with it by the Bank of British North America under an agreement that it was to be returned if the money was not paid, and to* be kept if the money was paid, and the Merchants’ Bank was fully authorized to tender and to deliver it to the Leather Manufacturers’ Bank, and would have delivered it to the latter had it paid the money. (2) The production and tender of the check on the trial, at which time it was the property of. the Merchants’ Bank, were sufficient. (3) The check was of no value to the Leather Manufacturers’ Bank or to Howes & Macy, from whom it took it, and its possession was not necessary to enable the Leather Manufacturers’ Bank to maintain an action against it or Barrett, both of whom, on the facts proved by the evidence, were liable without regard to the production of the check. Canal Bank v. Bank of Albany, 1 Hill, 287. Mr. Justice Gray, after stating the case as above reported, delivered the opinion of the court. The principal question argued is whether this action was barred by the statute of limitations of New York, by which any action upon a contract, obligation or liability, expressed or implied, except a judgment or a sealed instrument, must be vol. cxxvin—3 34 OCTOBER TERM, 1888. Opinion of the Court. brought within six years after the cause of action accrues. Code of 1855, § 91; Code of 1876, § 382. The question then is whether, if a bank, upon which a check is drawn payable to a particular person or order, pays the amount of the check to one presenting it with a forged indorsement of the payee’s name, both parties supposing the indorsement to be genuine, the right of action of the bank to recover back the money from the person so obtaining it accrues immediately upon the payment of the money, or only after a demand for its repayment. In order to avoid confusion in dealing with this question, it is important to keep in mind the difference between the liability of a bank to a depositor, and the liability to the bank of a person who has received money from it upon a forged check or order. It is true that the liability, in either case, is that of debtor, not that of trustee or bailee; but there the resemblance ceases. The specific money deposited does not remain the money of the depositor, but becomes the property of the bank, to be invested and used as it pleases; its obligation to the depositor is only to pay out an equal amount upon his demand or order; and proof of refusal or neglect to pay upon such demand or order is necessary to sustain an action by the depositor against the bank. The bank cannot discharge its liability to account with the depositor to the extent of the deposit, except by payment to him, or to the holder of a written order from him, usually in the form of a check. If the bank pays out money to the holder of a check upon which the name of the depositor, or of a payee or indorsee, is forged, it is simply no payment as between the bank and the depositor ; and the legal state of the account between them, and the legal liability of the bank to him, remain just as if the pretended payment had not been made. First National Bank n. Whitman, 94 U. S. 343. But as between the bank and the person obtaining money or. a forged check or order, the case is quite different. The first step in bringing about the payment is the act of the holder of the check, in assuming and representing himself to have a right, which he has not, to receive the money. One LEATHER MANE.’ BANK v. MERCHANTS’ BANK. 35 Opinion of the Court. who, by presenting forged paper to a bank, procures the payment of the amount thereof to him, even if he makes no express warranty, in law represents that the paper is genuine, and, if the payment is made in ignorance of the forgery, is liable to an action by the bank to recover back the money which, in equity and good conscience, has never ceased to be its property. It is not a case in which a consideration, which has once existed, fails by subsequent election or other act of either party, or of a third person; but there is never, at any stage of the transaction, any consideration for the payment. Espy v. Bank of Cincinnati, 18 Wall. 604; Gurney v. Womer-sley, 4 El. & Bl. 133 ; Cabot Bank v. ELorton, 4 Gray, 156; Aldrich v. Butts, 5 R. I. 218; White v. Continental Bank, 64 N. Y. 316. Whenever money is paid upon the representation of the receiver that he has either a certain title in property transferred in consideration of the payment, or a certain authority to receive the money paid, when in fact he has no such title or authority, then, although there be no fraud or intentional misrepresentation on his part, yet there is no consideration for the payment, and the money remains, in equity and good conscience, the property of the payer, and may be recovered back by him, without any previous demand, as money had and received to his use. His right of action accrues, and the statute of limitations begins to run, immediately upon the payment. Thus, in the early case of Bree v. TIolbech, 2 Doug. 654, where an administrator received the amount of the mortgage money upon his assignment of a mortgage purporting to be made to the deceased, but in fact a forgery, of which both parties were ignorant, it was held by Lord Mansfield and the Court of King’s Bench that the right of action to recover back from the administrator the money so paid was barred by the statute of limitations in six years from the time of the payment. So, in Utica Bank v. Van Gieson, 18 Johns. 485, where a promissory note payable at the Bank of Geneva was left by the indorsers with the Utica Bank for collection, and sent by it to the Bank of Geneva for that purpose, and the amount was afterwards paid by the Utica Bank to the indorsers upon 36 OCTOBER TERM, 1888. Opinion of the Court. the mistaken supposition that it had been paid to the Bank of Geneva by the maker, when in fact it had not, and it was not pretended that the Utica Bank had been guilty of any negligence, the Supreme Court of New York held that notice of the fact that the note had not been paid by the maker was unnecessary to maintain an action by the Utica Bank to recover back the money from the indorsers ; and Chief Justice Spencer said : “ The plaintiffs’ ground of action, then, is that the money was paid to the defendants under a mistake of facts. The defendants are not bailees or trustees of the money thus received. It was paid and received, as their money, and not as money to be kept for the plaintiffs. In such a case, it was not necessary to make a demand prior to the suit; for a request was not essential to the maintenance of the action; nor did the defendants’ duty to return the money erroneously paid arise upon request.” In Bank of United States v. Daniel, the acceptor and indorsers, upon taking up a bill of exchange for ten thousand dollars, which had been duly protested for non-payment, paid ten per cent as damages, under a mistake as to the local law upon the subject. Upon a bill in equity to relieve against the mistake and recover back the money, this court, while holding that such a mistake gave no ground for relief, also held that, if it did, the statute of limitations ran, in equity as well as at law, from the time of the payment, saying: “ If the thousand dollars claimed as damages were paid to the bank at the time the bill of exchange was taken up, then the cause of action to recover the money (had it been well founded) accrued at the time the mistaken payment was made, which could have been rectified in equity, or the money recovered back by a suit at law.” 12 Pet. 32, 56. In Dill v. Wareham, 7 Met. 438, the Supreme Judicial Court of Massachusetts, speaking by Chief Justice Shaw, held that a party receiving money in advance, on a contract which he had no authority to make and afterwards refused to fulfil, was liable to the other party in an action for money had and received, without averment or proof of any previous demand. And in Sturgis v. Preston, 134 Mass. 372, where land LEATHER MANF.’ BANK v. MERCHANTS’ BANK. 37 Opinion of the Court. was sold for a certain sum by the square foot, and the purchaser, relying on the vendor’s statement of the number of feet, made payment accordingly, and afterwards discovered that the number had been overstated, but disclaimed all charge of fraud or fraudulent concealment on the part of the vendor, it was held that the right of action to recover back the excess paid accrued immediately, without any previous demand, and was barred by the statute of limitations in six years from the date of the payment. See also Earle v. Bickford, 6 Allen, 549 ; Blethen v. Lovering, 58 Maine, 437. The judgment of the Circuit Court in the present case appears to have been based upon the decision in Merchant^ Bank v. First National Bank, 4 Hughes, 1, which proceeds upon grounds inconsistent with the principles and authorities above stated, and cites no case except the very peculiar one of Cowper v. Godmond, 9 Bing. 748 ; S. C. 3 Moore & Scott, 219; in which the right of action to recover back money paid for a grant of an annuity, the memorial of which was defective, was held not to accrue until the grantor elected to avoid it on that ground, the annuity apparently being considered as not absolutely void, but as voidable only at the election of the grantor. See Churchill v. Bertrand, 3 Q. B. 568; C. 2 Gale & Dav. 548. Although some of the opinions of the Court of Appeals of New York, in the cases cited at the bar, contain dicta which, taken by themselves, and without regard to the facts before the court, might seem to support the position of the defendant in error, yet the judgments in those cases, upon full examination, appear to be quite in accord with the views which we have expressed. The cases of Thomson v. Bank of British North America, 82 N. Y. 1, and Ba/nk of British North America v. Merchants'' Bank, 91 N. Y. 106, were actions by depositors against their respective bankers, and were therefore held not to be barred until six years after demand. In Southwick v. First National Bank, 84 N. Y. 420, the decision was that there was no such mistake as entitled the party paying the money to reclaim it; and in Sharkey v. Mansfield, 38 OCTOBER TERM, 1888. Opinion of the Court. 90 N. Y. 227, it was adjudged that money paid by mistake, but received with full knowledge of all the facts, might be recovered back without previous demand; and what was said in either opinion as to the necessity of a demand where both parties act under mistake was obiter dictum. Two other cases in that court were decided together, and on the same day as Bank of British North America v. Merchants'1 Bank, above cited. In one of them, the defendants, who had innocently sold to the plaintiffs a forged note as genuine, and, upon being informed of the forgery and requested to pay back the purchase money, had expressly promised to do so if the plaintiffs should be obliged to pay a third person to whom they had in turn sold the note, were therefore held not to be discharged from their liability to refund by the plaintiffs’ having awaited the determination of a suit by that person against themselves, before returning the note to the defendants. Frank v. Lanier, 91 N. Y. 112. In the other case, a bank, which had paid a check upon a forged indorsement, supposed by both parties to be genuine, was held entitled to recover back the money, with interest from the time of payment, necessarily implying that the right of action accrued at that time. Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74. In the case at bar, as in the case last cited, the plaintiff’s right of action did not depend upon any express promise by the defendant after the discovery of the mistake, or upon any demand by the plaintiff upon the defendant, or by the depositor or any other person upon the plaintiff; but it was to recover back the money, as paid without consideration, and had and received by the defendant to the plaintiff’s use. That right accrued at the date of the payment, and was barred by the statute of limitations in six years from that date. For this reason, without considering any other ground of defence, the order must be Judgment reversed, and case remanded to the Circuit Court, with directions to set aside the verdict and to order a new trial. WESTERN UNION TEL. CO. v. PENNSYLVANIA. 39 % Opinion of the Court. Mr. Justice Blatchford did not sit in this case, or take any ; part in the decision. Mr. Chief Justice Fuller and Mr. Justice Lamar were not members of the court when this case was argued, and took no part in its decision. WESTERN UNION TELEGRAPH COMPANY v. PENNSYLVANIA. ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA. No. 56. Submitted October 18, 1888. — Decided October 22,1888. On the authority of Telegraph Co. v. Texas, 105 U. S. 460, and Katterman v. Western Union Telegraph Co., 127 U. S. 411, this case is reversed and remanded for such further proceedings as justice may require. The case is stated in the opinion of the court. J/r. J£. E. Olmsted for plaintiff in error. J/r. W. S. Kirkpatrick, Attorney General of Pennsylvania, for defendant in error. Jir. John F. Sanderson, Deputy Attorney General, was also on the brief. Mr. Chief Justice Fuller delivered the opinion of the court. Judgment was rendered against plaintiff in error for taxes on telegraphic messages sent from point to point within the State of Pennsylvania; on messages sent from points within the State to points in other States; on messages sent from points in other States to points within the State; and on messages sent to and from points in other States, which passed over lines partly within the State; and the record discloses the several amounts of taxes upon the several classes of messages, which, with commissions and interest, make up the total recovery. It is clear, and this is conceded by the defend- 40 OCTOBER TERM, 1888. / Syllabus. ant in error, that, under the decisions of this court in Tele-graph Co. v. Texas, 105 U. S. 460, and Katterman v. Western Union Telegraph Co., 127 U. S. 411, the Commonwealth was not entitled to recover for the taxes in question, excepting in respect to the messages transmitted wholly within the State. The judgment will therefore l>e reversed and the cause remanded for such further proceedings as justice may require. UNITED STATES ex rel. DUNLAP v. BLACK, COMMISSIONER OF PENSIONS. UNITED STATES ex rel. ROSE v. SAME. UNITED STATES ex rel. MILLER v. SAME. ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Nos. 991, 992, 993. Argued October 12, 1888. — Decided October 22, 1888. The courts will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law; no appellate power being given them for that purpose. When an executive officer of the government refuses to act at all in a case in which the law requires him to act, or when, by special statute, or otherwise, a mere ministerial duty is imposed upon him, that is, a service which he is bound to perform without further question, if he refuses mandamus lies to compel him to his duty. The Commissioner of Pensions by receiving the application of a pensioner for an increase of his pension under the act of June 16, 1880, 21 Stat. 281, c. 236, and by considering it and the evidence in support of it, and by deciding adversely to the petitioner, performs the executive act which the law requires him to perform in such case; and the courts have no appellate power over him in this respect, and no right to review his decision. A decision of the Commissioner of Pensions adverse to the application of a pensioner for an increase of pension, under a statute granting an increase in certain cases, being overruled by the Secretary of the Interior on the ground that the applicant comes under the meaning of the law granting the increase, and the Commissioner refusing to carry out the decision of UNITED STATES ex rel. DUNLAP v. BLACK. 41 Opinion of the Court. his superior, the pensioner is entitled to a rule upon the Commissioner to show cause why a writ of mandamus should not issue to compel him to obey the decision of the Secretary of the Interior. These cases came here on writs of error to the Supreme Court of the District of Columbia to review several judgments of that court refusing orders upon the Commissioner of Pensions to show cause why in each case a writ of mandamus should not issue, requiring him to increase the pension of the petitioner. The cases were argued together, and in each the facts which makes the case here are stated in the opinion of the court. J/r. e7. G. Bigelow and J/>. 8. 8. Henkle for plaintiffs in error. J/r. Assistant Attorney General ALaury as Amicus Curiae. Mr. Justice Bradley delivered the opinion of the court. These cases were argued together, but it will be convenient to consider them separately, in the order in which they stand on the docket. No. 991. Dunlap v. Black. This was an application by Oscar Dunlap, the relator, to the Supreme Court of the District of Columbia, for a writ of mandamus to be directed to the respondent, Black, as Commissioner of Pensions, commanding him to re-issue to the relator his pension certificate for $25 per month from June 6, 1866 ; $31.25 per month from June 4, 1872; $50 per month from June 4, 1874; and $72 per month from June 17,1878, first deducting all sums paid relator under previous pensions. By'the act of March 3, 1873, 17 Stat. 569, c. 234, § 4, Bev. Stat. 4698, it was provided that a pension of $31.25 per month should be allowed to all persons who, while in the military or naval service, had lost their sight, or both hands or both feet, 42 OCTOBER TERM, 1888. Opinion of the Court. or had been permanently and totally disabled, so as to require the regular aid and attendance of another person; and a pension of $24 per month to those who had lost one hand and one foot; and $18 per month to those who had lost either one hand or one foot; and other less pensions for lesser injuries; any increase of pension to commence from the date of the examining surgeon’s certificate. By the act of June 18,1874,18 Stat. 78, c. 298, Sup. Rev. Stat. p. 39, it was provided that, in cases of blindness or loss of both hands or both feet, or total helplessness, requiring the regular and personal aid of another person, the pension should be increased from $31.25 to $50 per month. By the act of February 28, 1877,19 Stat. 264, c. 73, Sup. Rev. Stat. 282, it was provided that those who had lost one hand and one foot should be entitled to a pension for each of such disabilities at the rate of existing laws, — which made the total pension $36 per month. The relator, in April, 1877, applied for the benefit of this law, and it was granted to him. By the act of June 16, 1880, 21 Stat. 281, c. 236, Sup. Rev. Stat. 560, it was enacted that all those then (at the date of the act) receiving a pension of $50 per month under the act of June 18, 1874, should receive $72 per month from June 17, 1878. After the last act was passed, the relator applied for the increase allowed by it. The Commissioner of Pensions, being of opinion that he did not come within its terms, rejected the application, but granted him a certificate for a pension of $50 per month under the act of 1874, to be received from May 25, 1881, the date of his medical examination. The petition for mandamus sets out the decision of the Commissioner in full, in which it is conceded that the relator has become permanently disabled. The following is an extract from the decision, to wit: “Washington, D. C., October 15, 1887. “In this case the application of the claimant for rerating and for increase will be allowed at $50 per month from’May 25, 1881, the date of the first medical examination under the claimant’s application of June 26, 1880. This rating is allowed under the act of June 18,1874, it sufficiently appearing by the UNITED STATES ex reí. DUNLAP v. BLACK. 43 Opinion of the Court. evidence in this case that the claimant has lost both a hand and a foot, and at the same time has been so additionally injured in the head as, from a period prior to the rerating or increase in this case, to render him totally and permanently helpless, requiring from thence until now the regular personal aid and attendance of another person. The reason why the claimant’s rating is not advanced to $72 per month is that he was not, on the 16th of June, 1880, [the date of the act,] receiving pension at the rate of $50 per month, nor was he entitled to receive a pension of $50 per month at that date, for the reason that, while the degree of helplessness which has been shown was that contemplated by the law, the claimant himself (neither on his own motion nor under the guidance of those who are legally responsible for his actions in this claim) had not made application to be rated in pursuance of the act of June 18, 1874, but on the contrary thereof, had asked to be rated and had been rated at $36 per month, under the act of February 28, 1877.” The decision proceeds to discuss further the reasons for the conclusion to which the Commissioner had come. The relator, by his counsel, strenuously contends that the concession made by the Commissioner with regard to the disability of the relator shows that it was his clear duty to have granted a certificate for the larger pension of $72 per month. The following passage in the petition for mandamus shows the position taken by the relator: “ And your relator further says, that the respondent has thus expressly found the facts in your relator’s case to be: (1) that while your relator was in the military service ... he sustained such wounds and injuries as resulted in the loss of his right hand and right foot, and at the same time sustaining injury to the head; (2) that your relator was thereby rendered ‘totally and permanently helpless, requiring from thence till now the regular aid and attendance of another person’; and (3) that your relator applied to the Commissioner of Pensions on June 26, 1880, for pension on account thereof. And your relator says that upon this finding of the facts whether he is entitled to a rerating and an increase of pension from date of 44 OCTOBER TERM, 1888. Opinion of the Court. discharge, so as to give unto him. a pension commensurate with his disabilities so found to exist by the respondent, is a question of law, and that it does not lie in the discretionary power of the respondent, as Commissioner of Pensions, to deny or in anywise abridge his rights with respect thereto.” This extract shows the theory of the petitioner and the doctrine which he invokes in support of his application. We have been more full in stating the facts of the case in order that the legal grounds on which that application is based may clearly appear. The case does not require an extended discussion. The questions of law on which it depends have been closed by repeated decisions of this court. The amenability of an executive officer to the writ of mandamus to compel him to perform a duty required of him by law was discussed by Chief Justice Marshall in his great opinion in the case of Marbury v. Madison, 1 Cranch, 137; and the radical distinction was there pointed out between acts performed by such officers in the exercise of their executive functions, which the Chief Justice calls political acts, and those of a mere ministerial character; and the rule was distinctly laid down that the writ will not be issued in the former class of cases, but will be issued in the latter. In that case, President Adams had nominated, and the Senate had confirmed, Marbury as a justice of the peace of the District of Columbia; and a commission in due form was signed by the President appointing him such justice, and the seal of the United States was duly affixed thereto by the Secretary of State; but the commission had not been handed to Marbury when the offices of the government were transferred to the administration of President Jefferson. Mr. Madison, the new Secretary of State, refused to deliver the commission, and a mandamus was applied for to this court to compel him to do so. The court held that the appointment had been made and completed, and that Marbury was entitled to his commission, and that the delivery of it to him was a mere ministerial act, which involved no further official discretion on the part of the Secretary, and could be enforced by mandamus. But the court did not issue the writ, because it would have been an exercise of original UNITED STATES ex rel. DUNLAP v. BLACK. 45 Opinion of the Court. jurisdiction which, it did not possess. Whilst this opinion will always be read by the student with interest and profit, it has not been considered as invested with absolute judicial authority except on the question of the original jurisdiction of this court. The decision on this point has made it necessary for parties desiring to compel an officer of the government to perform an act in which they are interested to resort to the highest court of the District of Columbia for redress. It has been held in numerous cases, and was held after special discussion in the cases of Kendall v. The United States, 12 Pet. 524; and United States v. Schurz, 102 IT. S. 378, that the former Circuit Court of the District, and the present Supreme Court of the District, respectively, were invested with plenary jurisdiction on the subject. On this point there is no further question. The two leading cases which authoritatively show when the Supreme Court of the District may, and when it may not, grant a mandamus against an executive officer, are the above cited cases of Kendall v. United States on the Relation of Stokes, 12 Pet. 524, and Decatur v. Paulding, 14 Pet. 497. The subsequent cases have followed the principles laid down in these, and do little more than illustrate and apply them. In the former case the mandamus was granted, and the decision was affirmed by this court. The case was shortly this: Stockton & Stokes, as contractors for carrying the mails, had certain claims against the government for extra services, which they insisted should be credited in their accounts, and a controversy arose between them and the Post Office Department on the subject. Congress passed an act for their relief, by which the Solicitor of the Treasury was authorized and directed to settle and adjust their claims, and make them such allowances as upon a full examination of all the evidence might seem to be equitable and right; and the Postmaster General was directed to credit them with whatever sums the Solicitor should decide to be due them. The Solicitor, after due investigation, made his report, and stated the sums due to Stockton & Stokes on the claims made by them; but the Postmaster General, Mr. Kendall, refused to give them credit as directed by the law. This the court held he could be compelled to do by manda- 46 OCTOBER TERM, 1888. Opinion of the Court. mus, because it was simply a ministerial duty to be performed, and not an official act requiring any exercise of judgment or discretion. This court, through Mr. Justice Thompson, said: “ The act required by the law to be done by the Postmaster General is simply to credit the relators with the full amount of the award of the Solicitor. This is a precise, definite act, purely ministerial; and about which the Postmaster General had no discretion whatever. The law upon its face shows the existence of accounts between the relators and the Post Office Department. No money was required to be paid ; and none could be drawn from the Treasury without further legislative provision, if this credit should overbalance the debit standing against the relators. But this was a matter with which the Postmaster General had no concern. He was not called upon to furnish the means of paying such balance, if any should be found. He was simply required to give the credit. This was not an official act in any other sense than being a transaction in the department where the books and accounts were kept; and was an official act in the same sense that an entry in the minutes of a court, pursuant to an order of the court, is an official act. There is no room for the exercise of any discretion, official or otherwise; all that is shut out by the direct and positive command of the law, and the act required to be done is, in every just sense, a mere ministerial act.” In the other case, Decatur v. Paulding, the mandamus was refused by the Circuit Court, and that decision was also affirmed by this court. The case was this: On the 3d of March, 1837, Congress passed an act giving to the widow of any officer who had died in the naval service a pension equal to half of his monthly pay from the time of his death until her death or marriage. On the same day Congress passed a resolution granting a pension to Mrs. Decatur, widow of Stephen Decatur, for five years, commencing June 30, 1834, and the arrearages of the half pay of a post captain from Commodore Decatur’s death to the 30th of June, 1834. Mrs. Decatur applied for and received her pension under the general law, with a reservation of her rights under the resolution, claiming the pension granted by that also. The Secretary of UNITED STATES ex rel. DUNLAP v. BLACK. 47 Opinion of the Court. the Navy, acting under the opinion of the Attorney General, decided that she could not have both. Thereupon she applied for a mandamus to compel the Secretary to comply with the resolution in her favor. Chief Justice Taney delivered the opinion of the court, and laid down the law in terms that have never been departed from. We can only quote a single passage from this opinion. The Chief Justice says: “The duty required by the resolution was to be performed by him [the Secretary of the Navy] as the head of one of the executive departments of the government, in the ordinary discharge of his official duties. In general, such duties, whether imposed by act of Congress or by resolution, are not mere ministerial duties. The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of Congress, under which he is from time to time required to act. If he doubts, he has a right to call on the Attorney General to assist him with his counsel; and it would be difficult to imagine why a legal adviser was provided by law for the heads of the departments, as well as for the President, unless their duties were regarded as executive, in which judgment and discretion were to be exercised. “ If a suit should come before this court, which involved the construction of any of these laws, the court certainly would not be bound to adopt the construction given by the head of a department. And if they supposed his decision to be wrong, they would, of course, so pronounce their judgment. But their judgment upon the construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them. The court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion or judgment. Nor can it by mandamus act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official 48 OCTOBER TERM, 1888. Opinion of the Court. duties. The case before us illustrates these principles and shows the difference between executive and ministerial acts.’’ The Chief Justice then goes on to show that the decision of the Secretary of the Navy in that case was entirely executive and official in its character, and that, in this respect, the case differed entirely from that of Kendall v. Stokes. The principle of law deducible from these two cases is not difficult to enounce. The court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act in a case at all, or when, by special statute, or otherwise, a mere ministerial duty is imposed upon them, that is, a service which they are bound to perform without further question, then, if they refuse, a mandamus may be issued to compel them. Judged by this rule the present case presents no difficulty. The Commissioner of Pensions did not refuse to act or decide. He did act and decide. He adopted an interpretation of the law adverse to the relator, and his decision was confirmed by the Secretary of the Interior, as evidenced by his signature of the certificate. Whether if the law were properly before us for consideration, we should be of the same opinion, or of a different opinion, is of no consequence in the decision of this case. We have no appellate power over the Commissioner, and no right to review his decision. That decision and his action taken thereon were made and done in the exercise of his official functions. They were by no means merely ministerial acts. The decisions of this court, which have been rendered since the cases referred to, corroborate and confirm all that has been said. The following are the most important, to wit: Bra-shear v. Mason, 6 How. 92; United States ex rel. Goodrich v. Guthrie, 17 How. 284; Commissioner of Patents v. Whiteley, 4 Wall. 522; Georgia v. Stanton, 6 Wall. 50; Gaines v. Thompson, H Wall. 347; United States ex rel. McBride v. Schurz, 102 U. S. 378; Butterworth v. Hoe, 112 U. S. 50. UNITED STATES ex rel. DUNLAP v. BLACK. 49 Opinion of the Court. In the two last cases cited, the mandamus was granted; and they were cases in which it was held that a mere ministerial duty was to be performed by the officer. In United States ex rel. MeBride v. Schurz, the question related to a patent for land claimed by a preemptor. All the proceedings had been gone through, the right of the applicant had been affirmed, the patent had been made out in the Land Office, signed by the President, sealed with the Land Office seal, countersigned by the recorder of the Land Office, recorded in the proper book, and transmitted to the local land officers for delivery; but delivery was refused because instructions had been received from the Commissioner to return the patent. The plea was, that it had been discovered that the lands belonged to a town site. The court held that this was an insufficient plea; that the title had passed to the applicant, and he was entitled to his patent, subject to any equity which other parties might have to the land, or to a proceeding for setting the patent aside; and that the duty of the Commissioner, or Secretary of the Interior, had become a mere ministerial duty to deliver the instrument — as was held in Marbury n. Madison, in relation to the commission of Marbury as justice of the peace. Of course, this case is entirely different from the case now under consideration. The case of Butterworth v. Hoe was very similar in principle to that of United States v. Schurz. The Commissioner of Patents had decided in favor of the right of one Gill, an applicant for a patent in a case of interference, and adjudged that a patent should issue to his assigns accordingly. An appeal was taken to the Secretary of the Interior, who reversed the decision of the Commissioner. The latter thereupon, and for that reason, refused to issue a patent. It was a question whether an appeal lay to the Secretary of the Interior, and this court held that it did not, and that he had no jurisdiction in the matter. The court, therefore, held that the patent ought to be issued in accordance with the decision of the Commissioner, and that the mere issue of the patent was a ministerial matter for which a mandamus would lie. This case, like that of United States v. Schurz, is unlike the present. vol. cxxvm—4 50 OCTOBER TERM. 1888. Opinion of the Court. All deliberation had ceased; the right of Gill, the applicant, was adjudged; there was nothing to be done but to deliver to the party the documentary evidence of his title. That was a mere ministerial matter. We think that the mandamus was properly refused, and the judgment of the Supreme Court of the District is Affirmed. No. 992, Rose v. Black. This case is similar in all essential respects to the preceding, and the decision must be the same. Judgment affirmed. No. 993, Miller v. Black. This case differs materially from numbers 991 and 992. Charles R. Miller, the relator, having made an unsuccessful application to the Commissioner of Pensions for an increase of his pension, finally appealed to the Secretary of the Interior, and in his petition for mandamus says as follows, to wit: “ That the Secretary, upon a personal, careful inspection of the record and all the evidence filed therein in his case, and on due consideration thereof, made and rendered the following official decision: ‘ Department of the Interior, ‘ Washington, D. C., February 12, 1885. ‘ The Commissioner of Pensions: ‘ Sir : Herewith are returned the papers in the pension claim, Certificate No. 55,356, of Charles R. Miller. ‘ It appears from the papers that Mr. Miller’s claim was before this department on the 6th instant, and it was held that the pensioner is greatly disabled, and it is evident from the papers in his case that he is utterly unable to do any manual labor, UNITED STATES ex reí. MILLER v. BLACK. 51 Opinion of the Court. and he is therefore entitled to $30 per month under the act of March-3, 1883, which has been allowed him by your office. ‘ Since the departmental decision above referred to, the papers in the claim have been carefully reconsidered by the Department, and a personal examination of the pensioner made, and it satisfactorily appears that he is unable to put on his shoe and stocking on the foot of his injured leg, for the reason that the nearest point that can be reached by hand from foot is 23 inches, and for the further reason that from “ necrosis of the lower vertebrae of spine, producing anchylosis of the spinal column and destruction of some of the spinal nerves ” he is unable to bend his back. ‘ After a careful review of all the facts in this case, the Department is constrained to think that the pensioner comes under the meaning of the laws granting pensions to those persons who require aid and attendance. The decision of the 6th instant is therefore overruled. ‘Very respectfully, ‘H. M. Teller, Secretary? “And your orator avers that the said official decision of the Secretary of the Interior, so made as aforesaid, was a final adjudication of his claim in his favor, and conclusively establishes his right under the laws to be rerated at $25 per month from June 6, 1866 ; $31.25 per month from June 4, 1872; $50 per month from June 4, 1874; and $72 per month from June 17, 1878, and to be paid the difference monthly between these sums and what has been allowed him; and all that remained for the Commissioner of Pensions to do in the premises was the simple ministerial duty of accordingly carrying the said final official decision of the Secretary into execution.” The petition goes on to state that the former Commissioner of Pensions refused to carry out the Secretary’s decision to its full extent, and that the present Commissioner, the respondent, still refuses. If, as the petition suggests, the Commissioner of Pensions refuses to carry out the decision of his superior officer, there would seem to be prima facie ground for at least calling upon him to show cause why a mandamus should not 52 OCTOBER TERM, 1888. Opinion of the Court. issue. This was all that the petitioner asked, and this the court refused. As a general rule, when a superior tribunal has rendered a decision binding on an inferior, it becomes the ministerial duty of the latter to obey it and carry it out. So far as respects the matter decided, there is no discretion or exercise of judgment left. This is the constant course in courts of justice. The appellate court will not hesitate to issue a mandamus to compel obedience to its decisions. The appellate .tribunal in the present case is the Secretary of the Interior, who has no power to enforce his decisions by mandamus, or any process of like nature ; and therefore a resort to a judicial tribunal would seem to be necessary, in order to afford a remedy to the party injured by thè refusal of the Commissioner to carry out his decision. But it is suggested that removal of the contumacious subordinate from office, or a civil suit brought against him for damages, would be effectual remedies. We do not concur in this view. A suit for damages, if it could be maintained, would be an uncertain, tedious, and ineffective remedy, attended with many contingencies, and burdened with onerous expenses. Removal from office would be still more unsatisfactory. It would depend on the arbitrary discretion of the President, or other appointing power, and is not such a remedy as a citizen of the United States is entitled to demand. We think that the case suggested by the petition is one in which it would be proper for the court to interfere by mandamus. Whether it will turn out to be such when all the circumstances are known, can be ascertained by a rule to show cause ; and such a rule, we think, ought to have been granted. The judgment of the court below is, therefore, Reversed, and the cause remanded with instructions to grant a rule to show, cause as applied for by the petitioner. Judgments will be entered sepa/rately in the several cases ROBINSON v. FAIR. 53 Syllabus. ROBINSON v. FAIR. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. No. 18. Argued April 9, 10, 1888. —Decided October 22,1888. The State Constitution in force in California prior to 1880 authorized the legislature to confer upon Probate Courts jurisdiction of proceedings for the partition of real estate, as ancillary or supplementary to the settlement and distribution of the estates of deceased persons coming within the cognizance of such courts. The legislature of California, under the Constitution in force prior to 1880, conferred upon the Probate Courts of the State power, after final settlement of the accounts of a personal representative, and after a decree of distribution, defining the undivided interests of heirs in real estate in the hands of such representative, (neither the title of the decedent nor the fact of heirship being disputed,) to make partition of such estate among the heirs, so as to invest each separately with the exclusive possession and ownership of distinct parcels of such realty, as against coheirs ; and such a grant of power does not appear to be foreign to the jurisdiction usually pertaining to such tribunals in this country. The decisions of the Supreme Court of California examined and shown to be in harmony with the two points above stated. The difference between distribution and partition of real estate among heirs pointed out. A Circuit Court of the United States has no jurisdiction to set aside a decree of partition in a state Probate Court authorized by law to make it; nor can it refuse to give full effect to the decree unless the Probate Court was without jurisdiction in the case. The jurisdiction of a Probate Court to make partition of real estate of a decedent among his heirs is not defeated by the fact that the proceedings for it were originated by a petition of the administratrix, who was also an heir at law, asking for a settlement of her accounts as administratrix, and for the adjudication of her rights as heir at law, by partition of the real estate; the record showing that the court made the decree for the final settlement and distribution of the estate before it entered upon the question of partition. The record in this case does not support the contention that proper notice of the proceedings in the Probate Court for the partition of the real estate was not given to the minor children. At the time when the proceedings took place, which form the subject of controversy in%his suit, there being no provision of law in force in California, requiring the appointment of guardians ad litem of infants, in probate proceedings, it was sufficient for them to be represented in such proceedings by an attorney, appointed by the court for that purpose. 54 OCTOBER TERM, 1888. Statement of the Case. This case involved the title to a fifty-vara lot in the city of San Francisco, numbered two hundred and five on its official map. It was a part of the separate estate of Horace Hawes, senior, who died, intestate, in that city, on March 12, 1871, leaving as his only heirs at law, his widow Caroline Hawes, and two minor children; Horace Hawes, junior, born March 22, 1859, and Caroline C. Hawes, born August 26, 1864. In December, 1871, the widow qualified as administratrix in the Probate Court of the city and county of San Francisco. In that capacity she took possession, as was her duty under the law of California, of the entire estate of her deceased husband, and held it subject to the control of that court. Civil Code, § 1384; Code of Civil Procedure, § 1581. In addition to the above lot, the intestate was the owner, at the time of his death, of a large amount of property, principally real estate, in the counties of San Francisco and San Mateo, some of which was community property, and the residue separate property. By the law of California, upon the death of the husband, intestate, one-half of the community property goes to the surviving wife, and the other to his descendants equally, or, in the absence of descendants, according to the right of representation, and in the same manner as the separate property of the husband ; and upon the death of the husband, leaving a widow and more than one child living, or the lawful issue of one or more deceased children, one-third of his estate, not otherwise limited by marriage contract, goes to the widow, and the remainder in equal shares to his children and to the lawful issue of any deceased child by right of representation. Civil Code, §§ 163, 164, 687, 1386, 1402. The estate was divided by proceedings commenced, February 18, 1875, by Mrs. Hawes, administratrix, in the Probate Court of the city and county of San Francisco. They were instituted for the purpose of obtaining a final settlement of her accounts, and, also, the distribution and the partition of the estate. Such a settlement was had, and, after a decree of distribution was passed, the court proceeded to make partition between the heirs, according to their respective interests, of the various parcels of real estate^ remaining in the hands of the ROBINSON v. FAIR. 55 Statement of the Case. administratrix. By the final decree of partition, rendered April 19, 1875, certain property, including the above lot, was set apart to the widow, while other lands in that county, and in San Mateo County, were allotted to the children. By deed of May 24, 1875, and for the consideration of three hundred thousand dollars, the widow conveyed the above lot to James C. Flood. The latter was in possession under his purchase until August 21, 1876, when he sold and conveyed, for a like sum, to James G. Fair, who, prior to the present litigation, put upon the lot substantial improvements of the value of several hundred thousand dollars. On the 6th of April, 1881, Caroline C. Hawes intermarried with James A. Robinson, who had previously, February 24, 1881, qualified as her guardian. The present suit was brought, June 6, 1882, in the names of Mrs. Robinson, (by her husband as guardian,) and Horace Hawes, Junior, to recover two undivided thirds of said fifty-vara lot. In the progress of the cause Mrs. Robinson was joined with her brother as an original plaintiff in her own right. The defendant claimed title under the decree of partition in the Probate Court. That decree, the plaintiffs insisted, was void. A jury having been waived, there was judgment for the defendant, the court below holding that the proceedings in the Probate Court were in conformity, in all respects, with law. The foregoing statement forms part of the opinion of the court in this case. The court below gave no opinion. In addition to that statement the justice who delivered the opinion in this court has kindly furnished the following summary of other facts forming essential parts of the case : On the 18th of February, 1875, the real estate of the decedent, remaining in the hands of the administratrix, consisted of what is known as Mission Block No. 44, the southeasterly part of Mission Block No. 8, Mission Block No. 2, and the fifty-vara lot No. 205, in San Francisco; also, the Redwood farm and certain villa lots in San Mateo County. The two parcels first named were acquired in 1860, after the marriage of Mrs. Hawes with the intestate, and were, therefore, “ com- 56 OCTOBER TERM, 1888. Statement of the Case. mon ” property. The other parcels were the separate property of the decedent. All those parcels were in the hands of the administratrix, because, by the law of California, a personal representative, whether executor or administrator, is required to take possession of all the estate, real and personal, of the decedent ; and his possession for the purpose, among other things, of partition, is that of the heirs or devisees, although their possession is subject to his for purposes of administration. Code of Civil Procedure, § 1581. On the day last named, Caroline Hawes instituted proceedings in the Probate Court, of the city and county of San Francisco, to obtain a final settlement of her accounts, and to have a distribution and partition of the estate remaining in her hands, as administratrix, between herself and the minor children, according to their respective rights, and pursuant to the statute in such cases made and provided. To that end she prayed that an order be made “directing that all persons interested in this estate appear before this court at a time and place to be specified, not less than four, or more than ten weeks from the time of making said order, to show cause why an order should not be granted directing that partition be made in said estate, and that distribution be made of the estate of Horace Hawes, deceased; and that partition be made of the real estate thereof, among the persons entitled thereto; or if the same cannot otherwise be fairly divided, that the same be sold and the proceeds distributed among those entitled ; or that such other or further or different order may be made as will be just and proper in the premises.” Upon that petition an order was made that all persons interested in the estate appear before the court on the 23d of September, 1875, to show cause why the final account filed by the administratrix should not be settled, allowed, and approved. That order also declares: “And whereas said account is for final settlement, and it duly appearing that said estate is ready for distribution, and that, upon confirmation of said final account, distribution and partition of all said estate to all persons entitled thereto has been duly demanded: ROBINSON v. FAIR. 57 Statement of the Case. “ It is further ordered, that all persons interested in said estate, be and appear before said court, at the time and place aforesaid, without further notice or proceeding therefor, and then and there show cause, if any they have, why distribution of the residue of said estate should not be made among the heirs at law of said deceased, according to law and the respective rights of all the parties; and, also, at the same place, immediately after decree of distribution of said estate is made, without further notice, to show cause why said court shall not make an order appointing' commissioners, or a commissioner, as it may seem best, to make partition and division of said estate among the heirs at law of said deceased, according to the respective rights of the parties and the decree of distribution, and to set aside to each his and her share, according to the proportions decreed to him, her, or them, or to report his or their inability to make partition of the whole or certain part or parts of said estate without sale, or without prejudice or inconvenience, and also to report and find the true value of all said real estate belonging to said estate. “ And it is further ordered, that notice of the foregoing be given by publication, and that a copy hereof be published once a week for four successive weeks, before said 23d day of March, 1875, in the Daily Examiner, a daily newspaper printed and published in said city and county.” Subsequently, the Probate Court made the following order: “Whereas, Chas. H. Sawyer, a competent attorney at law, has hitherto represented Horace Hawes and Caroline C. Hawes, minors, heirs of said deceased: “ It is now by the court here ordered, that said Chas. H. Sawyer, an attorney at law and of this court, be and is hereby appointed to represent said minors, Horace Hawes and Caroline C. Hawes, in the partition and distribution of said estate and all other proceedings, when all of the parties in said estate or said heirs are required to be notified thereof. “Done in open court this 29th day of March, 1875.” On the same day a decree was passed, “J. C. Bates appearing on behalf of said administratrix, and Chas. H. Sawyer, Esq., appearing on behalf of Horace Hawes and Caroline 58 OCTOBER TERM, 1888. Statement of the Case. C. Hawes, children of said deceased,”— which found and declared: That it appeared to the satisfaction of the court that due and sufficient notice of the time and place of hearing of said petition for distribution and partition had been given, as required by law; that the final accounts of the administratrix had been duly settled by the court, and that the estate was “■ in proper condition for distribution and partition, and to be finally closed;” that certain portions of said real estate were common property, and the residue was separate property; that the widow was entitled to an undivided half, and the two children together to an undivided half, of the former, while the widow and the children were each entitled to an undivided one-third of the latter. It was adjudged and decreed that all the acts and records of the administratrix, appearing upon the records of the estate, be approved and confirmed, and that the residue of said estate “ be and the same is hereby distributed” as follows: One undivided half of Mission Block No. 44, and the southeasterly part of Mission Block No.'8, less a certain school lot, to Caroline Hawes, and the other undivided half to the two children; and an undivided third to the widow of Mission Block No. 2, the fifty-vara lot No. 205, and of the lands in San Mateo County; and the remaining two-thirds thereof, undivided, to the children, share and share alike. The decree concludes with a particular description of the several parcels of land so distributed. The judgment-roll of the proceedings in the Probate Court also contains this order: “ The petition of Caroline Hawes, administratrix and heir at law of the estate of Horace Hawes, deceased, for partition of said estate, according to law, coming on regularly to be heard this 29th day of March, 1875, immediately after the decree distributing said real estate being made, J. C. Bates appearing for said petitioner, and Chas. H. Sawyer, Esq., appearing for and representing Horace Hawes and Caroline C. Hawes, minor heirs of said deceased, and upon consent in open court of all parties interested to the appointment of James L. King, sole commissioner for the purposes of partition and division of the estate of said deceased: ROBINSON v. FAIR. 59 Statement of the Case. “ And said court deeming it just and proper that said James L. King be appointed sole commissioner for such purposes, and ! all and singular the law and the premises being by the court i here seen, heard, understood, and fully considered: “ Whereupon, it is now by the court here ordered, adjudged, | and decreed that partition and division of said real estate, I described in the decree of distribution herein, be made in ac-I cordance with the rights of the parties as determined by said I decree of distribution. “ And it is further ordered, that the said James L. King be and he is hereby appointed sole commissioner for that purpose, and whose duty it shall be to make partition and division of said real estate described in said decree of distribution, in accordance with the rights and interests of the respective parties as therein determined, and make report of the proceedings ! and partition in writing to this court. “ Done in open court this twenty-ninth day of March, a. d. 1875.” On the 2d of April, 1875, Charles H. Sawyer, as said attorney for the minor heirs, and J. C. Bates, as attorney for the widow and administratrix, acknowledged service of a written notice from King, as commissioner, that he would, on the eighth day of that month and year, at his office, in the city of San Francisco, “ proceed to make partition of the property described in the decree of distribution in [of] said estate, in accordance with the rights of respective parties as therein described.” On the 13th of April, 1875, the commissioner made his report in which it is stated that, in making the division and partition of the property, he was attended by Mr. Sawyer, as attorney for the minor heirs of the decedent, and by Mr. Bates, as attorney for the widow; that, after a thorough examination of the premises, he made the partition and division, the estate in each county being divided separately among all the heirs as if there were no other estate to be divided. He allotted to the widow and the two children each an undivided one-third of all the land in San Mateo County; to the widow one-half, and to the children one-fourth each, of Mission Block No. 44, in 60 OCTOBER TERM, 1888. Statement of the Case. the city of San Francisco, each part being described by metes and bounds; to the widow, the southeasterly part of Mission Block No. 8, in the same city; to the children, each, one-half of Mission Block No. 2, in San Francisco, each part being described by metes and bounds; and to the widow, the whole of said fifty-vara lot, being 137^ feet square. This report was confirmed on the 19th of April, 1875, the order of confirmation reciting, among other things, the appearance of Bates for the widow and of Sawyer as the attorney appointed to defend for the minor heirs. Chapter X of the Code of Civil Procedure treats “of accounts rendered by executors and administrators, and of the payment of debts.” Among the provisions in that chapter is one to the effect that if the account rendered by an executor or administrator “ is for a final settlement, and the estate is ready for distribution and partition, the notice thereof required to be published must state these facts; and on confirmation of the final account, distribution and partition of the estate to all entitled thereto must be immediately had, without further notice or proceeding.” The succeeding chapter relates to the “ Partition, Distribution, and Final Settlement of Estates.” By § 1665 it is provided that “ upon the final settlement of the accounts of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee, or devisee, the court must proceed to distribute the residue of the estate in the hands of the executor or administrator, if any, among the persons who by law are entitled thereto.” “ Section 1666. In the order or decree the court must name the persons, and the proportions or parts to which each shall be entitled, and such persons may demand, sue for, and recover their respective shares from the executor or administrator, or any person having the same in possession. Such order or decree is conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside, or modified on appeal.” “ Section 1668. The order or decree may be made on the ROBINSON v. FAIR. 61 Statement of the Case. petition of the executor or administrator, or of any person interested in the estate. Notice of the application must be given by posting or publication, as the court may direct, and for such time as may be ordered. If partition be applied for as provided in this chapter the decree of distribution shall not divest the court of jurisdiction to order partition, unless the estate is finally closed.” “ Section 1675. When the estate, real or personal, assigned by the decree of distribution to two or more heirs, devisees, or legatees, is in common and undivided, and the respective shares are not separated and distinguished, partition or distribution may be made by three disinterested persons, to be appointed commissioners for that purpose by the Probate Court or judge, who must be duly sworn to the faithful discharge of their duties. A certified copy of the order of their appointment, and of the order or decree assigning and distributing the estate, must be issued to them as their warrant, and their oath must be indorsed thereon. Upon consent of the parties, or when the court deems it proper and just, it is sufficient to appoint one commissioner only, who has the same authority, and is governed by the same rules as if three were appointed. “Section 1676. Such partition may be ordered and had in the Probate Court on the petition of any person interested. But before commissioners are appointed, or partition ordered by the Probate Court, as directed in this chapter, notice thereof must be given to all persons interested, who reside in this State, or to their guardians, and to the agents, attorneys or guardians, if any in this State, of such as reside out of the State, either personally or by public notice, as the Probate Court may direct. The petition may be filed, attorneys, guardians, and agents appointed, and notice given at any time before the order or decree of distribution, but the commissioners must not be appointed until the order or decree is made distributing the estate. ’ “ Section 1677. If the real estate is in different counties, the Probate Court may, if deemed proper, appoint commissioners for all, or different commissioners for each county. The estate in each county must be divided separately among the heirs. 62 OCTOBER TERM, 1888. Statement of the Case. devisees, or legatees, as if there was no other estate to be divided, but the commissioners first appointed must, unless otherwise directed by the Probate Court, make division of such real estate, wherever situated within this State. “ Section 1678. Partition or distribution of the real estate may be made as provided in this chapter, although some of the original heirs, legatees, or devisees may have conveyed their shares to other persons, and such shares must be assigned to the person holding the same, in the same manner as they otherwise would have been to such heirs, legatees, or devisees. “Section 1679. When both distribution and partition are made, the several shares in the real and personal estate must be set out to each individual in proportion to his right, by metes and bounds, or description, so that the same can be easily distinguished, unless two or more of the parties interested consent to have their shares set out so as to be held by them in common and undivided. “ Section 1680. When the real estate cannot be divided without prejudice or inconvenience to the owners, the Probate Court may assign the whole to one or more of the parties entitled to share therein, who will accept it, always preferring the males to the females, and among children preferring the elder to the younger. The parties accepting the whole must pay to the other parties interested their just proportion of the true value thereof, or secure the same to their satisfaction, or, in case of the minority of such party, then to the satisfaction of his guardian, and the true value of the estate must be ascertained and reported by the commissioners. When the commissioners appointed to make partition are of the opinion that the real estate cannot be divided without prejudice or inconvenience to the owners, they must so report to the court, and recommend that the whole be assigned as herein provided, and must find and report the true value of such real estate. On filing the report of the commissioners, and on making or securing the payment, as before provided, the court, if it appears just and proper, must confirm the report, and thereupon the assignment is complete, and the title to the whole of such real estate vests in the person to whom the same is so assigned. ROBINSON v. FAIR. 63 Statement of the Case. « Section 1681. When any tract of land or tenement is of greater value than any one’s share in the estate to be divided, and cannot be divided without injury to the same, it may be set off by the commissioners appointed to make partition to any of the parties who will accept it, giving preference as prescribed in the preceding section. The party accepting must pay or secure to the others such sums as the commissioners shall award to make the partition equal, and the commissioners must make their award accordingly; but such partition must not be established by the court until the sums awarded are paid to the parties entitled to the same, or secured to their satisfaction. “Section 1682. When it appears to the court, from the commissioners’ report, that it cannot otherwise be fairly divided, and should be sold, the court may order the sale of the whole or any part of the estate, real or personal, by the executor or administrator, or by a commissioner appointed for that purpose, and the proceeds distributed. The sale must be conducted, reported, and confirmed in the same manner and under the same requirements provided in Article IV, Chapter VII of this Title. “ Section 1683. Before any partition is made or any estate divided, as provided in this chapter, notice must be given to all persons interested in the partition, their guardians, agents, or attorneys, by the commissioners, of the time and place, when and where they shall proceed to make partition. The commissioners may take testimony, order surveys, and take such other steps as may be necessary to enable them to form a judgment upon the matters before them. “ Section 1684. The commissioners must report their proceedings, and the partition agreed upon by them, to the Probate Court, in writing, and the court may, for sufficient reasons, set aside the report and commit the same to the same commissioners, or appoint others ; and when such report is finally confirmed, a certified copy of the judgment or decree of partition made thereon, attested by the clerk, under the seal of the court, must be recorded in the office of the recorder of the county where the land lies. 64 OCTOBER TERM, 1888. Argument for Plaintiffs in Error. “ Section 1685. When the Probate Court makes a judgment or decree assigning the residue of any estate to one or more persons entitled to the same, it is not necessary to appoint commissioners to make partition or distribution thereof, unless the parties to whom the assignment is decreed, or some of them, request that such partition be made. “ Section 1686. All questions as to advancements made, or alleged to have been made, by the decedent to his heirs, may be heard and determined by the Probate Court, and must be specified in the decree assigning and distributing the estate; and the final judgment or decree of the Probate Court, or, in case of appeal, of the Supreme Court, is binding on all parties interested in the estate.” Jfr. J. C. Bates and Mr. John A. Campbell for plaintiffs in error. The Constitution of 1863 was in force during the period covering the probate partition proceedings impeached in this case. That Constitution provided for several courts, and declared and conferred their several jurisdictions. It is evident that a Probate Court is erected by § 8, Art. VI, of that instrument, for each county, to consist of the county judge sitting as a judge of probate. The common law and equity jurisdiction is divided between the County Court sitting as a court of law of general jurisdiction, and the District Court sitting as a court of general law and equity jurisdiction. The former is given jurisdiction of actions of forcible entry and detainer, to prevent or abate nuisances, of special proceedings and cases, and such criminal jurisdiction as the legislature shall prescribe. The latter is given jurisdiction in all cases in equity, in all cases at law involving the title or possession of real property or the legality of any tax, etc., and in all other cases in which the demand, exclusive of interest, or the value of the property in controversy, amounts to $300. ROBINSON v. FAIR. 65 Argument for Plaintiffs in Error. The statute, authorizing the partition proceedings had in this case by the Probate Court, can only be valid on the assumption that the Constitution has either expressly vested jurisdiction over partition proceedings in the Probate Court, or has authorized the legislature to do so. The legislature cannot enlarge the jurisdiction of a constitutional court ; Cameron v. Kenfield, 57 Cal. 550 ; or vest in another court that jurisdiction which the Constitution has placed in one designated therein. Zander v. Coe, 5 Cal. 230 ; Appeal of 8. 0. Houghton, 42 Cal. 35 ; Will of Bowen, 34 Cal. 682 ; Willis v. Farley, 24 Cal. 490 ; Wilson v. Roach, 4 Cal. 362 ; Rosenberg v. Frank, 58 Cal. 387. The Constitution has vested jurisdiction over partition proceedings in the District Court as a court of equity by virtue of thè grant of jurisdiction “ in all cases in equity ” where the remedy is sought in equity ; and as a court of law, under the jurisdiction given of all cases at law which involve the title or possession of real property; where the remedy is sought in partition proceedings at law. This jurisdiction is thus vested because partition proceedings under the settled principles of our jurisprudence, in the light of which the Constitution speaks, are proceedings in equity or at law, and are cases in equity or at law according as the one forum or the other is sought. Actions at law for partition existed at the common law in the case of Parceners prior to the reign of Henry VIII, and in that reign the right to a writ of partition was given to tenants in common. 1 Washburn Real Prop. c. 13, § 7 ; 1 Spence Eq. Jur. 162 ; Freeman, Co-tenancy and Partition, § 420. Courts of equity assumed a jurisdiction over partition proceedings based not upon statute, but upon the inadequacy of the legal remedy. 1 Spence Eq. Jur. 642, 653, 654; Freeman, Co-tenancy and Partition, § 423. Partition jurisdiction, being a twofold jurisdiction, one at law, the other in equity, conferred by the. Constitution upon the District Court, such jurisdiction was exclusive in that court. It could not be vested by the legislature, either as a concurrent or an exclusive jurisdiction in another court, unless vol. cxxvin—5 66 OCTOBER TERM, 1888. Argument for Plaintiffs in Error. authority to that effect was given expressly or by necessary implication by the Constitution. The grant of probate jurisdiction is in these words: “ The county judges shall also hold in their several counties Probate Court, and perform such duties as probate judges as may be prescribed by law.” If partition jurisdiction is or may be vested in the Probate Court, it must be either because the last clause, “ as may be prescribed by law,” empowers the legislature to impress a jurisdiction properly at law or in equity with a probate character, and thereupon vest it in the Probate Court, or, in other words, to vest in the Probate Court other than strictly probate jurisdiction; or because probate jurisdiction, either as received from the English law or as remodelled in America, includes a limited partition jurisdiction as a part and incident thereof. Neither position is tenable. In Rosenberg v. Frank, 58 Cal. 402, the court said : “ It seems from the above [Art. VI, § 8, Cal. Const.] that the legislature may make the jurisdiction of the probate judge or court what it pleases, within the limits of that jurisdiction which is understood as usually pertaining to Probate Courts. But the position that it can, under this power, take away from the District Courts any of the equity jurisdiction conferred on them by the Constitution, is manifestly untenable.” Similar clauses have been construed as not empowering the legislature to extend the powers of a Probate Court beyond the proper and established bounds of the established probate jurisdiction, as known to American and English jurisprudence. Ferris v. Higley, 20 Wall. 373; Cast v. Cast, 1 Utah, 112; Locknane v. Hartin, McCahon (Kan.), 60 ;• Hoove v. Koubly, 1 Idaho, 54. The construction is rational. The conclusion is irresistible from the foregoing considera-tions, that § 8 of Art. VI authorizes the legislature to confer on the Probate Court probate powers and jurisdiction and those only. Unless the power to partition among heirs is a probate power, and the jurisdiction over partition proceedings is a part of the probate jurisdiction recognized in the Anglo-American jurisprudence, the provisions of the statute and code ROBINSON v. FAIR. 67 Argument for Plaintiffs in Error. for partition, by the Probate Court were void, and the partition proceedings, under which the defendant in this action claims, wefe coram non judice and absolutely void. Partition is not a part of the probate jurisdiction derived from England and exercised in America by Probate or Surrogate Courts. The Probate and Surrogate Courts in America are the lineal successors of the ecclesiastical courts of Great Britain. Paynds Will, 4 T. B. Mon. 423. Our state constitutions recognize three civil jurisdictions, derived from the jurisprudence of England: law, equity and probate, and distribute them to the several tribunals. To the limits of these several jurisdictions, as exercised by the several judicatories of England, our courts look for the boundaries of the judications deposited by our organic laws in the several ► state courts. The jurisdiction of the ecclesiastical courts was | exercised, with certain exceptions immaterial for the purpose I of this head, over the personal estate only. Toiler’s Executors, 67, 80. The mere distribution or declaration of the rights of I the next of kin to the undisposed-of residue in the case of ; intestacy, and the enforcement of the surrender by the administrator, an officer of the court, to the kin of that residue, was i the extent of the power exercised by the ecclesiastical courts. The partition of that residue was left to the voluntary action of the kin, or to their coerced action in obedience to the decree of a court of law or equity. Although there is a seeming appropriateness in the exercise of a limited power of partition by the Probate Court, and although on a superficial view, such a power appears to be analogous to, and a legitimate extension of the process of distribu-I ^10n> yet neither position is true. The inappropriateness of the exercise of such a power becomes more apparent when the I incongruous and alien nature of that portion of the activity of I a Probate Court has been demonstrated and illustrated. Partition is not analogous to and is not a legitimate extension of I the process of distribution. This proposition is based upon the I distinction between partition and probate proceedings in na-I tures, object and operation. This distinction is twofold. 68 OCTOBER TERM, 1888. Argument for Plaintiffs in Error. 1. Briefly stated, the object of administration is not to enforce a remedial right, or to transfer property. Its exclusive purpose and operation is to manage the estate as in receivership for the payment of debts and to announce authoritatively a legal succession. No proceeding of the former description properly belongs to administration. Partition involves an enforcement by the judicial decree of a remedial right and the motion of property rights inter vivos. 2. Administration has exclusively to do with rights which spring from the succession, i.e., out of the fact atid process of inheritance. When the Probate Court deals with other rights, it departs from its legitimate conventional and customary sphere, and overleaps the boundaries of its jurisdiction. This character of the probate jurisdiction runs through the entire Anglo-American jurisprudence. The jurisdiction is a jurisdiction of management over an undisputed fund in the custody of the court for administration purposes, — to wit, for the payment of debts and for the support of the family during administration. The moment activities diverging from this narrow thread of function are required, the domain of a diverse jurisdiction, not a jurisdiction of management but a remedial jurisdiction, must be entered. The Probate Court can appoint an executor or administrator, and direct him, by successive orders extending to the close of the administration, to collect assets, to sell property, to pay debts, to apply so much of the funds in his hands as shall be necessary to defray funeral expenses and to support the family and to protect the fund, and finally direct him to deliver so much of the funds as shall be necessary in satisfaction of legacies and to surrender the residue to the heirs. All activities outside this narrow channel, bounded in the beginning by the death and at the end by the distribution, and laterally by the limits of management, belong to law or equity. And the test of the new province, and of the externality from the terminal or lateral boundaries of the probate jurisdiction, is the question whether those activities involve adversary litigation involving remedial rights and issuing in judgments enforcing such rights by the transfer of property. ROBINSON v. FAIR. 69 Argument for Plaintiffs in Error. The proceedings in a Probate Court, preceding distribution, are not in any particular adversary proceedings, involving the assertion of a remedial right, and issuing in a judgment accomplishing a transfer of property rights. The decree of distribution is equally devoid of that character. It neither gives, creates, nor transfers any rights of property. The proceedings resulting in the decree are in the nature of an inquisition to ascertain who are the persons upon whom the law has cast the succession and to what interests. The decree, when pronounced, is simply declaratory. It announces what rights were given at the death by the law, and to whom: It is a declaration which concludes all parties to the proceeding. But it does not purport, and in theory of law does not create or transfer any rights. If in practice it thus operates, it is in consequence of error in the exercise of jurisdiction. Partition, on the contrary, is essentially an adversary proceeding in which a remedial right to the transfer of property is asserted, and a proceeding issuing in a judgment amoving or transferring that property. Where partition by judicial proceedings is had between two tenants in common, an interchange of property rights is accomplished by the judgment. The right of possession to one moiety of the lands by metes and bounds is divested from one tenant and transferred to the other. He is compelled to accept, as a substitute, the right of possession theretofore belonging to the other tenant to the moiety by metes and bounds assigned to him. The property of which he is divested is the title and right of possession of a tract of land awarded to the other, together with the incident rights, the right of entry, the right of user, the right to maintain trespass, etc. The proceeding is strictly analogous to a proceeding in equity, to compel the specific performance of a contract to exchange land. The contract of exchange being established, the law gives a remedial right to each party to the reciprocal exchange of the titles and rights of possession of the respective parcels of land. The judgment ex proprio vigore (under the laws of some States), or as executed, accomplishes the transfer. In partition, the fact of the tenancy being established, the 70 OCTOBER TERM, 1888. Argument for Plaintiffs in Error. law gives a remedial right to the reciprocal exchange of the right of possession with the incident rights, to several distinct moieties of the entire tract and of the title to undivided moie-ties of such moieties. The judgment accomplishes the change. But there are two matters of law which establish beyond possible question or cavil, that in partition, property consisting both of title and right of possession is and must be transferred by the judgment in possession. (1) This results from the fact that at common law partition could not be accomplished without the transfer of an estate by the voluntary act of the parties. And the judicial proceeding is a compulsory transfer by and through the judgment of a court, substituted for the voluntary process by the parties. (2) That partition involves the transfer of an estate or property is evidenced by the theory and foundation of the proceeding in equity to compel the specific performance of a parol partition. The statute of frauds is satisfied by the part performance accomplished by the actual severance of possession. Equity will treat each tenant as possessed of the legal title to one-half of his allotment and of the equitable title to the other half of the same, and will compel a conveyance by the cotenant. This proceeds exclusively on the theory that each tenant in common can have a title to one-half only, of any specified parcel of the whole tract, and can only acquire the other half through the medium of a conveyance. Freeman Cotenantry and Partition, § 402 and cases cited. Administration has exclusively to do with rights which spring out of the fact of succession. When it deals with other rights, it departs from its legitimate, conventional and customary sphere. Partition deals with a remedial right springing out of the nature of the property and attaching thereto under a law other than that of succession. The exercise of a power of partition by the Probate Court is in no sense appropriate. It is an incongruous and alien activity as established by the foregoing discussion. It is also ROBINSON v. FAIR. 71 Argument for Plaintiffs in Error. inappropriate by reason of the inadequate powers of that court. The Probate Court can only partition the legal interest cast. It can determine no other title. It cannot adjust, as can equity, the equities between the parties; making provisions for liens and incumbrances and variant values in different parcels of the property. The Probate Court exercises, under our law, more extensive powers in the administration of estates than did the ecclesiastical courts of England. For instance; American courts, under statute authority, take jurisdiction of wills of real estate, and in all cases, whether of testacy or intestacy, land is assets to be administered upon. Yet no such powers were exercised by the ecclesiastical courts. American courts render decrees of distribution in cases of testacy as well as of intestacy, yet the ecclesiastical courts could render no such decree except in case of intestacy. The American Probate Courts exercise also, by authority of statute, more enlarged powers in the direction and control of executors and administrators. In none of these cases is more done by the legislature than to grant to a tribunal, whose powers are strictly dependent upon statute, more extended powers within its legitimate domain. So long as the powers granted consist in nothing more than powers over its officers and the estate in its custody for administration, or in powers to announce judicially the course of succession, the bounds of its legitimate jurisdiction are not passed. The moment the court is given power to entertain proceedings to enforce remedial rights, and to render judgments amoving, or, when executed, accomplishing the amotion of property, that moment the boundaries of its jurisdiction are passed. Wherever partition powers are or have been exercised by Probate Courts, in the United States, it has been by express authority of statute and as an alien power in the Probate Court. Had a limited partition power been generally exercised by Probate Courts in the United States, as an incident of distribution in the absence of statutory authorization, this fact might warrant the inference, that in the opinion of the bench and 72 OCTOBER TERM, 1888. Argument for Plaintiffs in Error. bar of America, such power belonged to the immemorial probate jurisdiction. But where the power is exclusively statutory and so recognized wherever exercised, the fact of its exercise has no tendency to establish that it is a legitimate part of probate jurisdiction. The power exercised by Probate Courts to partition, wherever it exists is based on statute. Alabama: see Toulman’s Digest of the Laws of Alabama, 1823, 333, § 43; Ala. Code, 1852, § 670; Rev. Code Ala. 1867, § 3105; Brya/nt v. Stearns, 16 Ala. 302; Coker v. Pitts, 37 Ala. 692. Connecticut : see Public Statute Laws of Conn. 1838, 234, Tit. 31, c. 1, § 29; Statutes of Conn. 1854, 502, § 53; Gates v. Treat, 17 Conn. 388. Indiana: see Rev. Stat. 1843, 811, 812, §§ 114, 115, 116; Rev. St. Ind. 1881, §§ 1186,1187; Shull v. Kennon, 12 Ind. 34; Bennet v. East, 1 Ind. 174. Louisiana: see Hooke v. Hooke, 6 La. O. S. 569 (420). Maine : see 1 Smith’s Laws of Maine, 239, c. 50, §§ 31, 38; Rev. Stat. Maine, 1840-41, 449, c. 108, § 1; Rev. Stat. 1883, 550, §§ 8, 9; Earl v. Rowe, 35 Maine, 414; N. C. 58 Am. Dec. 714. Massachusetts : see Provincial Stat. Mass. c. 13, Jan. 5, 1753, Ancient Charter, 594; Stat. Mass. 1817, c. 190; Gen. Stat. Mass. 1860, 490, §§ 14, 48, 65. “All the authority which the judge of probate has, upon this subject, is derived from the statute of 1817, c. 190per Wilde, J., in Wai/nright v. Dorr, 13 Pick. 333 ; Arms v. Lyman, 5 Pick. 210; Sigourney v. Sibley, 22 Pick. 507; S. C. 33 Am. Dec. 762; Bemis v. Stearns, 16 Mass. 200; Jenks v. Howland, 3 Gray, 536; Gordon v. Pea/rson, 1 Mass. 323. Mississippi : see Statutes of Miss. (Howard and Hutchinson’s), 1840, 412, § 89, 471, § 14; Smith v. Craig, 10 Sm. & Marsh. 447; Currie v. Stewart, 26 Mississippi, 649; Lum v. Reed, 53 Mississippi, 73. Hew Hampshire: see Comp. Stat. N. H. (ed. 1853) 393, § 6; Wadleigh v. Ja/nvreen, 41 N. H. 503; $. C. 71 Am. Dec. 780. New Jersey: see, Revised Laws of N. J. 1821, 780, § 13; Nixon’s Dig. Laws of N. J. 668, § 10 ; Den ex dem Richman v. Baldwin, 1 Zabriskie (21 N. J. Law), 395; Curtis v. Jenkins, Spencer (20 N. J. Law), 679. Pennsylvania : see 1 Brightly’s Purdon’s Dig. Laws of Penn. 1700-1872, 433, § 138 ; Bishop’s Appeal, 7 W. & S. 251; Selfridge's Appeal, 9 W. & S. 55; ROBINSON v. FAIR. 73 Argument for Plaintiffs in Error. Wain's Appeal, 4 Penn. St. 502. Tennessee : The County Court has jurisdiction of the probate wills; Code Tenn. 1858, § 2169; Stat. Tenn. 1831, Heywood and Cobb’s Revision, 103, § 47. The County, Circuit, and Chancery Courts have concurrent jurisdiction. Statutes Tenn. 1831, Revision, Heywood and Cobbs, 244; Tenn. Code, 1858, § 3266; Wilcox v. Cannon, 1 Coldwell, 379. Vermont : Laws of Vermont, down to 1824, 349, 350, §§ 79, 83; Rev. Laws Vermont, 1880, §§ 2252-2260; Grice v. Randall, 23 Vt. 239. Wisconsin: Rev. Stat. Wis. 1849, 380-1-2 ; Rev. Stat. Wis. 1858, 605-6-7; Rev. Stat. Wis. 1878, §§ 3942-3955. Minnesota : Stat, of Minn. 1851, 260, § 5; Stat, of Minn. 1878, 597, § 6. South Carolina: 11 Stat. S. C. 44, § 26; 6 Stat. S. C. 248; Rev. Stat. S. C. (1872) 573, § 41; Faust v. Bailey, 5 Rich. (S. C. Law) 107; Davenport v. Caldwell, 10 S. C. 317; Gates v. Irick, 2 Rich. (S. C. Law), 593. It is recognized in all the cases, as of statutory origin. In none are there any suggestions that it is an original or legitimate element or incident of administration. Whenever the question of its relation to the latter jurisdiction has been noticed, it has been noticed as something foreign thereto, and as an alien jurisdiction conferred upon the Probate Court in consequence of some local views of convenience. Currie v. Stewart, ubi supra; Davenport v. Caldwell, ubi supra; Smith v. Craig, ubi supra ; Wainwright v. Dorr, ubi supra • Grice v. Ran doll, ubi supra. The sole question in this case is, were the proceedings in partition in the Probate Court of San Francisco without jurisdiction? Of course, if the court has jurisdiction of the proceedings and the persons, whether it be a court of inferior or general jurisdiction, the decision of the Probate Court is conclusive except on appeal. The cases cited on behalf of the defendant in error all proceed on the assumption that the Probate Court had jurisdiction in the States in question, and the presumption was correct. In this case and in California the contention is that the Probate Court had no jurisdiction; that the proceedings were absolutely void and not merely voidable; and it is an elementary principle that such proceedings are nullities and subject to collateral as well as direct attack. 74 OCTOBER TERM, 1888. Argument for Plaintiffs in Error. In the absence of a constitutional distribution of jurisdictions, and in the absence of an express or necessarily implied prohibition, it is beyond doubt, that the legislature can vest a particular jurisdiction in any court it may appoint. For the purpose, therefore, of determining the constitutionality of the California statute, a distinction must be taken between the decisions of those States where such constitutional distributions of jurisdictions and prohibitions exist and of those States where they do not. The legislation, practice, and decisions of the latter must be laid aside. It is argued that the statute simply brings into this State the practice and usage in the matter of partition by Probate Courts which generally prevail in other States. It is urged by inference that the constitution, in providing probate jurisdiction in the Probate Court, contemplated that jurisdiction, not in its purity and simplicity as derived from Great Britain, but as amplified in America. It is supposed that the jurisdiction in question has been remodelled in America by the practice of the States, and partition power incorporated into it, and that the state constitution speaks with reference to that American probate jurisdiction. But to adopt such a principle is to violate all the rules of construction to enable the significance of constitutional provisions to vary with variable custom, and to enable a judicial remodelling, according to the whim of the times, of our constitutions, destructive of the rigidity and integrity of our constitutional framework of government. It is not true that there is an American probate jurisdiction different in essential quality and nature from that of the courts of administration of England. It is true that a partition power has been expressly conferred upon Probate Courts in certain States; but this has not been done in all, and, in fact, has been done in less than a majority. Such a power has been so conferred in Maine, Massachusetts, Connecticut, Vermont, Pennsylvania, New Hampshire, New Jersey, Alabama, Rhode Island, Indiana, Ohio, and Tennessee. In Mississippi the court, by virtue of its constitutional juris- ROBINSON v. FAIR. 75 Argument for Plaintiffs in Error. diction over orphans’ business, can partition an estate where some of the tenants in common are minors. In Texas and Louisiana, the same court has constitutional jurisdiction over matters at law and in equity and of administration. In Kentucky and North Carolina the same court is a court of law and equity and a Court of Probate, but the partition power is not given to it as a Probate Court. In South Carolina, although up to 1874 the Probate Court had a statutory partition power, yet it is held that such power is not a part of the probate jurisdiction. But no such power has been conferred upon the Probate Court in New York, Virginia, West Virginia, Georgia, Florida, Missouri, Iowa, Illinois, Arkansas, Kansas, Nebraska, Colorado, and Maryland. In the latter State jurisdiction to partition the estates of decedents was given to the county courts by the statute of November, 1786, c. 45, § 8; while under the act of February, 1777, § 8, the orphans’ court had exclusive probate jurisdiction. This distinction continues at the present time. Revised Code, Maryland, 1878, 430-432 and 407-8. On no assumption can it be maintained, as a matter of law, that the power of partition was a part of the probate jurisdiction, which it was competent for the legislature to vest in Probate Courts under the California Constitution of 1863. That power was indisputably no part of the probate jurisdiction derived from England. Wherever the question has been decided, the American courts have pronounced it no part of the probate jurisdiction, as specified by the constitutions. On principle, it belongs to the jurisdictions at law and in equity, and not to probate. Wherever such a powrer has been exercised in America, by Probate Courts, it has been by virtue of express statute, and in all such cases the constitutional power to enact such statutes existed in the legislature, by reason of the absence of express or implied constitutional prohibitions. On no substantial principle can the Constitution of California be made to speak with reference to the variant practice of 76 OCTOBER TERM, 1888. Opinion of the Court. a"minority of the States, so as to make the probate jurisdiction conferred by that Constitution comprehend that statutory power of partition deposited in Probate Courts in those States. The counsel further contended: (1) that the administratrix was not a competent party to prosecute a suit for the partition of the real property, which had descended to the heirs at law, and was in the possession of the heirs at the time when the consent order of the two attorneys and of the court was adopted; (2) that the order made, appointing the commissioner, had no validity; (3) that the minor heirs had not been served with any process, directly, nor by service upon a general guardian or a guardian ad litem • (4) that the Probate Court had no authority to appoint an attorney of the court to represent these parties in this cause, nor to bind them by any agreement he should make; (5) that the Court of Probate did not acquire jurisdiction over the persons of these plaintiffs. J/r. Samuel Hi. Wilson tor defendant in error. Mr. Justice Harlan, after stating the case, delivered the opinion of the court. The principal assignment of error is, that, under the Constitution of California prior to 1880, the Probate Court could not take jurisdiction of a proceeding to partition real estate. It is contended that its control over the estate ceased when it approved the final settlement, and, by a decree of distribution, defined the nature and extent of the interests of the heirs in the remaining estate of the decedent. A partition severing the unity of possession among the heirs, and investing each with a right, as against the others, to the exclusive possession and ownership of distinct parts of the estate, could not, it is insisted, have been constitutionally effected by proceedings in a Probate Court. These questions have received the most careful consideration, as well because of their intrinsic importance, as because their determination by this court, as we are informed by counsel, may seriously affect the title to large bodies of land in California. ROBINSON v. FAIR. 77 Opinion of the Court. Tracing the course of legislation in California in reference to the jurisdiction and powers of the Probate Courts of that State, we find that the first statute upon the subject is that of April 22, 1850, entitled “ An Act to regulate the Settlement of the Estates of Deceased Persons.” Stat. California, 1850-53, c. 129, p. 377. Another statute was passed May 1, 1851, having a similar title, and covering the same subject. Compiled Laws California 1850, c. 120, pp. 377 to 423. The provisions of these statutes relating to proceedings in the Probate Courts for the final settlement, distribution, and partition of estates were continued without material change, and the powers of those courts enlarged, by the Code of Civil Procedure. The sections of the code bearing upon the question of the jurisdiction and powers of those courts are too numerous to be incorporated in this opinion. It is sufficient to say that upon a careful examination of them, we are of opinion that it was the intention of the legislature to invest Probate Courts with authority, in connection with, and as ancillary or supplementary to, the settlement and distribution of estates, to make partition of real property — where the title of the deceased owner and the heirship of the parties are undisputed — so as to invest each heir with a separate title to the particular part or parts allotted to him by the decree of partition. No other interpretation is consistent with the words of the code. §§ 1581,1634, 1665,1666, 1668, 1675, 1676 to 1686, inclusive. Does the state constitution prohibit the partition of real estate by proceedings in a Probate Court? The contention of the plaintiffs is, that exclusive original jurisdiction of such proceedings is given to District Courts, and that partition is foreign to the probate system as recognized in that instrument. By the constitution of California, in force at the time partition was made of the estate in question, the judicial power of the State was “ vested in a Supreme Court, in District Courts, m County Courts, in Probate Courts, and in justices of the peace, and in such Recorders’ and other inferior courts as the legislature may establish in any incorporated city or town; ” and the Supreme Court, the District, County, Probate, and 78 OCTOBER TERM, 1888. Opinion of the Court. such other courts as the legislature should prescribe, were declared to be courts of record. Const, of 1849, amended in 1862, Art. VI, §§ 1, 9. The Supreme Court is invested with appellate jurisdiction in all cases in equity; in all cases at law involving the title or possession of real estate, or the legality of any tax, impost, assessment, toll or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars; in all cases arising in the Probate Courts; and in all criminal cases amounting to felony, on questions of law. It also has “power to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction.” Id. § 4. The constitution of 1849 provided that the District Courts “ shall have original jurisdiction in law and equity in all civil cases where the amount in dispute exceeds two hundred dollars, exclusive of interest. In all criminal cases not otherwise provided for, and in all issues of fact joined in the Probate Courts, their jurisdiction shall be unlimited.” Const. 1849, Art. VI, § 6. But in 1862 the constitution was amended, and in lieu of that section the following was substituted: “ The District Courts shall have original jurisdiction in all cases in equity; also, in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars; and also in all criminal cases not otherwise provided for. The District Courts and their judges shall have power to issue writs of habeas corpus, on petition by or on behalf of any person held in actual custody, in their respective districts.” Const. 1862, Art. VI, § 6. The constitution of 1849, also, provided for the election of a county judge in each organized county, who “ shall hold the County Court, and perform the duties of surrogate or probate judge,” and, with two justices of the peace, “ shall hold Courts of Sessions, with such criminal jurisdiction as the legislature shall prescribe; and he shall perform such other duties as ROBINSON v. FAIR. 79 Opinion of the Court. shall be required by law.” It was further provided that “ the County Courts shall have such jurisdiction in cases arising in justices’ courts, and in special cases, as the legislature may prescribe, but shall have no original civil jurisdiction except in such special cases.” Const. 1849, Art. VI, §§ 8 and 9. But by the amendments of 1862 the powers and jurisdiction of County Courts were greatly enlarged, as will be seen from the following section adopted in lieu of those just cited: “ Section 8. The County Courts shall have original jurisdiction of actions of forcible entry and detainer, of proceedings in insolvency, of actions to prevent or abate a nuisance, and of all such special cases and proceedings as are not otherwise provided for; and also such criminal jurisdiction as the legislature may prescribe ; they shall also have appellate jurisdiction in all cases arising in courts held by justices of the peace and recorders, and in such inferior courts as may be established in pursuance of section one of this article, in their respective counties. The county judges shall also hold in their several counties Probate Courts, and* perform such duties as probate judges as may be prescribed by law. The county courts and their judges shall also have power to issue writs of habeas corpus, on petition by or on behalf of any person in actual custody in their respective counties.” The argument in behalf of the plaintiffs, briefly stated, is, that the legislature could not confer upon County Courts jurisdiction of suits or matters of which original jurisdiction is given by the constitution to District Courts ; that whether a proceeding for partition be regarded as a case in equity, or a case at law involving the title or possession of real property, it is within the original, and, therefore, exclusive jurisdiction of a District Court; and that the provision requiring county judges to hold “ Probate Courts,” “ and perform such duties as probate judges as may be prescribed by law,” did not authorize the legislature to invest Probate Courts with jurisdiction, concurrent with District Courts, in cases of which the latter were, by express words, given original jurisdiction. It must be confessed that some support for this position is found in the general language employed in Zander v. Coe, 5 80 OCTOBER TERM, 1888. Opinion of the Court. California, 230, People v. Fowler, 9 California, 85, and Caulfield v. Stevens, .28 California, 118. In Zander v. Coe, the court proceeded upon the ground that the legislature could not confer on one court the functions and powers which had been conferred by the constitution upon another court. In People v. Fowler, 9 California, 85 — where the question was as to the constitutionality of a statute giving an appeal to the Court of Sessions from a judgment in a criminal case tried in a justice’s court — the court, referring to Zander v. Coe, and previous cases, said: “ The rule of construction established by these decisions is this: That when certain powers are, in form affirmatively, bestowed upon certain courts, they are still exclusive, unless there be some exception specified in the constitution itself, or the power to prescribe the cases to which the jurisdiction should extend be expressly given to the legislature. For example : there is affirmatively conferred upon the District Courts certain original jurisdiction in civil cases, and there is no specified exception stated, and no power expressly given to the legislature either to limit or increase this jurisdiction; therefore it is, as to the class of cases enumerated, exclusive^ In Caulfield v. Stevens, 28 California, 11$, the court declared to be unconstitutional an act empowering justices of the peace to try actions for forcible entry, or forcible or unlawful detainer. Its validity was attempted to be maintained under the general grant to the legislature of power to fix by law the “ powers, duties, and responsibilities ” of justices of the peace. Const. 1862, Art. VI, § 9. But the court held that the subject of forcible entries and of forbible and unlawful detainers was expressly committed by the constitution to County Courts, and that the act there in question was unconstitutional. Whether the court had in view the rule of constitutional construction announced in Zander n. Coe and People n. Fowler, it is impossible to say; for no reference is made to either case. As pointed out in Court/wright v. Bea/r River dec. Mining Co., 30 California, 573, the decision in Caulfield n. Stevens went beyond what was necessary to be decided; it might have been rested entirely upon the ground that the constitution in terms ROBINSON v. FAIR. 81 Opinion of the Court. invested County Courts, declared to be courts of record, with original jurisdiction of actions of forcible entry and detainer, and the authority of the legislature to fix by law the powers, duties, and responsibilities of justices of the peace was burdened with the condition that “ such powers shall not, in any case, trench upon the jurisdiction of the several courts of record.” Section 9. Prior to Caulfield v. Stevens, there were two decisions in the state court which seem to rest upon a different rule of constitutional construction, Estate of De Castro v. Barry, 18 California, 96, and Perry v. Ames, 26 California, 372, 382. The first one was a suit for partition. It was brought in a Probate Court under § 264 of the Probate Act of 1851, (Compiled Laws of California, 1850-3, p. 415,) providing that “partition of the real estate may be made as provided in this chapter, although some of the original heirs or devisees may have conveyed their shares to other persons, and such shares shall be assigned to the person holding the same, in the same manner as they otherwise should have been to such heirs or devisees.” That section — the words “or distribution” being added after “partition,” and “legatees” after “heirs” — is incorporated into the Code of Civil Procedure, § 1678. In that case the point was made that the Probate Court had no jurisdiction, because the petitioners were not heirs or devisees, and, therefore, not entitled to sue in the form adopted. But the jurisdiction of the Probate Court was sustained, on the ground that the statute placed alienees upon the same footing as the original heirs or devisees. While the authority of the Probate Court was not assailed upon the ground now asserted —namely, that the court could not, under the Constitution, entertain jurisdiction of a suit for partition — that question was necessarily involved in the case; and the decree, which was affirmed, should have been reversed, if it be true that the jurisdiction of the Probate Court, in cases of partition, could not be made concurrent with that of the District Courts. In Perry v. Ames, the question was as to the jurisdiction of District Courts, under the State Constitution as amended in 1862, in cases of mandamus. It was contended that the Supreme vol. cxxvm—6 82 OCTOBER TERM, 1888. Opinion of the Court. Court alone could issue a writ of mandamus, because upon that court had been conferred, in terms, power “ to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction,” while no such power was expressly conferred upon the District Courts. It was decided that although the Supreme Court had been invested, in terms, with original jurisdiction in cases of mandamus, the District Courts had the same power, in respect to that species of remedy, by virtue of the general grant to them of jurisdiction in all civil cases in equity and in certain specified cases at law. But the fullest discussion as to the general question is to be found in Courtwrlght v. Bear River, dec. Mining Co., above cited. The principal point there was, whether a District Court could take jurisdiction of an action in equity to abate a nuisance. The latter court held that it could not, for the reason that original jurisdiction of an action to prevent or abate a nuisance is expressly granted to County Courts. Art. VI, § 8. But it was adjudged by the Supreme Court of the State that the jurisdiction of County Courts of such actions was only concurrent with that of District Courts — the latter having original jurisdiction of suits to abate nuisances under the general grant to them of jurisdiction in cases in equity. It was held, that while the Constitution expressly provides that the powers conferred upon justices.of the peace “shall not in any case trench upon the jurisdiction of the several courts of record ” — thereby indicating that the jurisdiction conferred upon the several courts of record should be exclusive as against justices of the peace — no analogous provision was made as between the courts of record; and that, consequently, the Constitution did not forbid the Legislature from investing courts of record of the same order and grade with equal authority over any given cause or subject-matter of litigation. The court, also, said that “ the cases are numerous which stand opposed to or are inconsistent with the idea of the complete distribution by the Constitution of judicial power among the several courts, and of their exclusive jurisdiction of all the subject-matters committed to them.” “ There are many mat- ROBINSON v. FAIR. 83' Opinion of the Court. ters,” it observed, by way of illustration, “that we need not pause to specify, that would usually and properly pertain to the court exercising probate powers, as involved in the settlement of the estates of deceased persons, that may form the subject-matters of suits in equity and be properly litigated in the District Court.” It referred to Perry v. Ames as sustaining the theory of concurrent jurisdiction, and pronounced that doctrine to be correct. It further said that the dictum in Caulfield v. Stevens must yield to the decision in Perry v. Ames. The doctrine of this case, upon the question of the concurrent jurisdiction of District and Probate Courts of actions in equity to abate nuisances, was reaffirmed in Yolo County v. City of Sacramento, 36 California, 193, 195. The latest decision in the state court, to which our attention is called, which bears directly on the question of jurisdiction, is Rosenberg v. Fra/nh, 58 California, 387, 402. In that case will be found some material qualification of the general language used in previous cases. That was a suit in equity, brought by executors in a District Court, for the purpose of obtaining a construction of a will. It was suggested that the Probate Court had jurisdiction of the subject-matter of the cause, and that its jurisdiction was, for that reason, exclusive. The court, adhering to the rule announced in the Courtwright case, held the authority of the District Court to be ample and plenary, under the grant to it of original jurisdiction in cases in equity. After stating that the jurisdiction of Probate Courts is not defined in the Constitution, and referring to the provision that county judges shall “perform such duties as probate judges as may be prescribed by law,” the court said: “ It seems from the above that the legislature may make the jurisdiction of the probate judge or court what it pleases, within the limits of that jurisdiction which is understood as usually pertaining to Probate Courts.” As late as Burroughs Be Gouts, 70 California, 361, 371, the court said: “Both Burroughs and Seamens are estopped by the decree of partition in probate from setting up title derived from Soto adverse to that of their co-tenants under the same title ” — citing Code 84 OCTOBER TERM, 1888. Opinion of the Court. of Civil Procedure, § 1908; Freeman on Cotenancy and Partition, § 530-32; and Freeman on Judgments, § 249. Whether it is to be fairly deduced from the broad language in previous decisions, that the legislature may confer upon Probate Courts concurrent jurisdiction as to every matter embraced within the grant of original jurisdiction to the District Courts, is a question which need not be now decided. It is only necessary to accept the decision in Rosenberg v. Frank, as furnishing the constitutional test for determining the extent of the jurisdiction with which the Probate Courts of California may be endowed. The question, therefore, is, whether, after the final settlement of the accounts of a personal representative, and after a decree of distribution, defining the undivided interests of heirs in real estate in the hands of such representative — neither the title of the decedent nor the fact of heirship being disputed — the partition of such estate among the heirs, so as to invest them, separately, with the exclusive possession and ownership, as against co-heirs, of distinct pareéis of such realty, is a subject-matter which may be committed to Probate Courts according to the jurisdiction usually pertaining to those tribunals. We lay aside, as not open to dispute, the proposition that there is a difference between distribution and partition. And We are satisfied that that difference was in the mind of the legislature when it passed the original Probate Act, as well as when the Code of Civil Procedure was adopted. As correctly observed by counsel, distribution neither gives a new title to property, nor transfers a distinct right in the estate of the deceased owner, but is simply declaratory as to the persons upon whom the law casts the succession, and the extent of their respective interests; while partition, in most, if not in all, of its aspects, is an adversary proceeding, in which a remedial right to the transfer of property is asserted, and resulting in a decree which, either ex proprio vigore or as executed, accomplishes such transfer. But this difference is not sufficient in itself, to solve the inquiry as to whether partition is so far alien to the probate system, as recognized by the Constitution of California, that the power to make it could ROBINSON v. FAIR. 85 Opinion of the Court. not be conferred upon Probate Courts; for, according to the doctrine of liosenberg v. Frank, those tribunals may exercise whatever powers the legislature may, in its discretion, confer upon them, within the limits of such jurisdiction as usually pertains to Probate Courts. If, at the time the Constitution of California was adopted, the partition, by Probate Courts, among the heirs of a decedent, of undivided real estate, was unknown in the jurisprudence of this country, there would be ground, under the doctrine of liosenberg v. Frank, to contend that no such jurisdiction could be conferred upon Probate Courts in that State.. But such is not the case. In a large number of the States, as the citations by counsel of statutes and decisions show, Probate Courts were, and are, invested with power to make partition, among heirs or devisees, of estates coming within their cognizance for settlement and distribution. 1 Washburn’s Real Property, 718, Bk. I, c. 13, § 7: Freeman’s Cotenancy and Partition, § 550, 2d ed. The significance of this fact is not materially weakened by the circumstance that, generally, where the power of partition is or has been exercised in this country by Probate Courts, it has been by express authority of statutes which were not forbidden by constitutional provisions. The existence of such statutes, in many of the States, precludes the idea, so strongly pressed by plaintiffs’ counsel, that, when the Constitution of California was adopted, partition was foreign to the probate system, as administered in this country. Such legislation, we suppose, has its origin in the belief that it is convenient, if not desirable, for all concerned in the estate of a decedent, that the same court, which supervises the final settlement of the accounts of a personal representative, and ascertains and declares the interests of heirs in such estate as may remain after the demands of creditors are satisfied, should have the power to make partition. We are not prepared to say that tins belief is not well grounded. The connection between the administration, settlement, distribution, and partition of an estate is such, that the power to make partition may be justly regarded as ancillary to the power to distribute such estate, and, therefore, not alien to the probate system as it has long 86 OCTOBER TERM, 1888. Opinion of the Court. existed and now exists in many States. For the reasons stated, and in view of the recent decisions of the highest court of California, we do not feel at liberty to hold that the legislature could not constitutionally invest Probate Courts with jurisdiction to make partition of an undivided estate among the heirs at law of the deceased. It is proper, in this connection, to say that there is nothing in Ferris v. Higley, 20 Wall. 375, 382, upon which the plaintiffs rely, to show that partition is foreign to the probate system as administered in this country. The decision there was, that, in view of the organic act of Utah, which did not define the jurisdiction of the Probate Courts, and in view of the distribution by that act of judicial power among the various courts of that Territory, the jurisdiction of Probate Courts must be determined, with reference to the general nature and character of the latter tribunals as recognized in our system of jurisprudence. An act of the territorial legislature, giving Probate Courts “ original jurisdiction, both civil and criminal, and as well in chancery as at common law, when not prohibited by legislative enactment,” was, therefore, held to be unconstitutional. So far from the doctrines of that case militating against the decision of the Supreme Court of California in Rosenberg v. Frank, it was said in Ferris n. Higley to be the almost uniform rule among the people who make the common law of England the basis of their jurisprudence, to have a distinct tribunal for the establishment of wills and the administration of the estates of men dying either with or without wills — which tribunals are “ variously called Prerogative Courts, Probate Courts, Surrogate Courts, Orphans’ Courts, &c.; ” and that to these functions “ have occasionally been added the guardianship of infants, and control of their property, the allotment of dower, and perhaps other powers related more or less to the same general subject.” It remains to consider whether the decree of partition is void upon grounds other than those relating to the constitutionality of the statute under which the Probate Court proceeded. The Circuit Court of the United States had no jurisdiction to set aside that decree, merely upon the ground of ROBINSON v. FAIR. 8T Opinion of the Court. error, nor could it refuse to give it full effect, unless the Probate Court was without jurisdiction of the case. Cooper v. Reynolds, 10 Wall. 308, 315; Gunn v. Pla/nt, 94 U. S. 664, 669 ; Hall n. Law, 102 U. S. 461, 464; Ma/rchand v. Frellsen, 105 IT. S. 423, 428. And in determining the question of jurisdiction, it must be remembered that Probate Courts of» California have had for many years the rank of courts of general jurisdiction, and, as said in Burroughs v. De Couts, 70 California, 361, 372, their proceedings, “within the jurisdiction conferred upon them by the law, are to be construed in the same manner and with the like intendments as the proceedings of courts of general jurisdiction, and their judgments have like force and effect as judgments of the District Courts.” Probate Courts being, then, courts of superior jurisdiction, in respect to the settlement, distribution, and partition of estates coming within their cognizance, the recitals in the decree of partition unless contradicted by the record, will be presumed to be correct, and every intendment will be indulged in its support. Settlemier v. Sullivan, 97 U. S. 444, 449; Cheely v. Clayton, 110 IT. S. 701, 708. With these preliminary observations as to the effect to be given to the decree and its recitals, where the decree is attacked in a collateral suit, we proceed to examine such of the objections to its validity as we deem of sufficient importance to notice. 1. It is contended that the administratrix, as such, had no interest in the partition of the decedent’s estate, and could not, in that capacity, initiate proceedings therefor. Too much stress is laid upon the circumstance that the petition in the Probate Court was signed by Mrs. Hawes, as “ administratrix.” The petition seeks something more than a final settlement of her accounts, and a declaration of the interests of the heirs in the undistributed estate. It embraces also her claim as widow and heir, to a share in the estate remaining after the payment of debts and charges, and contains a distinct prayer that partition be had between herself and the children. It shows, as do the orders preceding the decree of partition, that she sought a settlement of her accounts as administratrix, and a final adjudication of her rights as heir at law in the estate re- 88 OCTOBER TERM, 1888. Opinion of thfe Court. maining in her hands. If it would have been better practice to have made partition the subject of a suit entirely separate from the proceeding for settlement and distribution, the blending of final settlement, distribution, and partition in the same petition, or in one suit, did not defeat the jurisdiction of the • court or render its decree of partition void. The record shows that the question of partition was not considered or determined in the Probate Court until after it had made its decree of final settlement and distribution. 2. It is contended that proper notice was not given to the minor children of the proceedings in the Probate Court. This point is not sustained by the record of those proceedings. The decree of distribution recites that it appeared to the satisfaction of the court that due and sufficient notice of the time and place of hearing the petition had been duly given, as required by law, prior to the day set for hearing, and that the attorney appointed by the court to represent the minor children appeared at the hearing. It is also shown that this attorney was present at every step of the proceedings for partition. The decree for partition recites that it appeared to the satisfaction of the court that the commissioner appointed to make partition “ gave notice to all parties interested, in all respects as prescribed by the statute in such cases.” These recitals are not contradicted by anything in the record, unless it be that representation of the minor children in the proceedings for settlement, distribution, and partition, by an attorney appointed by the court, rather than by a guardian ad litem, was wholly inadequate to bring them into court. It is to be remembered that the Civil Code expressly provides, that notice of proceedings for partition may be “ either personally or by public notice, as the Probate Court may direct,” § 1676; and if the account presented by the personal representative be one for final settlement, and the estate be ready for distribution, “ on confirmation of the final account, distribution, and partition of the estate to all entitled thereto, may be immediately had, without further notice or proceedings.” § 1634. It should also be observed that if the recitals, in the decrees of distribution and partition, of due notice, be open to dispute in ROBINSON v. FAIR. 89 Opinion of the Court. this collateral proceeding, it does not appear that the publication was not made, in all respects, as required by the order of court, and by the code. In this connection it is insisted that the particular mode adopted in publishing notice of the proceedings for settlement, distribution, and partition, was not sufficient, in law, to give the court jurisdiction as to the children. This position is not tenable. The order to show cause why there should not be a final settlement and distribution, followed by a partition, according to the rights of the parties, was very full and explicit; and it was served in one of the modes by which, under the local law, jurisdiction could be acquired. The mode adopted was by publication for “ four successive weeks in such newspaper in the county as the court or judge shall direct.” § 1539. Pearson v. Pearson, 46 California, 609, 635. The failure to repeat, in the order, the names of the minor children — whatever force that objection might have had upon a direct appeal from the decree of partition — is not a matter affecting the jurisdiction of the court over the subject-matter and the parties; for, the petition, and the order appointing an attorney to represent the minors, contained the names in full of all interested in the proceedings for settlement, distribution, and partition. 3. It is, however, insisted that the defence for the minor children—who are not shown to have had, at the time, any general or special guardian in the county or State—could only have been conducted by a guardian, and that the appearance in their behalf by an attorney, appointed by the court to represent them, did not bring them into court. This position is based upon §§ 372 and 373 of the Code of Civil Procedure. But those sections, in our opinion, have reference to civil actions as distinguished from “special proceedings.” Code of Civil Procedure, §§ 20 to 23; 372-3. A suit for partition, in a Probate Court, is a special proceeding, Waterman v. Lawrence, 19 California, 210, 218; and the section which controls the determination of this question is § 1718, part of Title XI, relating to “Proceedings in Probate Courts.” That section, among other things, provides that “ at or before the hearing of peti- 90 OCTOBER TERM, 1888. Opinion of the Court. tions and contests for the probate of wills; for letters testamentary or of administration; for sales of real estate and confirmations thereof; settlements, partitions, and distributions of estates; setting apart homesteads; and all other proceedings where all the parties interested in the estate are required to be notified thereof, the court must appoint some competent attorney at law to represent, in all such proceedings, the devisees, legatees, heirs, or creditors of the decedent, who are minors and have no general guardian in the county, or who are non-residents of the State; and may, if he deem it necessary, appoint an attorney to represent those interested, who though they are neither such minors or non-residents, are unrepresented. The order must specify the names of the parties for whom the attorney is appointed, who is thereby authorized to represent such parties in all such proceedings had subsequent to his appointment. The appearance of the attorney is sufficient proof of the service of the notice on the parties he is appointed to represent.” We have not been able to find any provision requiring the appointment of guardians ad litem in probate proceedings. Without considering whether the failure to appoint a guardian ad litem for minors, where the statute requires it to be done, would vitiate the decree, and make it open to attack collaterally, it is sufficient to say that the appointment of an attorney to represent the children in the Probate Court was‘authorized by the statute. These views are in conformity with the recent decision in Carpenter v. Superior Court of San Joaquin County, decided April 21, 1888, and not yet reported. One of the questions there was as to the validity of certain proceedings for the probate of a will, in which minor heirs were represented by an attorney, appointed by the court, and not by a guardian ad litem. Reliance was placed upon the section of the Civil Code, § 372, part of the title “ Parties to Civil Actions,” which provides that “ when an infant is a party he must appear by his general guardian, if he has one; and if not, by a guardian who may be appointed by the court, in which the action is prosecuted, or by a judge thereof, or a county judge.” It was held that probate proceedings were not civil actions within KANE v. NORTHERN CENTRAL RAILWAY. 91 Syllabus. the meaning of that title. The court said, “ The thing which a guardian ad litem is appointed to do is, to i represent ’ the infant in the action or proceeding, Code Civil Procedure § 372, by which we understand that he is to conduct and control the proceedings on behalf of the infant. Now the attorney for minors in probate proceedings is to ‘represent’ the minor, Code Civil Procedure § 1718, and so far as he is concerned, to conduct and control the proceedings; so that if the general provisions apply it would be possible to have two representatives of the minor in the same contest, neither of whom would be subordinate to the other. We do not think that such a result could have been intended.” There are no other questions in the case which we deem it necessary to discuss. We find no error in the judgment below, and it is Affirmed. Mr. Chief Justice Fuller was not a member of the court when this case was argued, and took no part in its decision. KANE v. NORTHERN CENTRAL RAILWAY COMPANY. error to the circuit court of the united states for the EASTERN DISTRICT OF PENNSYLVANIA. No. 8. Submitted October 12,1888. — Decided October 22, 1888. In an action by an employé of a railroad company against the company to recover damages for personal injuries received by reason of the negligence of the company, in order to determine whether the employé, by recklessly exposing himself to peril, has failed to exercise the care for his personal safety that might reasonably be expected, and has thus by his own negligence contributed to causing the accident, regard must always be had to the circumstances of the case, and the exigencies of his position ; and the decision of this question ought not to be withheld from the jury unless the evidence, after giving the plaintiff the benefit of every inference to be fairly drawn from it, so conclusively establishes contributory negligence, that the Court would be compelled, in the exercise of a sound judicial discretion, to set aside any verdict returned in his favor. 92 OCTOBER TERM, 1888. Statement of the Case. This was an action to recover damages for personal injuries sustained by the plaintiff while in the discharge of his duties as an employe of the Northern Central Railway Company. It was based upon the alleged negligence of the company in not providing suitable and safe appliances for the cars on which the plaintiff was assigned for duty. At the conclusion of the evidence introduced in his behalf the court directed a verdict for the company. It was in evidence that at midnight, in the month of February, a train of freight cars, belonging to or being operated by the defendant, left Marysville, on its line of road, for the city of Baltimore. The rear car was the caboose; the third car from the caboose was an ordinary “ house-car; ” the fourth one was laden with, lumber. The car upon which the plaintiff was required to take position while the train was in motion was about the .eighth or tenth one from the caboose. His principal duty was to “ brake ” the train from that car back to the caboose. When the train, moving southward, was going into York Haven, twenty miles from Marysville, the plaintiff, while passing over it for the purpose of putting down the brakes, discovered that the third car from the caboose had one step off at the end nearest the engine, and immediately called the attention of the conductor to the fact. The conductor promised to drop that car at the coal yard or junction beyond them in the direction of Baltimore, if, upon looking at his manifests, he found that it did not contain perishable freight. When the train stopped, about four or five o’clock in the morning, at Coldfelters, some miles north of the coal yard or junction, the plaintiff went to the caboose to eat his breakfast and warm himself. It was snowing, freezing, and sleeting. One of the witnesses testified that “ it was a fearful cold night, raining and sleeting; the train was covered with ice and snow; . . it was most bitter cold ; the rain was freezing as it fell; a regular winter’s storm.” While the plaintiff was in the caboose eating his breakfast the train moved off. He immediately started for his post, leaving behind his coat and gloves. Upon reaching the south end of the third car from the caboose he attempted to let himself down from it in order KANE v. NORTHERN CENTRAL RAILWAY. 93 Opinion of the Court. to reach the next car ahead of him, which was the lumber car, and pass over the latter to the one on which he usually stood while the train was in motion. At the moment he let himself down from the top of the house-car he forgot that one of its steps was missing; and, before realizing the danger of his position, and without being able then to lift himself back to the top of the car, he fell below upon the railroad track and between the wheels of the moving train, causing him to lose both legs. The plaintiff testified that if, at the moment of letting himself down from the top of the car, he had recalled the fact that one of its steps was gone, he might have pulled himself back with his hands, or have “ slid down ” on the brake rod; for he had before climbed up and down by holding that rod with one hand and putting his foot against it and pulling himself up until he touched the running board. He testified that he could not remember how his mind was occupied at the time; “ only going to my post, my mind was on that; going where I had the right to be.” Again: “When the accident happened, I was going to my place on the train. I had no other duty on the top of the cars as the train was moving off, unless the engineer calls for a signal, and generally he does do that when the train is moving off. There is occasion for it in all places where the train starts or stops, only in cities, where we aren’t allowed to blow them. We are required to notice the train when it is running to see that it is all goingthe train might start and go one hundred yards and then break loose.” This was, in substance, the case made by the plaintiff’s evidence. Mr. James IT. Gable, Mr. M. Dubois Miller, and Mr. W. F. Ba/y Stewart for plaintiff in error. Mr. Wayne McVeagh and Mr. A. H. Winterst^en for defendant in error. Mk. Justice Harlan, after stating the case as above reported, delivered the opinion of the court. 94 OCTOBER TERM, 1888. Opinion of the Court. The Circuit Court proceeded upon the ground that contributory negligence upon the part of the plaintiff was so conclusively established, that it would have been compelled, in the exercise of a sound judicial discretion, to set aside any verdict returned in his favor. If the evidence, giving the plaintiff the benefit of every inference to be fairly drawn from it, sustained this view, then the direction to find for the defendant was proper. Phœnix Insurance Co. v. Doster, 106 IT. S. 30, 32 ; Randall v. Baltimore & Ohio Railroad, 109 IT. S. 478, 482; Anderson County v. Beal, 113 IT. S. 227, 241 ; Goodlet v. Louisville de Nashville Railroad, 122 U. S. 391, 411. But we are of opinion that the question of contributory negligence should have been submitted to the jury. It cannot be said that the plaintiff was guilty of contributory negligence in staying upon the train, in the capacity of brakeman, after observing that a step was missing from one of the cars over which he might pass while discharging his duties. An employé upon a railroad train, likely to meet other trains, owes it to the public, as well as to his employer, not to abandon his post unnecessarily. Besides, the danger arising from the defective car was not so imminent as to subject him to the charge of recklessness in remaining at his post under the conductor’s assurance that the car should be removed from the train when it reached the coal yard or junction, if, upon examining his manifests, he found that it did not contain perishable freight. Hough v. Railroad Co., 100 IT. S. 224; Dist/rict of Columbia v. HcElligott, 117 U. S. 621, 631. But it is said that the efficient, proximate cause of the injury to the plaintiff was his use of the defective appliances at the end of the car from which he fell, when he knew, and, at the moment of letting himself down from that car, should not have forgotten, as he said he did, that one of its steps was missing. It is undoubtedly the law that an employé is guilty of contributory negligence, which will defeat his right to recover for injuries sustained in the course of his employment, where such injuries substantially resulted from dangers so obvious and threatening that a reasonably prudent man, under similar circumstances, would have avoided them if m his power KANE v. NORTHERN CENTRAL RAILWAY. 95 Opinion of the Court. to do so. He will be deemed, in such case, to have assumed the risks involved in such heedless exposure of himself to danger. Hough v. Railroad Co., District of Columbia v. NcElligott, and Goodlet v. Louisville Nashville Railroad above cited; Northern Pacific Railroad v. Herbert, 116 U. S. 642. But in determining whether an employe has recklessly exposed himself to peril, or failed to exercise the care for his personal safety that might reasonably be expected, regard must always be had to the exigencies of his position, indeed, to all the circumstances of the particular occasion. In the case before us, the jury may, not unreasonably, have inferred from the evidence, that while the plaintiff was passing along the tops of the cars, for the purpose of reaching his post, he was so blinded or confused by the darkness, snow, and rain, or so affected by the severe cold, that he failed to observe, in time to protect himself, that the car from which he attempted to let himself down was the identical one which, during the previous part of the night, he had discovered to be without its full complement of steps. While a proper regard for his own personal safety, and his duty to his employer, required that he should' bear in mind, while passing over the cars to his station, that one of them was defective in its appointments, it was also his duty to reach his post at the earliest practicable moment, for not only might the safety of the moving train have depended upon the brakemen being at their posts, but the engineer was entitled to know, as the train moved off, by signals from the brakemen, if necessary, that none of the cars constituting the train had become detached. If it be suggested that the plaintiff ought not to have left his post and gone to the caboose when the train stopped at Coldfelters, the answer, furnished by the proof, is, that he was justified in so doing, by usage and by the extraordinary severity of the weather. And if his going back from the caboose was characterized by such haste as interfered with a critical examination of the cars as he passed over them, that may, in some measure at least, have been due to the fact that the first notice he had of the necessity of immediately returning to his post, was that the train was moving off. 96 OCTOBER TERM, 1888. Counsel for Plaintiff in Error. Without further discussion of the evidence, and without intimating what ought to be the verdict upon the issue of contributory negligence, we are of opinion that the court erred in not submitting to the jury to determine whether the plaintiff in forgetting, or not recalling, at the precise moment, the fact that the car from which he attempted to let himself down was the one from which a step was missing, was in the exercise of the degree of care and caution which was incumbent upon a man of ordinary prudence in the same calling, and under the circumstances in which he was placed. If he was, then he was not guilty of contributory negligence that would defeat his right of recovery. Judgment is reversed and the case remanded, with directions to grant a new trial. NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY v. ALABAMA. ERROR TO THE SUPREME COURT OF THE STATE OF ALABAMA. No 990. Argued October 11, 1888. — Decided October 22, 1888. A State statute which requires locomotive engineers and other persons, employed by a railroad company in a capacity which calls for the ability to distinguish and discriminate between color signals, to be examined in this respect from time to time by a tribunal established for the purpose, and which exacts a fee from the company for the service of examination, does not deprive the company of its property without due process of law, and, so far as it affects interstate commerce, is within the competency of the State to enact, until Congress legislates on the subject. The provision in Article III. of the Constitution of the United States which provides that the trial of all crimes “ shall be held in the State where the said crimes shall have been committed,” relates only to trials in Federal Courts, and has no application to trials in State Courts. The case is stated in the opinion of the court. Mr. Oscar R. Hundley for plaintiff in error. NASHVILLE &c. RAILWAY v. ALABAMA. 97 Opinion of the Court. J/r. T. N. JW.cCldlan, Attorney General of the State of Alabama, for defendant in error. Mr. Justice Field delivered the opinion of the court. A statute of Alabama which took effect on the first of June, 1887, “ for the protection of the travelling public against accidents caused by color blindness and defective vision,” declares that all persons afflicted with color blindness and loss of visual power to the extent therein defined are “ disqualified from serving on railroad lines within the State in the capacity of locomotive engineer, fireman, train conductor, brakeman, station agent, switchman, flagman, gate tender, or signal man, or in any other position which requires the use or discrimination of form or color signals,” and makes it a misdemeanor punishable by fine of not less than ten nor more than fifty dollars for each offence, for a person to serve in any of the capacities mentioned without having obtained a certificate of fitness for his position in accordance with the provisions of the act. It provides for the appointment by the governor of a suitable number of qualified medical men throughout the State to carry the law into effect; and for the examination by them of persons to be employed in any of the capacities mentioned ; prescribes rules to govern the action of the examiners, and allows them a fee of three dollars for the examination of each person. It declares that re-examinations shall be made once in every five years, and whenever sickness, or fever, or accidents, calculated to affect the visual organs have occurred to the parties, or a majority of the board may direct; that the examinations and re-examinations shall be made at the expense of the railroad companies; and that it shall be a misdemeanor, punishable by a fine of not less than fifty nor more than five hundred dollars for each offence, for any such company to employ a person in any of the capacities mentioned, who does not possess a certificate of fitness therefor from the examiners in so far as color blindness and the visual organs are concerned. The defendant, The Nashville, Chattanooga and St. Louis Railway Company, is a corporation created under the laws of vol. cxxvm—7 98 OCTOBER TERM, 1888. Opinion of the Court. Tennessee, and runs its trains from Nashville in that State to various points in other States, twenty-four miles of its line being in Alabama, two miles in Georgia, seven in Kentucky, and four hundred and sixty-four in Tennessee. On the 2d of August, 1887, one James Moore was employed by the company as a train conductor on its road, and acted in that capacity, in the county of Jackson, in Alabama, without having obtained a certificate of his fitness so far as color blindness and visual. powers were concerned, in accordance with the law of that State. For this employment the company was indicted in the Circuit Court of the State for Jackson County, under the statute mentioned, and on its plea of not guilty was convicted, and fined fifty dollars. On appeal to the Supreme Court of the State the judgment was affirmed, and to review it the case is brought on error to this court. It was contended in the court below, among other things, that the statute of Alabama was repugnant to the power vested in Congress to regulate commerce among the States, and that it violated the clause of the Fifth Amendment which declares that no person shall be deprived of his property without due process of law. The same positions are urged in this court, with the further position that the statute is in conflict with the clause in the third article of the Constitution, which provides that the trials of all crimes shall be held in the State where they were committed. The first question thus presented is covered by the decision of this court rendered at the last term in Smith v. Alabama, 124 IT. S. 465. In that case the law adjudged to be valid required as a condition for a person to act as an engineer of a railroad train in that State, that he should be examined as to his qualifications by a board appointed for that purpose, and licensed if satisfied as to his qualifications, and made it a misdemeanor for any one to act as engineer who violated its provisions. The act now under consideration only requires an examination and license of parties, to be employed on railroads in certain specified capacities, with reference to one particular qualification, that relating to his visual organs; NASHVILLE &c. RAILWAY v. ALABAMA. 99 Opinion of the Court. but this limitation does not affect the application of the de-, cision. If the State could lawfully require an examination as to the general fitness of a person to be employed on a railway, it could of course lawfully require an examination as to his fitness in some one particular. Color blindness is a defect of a vital character in railway employés in the various capacities mentioned. Ready and accurate perception by them of colors, and discrimination between them, are essential to safety of the trains, and, of course, of the passengers and property they carry. It is generally by signals of different colors, to each of which a separate and distinct meaning is attached, that the movement of trains is directed. Their starting, their stopping, their speed, the condition of switches, the approach of other trains, and the tracks in such case which each should take, are governed by them. Defects of vision in such cases on the part of any one employed may lead to fatal results. Color blindness, by which is meant either an imperfect perception of colors, or an inability to recognize them at all, or to distinguish between colors, or between some of them, is a defect much more common than is generally supposed. Medical treatises of recognized merit on the subject represent as the result of extended examinations that a fraction over four per cent of males are color blind. With some the defect is congenital, with others brought on by occupations in which they have been engaged, or by vicious habits in the use of liquors or food in which they have indulged. It presents itself in a great variety of forms, from an imperfect perception of colors to absolute inability to recognize them at all. Such being the proportion of males thus affected, it is a matter of the greatest importance to safe railroad transportation of persons and property that strict examination be made as to the existence of this defect in persons seeking employment on railroads in any of the capacities mentioned. It is conceded that the power of Congress to regulate interstate commerce is plenary ; that, as incident to it, Congress may legislate as to the qualifications, duties, and liabilities of employés and others on railway trains engaged in that commerce; and that such legislation will supersede any state 10CH OCTOBER TERM, 1888. -OxX f*- Opinion of the Court. on. subject. But until such legislation is had, it is elearlv^V^hin the competency of the States to provide against accidents on trains whilst within their limits. Indeed, it is a principle fully recognized by decisions of State and Federal courts, that wherever there is any business in which, either from the products created or the instrumentalities used, there is danger to life or property, it is not only within the power of the States, but it is among their plain duties, to make provision against accidents likely to follow in such business, so that the dangers attending it may be guarded against so far as is practicable. In Smith v. Alabama, this court, recognizing previous decisions where it had been held that it was competent for the State to provide redress for wrongs done and injuries committed on its citizens by parties engaged in the business of interstate commerce, notwithstanding the power of Congress over those subjects, very pertinently inquired: “ What is there to forbid the State, in the further exercise of the same jurisdiction, to prescribe the precautions and safeguards foreseen to be necessary and proper to prevent by anticipation those wrongs and injuries which, after they have been inflicted, it is admitted the State has power to redress and punish ? If the State has power to secure to passengers conveyed by common carriers in their vehicles of transportation a right of action for the recovery of damages occasioned by the negligence of the carrier in not providing safe and suitable vehicles, or employes of sufficient skill and knowledge, or in not properly conducting and managing the act of transportation, why may not the State also impose, on behalf of the public, as additional means of prevention, penalties for the non-observance of these precautions ? Why may it not define and declare what particular things shall be done and observed by such a carrier in order to insure the safety of the persons and things he carries, or of the persons and property of others liable to be affected by them ? ” Of course but one answer can be made to these inquiries, for clearly what the State may punish or afford redress for, when done, it may seek by proper precautions in advance to prevent. And the court in that case NASHVILLE &c. RAILWAY v. ALABAMA. 101 Opinion of the Court. held that the provisions in the statute of Alabante. were not strictly regulations of interstate commerce, but parts of that body of the local law which governs the relation between carriers of passengers and merchandise and the public who employ them, which are not displaced until they come in conflict with an express enactment of »Congress in the exercise of its power over commerce, and that until so displaced they remain as the law governing carriers in the discharge of their obligations, whether engaged in purely internal commerce of the State, or in commerce among the States. The same observations may be made with respect to the provisions of the state law for the examination of parties to be employed on railways with respect to their powers of vision. Such legislation is not directed against commerce, and only affects it incidently, and therefore cannot be called, within the meaning of the Constitution, a regulation of commerce. As said in Sherlock v. Alling, 93 IT. S. 99, 104, legislation by a State of that character, “relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or interstate, or in any other pursuit.” In our judgment the statute of Alabama under consideration falls within this class. The second position of the plaintiff in error, that the state statute is repugnant to the provision of article third of the Constitution, which declares that the trial of all crimes shall be held in the State where they have been committed, is readily disposed of. The provision has reference only to trials in the Federal courts; it has no application to trials in the state courts. As to the third position of the plaintiff in error, assuming that counsel intended to rely upon the Fourteenth instead of the Fifth Amendment, (as the latter only applies a limit to Federal authority, not restricting the powers of the State,) we do not think it tenable. Barron v. Baltimore, 7 Pet. 243; hivingston v. Moore, 7 Pet. 469. Requiring railroad companies to pay the fees allowed for the examination of parties who 102 OCTOBER TERM, 1888. Syllabus. are to serve on their railroads in one of the capacities mentioned, is not depriving them of property without due process of law. It is merely imposing upon them the expenses necessary to ascertain whether their employés possess the physical qualifications required by law. Judgment affirmed. LIVINGSTON COUNTY, MISSOURI v. FIRST NATIONAL BANK OF PORTSMOUTH, NEW HAMP-SHIRE. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI. No, 195. Submitted October 9, 1888. — Decided October 29, 1888. In this case bonds issued by Livingston County in Missouri, on behalf of ’ Chillicothe township, in payment of a subscription to the stock of the Saint Louis, Council Bluffs & Omaha Railroad Company were held valid. The vote of the township, given in May, 1870, was in favor of the issue of the bonds to the Chillicothe & Omaha Railroad Company, a Missouri corporation. Afterwards, under a statute existing at the time of the vote, that company was consolidated With an Iowa corporation, under the name of the corporation to which the bonds were subsequently issued. Held, that the consolidation was authorized and that the privilege of receiving the subscription passed to the consolidated company. The vote having contemplated the construction of the railroad which the consolidated company built, there was no diversion from the puipose contemplated by the vote, in the fact that the stock was subscribed, and the bonds issued, to the consolidated company. The doctrine of Harshman v. Bates County, 92 U. S. 569, and County of Bates v. Winters, 97 U. S. 83, that a County Court in Missouri could not, on a vote by a township to issue bonds to a corporation named, issue the bonds to a corporation formed by the consolidation of that corporation with another corporation, would not be, if applied here, a sound doctrine. On the recitals in the bonds, and the other facts in this case, the county was estopped from urging, as against a bona fide holder of the bonds, the existence of any mere irregularity in the making of the subscription or the issuing of the bonds. LIVINGSTON COUNTY v. PORTSMOUTH BANK. 103 Statement of the Case. This was a suit commenced on the 4th of September, 1882, by the First National Bank of Portsmouth, New Hampshire, against the county of Livingston, in the State of Missouri, to recover the amount of 312 coupons, for $20 each, being 13 coupons, due from Julylst, 1876, to July 1st, 1882, both inclusive, on each one of 24 bonds for $500 each, each of the bonds, except as to number, being in the following form: — “ Fifteen- Year Bond. “ County of Livingston, State of Missouri : “Livingston County bond issued in behalf of the municipal township of Chillicothe. Interest eight per cent per an: num, payable on the first days of January and July. Fifteen years. No. 18. “ Know all men by these presents, that the county of Livingston, in the State of Missouri, acknowledges itself indebted and firmly bound to the Saint Louis, Council Bluffs & Omaha Railroad Company in the sum of five hundred dollars ($500), which sum the said county hereby promises to pay to the said Saint Louis, Council Bluffs & Omaha Railroad Company, or bearer, at the National Bank of Commerce, in the city of New York, State of New York, on the first day of July, 1885, together with interest thereon from the first day of July, 1870, at the rate of eight (8) per cent per annum, which interest shall be payable semi-annually on the first days of January and July of each year, on the presentation or delivery at said bank of the coupons of interest hereto attached. This bond being issued under and pursuant to an order of the County Court of Livingston County, authorized by a two-thirds vote of the people of Chillicothe municipal township. “In testimony whereof the said county of Livingston has executed this bond by the presiding justice of the County [l. s.] Court of said county, under an order of said court, signing his name hereto, and by the clerk of said court, under the order thereof, attesting the same and affixing thereto the seal of said court. 104 OCTOBER TERM, 1888. Statement of the Case. “ This done at the city of Chillicothe, county of Livingston aforesaid, this tenth day of April, a.d. 1871. “G. W. McDowell, ,■ “ Presiding Justice of the Cou/nty Court of “ Attest : Livingston County, State of Missouri. “ [Seal of the County Court of Livingston County.] “ W. H. Gaunt, “ Clerk of the County Court of Li/vingston County, State of Missouri.” Attached to each of the bonds were coupons for the interest, each, except as to number and date when due, being in the following form: — “ $20. Chillicothe, Livingston County, Mo., January 1,1871. “ The county of Livingston acknowledges to owe the sum of twenty dollars on the first day of July, 1871, being interest on bond number one for five hundred dollars. This coupon payable at the National Bank of Commerce in the city of New York, State of New York. “W. H. Gaunt, “ Clerk of the County Court of Livingston County, State of Missouri” Successive coupons for each instalment of interest were attached to each bond. The petition by which the suit was commenced alleged that the defendant made and delivered the bonds in behalf of the municipal township of Chillicothe; that the bonds were issued under and pursuant to an order of the County Court of Livingston County, authorized by a two-thirds vote of the people of that township, as is recited in the bonds, and in aid of the St. Louis, Council Bluffs and Omaha Railroad, under authority of an act of the legislature of the State of Missouri, entitled “ An Act to facilitate the Construction of Railroads in the State of Missouri,” approved March 23d, 1868, and of the Constitution of the State of Missouri; that, as each coupon for the semiannual interest had, prior to July 1st, 1876, matured, the same was paid by the officers of the county, on behalf of said town- LIVINGSTON COUNTY v. PORTSMOUTH BANK. 105 Statement of the Case. ship, with the proceeds of a tax levied and collected each year by the county, from the taxpayers of the township, for that purpose; that, before the coupons sued on became due and payable, the bonds and coupons were sold to, and for value became the property of, the plaintiff, which had ever since been the legal holder, owner, and bearer thereof; and that the defendant, on and after July 1st, 1876, had refused to pay any of the coupons then or since becoming due, or to levy any tax for their payment. The provisions of the act of March 23d, 1868, in regard to the issuing of bonds, in the name of a county, in behalf of a municipal township therein, which apply to the present case, are as follows (1 Wagner’s Statutes of Missouri of 1870, 313): — “ Section 51. Whenever twenty-five persons, taxpayers and residents in any municipal township, for election purposes, in any county in this State, shall petition the County Court of such county, setting forth their desire, as a township, to subscribe to the capital stock of any railroad company in this State, building or proposing to build a railroad into, through or near such township, and stating the amount of such subscription, and the terms and conditions on which they desire such subscription shall be made, it shall be the duty of the County Court, as soon as may be thereafter, to order an election to be held in such township to determine if such subscription shall be made; which election shall be conducted and returns made in accordance with the laws controlling general and special elections; and if it shall appear, from the returns of such election, that not less than two-thirds of the qualified voters of such township voting at such election are in favor of such subscription, it shall be the duty of the county court to make such subscription in behalf of such township, according to the terms and conditions thereof, and if such conditions provide for the issue of bonds in payment of such subscription, the county court shall issue such bonds in the name of the county, with coupons for interest attached; but the rate of interest shall not exceed ten per cent per annum; and the same shall be delivered to the railroad company. “ Section 52. In order to meet the payments on account of the 106 OCTOBER TERM, 1888. Statement of the Case. 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 real estate lying within the township making the subscription, in accordance with the valuation then last made by the county assessor for county purposes. “ Section 53. The county treasurer shall be authorized and required to receive and collect of the sheriff of the county the income from the tax provided in the previous section, and to apply the same to the payment of the stock subscription, according to its terms, or to the payments of interest and principal on the bonds, should any be issued in payment of such subscription ; he shall pay all interest on such bonds out of any money in the treasury collected for this purpose, by the tax so levied, as the same becomes due, and also the bonds as they mature, which shall be cancelled by the County Court, and this service shall be considered a part of his duty as county treasurer.” The answer of the defendant to the petition contains a general denial, and also sets forth, that no petition was ever presented to the County Court of Livingston County by the taxpayers of the municipal township of Chillicothe, as required by the act of 1868, praying for the election named in the act, nor did that court ever order any election to be held in the township, as to whether it would subscribe any amount to the capital stock of the St. Louis, Council Bluffs and Omaha Railroad Company; nor did the county court ever order, direct, or authorize the bonds or the coupons in question to be issued; nor was any election ever held in the township to determine whether it, or the voters therein, would consent to any subscription on its account to the capital stock of the said railroad company or to the issuing of the bonds and coupons; and that the issuing and delivery of them were without authority of the County Court, and in violation of the Constitution and laws of Missouri. The answer also denied that the plaintiff was the owner and holder in good faith, and for value, of the bonds and coupons in question. LIVINGSTON COUNTY v. PORTSMOUTH BANK. 107 Statement of the Case. The plaintiff put in a replication to the answer, denying each and every allegation of new matter therein contained. The cause was in due form heard by the court without the intervention of a jury, and it made a finding of facts and of conclusions of law in favor of the plaintiff, upon which a judgment for it was rendered, on the 6th of January, 1885, for $8476.60, with costs, against the county of Livingston, “to be collected, if necessary, by mandamus against the County Court of said county, commanding it to levy and collect from Chillicothe municipal township, in said county, a special tax according to law for the payment of said judgment, interest, and costs, and to pay the same.” To review this judgment the defendant brought a writ of error. The facts found by the Circuit Court, other than those which were merely formal, were as follows: The defendant issued twenty-four bonds, on the 10th of April, 1871, numbered consecutively from 1 to 24 inclusive, signed by the presiding justice of the County Court, attested by its clerk, and with the seal thereof, each in the form before set forth, and with coupons in the form before given. The plaintiff, in April, 1871, bought all of the bonds and the coupons thereto attached and not then matured, in the open market, for cash, and without notice of any defect or infirmity therein or in the action of the County Court in issuing the same, and has ever since been and still is, the holder of the bonds and the unpaid coupons thereon, and, at the time of the institution of this suit, was the holder of the coupons then matured and described in the petition. The bonds were issued under the following circumstances: By articles of association entered into on the 18th of June, 1867, and filed in the office of the Secretary of State of the State of Missouri on the 14th of July, 1868, a corporation was created by the name of the St. Louis, Chillicothe and Omaha Railroad Company. The articles declared that the object of the association was to construct, maintain, and operate a railroad for public use in the conveyance of persons and property, from the city of Chillicothe, in the county of Livingston and State of Missouri, to such point on the boundary line between Missouri and Iowa as should be 108 OCTOBER TERM, 1888. Statement of the Case. deemed, after actual survey, “to be on the most direct and feasible route for constructing, maintaining, and operating a railroad between the said city of Chillicothe and the city of Omaha in the State of Nebraska;” that the length of the railroad should be about ninety miles, and it should be made into or through the counties of Livingston, Daviess, and Gentry, and into or through one or more of the counties of Nodoway, Harrison, and Worth. The articles also declared that the association was “ organized under and subject to the laws of the State of Missouri contained in chapters sixty-two and sixty-three of Title XXIV of the General Statutes of Missouri of 1865, possessing all and singular the powers therein contained.” (General Statutes of Missouri of 1865, 326-344.) At a meeting of the stockholders of the St. Louis, Chillicothe and Omaha Railroad Company, held on the 4th of June, 1869, its name was changed, by their vote, to that ot the Chillicothe and Omaha Railroad Company, and evidence thereof was filed in the office of the Secretary of State of the State of Missouri on the 25th of June, 1869. On the 3d of May, 1870, a petition signed by more than 25 taxpayers and residents of the municipal township of Chillicothe was filed in the County Court of Livingston County, setting forth that the petitioners, as a township, desired to subscribe $15,000 to the capital stock of the Chillicothe and Omaha Railroad Company, subject to the following conditions : “ 1st. Payment of said subscription to be made in bonds of Livingston County (issued in accordance with the law regulating subscriptions by municipal townships to railroad companies), at par; said bonds to be payable fifteen years from the first day of July, 1870, and bearing interest at the rate of eight per cent per annum, payable semiannually. 2d. The bonds to be issued to said company when it shall have continuously graded its road-bed on or near its present located survey from the city of Chillicothe to the western boundary of Livingston County.” The County Court, on the 3d of May, 1870, made an order reciting the contents of the petition, and directing that an election be held at the usual place of voting in the township, Chillicothe election district, on the 27th of LIVINGSTON COUNTY v. PORTSMOUTH BANK. 109 Statement of the Case. May, 1870, to determine if such subscription should be made. The order prescribed the forms of the respective ballots, for and against the subscription. On the 25th of May, 1870, the County Court made an order that the question to be voted upon at the election so to be held should be whether the township should subscribe 812,000 to the capital stock, of the said railroad company, upon the same conditions as before mentioned, the ballots to be in like form. The election was held on the 27th of May, 1870. On the 30th of May, 1870, the votes cast were duly canvassed, and an abstract thereof was made and entered of record in the County Court, signed by the president of that court and a justice of the peace, and attested by the signature of the county clerk, showing that 320 votes had been cast for, and 50 votes against, the subscription of $12,000 to the capital stock of said company. On the 23d of September, 1870, there were filed in the office of the Secretary of State of the State of Iowa articles of association, in conformity to chapter 52 of Title X and other laws of Iowa, of the revision of 1860, incorporating the St. Louis, Council Bluffs and Omaha Railroad Company in Iowa, to construct and operate a railroad. The articles contained the following clause: “The main line of said railroad shall extend from and from within the city of Council Bluffs, in the State of Iowa, and from such other point adjacent to the eastern terminus of the Union Pacific Railroad, on the banks of the Missouri River, as the board of directors may hereafter designate; thence in a southwesterly direction to the State line between the States of Iowa and Missouri, at a point where the Chillicothe and Omaha Railroad shall reach said state line, and, in the event of the consolidation of this company and corporation with the said Chillicothe and Omaha Railroad Company, a company incorporated under the general laws of the State of Missouri, then, in connection with the last-mentioned ’ railroad, to form a continuous line of railroad from the city of Omaha, in the State of Nebraska, and the city of Council Bluffs, in the State of Iowa, to the city of St. Louis, in the State of Missouri; and the board of directors of the corpora- 110 OCTOBER TERM, 1888. Statement of the Case. tion hereby created shall have the power at any time, when the same can be lawfully done, to consolidate this corporation with the Chillicothe and Omaha Railroad, in Missouri, aforesaid, and this corporation shall have, hold, and by its board of directors exercise, all the powers, rights, privileges, and franchises granted and conferred by the laws of the State of Iowa, revision of a.d. 1860, and of all laws amendatory thereof and supplemental thereto.” These articles had, on the 13th of September, 1880, been filed for record in the office of the recorder of Pottawatomie County, in the State of Iowa. At a meeting of the stockholders of the Chillicothe and Omaha Railroad Company, held on the 20th of September, 1870, u all the stock of the company being present thereat,” a resolution was passed by the stockholders unanimously, directing the board of directors of the company to effect a consolidation of it with the St. Louis, Council Bluffs and Omaha Railroad Company, of the State of Iowa. Articles of consolidation were, on the same day, entered into between the two corporations, consolidating the two into one, “ for the purpose of constructing, owning, maintaining, using, and operating a continuous line of railroad from the city of Omaha, in Nebraska, and the city of Council Bluffs, in Iowa, to the city of Chillicothe, in Missouri, under the name of the St. Louis, Council Bluffs and Omaha Railroad Company.” These articles of consolidation were executed by the president of the Chillicothe and Omaha Railroad Company, on behalf of that company, under a resolution of its board of directors to that effect, which was approved by more than three-fourths of all the stock in the company. The articles of consolidation and the proceedings thereon on the part of the Chillicothe and Omaha Railroad Company were filed in the office of the Secretary of State of the State of Missouri on the 7th of October, 1870, and the same articles of consolidation and the proceedings of the meeting of stockholders of the Chillicothe and Omaha Railroad Company, authorizing the consolidation, were filed in the office of the Secretary of State of the State of Iowa, on the 19th of December, 1870. In the year 1871, a railroad was constructed by the corpo- LIVINGSTON COUNTY v. PORTSMOUTH BANK. Ill Statement of the Case. ration acting under the name of the St. Louis, Council Bluffs and Omaha Railroad Company, from the city of Chillicothe, in Livingston County, Missouri, upon and over the line set forth and described in the articles of association filed in the office of the Secretary of State of the State of Missouri on the 14th of July, 1868, to a point on the boundary line between the States of Missouri and Iowa, and has been continued thence to the city of Omaha, Nebraska, and has ever since been operated on that line. The County of Livingston paid all the interest coupons on the 24 bonds as they respectively matured, to and including those falling due July 1st, 1876, from the proceeds of taxes levied in each year upon the taxable property of Chillicothe township in that county. On the 21st of -February, 1877, the County Court of Livingston County entered an order on its records, as follows: “Whereas, by a decision of the Supreme Court of the United States in a case wherein Bates County, of this State, was a party, it was held that all township bonds issued under and by virtue of an act of the State of Missouri, entitled 1 An Act to facilitate the Construction of Railroads in the State of Missouri,’ approved March 23d, 1868, are null and void, owing to the unconstitutionality of said act, which decision, as we are informed, has since been reaffirmed by U. S. Circuit Judge Dillon, and whereas, under and by virtue of said act above recited, the county of Livingston, for the use and in behalf of the municipal township of Chillicothe, did, in a.d. 1870, issue and deliver, under said act above recited, to the St. Louis, Council Bluffs and Omaha Railroad Company, a series of bonds, in amount twelve thousand dollars, to run for fifteen years, and each for the sum of five hundred dollars: Now, therefore, it appearing that all of said bonds are null and void, it is hereby ordered that, from and after this date, the treasurer of the county be commanded and directed to refuse payment of said bonds or any of them, together with all coupons for interest thereto attached, in whosesoever hands they may be found, or by whomsoever they may be presented, until otherwise directed by this court or by some competent superior authority.” 112 OCTOBER TERM, 1888. Opinion of the Court. The conclusion of law of the Circuit Court upon the foregoing facts was in these words : “ Upon consideration of the foregoing facts, which constitute all the facts and evidence produced in the cause, the court finds that the county of Livingston, in the State of Missouri, is indebted to the plaintiff, the First National Bank of Portsmouth, New Hampshire, by reason of the non-payment of the coupons described in the petition and the facts aforesaid, in the sum of eight thousand four hundred and seventy-six dollars and sixty cents ($8476.-60).” There is also found in the record a bill of exceptions. When the plaintiff offered in evidence the 24 bonds, the defendant objected, on the ground that the bonds were void on their faces, and showed no authority for their issue. The court overruled the objection and permitted the bonds to be read in evidence, to which ruling the defendant excepted. A like objection and exception were taken by the defendant to the reading in evidence of the coupons sued on. When the plaintiff offered in evidence the tax levies for the years 1872, 1873, 1874, 1875, and 1876, for the purpose of showing that in each of those years the County Court of Livingston County made a levy upon the property in the township of Chillicothe, of taxes for the payment of the interest on the bonds in question, the defendant objected to the evidence, on the ground that there could be no ratification of the issuing of the bonds, if the issue was unlawful. The objection was overruled, and the defend ant excepted. No other exceptions appear by the bill of exceptions. Mr. James L. Davis and Mr. Henry N. Ess for plaintiff in error. Mr. G. 8. Eldredge for defendant in error. Mr. Justice Blatchford, after stating the case as above reported, delivered the opinion of the court? The grounds urged for reversing the judgment are (1) that the statutes of Missouri did not authorize the consolidation of LIVINGSTON COUNTY v. PORTSMOUTH BANK. 113 Opinion of the Court. a railroad company organized under the laws of Missouri with a railroad company organized under the laws of another State; (2) that an authority to subscribe to stock in, and issue bonds to, the Chillicothe and Omaha Railroad Company was not an authority to subscribe to stock in, and issue bonds to, the St. Louis, Council Bluffs and Omaha Railroad Company ; and (3) that it does not appear by the face of the bonds, or by the findings of the court, that the County Court ordered any subscription for stock in either the Chillicothe and Omaha Railroad Company or the St. Louis, Council Bluffs and Omaha Railroad Company to be made, or that any subscription for stock of either of those companies was in fact made, or that any stock of either company was ever issued to the county or to the township. (1) As to the authority for consolidation. It was enacted as follows by the act of the legislature of Missouri, approved March 2d, 1869, entitled “An Act to authorize the Consolidation of Railroad Companies in this State with Companies owning Connecting Railroads in Adjoining States,” (Laws of 1869, p. 75, and 1 Wagner’s Missouri Stats, of 1870, p. 314, § 56): “Section 1. That any railroad .company organized under the general or special laws of this State, whose tracks shall at the line of the State connect with the track of the railroad of any company organized under the general or special laws of any adjoining State, is hereby authorized to make and enter into any agreement with such connecting company, for the consolidation of the stock of the respective companies whose tracks shall be so connected, making one company of the two, whose stock shall be so consolidated, upon such terms and conditions and stipulations, as may be mutually agreed upon between them, in accordance with the laws of the adjoining State in which the road is located, with which connection is »thus formed.” The statute then went on to enact details in regard to the consolidation. The fourth section of the act provided as follows: “ Section 4. Any such consolidated company shall be subject to all the liabili-jes, and bound by all the obligations of the company within t is State, which may be thus consolidated with one in the vol. cxxvin—8 114 OCTOBER TERM, 1888. Opinion of the Court. adjacent State, as fully as if such consolidation had not taken place, and shall be subject to the same duties and obligations to the State, and be entitled to the same franchises and privileges under the laws of this State, as if the consolidation had not taken place.” This statute applied to the consolidation in question although no road had yet been constructed. It is not contended that the provisions of this statute were not complied with in making the consolidation in question. The consolidated company was, by the statute, to be entitled to the same privileges under the laws of the State of Missouri as if the consolidation had not taken place. This can only mean that it was to be entitled to the same privileges under the laws of Missouri, that the Missouri corporation was entitled to under the laws of that State at the time the consolidation took place. One of those privileges was the privilege of a subscription to stock by the township of Chillicothe. (2) As to the authority to subscribe to stock in, and issue bonds to, the St. Louis, Council Bluffs and Omaha Railroad Company, under the vote of the people of the township to subscribe to stock in, and issue bonds to, the Chillicothe and Omaha Railroad Company. The case of Harshman n. Bates County, 92 IT. S. 569, decided by this court at October term, 1875, is relied upon by the plaintiff in error as a decision against the validity of the bonds in that respect. It arose under the same statute of Missouri, of March 23d, 1868. The bonds were issued by the county of Bates, in behalf of Mount Pleasant township, in that county, to the Lexington, Lake and Gulf Railroad Company, in January, 1871. The taxpayers of the township had, in May, 1870, at an election, voted in favor of a subscription to the stock of, and the issue of bonds to, the Lexington, Chillicothe and Gulf Railroad Company. In October, 1870, that corporation was consolidated with another corporation, under the name of the «Lexington, Lake and Gulf Railroad Company. Thereafter, in January, 1871, the County Court, in pursuance only of the authority conferred by such vote, subscribed the specified amount, in behalf of the township, to the consolidated company, and issued the bonds to it in payment of the subscription. The objection was taken. LIVINGSTON COUNTY v. PORTSMOUTH BANK. 115 Opinion of the Court. that the question of subscribing to stock in, and issuing bonds to, the consolidated company was never submitted to a vote of the people of the township. This court held, that as, at the time of the consolidation, no subscription to stock had been made, and thus no vested right had accrued to the company named in the vote, the extinction of that company worked a revocation in law of the authority to subscribe to stock and to issue bonds. In that case, it appeared by the face of the bonds that the vote of the people was to subscribe to the stock of the Lexington, Chillicothe and Gulf Railroad Company, and that that company and another had been consolidated under the name of the Lexington, Lake and Gulf Railroad Company. This court held, that this recital in the bonds was sufficient to put the holder on inquiry, and that the bonds were invalid. The suit was brought by a holder of coupons attached to the bonds, against the county, to recover the amount of the coupons. In County of Scotland v. Thomas, 94 IT. S. 682, at October term, 1876, the suit was brought on coupons attached to bonds issued by the county of Scotland, in the State of Missouri, on its own behalf, to the Missouri, Iowa and Nebraska Railway Company, for a subscription on behalf of the county to the stock of that corporation, which was a corporation formed by the consolidation, in March, 1870, (under the above mentioned act of March 2d, 1869,) of the Alexandria and Nebraska City Railroad Company, of Missouri, (formerly the Alexandria and Bloomfield Railroad Company,) with the Iowa Southern Railway Company, of Iowa. It was claimed that the power to subscribe to the stock had been given by the charter granted in 1857 by Missouri to the Alexandria and Bloomfield Railroad Company, before the adoption of the state constitution of 1865, which required that the question of subscribing to stock should be submitted to a vote of the qualified voters of the county. No vote had been taken in the case. It was contended on behalf of the plaintiff, that the consolidated corporation acquired, by the consolidation, all the privileges of the Alexandria and Nebraska City Railroad Company, and, among others, the privilege of receiving county 116 OCTOBER TERM, 1888. Opinion of the Court. subscriptions to its capital stock. This court held, that the prohibition of the constitution of 1865 only extended to restraining the legislature from authorizing in the future municipal subscriptions, or aid to private corporations, without a vote of the people of the municipality, but did not take away any authority previously granted to subscribe to stock without a vote of the people. It also held, that the simple consolidation with another company did not extinguish the power of the county to subscribe, or the privilege of the company to receive a subscription. As authority for this view it cited the case of The State v. Greene County, 54 Missouri, 540. In the- case of County of Scotland v. Thomas, the power to consolidate was given in 1869, after the original charter of 1857 was granted, and after the Constitution of 1865 went into effect; but it was held that that fact did not affect the power. In its opinion, the court said (p. 691): that the railroad authorized by the charter of 1857 “was ‘a railroad from the city of Alexandria, in the county of Clark, in the direction of Bloomfield, in the State of Iowa, to such point on the northern boundary line of the State of Missouri as shall be agreed upon by said company, and a company, authorized on the part of the State of Iowa, to construct a railroad to intersect the road authorized to be constructed by the provisions of this act, at the most practicable point on said state line.’ Bloomfield was a small town in Iowa, evidently not intended as the final objective point of the proposed line, which is only required to be ‘ in the direction of Bloomfield.’ A connection with a continuous road in Iowa was the declared object of the road proposed. It was evidently the purpose to bring Alexandria, a port of Missouri on the Mississippi River, in connection with the rich region of southern and western Iowa, by means of the road then being chartered, and a road to connect therewith, running into the State of Iowa. This purpose will be most effectually attained by the construction of the continuous line contemplated by the consolidated companies. The general direction of the road is not changed. It does not pass through Bloomfield, it is true; but it does not pass it by so far as to be a substantial departure from LIVINGSTON COUNTY v. PORTSMOUTH BANK. 117 Opinion of the Court. the route originally indicated. The amending act, therefore, which authorized a consolidation with the Iowa Southern Railway Company, and thereby constituted the Missouri, Iowa and Nebraska Railway Company, was in perfect accord with the general purpose of the original charter of the Alexandria and Bloomfield Railroad Company; and, if the other rights and privileges of the latter company passed over to the consolidated company, we do not see why the privilege in question should not do so, nor why the power given to the county to subscribe to the stock should not continue in force.” The court distinguished the case from that of Harshman v. Bates County, 92 U. S. 569, on the ground that in that case the subscription to stock was made by the County Court in behalf of a township, and that the County Court was regarded as being the mere agent of the township, and as having no discretion to go beyond the precise terms of the power given to it, to subscribe to the stock of the company named in the vote; while in the case of Scotland County, the County Court acted as the representative authority of the county itself, and was officially invested with all the discretion necessary to be exercised under the change of circumstances brought about by the consolidation. The court further proceeded to say, in the Scotland County case (p. 693): “ If we look at the subject in a broad and general view, it will be still more manifest that the power in question was intended to exist, notwithstanding the consolidation,. The project of the railroad promised a great public improvement, conducive to the interests of Alexandria and the counties through which it would pass. Its construction, however, would greatly depend upon the local aid and encouragement it might receive. The interests of its projectors and of the country it was to traverse were regarded as mutual. The power of the adjacent counties and towns to subscribe to its stock, as a means of securing its construction, was desired not only by the company, but by the inhabitants. Whether the policy was a wise one or not is not now the question. It was m accordance with the public sentiment of that period. The power was sought at the hands of the legislature, and was .118 . OCTOBER TERM, 1888. Opinion of the Court. given. It was relied on by those who subscribed their private funds to the enterprise. It was involved in the general scheme as an integral part of it, and as much contributory and necessary to its success as the prospective right to take tolls. Why ' it should not still attach to this portion of the road, as one of the rights and privileges belonging to it, into whose hands soever it comes, by consolidation or otherwise, it is difficult to see.” The conclusion of the court was, that the power of the county of Scotland to subscribe, being a right and privilege of the Alexandria and Nebraska City Railroad Company, passed, with its other rights and privileges, into the new conditions of existence which that company assumed under the consolidation, and this although the company with which the consolidation was effected belonged to the State of Iowa. In Town of East Lincoln v. Davenport, 94 IT. S. 801, at October term, 1876, which was a suit on coupons attached to bonds issued by a town in Illinois, provision had been made by statute, prior to the time when a subscription was made by that town to the stock of a railroad company, that the company might consolidate with other companies, in order to carry out the object of its charter, and that its franchises, rights, subscriptions, and credits might be transferred, and such consolidation was effected, and a subsequent transfer by the consolidated company was lawfully made to a new company engaged in constructing a connecting road, thus forming a continuous line, the stockholders in the former companies becoming stockholders in the new company. It Was held that a delivery by the town to such new company of bonds for the payment of the original subscription, and a receipt of a certificate of stock in the new company, were warranted by law. In the opinion of the court the doctrine of the case of County of Scotland v. Thomas, 94 IT. S. 682, was confirmed, and the distinction drawn in that case between it and the case of Harshman v. Bates County, 92 IT. S. 569, was adverted to. In Country of Bates n. Winters, 97 IT. S. 83, at October term, 1877, the suit was brought to recover the amount of bonds and coupons issued by the county of Bates, in the State LIVINGSTON COUNTY v. PORTSMOUTH BANK. 119 Opinion of the Court. of Missouri, in behalf of Mount Pleasant township, in that county. The bonds were issued in January, 1871, to the Lexington, Lake and Gulf Railroad Company, a corporation formed by the consolidation of the Lexington, Chillicothe and Gulf Railroad Company with another corporation. The township had voted, in April, 1870, in favor of a subscription to the stock of, and the issue of bonds to, the Lexington, Chillicothe and Gulf Railroad Company. No subscription to the stock of that company was shown to have been made, but the subscription was made on the books of the new company formed by the consolidation. This court held, that as, in fact, no subscription had been made to the stock of the Lexington, Chillicothe and Gulf Railroad Company, the bonds were void, under the ruling in Harshman v. Bates County, because the popular vote gave authority to subscribe to the stock of one company, while the subscription was made, and the bonds were issued, to a different company; and that the recitals in the bonds were such that there could be no l>ona fide holders of them. The bonds recited, on their face, that the vote had been on the proposition to subscribe to the capital stock of the Lexington, Chillicothe and Gulf Railroad Company, and that that company and another company had been consolidated into one company, under the name of the Lexington, Lake and Gulf Railroad Company, to which latter conipahy the bonds were, on their face, issued. This court reversed the judgment below, which had been in favor of the plaintiff, and remanded the case for a new trial. In Wilson v. Salamanca, 99 U. S. 499, at October term,. 1878, the suit was against the township of Salamanca, in. Cherokee County, Kansas, to recover the amount of coupons detached from bonds issued by that township to the Memphis, Carthage and Northwestern Railroad Company. The bonds were issued in September, 1872, in pursuance of an election held in November, 1871, at which it was voted to subscribe to stock in, and issue bonds to, the State Line, Oswego and Southern Kansas Railroad Company. After the vote was had, the latter company was consolidated with another railroad company, into a new corporation, to which the bonds were 120 OCTOBER TERM, 1888. Opinion of the Court. issued. The subscription was made to the stock of the new corporation, and no other vote was had than the one above mentioned. The case came up on questions certified, one of which was as follows: “ Whether or not it is a defence to this action by a bona fide holder for value of the interest coupons sued on, without actual notice, that after the order of the board of county commissioners for an election, and after a favorable vote by a three-fifths majority of the qualified electors of Salamanca township, according to law, to subscribe stock in the State Line, Oswego and Southern Kansas Railroad Company, payable in negotiable bonds, to aid in the construction of its railroad, the subscription of stock and the issue of bonds without any further election were made to the Memphis, Carthage and Northwestern Railroad Company, with which said prior company, in whose favor the vote was had, had become merged and consolidated under a law existing at the time of said election, to form a continuous line.” The judgment of the Circuit Court was in favor of the township ; but this court reversed the judgment, and answered the above question in the negative, on the authority of the case of County of Scotla/nd v. Thomas, 94 IT. S. 682. The court said: “ The power of the State Line, Oswego and Southern Kansas Railroad Company to consolidate with other companies existed when the vote for subscription was taken in the township. When the consolidation took place, there was a perfected power in the township to subscribe to the stock of that company, and there was also an existing privilege in the company to receive the subscription. That privilege, as we held in the Scotland County case, passed by the consolidation to the consolidated company.” The court distinguished the case from, that of Harshman v. Bates County, 92 IT. S. 569, on the ground that the township trustee and the township clerk, who made the subscription and issued the bonds in the Salamanca township case, acted in their official capacity as the constituted authorities of the township, and its legal representatives, and not as mere agents, and occupied the position of the County Court in the Scotla/nd Country case. In Menasha v. Hazard, 102 U. S. 81, at October term, 1880, LIVINGSTON COUNTY v. PORTSMOUTH BANK. 121 Opinion of the Court. the suit was against the town of Menasha, in the county of Winnebago and State of Wisconsin, to recover the amount of coupons detached from bonds issued by that town to the Wisconsin Central Railroad Company, in October, 1871. It had been voted by the town, in June, 1870, to issue bonds to the Portage, Winnebago and Superior Railroad Company. After the vote was had, and in November, 1870, the Portage, Winnebago and Superior Railroad Company was consolidated with another company, and its name was changed in February, 1871, to that of the Wisconsin Central Railroad Company, and a further consolidation took place with a company to which the bonds were afterwards issued. It appeared that, before the subscription and bonds were voted, the Portage, Winnebago and Superior Railroad Company was authorized by statute to consolidate with other companies constructing connecting lines, and that the consolidation was effected in pursuance of the statute. This court held that, under these circumstances, the issuing of the bonds to the consolidated company was lawful. In Ha/rter v. Kernochan, 103 IT. S. 562, at October term, 1880, bonds had been voted by the township of Harter, in Clay County, Illinois, as a donation to the Illinois Southeastern Railway Company, and were issued to the Springfield and Illinois Southeastern Railway Company, the latter company having been formed subsequently to the vote, by a consolidation between the former company and another company. This court held that the statutes of Illinois, existing when the vote was taken, authorized the consolidation, and that, upon such consolidation, the new company succeeded to all the rights, franchises and powers of the constituent companies. The court said, (p. 574:) “ The power in the township to make a donation to aid in the construction of the Illinois Southeastern Railway was also a privilege of the latter corporation, and that privilege, upon the consolidation, passed to the new company. The donation was voted before the consolidation took effect, and since the consolidated or new company did not propose to apply such donation to purposes materially different from those for which the people voted it in 1868, its right to 122 OCTOBER TERM, 1888. Opinion of the Court. receive the donation, at least when the township assented, cannot be doubted.” The validity of the bonds was upheld. In New Buffalo v. Iron Company, 105 U. S. 73, at October term, 1881, the suit was brought on bonds and coupons issued by the township of New Buffalo, in the county of Berrien and State of Michigan. The bonds had been voted by the township in May, 1869, as a donation in favor of the Chicago and Michigan Lake-Shore Railroad Company. When the bonds were voted, there was in force a general statute under which any railroad company of the State, forming a continuous or connected line with any other railroad company in or out of the State, could consolidate with the latter. The statute provided that the new corporation should possess all the powers, rights and franchises conferred upon its constituent corporations, and that they should be deemed to be transferred to and vested in it. After the vote was had, the company to which the bonds were voted was consolidated with another company, into a new corporation, having the name of the Chicago and Michigan Lake-Shore Railroad Company. The point was taken, in this court, that the bonds were void because they were delivered to a company to which they were not voted. This court said: “ The only remaining objection to the judgment is that the bonds were delivered to the consolidated company, when they were not voted to that company. We concur with the court below in holding that the aid voted must be deemed to have been given in view of the then existing statute, authorizing two or more railroad companies forming a continuous or connected line to consolidate and form one corporation, and investing the consolidated company with the powers, rights, property and franchises of the constituent companies. Nugent v. The Supervisors, 19 Wall, 241; County of Scotland v. Thomas, 94 U. S. 682; Town of East Lincoln v. Davenport, 94 U. S. 801; Nilson v. Salamanca, 99 U. S. 504; Empire v. Darlington, 101 U. S. 87; Menasha v. Hazard, 102 U. S. 81; Harter v. Kernochan, 103 U. S. 562; County of Tipton v. Locomoti/oe Norks, 103 U. S. 523. The bonds were, therefore, rightfully delivered to the new or consolidated corporation.” This court affirmed the judgment against the township. LIVINGSTON COUNTY v. PORTSMOUTH BANK. 123 Opinion of the Court. The new trial which was directed by this court in County of Bates v. Winters, 97 U. S. 83, took place and resulted in another judgment against Bates County, which was brought before this court in Bates County v. Winters, 112 U. S. 325, at October term, 1884. The bonds were issued by the County Court on behalf of the township. This court held that, at the second trial, an acceptance by the Lexington, Chillicothe and Gulf Railroad Company, of the subscription to its stock, had been shown, which made the subscription complete and binding as a subscription to the stock prior to the consolidation, the judgment in County of Bates v. Winters, 97 U. S. 83, having been reversed because it did not appear that the County Court had actually subscribed to the capital stock of the Lexington, Chillicothe and Gulf Railroad Company before the consolidation. This court held, in the case in 112 U. S., that the valid subscription made prior to the consolidation rendered unnecessary a subscription to the stock of the consolidated company, which latter subscription it had held, in Harshman v. Bates County, 92 U. S. 569, and County of Bates v. Winters, 97 U. S. 83, to have been invalid. In the case in 112 U. S. this court went on to say: “ As the Lexington, Chillicothe and Gulf Company was organized under the general railroad law of Missouri, which authorized consolidations, the subsequent consolidation of that company with another organized under the same law did not avoid the subscription which was made to its stock on the 17th of June, and the bonds in payment of the subscription were properly delivered to the consolidated company. This has been many times decided. New Buffalo v. Iron Company, 105 U. S. 73, and the cases there cited.” This court held the bonds to be valid. We do not think that the rigid rule laid down in the case of Harshman v. Bates County, 92 U. S. 569, ought to be applied to the present case, although it is a case of bonds issued by a County Court in the State of Missouri on behalf of a township of the county. In the articles of association of the St. Louis, Chillicothe and Omaha Railroad Company it was declared that the object of the association was to construct, maintain, and operate a railroad for public use, from Chillicothe to such 124 OCTOBER TERM, 1888. Opinion of the Court. point on the boundary line between Missouri and Iowa as should be deemed, after actual survey, to be on the most direct and feasible route for constructing, maintaining, and operating a railroad between Chillicothe and Omaha in Nebraska; and, by the same articles, it was provided that the association was organized under and subject to. the laws of the State of Missouri, contained in chapters 62 and 63 of Title XXIV of the General Statutes of Missouri of 1865, possessing all and singular the powers therein contained. The St. Louis, Council Bluffs and Omaha Railroad Company, in Iowa, was formed in September, 1870, to construct a railroad from Council Bluffs, in Iowa, to the state line between Iowa and Missouri, at a point where the Chillicothe and Omaha Railroad should reach such state line, and, in the event of the consolidation of the Iowa corporation with the Chillicothe and Omaha Railroad Company, (which was the new and changed name of the St. Louis, Chillicothe and Omaha Railroad Company,) then, in connection with that company, “to form a continuous line of railroad from the city of Omaha, in the State of Nebraska, and the city of Council Bluffs, in the State of Iowa, to the city of St. Louis, in the State of Missouri.” The consolidation thus contemplated took place. The new company was called the St. Louis, Council Bluffs and Omaha Railroad Company, and the bonds were issued to it. They were issued as negotiable securities, to pay for the subscription voted to the stock of the Missouri corporation. The vote was that they should be issued in accordance with the law regulating subscriptions by municipal townships to railroad companies, in payment of a subscription to be made on behalf of the township of Chillicothe to the stock of the Missouri company. The object of the consolidation was stated in the articles of consolidation to be to consolidate the two companies into one “ for the purpose of constructing, owning, maintaining, using, and operating a continuous line of railroad from the city of Omaha, in Nebraska, and the city of Council Bluffs, in Iowa, to the city of Chillicothe, in Missouri, under the name of the St. Louis, Council Bluffs and Omaha Railroad Company.” The vote of the people to subscribe to the stock, followed by the issue of the LIVINGSTON COUNTY v. PORTSMOUTH BANK. 125 Opinion of the Court. bonds, was an adoption of the articles of association of the Missouri company, not only with the powers and purposes expressed in those articles, and conferred by then existing statutes, but with all powers which had, prior to the vote, been conferred upon it by statute. The intention and purpose of the voters of the township in voting, and of the County Court of the county in issuing, the bonds, were fully carried out in what was done. The vote of the people contemplated and authorized the very thing that was done. The bonds were voted for the express purpose of constructing a road from Chillicothe to the boundary line between Missouri and Iowa, with a view to continuing the road from such boundary line to Omaha, in Nebraska. This object was attained by means of the consolidation. The road was constructed by the consolidated company from Chillicothe to the boundary line between Missouri and Iowa, through the counties of Missouri named in the articles of association of the Missouri company, and was continued thence to Omaha, in Nebraska, and has ever since been operated upon that line. The object expressed in the articles of association of the Missouri company, of having a continuous road from Chillicothe to Omaha, was not only effectually accomplished by the consolidation, but could not have been accomplished without it. The Missouri corporation could not have built the road in Iowa from the state line to Council Bluffs, and a railroad extending only from Chillicothe to the state line would not have answered the purpose contemplated. To say, therefore, that there has been any substantial diversion, in the use of the bonds, from the purpose contemplated by the vote of the people of the township, because of the consolidation and of the issuing of the bonds to the consolidated company, which has made the very road intended, because the authority conferred by the vote was nominally one only to issue the bonds to the Missouri corporation, not a sound proposition, in view of the fact that the statute Missouri expressly authorized the consolidation which took place. Under the facts of the case, the provision for consolidation became a part of the contract between the township and the railroad company, and the vote to issue the bonds to 126 OCTOBER TERM, 1888. Opinion of the Court. the company was an assent to the exercise by it of all the corporate powers, including that of consolidation, with which it was invested at the time of the vote. So true is this, that, if the Missouri company had never been consolidated with the Iowa company, and the road had only been built to the state line, and no extension of it through Iowa to Council Bluffs and Omaha had been made, it might well have been urged that the citizens of the township had been defrauded, and that the purpose in issuing the bonds had not been carried out. We think that, in the present case, the rule applied in the cases before cited, of County of Scotland v. Thomas, 94 U. S. 682; Town of East Lincoln v. Davenport, 94 IT. S. 801; Wilson v. Salamanca, 99 IT. S. 499; Menasha v. Haza/rd, 102 IT. S. 81; Ha/rter v. Kernochan, 103 IT. S. 562; New Buffalo v. Iron Compa/ny, 105 IT. S. 73; and Bates County v. Winters, 112 IT. S. 325, is the more proper and salutary one, and that the doctrine laid down in Harshman v. Bates County, 92 IT. 8. 569, and in County of Bates v. Winters, 97 IT. S. 83, that a County Court in Missouri could not, on a vote by a township to issue bonds to a corporation named, issue the bonds to a company formed by the consolidation of that corporation with another corporation, would not be, if applied here, a sound doctrine. (3) As to the objection that it does not appear by the findings of the Circuit Court that there was any formal order made by the County Court for the issue of the bonds. By § 51 of the statute before cited, it was provided, that if it should appear from the returns of the election that not less than two-thirds of the qualified voters voting at the election were in favor of the subscription to the stock of the railroad company, it should be the duty of the County Court to make the subscription in behalf of the township, according to the terms and conditions thereof, and that, if those conditions provided for the issuing of bonds in payment of such subscription, the County Court should issue such bonds in the name of the county and deliver them to the railroad company. This imposed a plain duty in the present case upon the County Court, because the statute and the vote, taken together, authorized LIVINGSTON COUNTY v. PORTSMOUTH BANK. 127 Opinion-of the Court. the subscription and the issue of the bonds, and no formal order by the County Court to do those acts was necessary. The acts were ministerial. The statute left no discretion in the County Court, but made it the duty of the court to make the subscription and issue the bonds. The sole duty of the court was to ascertain that the proper vote had been had. The bonds state on their face that they are “ issued under and pursuant to an order of the County Court of Livingston County, authorized by a two-thirds vote of the people of Chillicothe municipal township,” and each bond also states that the county has executed it by the presiding justice of the County Court of the county, under an order of the court, signing his name to the bond, and by the clerk of the court, under the order thereof, attesting the same and affixing thereto the seal of the court, and it is so signed and attested and the seal is affixed. Moreover, the finding of the Circuit Court is, that the records of the County Court show that that court made an order, on the 21st of February, 1877, stating that, under and by virtue of the statute of the State, approved March 23d, 1868, the county of Livingston, for the use and in behalf of the municipal township of Chillicothe, had issued and delivered the bonds in question to the St. Louis, Council Bluffs and Omaha Railroad Company. It is also found as a fact by the Circuit Court, that the county of Livingston had made eleven semiannual payments of interest on the bonds, from the proceeds of taxes levied in each year on the taxable property of the township. The County Court having been designated by the statute as the proper authority to determine that the conditions existed which authorized the making of the subscription, to be followed by the issuing of the bonds, the fact of the issue of the bonds by the County Court, under its seal, with the recitals contained in the bonds and the other facts above stated, estop the county from urging, as against a bond fide holder of the bonds and coupons, the existence of any mere- irregularity in the making of the subscription or the issuing of the bonds. On the foregoing facts, it must be presumed that the subscription to the stock was made by the County Court in behalf of 128 OCTOBER TERM, 1888. Opinion of the Court. the township, and the county is estopped from asserting the contrary. We are referred by the counsel for the plaintiff in error to the cases of The State v. Garroutte, 67 Missouri, 445, and Weil v. Greene County, 69 Missouri, 281, as holding to the contrary of the views we have here announced. Independently of the fact that these decisions were made in 1878, many years after the bonds in the present case were issued, no such facts existed in those cases as exist in the present case. In the case in 67 Missouri, the bonds were issued to the Hannibal and St. Joseph Railroad Company, to aid in building the Kansas City and Memphis Railroad, alleged to be a branch of the former road. The main line had never been built. The court said that a branch road necessarily presupposed a main trunk line; and that the Kansas City and Memphis Railroad was, for all practical purposes, really a distinct and independent branch of the Hannibal and St. Joseph Railroad, the union existing merely in name but not in substance, and the branch road having separate stock and stockholders, president, directors, and liabilities from the main road, so as to require, under the Constitution of Missouri of 1865, a vote of the people in favor of the issue of the bonds. There was no vote of the people in that case. In the case in 69 Missouri, the bonds had been issued by Greene County to the Hannibal and St. Joseph Railroad Company, to aid in building the road through that county. The case did not show that there was any connection between the Hannibal and St. Joseph Railroad Company and the railroad to be built, nor what railroad it was, nor that Greene County had ever subscribed to the stock of any railroad company. The exceptions taken on the trial, as above set forth, do not present any question different from those which have been discussed. The bonds and coupons were properly read in evidence, and so were the certified copies of the tax levies. We find no error in»the record, and The judgment of the Circuit Court is affirmed. ASHER v. TEXAS. 129 Opinion of the Court. ASHER v. TEXAS. ERROR TO THE COURT OF APPEALS OF THE STATE OF TEXAS. No. 781. Argued October 11, 12, 1888. — Decided October 29, 1888. A State law exacting a license tax to enable a person within the State, to solicit orders and make sales there for a person residing within another State, is repugnant to that clause of the Constitution of the United States which gives Congress the power to regulate commerce among the several States, and is void. Robbins v. Shelby Taxing District, 120 U. S. 489, was carefully considered and is affirmed. Leloup v. Port of Mobile, 127 U. S. 640, to the same point received the unanimous concurrence of the court, and is affirmed. . A decision of this court, not in harmony with some of its previous decisions, has the effect to overrule those with which it is in conflict, whether mentioned and commented on or not. On the application of the plaintiff in error a writ of habeas corpus, issued from a state court of Texas, to inquire into the validity of his imprisonment under the provisions of a statute of the State alleged to be in conflict with the Constitution of the United States. In the Court of Appeals of Texas final judgment was given against the petitioner. This writ of error was sued out to bring that judgment under review. J/r. Abel Crook for plaintiff in error. Mr. John J. Mo-JClhone was with him on the brief. Mr. J. S. Hogg, Attorney General of Texas, for defendant in error. Mr. W. L. Davidson was with him on the brief. Mr. Justice Bradley delivered the opinion of the court. This is a writ of error to the Court of Appeals of the State of Texas in a case of habeas corpus. By an act of the legislature of Texas, passed May 4th, 1882, it was provided that there shall be levied on and collected “ from every commercial traveller, drummer, salesman, or solicitor of trade, by sample or otherwise, an annual occupation tax of thirty-five dollars, vol. cxxvm—9 130 OCTOBER TERM, 1888. Opinion of the Court. payable in advance; to be paid to the Comptroller of Public Accounts, whose receipts under seal shall be evidence of the payment of such tax; ” and it was provided that every such commercial traveller, drummer, &c., “ shall, on demand of the tax collector of any county of the State, or any peace officer of said county, exhibit to such officer the Comptroller’s receipt; ” and on refusal “ shall be deemed guilty of misdemeanor and fined in a sum not less than twenty-five nor more than one hundred dollars.” And by article 110, chapter 5, title 4, of the Penal Code of the State of Texas, it is provided that, “ any person who shall pursue or follow any occupation, calling, or profession, or do any act taxed by law, without first obtaining a license therefor, shall be fined in any sum not less than the amount of the taxes so due, and not more than double that sum.” By a statement of facts agreed upon by the parties in the court below, it appears that William G. Asher, the plaintiff in error, “ is a resident and citizen of the city of New Orleans, State of Louisiana, and on the 27th day of May, a.d. 1887, and for about the period of one month prior thereto, was engaged in the business of soliciting trade by the use of samples for the house for which he worked as drummer, in the city of Houston, Harris County, State of Texas, said house being Charles Gr. Schulze, of New Orleans, Louisiana, who was a manufacturer of rubber stamps and stencils, for the sale of which said Asher was then and there soliciting orders or trade. While engaged in the act of drumming for said Charles G. Schulze, and for the claimed offence of not having taken out the required license for so doing said business, the defendant, William G. Asher, was arrested by one George Ellis, sheriff of said county of Harris, State of Texas, and carried before the Hon. James A. Breeding, a justice of the peace of Precinct No. 1 of said county of Harris, State of Texas, and fined for the offence of pursuing the occupation of drummer without a license. It is admitted that Charles G. Schulze is engaged in manufacturing in New Orleans, State of Louisiana, and in selling rubber stamps and stencils, and that it was a line of such articles for the sale of which the said defendant, William ASHER v. TEXAS. 131 Opinion of the Court. G. Asher, was dramming at the time of his arrest; that the relator, Asher, was soliciting said orders and was making said sales for his said non-resident employers in the county of Harris and in the State of Texas.” Being imprisoned for failure to pay the fine imposed upon him, Asher applied to the Court of Appeals for a writ of habeas corpus to be discharged, on the ground that the law under which he was restrained of his liberty is unconstitutional and void, and contravenes the Constitution of the United States, being repugnant to that clause thereof which gives to Congress the power to regulate commerce among the several States, and the laws of Congress passed thereunder. The writ of habeas corpus was issued, and, the matter being argued before the Court of Appeals, judgment was given against the petitioner, and he was remanded to the custody of the sheriff. To review that judgment this writ of error is brought. We cannot perceive any distinction between this case and that of Robbins v. The Shelby Taxing District, decided in October Term, 1886, and reported in 120 U. S. 489. The Tennessee law in that case declared that f‘ All drummers, and all persons not having a regular licensed house of business in the taxing district, offering for sale or selling goods or merchandise therein, by sample, shall be required to pay to the county trustee the sum of $10 per week, or $25 per montli, for such privilege; ” and it was made a misdemeanor, punishable by fine, to exercise such occupation without having first paid the tax, or obtained the license required therefor. The plaintiff in error in that case was a citizen of Ohio, and was convicted for selling goods by sample for an Ohio firm without having paid the tax or obtained the required license. The law was, in all substantial respects, the same, and the circumstances were substantially the same as in the case now presented. Indeed, this is conceded by the Court of Appeals of Texas in its opinion. But it is strenuously contended by that court that the decision of this court in Robbins v. The Shelby Taxing Dist/rict is contrary to sound , principles of constitutional construction, and in conflict with well adjudicated cases formerly decided by this court and not overruled. Even if it 132 OCTOBER TERM, 1888. Syllabus. were true that the decision referred to was not in harmony with some of the previous decisions, we had supposed that a later decision in conflict with prior ones had the effect to overrule them, whether mentioned and commented on or not. And as to the constitutional principles involved, our views were quite fully and carefully, if not clearly and satisfactorily, expressed in the Robbins case. We do not propose to enter upon a renewed discussion of the subject at this time. If any further illustration is desired of the unconstitutionality of local burdens imposed upon interstate commerce by way of taxing an occupation directly concerned therein, reference may be made to the still more recent case of Leloup v. Port of Mobile, 127 IL S. 640, which related to a general license tax on telegraph companies, and was decided by the unanimous concurrence of the court. The judgment of the Court of Appeals of Texas is reversed, and the cause remamded, with instructions to discharge th plaintiff in error from the imprisonment complained of. CHAPPELL v. BRADSHAW. EBBOB TO THE COUBT OF APPEALS OF THE STATE OF MARYLAND. No. 1037. Submitted October 22,1888. —Decided October 29, 1888. To give this court jurisdiction to review the judgment of a state court under § 709, Rev. Stat, because of the denial by the state court of any title, right, privilege or immunity, claimed under the Constitution or any treaty or statute of the United States, it must appear on the record that such title, right, privilege or immunity was “ specially set up or claimed” at the proper time, in the proper way. Ap action of trespass on the case for damages by fire to the plaintiffs vessel in a port of the United States, alleged to have resulted from the negligence of the defendant’s servants in cutting a burning scow or lighter loose from a wharf, and allowing it to drift against the vessel, is “ a common law remedy ” which the common law “ is competent to give, and which is saved to suitors by the provisions of § 563, Rev. Stat, conferring admiralty and maritime jurisdiction upon District Courts of the United States. CHAPPELL v. BRADSHAW. 133 Opinion of the Court. Motion to dismiss ok affirm. The case is stated in the opinion of the court. Jfr. William A. Hammond and Hr. B. Howard Haman, for the motion. Hr. WiUiam A. Fisher opposing. Mr. Chief Justice Fuller delivered the opinion of the court. Bradshaw recovered judgment December 6th, 1887, against Chappell in the Circuit Court for Howard County, Maryland, in an action of trespass on the case, after a trial by jury upon a plea of not guilty, for damages by fire to his (Bradshaw’s) schooner, alleged to have resulted from the negligence of Chappell’s servants in cutting a burning scow or lighter loose from Chappell’s wharf and allowing it to drift against Bradshaw’s vessel. From this judgment Chappell prosecuted an appeal to the Court of Appeals of Maryland, by which tribunal the judgment was affirmed on the 14th day of March, 1888. On the 27th of March Chappell moved for a rehearing upon the ground, which had not been up to that time presented in any form, that the Circuit Court for Howard County should have limited the measure of damages to the value of the scow which occasioned the injury complained of, under the provisions of § 18, c. 121 of the act of Congress of June 26, 1884. 23 Stat. 57. The Court of Appeals overruled the motion, because, as the court states, “ this act of Congress was not before the Circuit Court when the case was tried, nor before this court on appeal, and that no reference to it or construction of it was made in either court.” After an unsuccessful application therefor to the Chief Judge of the Court of Appeals a writ of error was finally allowed by one of the justices of this court, and now comes before us upon a motion to dismiss. • To give this court jurisdiction to review the judgment of a state court under § 709 of the Revised Statutes, because of the denial by a state court of any title, right, privilege, or 134 OCTOBER TERM, 1888. Opinion of the Court. immunity claimed under the Constitution or any treaty or statute of the United States, it must appear on the record that such title, right, privilege, or immunity was “specially set up or claimed ” at the proper time in the proper way. “ To be reviewable here,” says Waite, C. J., in Spies v. Illinois, 123 U. S. 131, 181, “ the decision must be against the right so set up or claimed. As the Supreme Court of the State was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the Supreme Court was only authorized to review the judgment for errors committed there, and we can do no more.” Tested by this well settled rule it is apparent that this writ of error cannot be maintained, as it is conceded that the plaintiff in error did not set up or claim in the trial court the limitation, the benefit of which he now insists should have been accorded him. As to the contention of plaintiff in error, also not brought forward below but suggested for the first time when application was made to the Chief Judge of the Court of Appeals to allow the writ of error, that the state court had no jurisdiction because the jurisdiction of the courts of the United States is exclusive in all cases of admiralty and maritime jurisdiction, and that this is necessarily such a case, it is sufficient to say that, as the action as brought and defended was a common law action without any of the ingredients of an admiralty or maritime cause, it was, as such, clearly within the provision of the ninth section of the Judiciary Act of 1789, as embodied in § 563 of the Revised Statutes, “ saving to suitors in all cases the right of a common law remedy where the common law is competent to give it.” The motion must be granted and the writ dismissed, and d u so ordered- CULLIFORD v. GOMILA. 135 Statement of the Case. CULLIFORD v. GOMILA. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA. No. 33. Argued October 18, 19,1888. —Decided October 29,1888. A charter-party, containing a guaranty by the owner of the vessel that she should carry not less than 10,000 quarters of grain, of 480 pounds, held to have been complied with by the owner of the vessel. The charter-party not having contained any cancelling clause, or any provision as to any time for beginning or completing the lading, or shipping the grain, the charterer could not have, in a suit against the owner of the vessel for a breach of the charter-party, the benefit of any clause limiting the time of the shipment of the grain, contained in a prior contract for its sale, made by the charterer, where such contract had been made known to the owner of the vessel .before the charter-party was signed. The vessel having been loaded with less than 10,000 quarters, and appearing to be full, as she was then stowed, the parties negotiated for a settlement, but before any was concluded, the owner of the vessel notified the charterer that the stowage would be rearranged so that the vessel would on the next day be ready to take the full 10,000 quarters. The charterer on the latter day sold the cargo at auction, on board, with privilege of the charter. The vessel afterwards took on board enough more grain to make the full 10,000 quarters and delivered it under a charter for the same voyage, made with the vendee named in the contract of sale of the grain made by the first charterer: Held, that the owner of the vessel was not liable to the first charterer for any losses sustained by him by the failure of such vendee to pay for the grain under such contract of sale. The charter-party with the first charterer was complied with by the owner of the vessel in a reasonable time. This was a libel in admiralty, in personam^ filed in the District Court of the United States for the Eastern District of Louisiana, on the 9th of July, 1883, by A. J. Gomila and Learned Torrey, composing the firm of Gomila & Co., against J. H. W. Culliford and John S. Clark, composing the firm °f Culliford & Clark, as owners of the steamship Deronda, a British vessel, to recover damages for the alleged breach of a 136 OCTOBER TERM, 1888. Statement of the Case. charter-party entered into at New Orleans on the 19th of June, 1883, chartering that vessel to Gomila & Co. The material parts of the charter-party were as follows: — “It is this day mutually agreed between De Wolf & Hammond, as agents of the steamship Deronda, of 1090 tons net register or thereabouts, now in New Orleans, and Mess. Gomila & Co., of New Orleans, merchants, that the said steamer shall, with all convenient speed, proceed to New Orleans, or so near thereto as she may safely get, and there, being in hull, boilers and machinery tight, staunch and strong, classed 100 A 1, and every way fitted for the voyage, shall load as customary at such safe loading berth, always afloat, as ordered by charterers on arrival, (and, if afterwards required by them to shift, they to pay the ordinary expense of towing) a full , , , , , and . and . . and and complete cargo of wheat maize rye in bulk r ° or or J or ship’s sacks, as customary, which is to be brought to and taken from alongside as customary, at merchants’ risk and expense, at ports of loading and discharge, (all lighterage required to be paid for by cargo,) and at charterers’ risk, not exceeding what she can reasonably carry over and above her tackle apparel, fuel, provisions, and furniture, and, being so loaded, shall therewith proceed under steam to a safe port, always afloat, in the United Kingdom or on the Continent, between Bordeaux and Hamburg, both inclusive, excluding Rouen, calling at Queenstown or Falmouth for orders, which are to be given within twelve hours of arrival or lay days to count, or so near thereunto as she may safely get, one port only to be used, and deliver the same on being paid freight, all in British sterling, as follows : Five shillings and three pence sterling per quarter of 480 pounds weight, delivered in full, if calling at Queenstown or Falmouth or ordered direct to Continent. If ordered to Continent from port of call, ten per cent additional. If ordered to United Kingdom direct, three pence off. Charterers have option of Elsinore for orders to discharge at Copenhagen or Aarhuns, at five shillings and nine pence per quarter of 480 lbs. Steamer is guaranteed to carry not less than ten thousand quarters of 480 lbs. CULLIFORD v. GOMILA. 137 Statement of the Case. ***** “ 4. Stevedore for loading said steamer to be appointed by charterers, under captain’s directions, at current rates for such labor. Charterers are not to be held responsible for improper stowage. “ 5. Steamer to have liberty to call at any ports for coal or other supplies. ***** “13. Sixteen running days, Sundays excepted, are to be allowed the said merchants (if the steamer is not sooner dispatched) for loading and discharging, and ten days on demurrage, over and above the said lay days, at six pence sterling per gross register ton per day. “ 14. Should the steamer not be ready to load at New Orleans on or before the-, charterers or their agents have the option of cancelling this charter. “ 15. Lay days to commence the day after the steamer is declared ready to receive cargo, and having been passed by the surveyor of grain vessels, and written notice given by the master to the charterers or their agents. ***** “ 19. Penalty for non-performance of this agreement, estimated amount of freight.” The charter-party was signed by De Wolf & Hammond, as agents of the vessel, and by Gomila & Co. The Ebel alleged, that, on the 28th of June, 1883, the libellants provided and furnished a cargo of 10,000 quarters, of 480 pounds each, of corn, to the vessel, for her voyage; that the loading was then commenced and proceeded with until June 30th, 1883, when all further loading of cargo was stopped by official order of the marine inspector of the port, who was present at the time, and who pronounced the vessel full all over, as in fact and truth it was; that, when the loading was so stopped, and the vessel declared to have a full and complete cargo, only 82,588^- bushels, the equivalent of quarters, of 480 pounds each, had been loaded on the vessel, and it was in fact impossible to properly stow in her any greater quantity, and she was entirely unable to carry 138 OCTOBER TERM, 1888. Statement of the Case. the 10,000 quarters, of 480 pounds each; that the respondents wholly failed to comply with the said guarantee; that, in consequence thereof, the libellants were prevented from fulfilling their contract of sale of the 10,000 quarters of corn of 480 pounds each, with special reference to which they had entered into the charter-party; that, afterwards, the libellants, in order to save loss as far as possible, offered the cargo, which was so loaded on the vessel, to the respondents, at the price at which the libellants had sold it, which offer was refused by the respondents; that, all other negotiations for a settlement failing, the libellants were obliged to have the cargo sold, for account of whom it might concern, which was done, at public auction, on the 7th of July, 1883, after notice to the respondents, through De Wolf & Hammond, and advertisement in the newspapers of New Orleans, that being in the opinion of the libellants for the best interests of all parties concerned; that the libellants had performed all their undertakings in the charter-party, but the respondents, and their agents, and the master of the vessel, had not performed the undertakings of the respondents contained in the charter-party; and that the libellants had thereby sustained damages to the amount of more than $24,559^0. The vessel was attached on process, and the respondents appeared and answered the libel. The answer set up, that, shortly after the charter-party was signed, and before any cargo was offered to the vessel, the libellants informed De Wolf & Hammond that their interests and obligations in the charter-party had been transferred to Messrs. E. Forestier & Co.; that the charter-party was delivered back to the agents of the respondents by E. Forestier & Co., and, with the agreement of all parties, was cancelled, and a new charter-party for the vessel was entered into with E. Forestier & Co., as charterers; that the vessel was loaded under such new charter-party, which, in all of its conditions, had been performed on the part of the vessel; that the vessel carried and delivered the 10,000 quarters of grain, according to the guarantee contained in the charter-party with E. Forestier & Co.; and that the libellants had sustained no loss by any act of the respondents. There CULLIFORD v. GOMILA. 139 Statement of the Case. was also a denial of the allegations of the libel that the libellants had performed all the undertakings on their part, in the charter-party with them. The case was tried in the District Court, on proofs taken on both sides, and on the 2d of June 1884, that court entered a decree in favor of the libellants for $9360.97, with 5 per cent interest from June 30th, 1883, until paid, and costs of suit, against the respondents and against Thomas D. Miller and Emile L. Carrière, as sureties in the bond releasing the vessel from attachment. The decision of the District Court is reported as Gomila v. Culliford, 20 Fed. Rep. 734. The respondents and their sureties, and also the libellants, appealed from that decree to the Circuit Court. Further proofs were taken in the Circuit Court and that court, on the 28th of February, 1885, filed its findings of fact and conclusions of law, and rendered a decree in favor of the libellants, against the respondents, and against Miller and Carrière, as such sureties, for $23,993.76 damages, with 5 percent interest from June 30th, 1883, until paid, and costs of suit. The material findings of fact by the Circuit Court were as follows : “First. On the seventh day of June, 1883, Gonfila & Co., who were large grain dealers in the port of New Orleans, entered into the following grain contract : “ ‘ Bought from Gomila & Co., by Messrs. E. Forestier & Co., at the price of (60 cts.) sixty cents per bushel of 56 lbs., on board seller’s vessel, with freight at (6s.) six shillings per quarter, and to be shipped from New Orleans during the month of June, not later than the 30th (midnight), (seller’s option), a cargo of not over 12,000 and not under 10,000 quarters (480 lbs.) of No. 2 mixed corn of the standard of New Orleans inspection. Destination : Elsinore, for orders to Copenhagen or Aarhuns. Any difference in freight for account of seller ; cash on delivery of documents. “‘New Orleans, June 7th, 1883. “ ‘ Gomila & Co? 140 OCTOBER TERM, 1888. Statement of the Case. “ A similar copy was made at the same time, signed 1E. Forestier & Co? “ Second. June 18th, 1883, the steamship Deronda, of which J. H. Culliford was the sole owner, though Culliford & Clark, claimants, were the apparent owners and agents in England, and of which De Wolf & Hammond were the New Orleans agents, arrived in the port of New Orleans with a cargo of salt and fruit. Her agents in New Orleans, Messrs. De Wolf & Hammond, and Gomila & Co., had opened negotiations for a charter on the 16th of June. Gomila & Co., having the contract aforesaid with Forestier & Co., insisted on owner’s guarantee that the Deronda would carry 10,000 quarters of 480 lbs., whereupon the following cable dispatch was sent to Hammond, of De Wolf & Hammond, who was then in Europe and in communication with the claimants: “ ‘June 16th. “ ‘ To W. J. Hammond, Liverpool: “ ‘ Deronda. Are offered 5-6, Copenhagen, Aarhuns, calling at Elsinore for orders. She must be guaranteed to carry not less than 10,000 quarters; charterers to have power of cancelling charter-party if vessel is not ready to load cargo by 25th of June? “ To which dispatch the following reply was sent: “ ‘ June 18th. ‘“Fix Deronda, 5-6, Aarhuns; guarantee 10,000 quarters provided captain agrees quantity; lighterage at charterers’ risk and expense. Try 5-9. “ ‘ W. J. Hammond.’ “Third. On the 18th De Wolf, agent, and the master called on Gomila & Co., and consulted as to whether the Deronda could carry 10,000 quarters of corn, the question relating more to space than to weight. At this consultation calculations were made by Mr. Gomila, of the firm of Gomila & Co., and the master, as to the cargo space of the steamer, from her general plan, and her ability to carry 10,000 quarters of corn, both CULLIFORD v. GOMILA. 141 Statement of the Case. reaching the conclusion that the steamer would be able to carry 10,000 quarters, and Gomila advised the master to so cable owners. A cable message was then made up by the master and De Wolf from Gomila’s code-book, in which the master said, ‘ the vessel will carry 10,000 quarters of grain, if we coal at Halifax.’ After the said message was prepared, Gomila gave, as his reasons for insisting on a guarantee, the aforesaid contract with Forestier & Co., which was produced and read, and Gomila stated that he had no use for any vessel that would not carry 10,000 quarters of grain; that he must have a guarantee, and feared that if the vessel would not carry that amount the consequences would be serious;' that the market had declined and was still declining, and the loss would be very heavy, because the buyer would have the right to reject the cargo if the conditions were not strictly fulfilled. “ The same day the following cable message was sent by ship’s agents: “1 June 18th. “ ‘ To W. J. Hammond, Liverpool: “ ‘ Deronda. Captain’s opinion she can carry 10,000 quarters, coaling Sydney ; have closed, subject to owners’ approval, 5-9, calling at Elsinore for orders Copenhagen, Aarhuns, charterer’s option; Cork or Falmouth for orders, 5-3, to discharge at a safe port in U. K. or Continent Bordeaux to Hamburg. If ordered to IT. K. direct, 3 and from information furnished by Mrs. Johnson. The 380 OCTOBER TERM, 1888. Opinion of the Court. item of $1000 was paid to her by Lycurgus L. Johnson, and repaid to him by cotton from Christian and Stuart, appellees. Credit was indorsed on the note by Mrs. Johnson herself. She told witness he paid it. The item $431.99 was received from Christian and Stuart in cotton, and witness knows she got the money. The $1035 witness paid for Christian and Stuart. In the spring of 1879 the plaintiffs came to witness and asked him to pay for them the balance on their purchase of the land from Robinson. This amount was settlement in full of balance by Major Robinson with plaintiffs for their land. The valuation of the cotton was made by witness with the consent of Robinson and Christian and Stuart. Witness had told Mrs. Johnson that plaintiffs owed a balance of $1035 for the purchase money of lands they had purchased from Major Robinson, and that witness was going to pay it for them. She afterwards sent to witness for the money, and he paid it. Plaintiffs gave witness their note for the amount. Numerous other witnesses sustained the testimony of Robinson and Ford. The appellant only introduced the deposition of his guardian in support of the denials in the answer. Mrs. Johnson denies that she authorized her brother, L. L. Johnson, to transact any business for her with Major Robinson; states that he refused to have anything further to do with the business; that he never acted as her agent as guardian; that she never authorized any one to make a promise to the plaintiffs that their lands should be released from the deed of trust upon paying the price they had agreed to pay for the same; that if her brother, L. L. Johnson, did receive cotton from plaintiffs it was without her knowledge, and that Mr. Ford never paid any money for plaintiffs on account of said loan. Upon this testimony we see no grounds for disturbing the decree of the court below. The denial on the part of Mrs. Johnson of her brother’s agency, owing to her imperfect conception as to what constitutes an agent and to her vague recollection of her own acts, is contradicted by the facts of which she herself testifies, and by the account marked “ Exhibit B, made out under her direction, in which the receipts of the pay- JOHNSON V. CHRISTIAN. 381 Opinion of the Court. ment by cotton of the appellees are set out, the last of which is the item of $1035 cash for balance on demand against Stuart and Christian, thus recognizing the receipts of the cotton and the validity of the preceding payments made to her brother, as her agent, and received by herself. Her denial of his authority to make a promise to the plaintiffs that their land should be released from the deed of trust upon their paying the price they had agreed to pay for the same, is contradicted by her subsequent declaration in these words: “ I did say to my brother that if these men would pay the three thousand dollars they should have a deed, i.e., I agreed to it.” Upon her testimony alone it is clear that every act of Lycurgus L. -Johnson in connection with this transaction, in every stage of its progress, from the loan to Robinson to the payment of the balance of the purchase money due from the appellees, was ratified by her as guardian of appellant. In a single instance she consented to his action as her agent in respect of her guardianship — reluctantly, she says — but nevertheless consented, and ratified it absolutely and without qualification. No act or contract of his w’as disavowed by her to the appellees, with whom as her agent he was dealing, and from whom he was collecting payments in her behalf. Not being notified of revocation of his authority as her agent, they were clearly justified in acting upon the presumption of its continuance. Story on Agency, §§ 90, 93; Hatch v. Cod-dington, 95 U. S. 48; Insurance Co. v. McCain, 96 U. S. 84. Appellant’s counsel contend that the matters set up in the bill could have been pleaded as a defence in the suit of the appellant against them in ejectment, and as there is no averment that appellees were prevented from interposing those matters as a defence, in said action by accident of any kind, or by the fraud of appellant, unmixed with any fault or negligence on their part, the bill should have been dismissed. To this we cannot agree. The principle laid down in the decisions cited in support of the objection is, that a court of equity will not enjoin a judgment at law, unless it is shown f at the complainant was prevented from resorting to a legal defence by fraud or unavoidable accident, without any fault 382 OCTOBER TERM, 1888. Opinion of the Court, or negligence on his part; but that it will do so, if the matters set up in the bill, as a ground of relief, constitute equities unavailable as a defence in the action at law. In the action of ejectment the issue was squarely upon the plaintiff’s legal title,. There is nothing in the case to except it from the general rule, that in the United States courts a recovery in ejectment can be had upon the strict legal title only, and that a court of law will not uphold or enforce an equitable title to land as a defence in such action. Bagnell v. Broderick, 13 Pet. 436, 450; Hooper v. Scheimer, 23 How. 235; Foster v. Mora, 98 U. S. 425; Langdon v. Sherwood, 124 U. S. 74, 85. The facts alleged in appellees’ bill for the purpose of showing their equitable title to the land in dispute, could not be set up by them as a plea in the action of ejectment to defeat the strictly legal title of appellant. It is said that if appellees are obliged to resort to equity to quiet their title, Robinson, their vendor, whose failure to have their payments properly appropriated caused their lands to be sold under the deed of trust previously given by him, should have been made a party to the suit, and called upon to see that the land had been paid for; if not already, that it be paid for now. We think this position untenable. The answer to it is, that the decree which the appellees asked for and which was rendered by the court below, granting them the relief sought for, did not undertake to settle, and did not, in effect, settle any rights or liabilities of Robinson, or of any other person not before the court, as a party to the record. The dealings between Robinson and appellant’s guardian, and the rights and obligations growing out of them, are distinct from the question of title between the parties to this suit, and have no connection with it, except as evidence tending to throw light upon that question. The decree of the court lelow is affirmed. STEWART v. WYOMING RANCHE CO. 3S3 Opinion of the Court. STEWART v. WYOMING CATTLE RANCHE COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA. No. 52. Argued October 31, November 1, 1888. — Decided November 19, 1888. Although silence as to a material fact is not necessarily, as matter of law, equivalent to a false representation, yet concealment or suppression by either party to a contract of sale, with intent to deceive, of a material fact which he is in good faith bound to disclose, is evidence of, and equivalent to, a false representation. Instructions given to a jury upon their coming into court after they have retired to consider their verdict, and not excepted to at the time, cannot be reviewed on error, although counsel were absent when they were given. Affidavits filed in support of a motion for a new trial are no part of the record on error, unless made so by bill of exceptions. The case is stated in the opinion of the court. J/r. John N. Baldwin and Mr. N. M. Hubbard for plaintiff in error. . Jfr. William H. Swift for defendant in error. Mr. Justioe Gray delivered the opinion of the court. The original action was brought by the Wyoming Cattle Ranche Company, a British corporation, having its place of, business at Edinburgh in Scotland, against John T. Stewart, a citizen of Iowa. The petition contained two counts. The first count alleged that in July, 1882, the defendant, owning a herd of cattle in Wyoming Territory, and horses going with that herd, and all branded with the same brand, and also 80 shorthorn bulls, and 700 head of mixed yearlings, offered o sell the same with other personal property for the sum of . 000; and at the same time represented to the plaintiff and its agent, that there had already been branded 2800 calves as 384 OCTOBER TERM, 1888. Opinion of the Court. the increase of the herd for the current season, and that the whole branding of calves and increase of the herd for that season would amount to 4000, and that, exclusive of the branding for that year, the herd consisted of 15,000 head of cattle, and that there were 150 horses running with it and branded with the same brand ; that had the representation that 2800 calves had been branded been true, it was reasonable from that fact to estimate that the whole branding for that year would be 4000 head, and that the whole herd, exclusive of the increase for that year was 15,000 head; that the defendant, when he made these representations, knew that they were false and fraudulent, and made them for the purpose of deceiving the plaintiff and its agent, and of inducing the plaintiff to purchase the herd; and that the plaintiff, relying upon the representations, and believing them to be true, purchased the herd and paid the price. The second count alleged that the defendant had failed to deliver the bulls and yearlings as agreed. At the trial the following facts were proved : The defendant, being the owner of a ranche with such a herd of cattle, gave in writing to one Tait the option to purchase it and them at $400,000, and wrote a letter to Tait describing all the property, and gave him a power of attorney to sell it. He also wrote a letter describing the property to one Majors, a partner of Tait. A provisional agreement for the sale of the property, referring to a prospectus signed at the same time, was made by Tait with the plaintiff in Scotland, a condition of which was that a person to be appointed by the plaintiff should make a favorable report. One Clay was accordingly appointed, and went out to Wyoming and visited the ranche; certain books and schedules made by one Street, the superintendent of the ranche, were laid before him; and he and the defendant rode over the ranche together for several days. Clay testified that, in the course of his interviews with the defendant, the latter made to Him the false representations alleged in the petition, and requested him to rely on these representations, and not to make inquiries from the foreman and other persons; and that, relying on the representations, STEWART v. WYOMING RANCHE CO. 385 Opinion of the Court. he made a favorable report to the plaintiff, which thereupon completed the purchase. The plaintiff also introduced evidence tending to prove the other allegations in the petition. Thé defendant testified that he never made the representations alleged. The jury returned a general verdict for the plaintiff in the sum of $55,000, upon which judgment was rendered, and the defendant sued out this writ of error. No exception was taken to the judge’s instructions to the jury upon the second count. The only exceptions contained in the bill of exceptions avowed by the judge, and relied on at the argument, were to the following instructions given to the jury in answer to the plaintiff’s requests : “14. I am asked by the plaintiff to give a number of instructions, a portion of which I give, and a portion of which I must necessarily decline to give. My attention is called to one matter, however, and as I cannot give the instruction as it is asked for, and as the matter it contains is, as I think, of the first importance, I will state my own views upon that particular point. “I am asked to say to the jury, if they believe from the evidence that, while Clay was making the inspection, Stewart objected to Clay making inquiries about the number of calves branded, of the foremen and other men, and thereby prevented Clay from prosecuting inquiries which might have led to information that less than 2000 calves had been branded, the jury are instructed that such acts on the part of Stewart amount m law to misrepresentations. “ In reference to that point, I feel it my duty to say this to the jury, that if the testimony satisfies you that after all the documents in question that have been introduced in evidence ere went into the hands of the home company in Scotland, where it had its office and where it usually transacted its business, if it was not satisfied with what appears in those papers, and if it did not see proper to base its judgment and action on t e information that those papers contained, but nevertheless sent Clay to Wyoming to investigate the facts and circumstances connected with the transaction, to ascertain the numbei vol. cxxvin—25 386 OCTOBER TERM, 1888. Opinion of the Court. of cattle and the number of horses and the condition of the ranche, and the number of calves that would probably be branded; if the company sent him there as an expert for the purpose of determining all those things for itself and for himself, and relied upon him, and he was to go upon the ranche himself, and exercise his own judgment, and ascertain from that, without reference to any conversation had with Stewart, then it would make no difference. But whilst he was in pursuit of the information for which he went there, Stewart would have no right to throw unreasonable obstacles in his way to prevent his procuring the information that he sought and that he desired. If the testimony satisfies you that when they did go there together, and whilst Clay was making efforts to procure the information which he did, and whilst he was in pursuit of it, and while he was on the right track, Stewart would have no right .to throw him off the scent, so to speak, and prevent him,‘in any fraudulent and improper way, from procuring the information desired, and, if he did that, that itself is making, or equal to making, false and fraudulent representations for the purpose in question. But if Stewart did none of these things, then, of course, what is now said has no application. “ 15. In determining whether Stewart made misrepresentations about the number of cattle^ or the loss upon his herd, or the calf brand of 1882, the jury will take into consideration the documents made by Stewart prior to and upon the sale, namely, the power of attorney to Tait, the descriptive letter, the optional contract, letter to Majors, schedules made by Street, provisional agreement and prospectus, and his statements to Clay, if the jury finds he made any, upon Clays inspection trip; and if the jury find that in any of these statements there were any material misrepresentations on which plaintiff relied, believing the same, which have resulted to the damage of the plaintiff, the plaintiff is entitled to recover for such damage. “ 16. If the jury find from the evidence that Stewart purposely kept silent when he ought to have spoken and inform Clay of material facts, or find that by any language or acts STEWART v. WYOMING RANCHE CO. 387 Opinion of the Court. he intentionally misled Clay about the number of cattle in the herd, or the number of calves branded in the spring of 1882, or by any acts of expression or by silence consciously misled or deceived Clay, or permitted him to be misled or deceived, then the jury will’be justified in finding that Stewart made material misrepresentations; and must find for the plaintiff, if the plaintiff believed and relied upon the representations made by the defendant.” The judge, at the beginning and end of his charge, stated to the jury the substance of the allegations in the’ petition as the only grounds for a recovery in this action; and, at the defendant’s request, fully instructed them upon the general rules of law applicable to actions of this description, and gave, among others, the following instructions: “ 5. In order to recover on the ground of false representations, such false representations must be shown to be of a then existing matter of fact material to the transaction; and no expression of opinion or judgment or estimation, not involving the assertion of an unconditional fact, can constitute actionable false representation, and in such case the jury must find for the defendant on the first count in the petition.” “8. In order to justify a recovery, it must be shown by proof that the plaintiff’s agent relied upon the alleged false representations, and made them the ground and basis of his report, but that he was so circumstanced as to justify him in so relying upon and placing confidence in said representations; and if it appears that he had other knowledge, or had received other representations and statements, conflicting therewith, sufficient to raise reasonable doubts as to the correctness of such representations, then there can be no recovery on the first count.” The judge, of his own motion, further instructed the jury that they were to decide upon the comparative weight of the conflicting testimony of Clay and of the defendant, and added, It seems to me that the first count must hinge upon that one point, because, if there was no statement made by Stewart to ay with reference to the number of calves that were branded, uring this trip of inspection of the ranche, then it seems to 388 OCTOBER TERM, 1888. Opinion of the Court. me that the whole theory which underlies the claim of the plaintiff must be an erroneous one.” Taking all the instructions together, we are of opinion that they conform to the well settled law, and that there is no ground for supposing that the jury can have been misled by any of the instructions excepted to. In an action of deceit, it is true that silence as to a material fact is not necessarily, as matter of law, equivalent to a false representation. But mere silence is quite different from concealment ; aliud est tacere, aliud celare j a suppression of the truth may amount to a suggestion of falsehood; and if, with intent to deceive, either party* to a contract of sale conceals or suppresses a material fact, which he is in good faith bound to disclose, this is evidence of and equivalent to a false representation, because the concealment or suppression is in effect a representation that what is disclosed is the whole truth. The gist of the action is fraudulently producing a false impression upon the mind of the other party; and if this result is accomplished, it is unimportant whether the means of accomplishing it are words or acts of the defendant, or his concealment or suppression of material facts not equally within the knowledge or reach of the plaintiff. The case of Laidlaw v. Organ, 2 Wheat. 178, is much in point. In an action by the buyer of tobacco against the sellers to recover possession of it, there was evidence that before the sale the buyer, upon being asked by Girault, one of the sellers, whether there was any news which was calculated to enhance its price or value, was silent, although he had received news, which the seller had not, of the Treaty of Ghent. The court below, “there being no evidence that the plaintiff had asserted or suggested anything to the said Girault, calculated to impose upon him with respect to the said news, and to induce him to think or believe that it did not exist,” directed a verdict for the plaintiff. Upon a bill of exceptions to that direction, this court, in an opinion delivered by Chief Justice Marshall, held that while it could not be laid down, as a matter of law, that the intelligence of extrinsic circumstances which might influence the price of the commodity, and whic STEWART v. WYOMING RANCHE CO. 389 Opinion of the Court. was exclusively within the knowledge of the vendee, ought to have been communicated by him to the vendor, yet, at the same time, each party must take care not to say or do anything tending to impose upon the other, and that the absolute instruction of the judge was erroneous, and the question whether any imposition was practised by the vendee upon the vendor ought to have been submitted to the jury. The instructions excepted to in the case at bar clearly affirmed the same rule. The words and conduct relied on as amounting to false representations were those of the seller of a large herd of cattle ranging over an extensive territory, and related to the number of the herd itself, of which he had full knowledge, or means of information, not readily accessible to a purchaser coming from abroad ; and the plaintiff introduced evidence tending to show that the defendant, while going over the ranche with the plaintiff’s agent, made positive false representations as to the number of calves branded during the year, and also fraudulently prevented him from procuring other information as to the number of calves and consequently as to the number of cattle on the ranche. In giving the fourteenth instruction, the judge expressly declined to say, that if the defendant prevented the plaintiff’s agent from prosecuting inquiries which might have led to information that less than 2000 calves had been branded, such acts of the defendant would amount in law to misrepresentar lions ; but on the contrary submitted to the jury the question whether the defendant fraudulently and improperly prevented the plaintiff’s agent from procuring the information demanded ; and only instructed them that if he did, that was making, or equal to making, false and fraudulent representations for the purpose in question. So the clear meaning of the sixteenth instruction is, that the jury were not authorized to find material misrepresentations by the defendant, unless he purposely kept silent as to material facts which it was his duty to disclose, or by language or acts purposely misled the plaintiff’s agent about the number of cattle in the herd or the number of calves branded, vr, by words or silence, knowingly misled or deceived him, or 390 OCTOBER TERM, 1888. Opinion of the Court. knowingly permitted him to be misled or deceived, in regard to such material facts, and in one of these ways purposely produced a false impression upon his mind. The defendant objects to the fifteenth instruction, that the judge submitted to the jury the question whether the defendant made misrepresentations about the number of cattle, and about the loss upon the herd, as well as about the calf brand of 1882. It is true that the principal matter upon which the testimony was conflicting was whether the defendant did make the representation that 2800 calves had been branded in that year. But the chief importance of that misrepresentation, if made, was that it went to show that the herd of cattle which produced the calves was less numerous than the defendant had represented; and the petition alleged that the defendant made false and fraudulent representations, both as to the number of calves branded and as to the number of the whole herd. So evidence of the loss of cattle by death, beyond what had been represented by the defendant, tended to show that the herd was less in number than he represented. The remaining objection argued is to an instruction given by the judge to the jury in response to a question asked by them upon coming into court after they had retired to consider their verdict. It is a conclusive answer to this objection, that no exception was taken to this instruction at the time it was given, or before the verdict was returned. The fact that neither of the counsel was then present affords no excuse. Affidavits filed in support of a motion for a new trial are no part of the record on error, unless made so by bill of exceptions. The absence of counsel, while the court is in session, at any time between the impanelling of the jury and the return of the verdict, cannot limit the power and duty of the judge to instruct the jury in open court on the law of the case as occasion may require, nor dispense with the necessity of seasonably excepting to his rulings and instructions, nor give jurisdiction to a court of error to decide questions not appearing of record. Judgment affirmed, COGSWELL v. FORDYCE. 391 Statement of the Case. COGSWELL v. FORDYCE. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. No. 63. Submitted November 2,1888. — Decided November 19, 1888. An action upon a bond given to supersede a judgment or decree of a court of the United States is not a “ case brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States,” so as to give this court jurisdiction of it in error or on appeal under the fourth subdivision of Rev. Stat., § 699, “without regard to the sum or value in dispute.” As the matter in dispute in this case, exclusive of costs, does not exceed the sum or value of $5000, the writ of error is dismissed. Samuel W. Fordyce recovered in the Circuit Court of the United States for the Eastern District of Arkansas, December 7,1882, a judgment in ejectment against Thomas J. Cogswell and Anna M. Cogswell. From that judgment the latter prayed an appeal to this court, executing with J. L. Goodbar, as surety, a bond in the penalty of $3600, conditioned that the principal obligors would prosecute their appeal with effect or, failing therein, pay all such costs and damages as the obligee sustained by reason of the wrongful detention of the property sued for. The obligors having failed to prosecute their appeal, the present suit was brought, February 24, 1885, upon said bond, to recover the sum of $3600, as the damages sustained by reason of the detention of the property from the plaintiff in the ejectment suit. A demurrer to the complaint having been overruled, the defendants .filed an answer. The parties consenting thereto in writing, the case was tried by the court without the intervention of a jury, and judgment rendered June 20, 1885, in avor of the plaintiff for the sum of $2400. The defendants thereupon sued out this writ of error. 392 OCTOBER TERM, 1888. Opinion of the Court. Mr. Samuel Shelldbarger and Mr. Jeremiah M. Wilson, for plaintiffs in error, submitted on their brief. Mr. Casey Young and Mr. John D. Martin also filed a brief for plaintiffs in error. No appearance for defendant in error. Mr. Justice Harlan delivered the opinion of the court. After stating the facts as above reported, he continued: This court cannot take cognizance of this case. The matter in dispute, exclusive of costs, does not exceed the sum or value of $5000. Rev. Stat., 690, 691; Act of February 16,1875, c. 77, §§ 3, 4, 18 Stat. 315; Richardson’s Suppl. Rev. Stat. 136. It was, perhaps, supposed that our jurisdiction could be sustained under the fourth subdivision of § 699 of the Revised Statutes, providing that this court may, without regard to the sum or value in dispute, review any final judgment at law or final decree in equity of any Circuit Court or of any District Court acting as a Circuit Court, “ in any case brought on account of the deprivation of any right, privilege, or immunity' secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States.” But an action upon a bond given to supersede a judgment or decree of a court of the United States, cannot properly be said to have been brought on any such account. The mere failure or refusal of the obligors in such a bond to comply with its terms is not, within the meaning of the statute referred to, a “ deprivation ” of a right secured to the obligee by the Constitution of the United States, or of any right or privilege belonging to him, as a citizen of the United States. See Bow-man v. Chicago <& Northwestern Railway Co., 115 tl. b. oi , 615. The writ of error is dismissed. The writ of error is dismissed. UNITED STATES v. DeWALT. 393 Opinion of the Court. UNITED STATES v. DeWALT. APPEAL FROM THE FIRST JUDICIAL DISTRICT COURT OF THE TERRITORY OF WYOMING. No. 81. Argued November 15, 1888. — Decided November 19,1888. On the authority of Mackin v. United States, 117 U. S. 348, it is again held that imprisonment in a state prison or penitentiary, with or without hard labor, is an infamous punishment. This was an appeal from a judgment on an application for a writ of habeas corpus, discharging the prisoner. The case is stated in the opinion of the court. Mr. Solicitor General for appellant. No appearance for appellee. Mr. Chief Justice Fuller delivered the opinion of the court. DeWalt, the appellee, was tried and convicted, upon an information of the crime of embezzlement and making false entries as the president of a national bank, in violation of § 5209 of the Revised Statutes, and sentenced and committed to the penitentiary for ten years. This section prescribes the punishment of imprisonment for not less than five nor more than ten years, which imprisonment may be ordered to be executed in a state jail or penitentiary. Bev. Stat. § 5541. Appellee was subsequently discharged on habeas corpus upon the ground that the crime in question was an infamous crime, for which he could not, under the Constitution, be held to answer on information, but only on presentment or indictment by a grand jury. From the order discharging him this appeal is prosecuted, and it is contended that a crime is not infamous which is not subject to the penalty of hard labor as part of the punishment of imprisonment. This, however, was otherwise ruled in biackin n. United States, 117 U. S. 348, 352, where this court held, speaking 394 OCTOBER TERM, 1888. Opinion of the Court. through Mr. Justice Gray, “that at the present day imprisonment in a state prison or penitentiary, with or without hard labor, is an infamous punishment.” That case is decisive of this, and the order appealed from must be Affirmed. PACIFIC POSTAL TELEGRAPH CABLE COMPANY v. O’CONNOR. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 1282. Submitted November 12, 1888. — Decided November 19, 1888. A remittitur, in a judgment on a verdict, of all sums in excess of $5000, made on the day following entr> of the judgment, on motion of plaintiff’s counsel, in the absence of defendant or his counsel, is no abuse of the discretion of the court. Motion to dismiss for want of jurisdiction. The case is stated in the opinion. Air. D. AL Delmas for the motion. ALr. Andrew Wesley Kent opposing. Mr. Chief Justice Fuller delivered the opinion of the court. This was an action to recover damages for personal injuries, which resulted, August 29th, 1888, in a verdict for $5500. Upon the return of the verdict the court directed, as minuted by the clerk, judgment to be entered thereon. On the 30th day of August the plaintiff below, by his counsel, asked leave tn open court to remit the sum of $500, which was granted, and judgment rendered for $5000 and costs, “and now so appears of record.” Subsequently the defendant below moved to set aside t e allowance of the remittitur and to correct- the judgment, which motion was denied by the court, and defendant ex CLARK v. PENNSYLVANIA. 395 Counsel for Plaintiff in Error. cepted, and by bill of exceptions brought the court’s direction to the clerk of August 29th into the record, and the fact that the judgment of August 30th was rendered in the absence of defendant and his counsel. A writ of error having been subsequently prosecuted to reverse the judgment, defendant in error moves to dismiss it for want of jurisdiction? We cannot hold upon this record the action of the Circuit Court to have been in abuse of its discretion, and as the judgment as it stands is for $5000 only, the motion to dismiss must be granted. Ala. Gold Life Ins. Co. v. Nichols, 109 U. S. 232; First Nat. Bank, of Omaha n. Redick, 110 U. S. 224; Thompson v. Butler, 95 U.- S. 694. Writ of error dismissed. CLARK v. COMMONWEALTH OF PENNSYLVANIA. SAME v. SAME. EEROR TO THE COURT OF QUARTER SESSION'S OF THE PEACE FOR THE COUNTY OF ALLEGHANY, STATE OF PENNSYLVANIA. Nos. 1189, 1190. Argued November 5, 1888. — Decided November 19, 1888. The petition for a writ of error forms no part of the record of the court below. In error to a state court, to review one of its ‘judgments, this court acts only upon the record of the court below, and, in order to give this court jurisdiction it is essential that the record should disclose, not only that the alleged right, privilege or immunity, was set up and claimed in the court below, but that the decision of that court was against the right so set up or claimed. hese records do not disclose whether the refusal of the court below to give the instructions requested amounted to a denial of the claim of the plaintiff in error to immunity, and the writs of error are therefore dismissed. The case is stated in the opinion of the court. ^r- W. L. Bird for plaintiff in error. 39fi OCTOBER TERM, 1888. Opinion of the Court. Mr. W. D. Porter for defendant in error submitted on his brief. Mr. Chief Justice Fuller delivered the opinion of the court. In the first of the above cases, Clark, the plaintiff in error, was indicted with others in the Court *of Quarter Sessions of Alleghany County, Pennsylvania, on the 29th of June, 1888, for selling spirituous liquor on Sunday, contrary to the form of the act of the General Assembly of Pennsylvania in such case made and provided, and upon trial was convicted and sentenced to pay a fine of $200 and to be imprisoned for sixty days, to take effect on the expiration of the sentence in the second case here, which was the first below. In the second case it appears that Clark and others were also indicted for that they “ unlawfully did keep and maintain a house, room and place where vinous, spirituous, malt and brewed liquors, and admixtures thereof, were sold by retail, without having first obtained a license agreeably to law for that purpose; ” and the indictment contained a further count that they “ unlawfully did sell and offer for sale vinous, spirituous, malt and brewed liquors, and admixtures thereof, without having first obtained a license agreeably to law for that purpose.” Upon this indictment a trial was had, resulting in the conviction of Clark, and he was sentenced to pay a fine of $500 and to be imprisoned in the county jail for three months. Clark then applied in each case to one of the judges of the Supreme Court of Pennsylvania for a writ of error to the Court of Quarter Sessions, which was denied, and as Clark could go no farther, the judgments of the latter court may be considered final for the purposes of the writs of error granted in these cases. In the petitions for the writs it is stated that plaintiff in error was the part owner and captain of a steamboat actually engaged in navigating the Ohio, Monongahela and Alleghany rivers as a passenger vessel, and as such duly licensed and enrolled under the laws of the United States, and that petitioner had complied with all of the laws of the United States in regar CLARK v. PENNSYLVANIA. 397 Opinion of the Court. to steam vessels, including the payment of a revenue tax for the purpose of selling liquor on said steamboat; and it is averred that by these judgments petitioner is denied “the rights and privileges secured by the Constitution of the United States.” These matters are repeated in the briefs, and it is argued on behalf of Clark that he was entitled under the commerce clause of the Constitution to immunity from the laws of Pennsylvania requiring a license for the sale of liquors, and forbidding such sale on Sunday. The evidence upon which the plaintiff in error was convicted is not made a part of the record, nor what it tended to establish anywhere therein stated. Certain instructions, which were requested to be given to the jury and which were refused by the Court of Quarter Sessions, appear and seem to have been asked with the view of raising the question suggested, but whether the action of the court actually involved the point can only be determined upon a record embracing sufficient of what passed upon the trial to show that it necessarily did so. We act only upon the record of the court below, and of that record the petitions for the writs of error form no part. Warfield v. Chajfe, 91 U. S. j690. And see Susquehanna Boom Co. v. West Branch Boom Co., 110 U. S. 57. It is essential that the record should disclose not only that the alleged right, privilege, or immunity was specially set up and claimed in the court below, but that the decision of that court was against the right so set up or claimed. In the absence of anything in these records to show that the instructions requested were based upon evidence and could have been properly given if Clark wrere right in his claim of immunity, we cannot tell whether or not the refusal to give them amounted to a ruling in denial of such claim. The writs of error must he dismissed. 398 OCTOBER TERM, 1888. Statement of the Case. UNITED STATES v. REISINGER. CERTIFICATE OF DIVISION OF OPINION FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA. No. 59. Submitted November 1, 1888. — Decided November 19,1888. Section 13 of the Revised Statutes, which enacts that “ the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability,” clearly excepts from the operation of c. 181, § 1 of the act of July 4,1884, 23 Stat. 98, 99, repealing the act of June 20, 1878, “relating to claim agents and attorneys in pension cases,” 20 Stat. 243, c. 367, all offences committed before the passage of that repealing act. The words “penalty,” “liability” and “forfeiture,” as used in Rev. Stat., § 13, are synonymous with the word “ punishment,” in connection with crimes of the highest grade, and apply to offences against the act of June 20, 1878, 20 Stat. 243, c. 367, relating to claim agents and attorneys in pension cases. This case came before the court on the following certificate of division in opinion between the judges of the Circuit Court: “ In the Circuit Court of the United States, Western District of Pennsylvania. u The United States j v. >• No. 1. May Term, 1885. Roe Reisinger. ) “ At a Circuit Court of the United States, held at the city of Pittsburg, for the Western District of Pennsylvania, on the 5th day of August, 1885, before the Hon. William McKennan and Hon. M. W. Acheson, judges, this cause came on to be heard, and was argued by counsel; and on the hearing, a question occurring, upon which the judges were divided in opinion, upon the request and motion of the United States, by its district attorney and counsel, Wm. A. Stone, Esq., the point upon which the judges disagreed is now (during the same term) by UNITED STATES v. REISINGER. 399 Statement of the Case. them hereinafter stated, to the end that the same may be certified to the Supreme Court at their next session for final decision. “ Section 13 of the Revised Statutes is as follows: ‘ The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.’ “ By the act of Congress entitled ‘ An act relating to claim agents and attorneys in pension cases’ approved June 20th, 1878, 20 Stat. 243, c. 367, it is enacted: If ‘ It shall be unlawful for any attorney, agent, or other person, to demand or receive for his services in a pension case a greater sum than ten dollars.’ “And by the act of Congress approved March 3d, 1881, 21 Stat. 408, Richardson Suppl’t Rev. Stat. 386, it is enacted as follows: “ ‘ And the provisions of Section 5485 of the Revised Statutes shall be applicable to any person who shall violate the provisions of an act entitled “ An act relating to claim agents and attorneys in pension cases,” approved June 20th, 1878.’ “ Said § 5485 is as follows: “ ‘ Any agent or attorney, or any other person instrumental in prosecuting any claim for pension or bounty land, who shall directly or indirectly contract for, demand, or receive or retain any greater compensation for his services, or instrumentality in prosecuting a claim for pension or bounty land, than is provided in the Title pertaining to pensions or who shall wrongfully withhold from a pensioner or claimant the whole or any part of a pension or claim allowed and due such pensioner or claimant, or the land warrant issiied to any such claimant, shall be deemed guilty of a high misdemeanor, and upon conviction thereof shall for every such offence be fined not exceeding five hundred dollars or imprisonment at hard abor not exceeding two years, or both, at the discretion of the court.’ 400 OCTOBER TERM, 1888. Statement of the Case. “ By the act of Congress approved July 4th, 1884,23 Stat. 98, o. 181, § 1, it is {inter alia) enacted, ‘ That the act entitled “An act relating to claim agents and attorneys in pension cases,” approved June 20th, 1878, is hereby repealed: Provided, however, that the rights of the parties shall not be abridged or affected as to contracts in pending cases, as provided for in said act; but such contracts shall be deemed to be and remain in full force and virtue, and shall be recognized as contemplated by said act.’ “ In this state of the law, on the 14th day of April, 1885, an indictment was found in this case against the defendant, Roe Reisinger, charging him with having violated the said act of Congress entitled ‘ An act relating to claim agents and attorneys in pension cases,’ approved June 20th, 1878, in that, on the 8th day of January, 1883, at the county of Crawford, in the district aforesaid, being the agent, attorney, and person instrumental in prosecuting a claim for pension for one Samuel Dixon, he did receive for his services in that behalf a greater sum than is provided in and by said act, to wit, the sum of $100; and also in that on the first day of January, 1883, at the county and district aforesaid, being the agent, attorney, and person instrumental in prosecuting a claim for pension for one Elijah O’Daniels, he did receive for his services in that behalf a greater sum than is provided in and by said act, to wit, the sum of $50. “To which indictment the defendant did demur, on the ground that the statute creating the offence set forth in the indictment and fixing a punishment therefor had been repealed without saving the right to the United States to prosecute for offences committed in violation of said act prior to the repeal of the same. And the government joining in said demurrer, it occurred as a question whether the defendant could be legally convicted and punished under the said indictment and the acts of Congress aforesaid, the said recited act of June 20th, 1878, entitled ‘ An act relating to claim agents and attorneys in pension cases,’ having been expressly repealed by the act of July 4th, 1884, without any saving clause or reservation of the right to prosecute or punish for offences UNITED STATES v. REISINGER. 401 Opinion of the Court. in violation of said act of June 20th, 1878, committed prior to the repeal thereof. “ Upon which question the undersigned judges are divided in opinion; and upon the request of the United States, by its district attorney and counsel, they make the foregoing statement and execute this certificate; and it is ordered that the same, together with a copy of the record and proceedings in the cause, be certified under the seal of the court to the Supreme Court at their next session, according to law.” Mr. Solicitor General for plaintiffs in error. No appearance for defendant in error. Mr. Justice Lamar, after stating the facts as above reported, delivered the opinion of the court. It is conceded that, under the general principles of the common law, the repeal of a penal statute operates as a remission of all penalties for violations of it committed before its repeal, and a release from prosecution therefor after said repeal, unless there be either a clause in the repealing statute, or a provision of some other statute, expressly authorizing such prosecution. In this case the court is of the opinion that § 13, Rev. Stat., contains such provision. It reads as follows: “ The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.” This section, we think, clearly excepts offences committed before the passage of the repealing act of 1884. To show this, it is only necessary to read the act of 1884 in connection with § 13, Rev. Stat., as one act. It would then read substantially as follows: “ Be it enacted, etc., That the act entitled ‘ An act relating to claim agents and attorneys in pension cases,’approved June 20, 1878, is hereby repealed: Provided, that said repeal shall not have the effect to release or extin- vol. cxxvni—26 402 OCTOBER TERM, 1888. Opinion of the Court. guish any penalty, forfeiture, or liability incurred thereunder, and that the same shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty or liability.” The only ground upon which the correctness of this interpretation may be doubted is, that the words “penalty,” “liability,” and “ forfeiture ” do not apply to crimes, and the punishments therefor, such as we are now considering. We cannot assent to this. These words have been used by the great masters of crown law and the elementary writers as synonymous with the word “ punishment,” in connection with crimes of the highest grade. Thus, Blackstone speaks of criminal law as that “ branch of jurisprudence which teaches of the nature, extent, and degrees of every crime, and adjusts to it its adequate and necessary penalty.” Alluding to the importance of this department of legal science, he says: “ The enacting of penalties to which a whole nation shall be subject should be calmly and maturely considered.” Referring to the unwise policy of inflicting capital punishment for certain comparatively slight offences, he speaks of them as “ these outrageous penalties,” and repeatedly refers to laws that inflict the “ penalty of death.” He refers to other acts prescribing certain punishments for treason as “ acts of pains and penalties.” That the legislature intended that this 13th section should apply to all offences is shown by § 5598, Rev. Stat., under the title of “ Repealed Provisions,” which is as follows: “ All offences committed and all penalties or forfeitures incurred under any statute embraced in said revision prior to said repeal, may be prosecuted and punished in the same manner and with the same effect as if said repeal had not been made.” It was the obvious intention of § 13, Rev. Stat., to extend this provision to the repeal of any statute not embraced in such revision. The views we have expressed find support in the case ot United States v. Ulriei, 3 Dillon, 532, 534, which was an indictment for conspiring to defraud the government of internal revenue taxes. It became necessary there to determine the meaning of the words “ penalty,” “ forfeiture,” “ liability,” and “ prose- BROWN v. GUARANTEE TRUST CO. 403 Syllabus. cution,” in § 13 of the Revised Statutes. The court, speaking by Mr. Justice Miller, said: “ But, without attempting to go into a precise technical definition of each of these words, it is my opinion that they were used by Congress to include all forms of punishment for crime; and, as strong evidence of this view, I found, during the progress of the argument, and called the attention of the counsel to a section, which prescribed fine and imprisonment for two years, wherein Congress nsed the words: ‘ Shall be liable to a penalty of not less than one thousand dollars, . . . and to imprisonment not more than two years.’ Moreover, any man using common language might say, and very properly, that Congress had subjected a party to a liability, and, if asked what liability, might reply, a liability to be imprisoned. This is a very general use of language, and surely it would not be understood as denoting a civil proceeding. I think, therefore, that this word ■ liability ’ is intended to cover every form of punishment to which a man subjects himself, by violating the common laws of the country. Besides, as my brother Treat reminds me, the word ‘ prosecution ’ is used in this section, and that usually denotes a criminal proceeding.” For the reasons we have given, the question presented by the certificate is answered in the affirmative. BROWN v. GUARANTEE TRUST AND SAFE DEPOSIT COMPANY. appeal from the circuit court of the united states fob THE NORTHERN DISTRICT OF ILLINOIS. No. 20. Submitted April 25,1888. — Decided November 19,1888. t is not indispensable that all the parties to a suit in equity should have an interest in all the matters contained in the suit; it will be sufficient, in order to avoid the objection of multifariousness, if each party has an interest in some material matters in the suit, and they are connected with the others. 404 OCTOBER TERM, 1888. Statement of the Case. To support the objection of multifariousness to a bill in equity, because the bill contains different causes of suit against the same person, two things must concur: first, the grounds of suit must be different; second, each ground must be sufficient, as stated, to sustain a bill. Testing the bill in this case by these principles, it is Held not to be multifarious. Time is not of the essence of a contract for the sale of property, unless made so by express stipulation, or unless it maybe implied to be so from the nature of the property, or from the character of the interest bargained, or from the avowed object of the seller or of the purchaser. Applying these principles to the contract which forms the subject-matter of this suit; Held, that time was not of its essence. In equity. This litigation arose from a creditor’s bill, filed in one of the courts of Illinois, by Edward R. Knowlton against the City of Joliet Water Works Company, Jesse W. Starr and Harriet Brown, for the enforcement of a judgment against the first-named two defendants; for the appointment of a receiver of the property used by that company in its business; and for an accounting* with the remaining defendant, Harriet Brown, who, it was alleged-, asserted a vendor’s lien upon some of the property of the Water Works Company, sold by her to Starr, and by him to that company. The Guarantee Trust and Safe Deposit Company, a corporation of Pennsylvania, being made a defendant, the cause, upon its motion, was removed to the United States Circuit Court for the Northern District of Illinois, upon the ground of the diverse citizenship of the parties. Subsequently that company filed its cross-bill for a foreclosure of a mortgage held by it upon the property of the Water Works Company, and for specific performance by Harriet Brown of her contract of sale to Starr. The cross-bill alleged, in substance, that by certain instruments in writing, bearing date, respectively, the 15th and 17th of June, and the 9th of October, 1880, Starr undertook with the city of Joliet to construct and maintain a system of water works for that city and its citizens, in consideration of which it agreed to grant to him and his successors certain franchises, rights and rentals connected therewith; that on the 4th of October, 1880, he entered into a written agreement with BROWN v. GUARANTEE TRUST CO. 405 Statement of the Case. Harriet Brown, by which, in consideration of $1000 to be paid to her, she agreed to convey to him a certain parcel of land in Joliet; that subsequently he entered into a verbal agreement with her for the purchase of other parcels of land, making, in all, 9.60 acres, for which he was to pay a total price of $4800; that on the 10th of December thereafter, Mrs. Brown, by warranty deed, conveyed all of said parcels to Starr, placing the deed in the hands of one Hobbs, for delivery to Starr, upon the payment of the balance of the purchase money; and that on the 3d of November Starr paid to her, on that purchase, the sum of $500, and on the 17th of February, 1881, the further sum of $1000. It was also alleged, in the cross-bill, that immediately after said agreements, and with full knowledge and consent of Mrs. Brown, Starr took actual and open possession of all the premises so purchased, and immediately began to make permanent and expensive improvements thereon for water works purposes ; that he and his assignee, hereinafter mentioned, continued to make such improvements at a cost of about $50,000, and remained in uninterrupted possession of the premises until they were delivered to the receiver appointed in this litigation ; all this within the daily sight of Mrs. Brown, and without objection or molestation on her part; that to supplement his individual resources, which were insufficient to carry out his agreement with the city, Starr resorted to the plan of creating a corporation under the local laws of the State, and by means of its negotiable bonds and stocks raising money sufficient to complete said water works; and that to accomplish this purpose The City of Joliet Water Works Company was organized, with a capital stock of $200,000, of which amount Starr subscribed for $195,000 in his individual name. It is further alleged in the cross-bill, that immediately upon the organization of that corporation, and on the 9th of December, 1880, Starr conveyed to it and its assigns his contracts with the city of Joliet, as well as the rights, franchised and property, real and personal, connected therewith, including the property purchased from Mrs. Brown, and agreed with the company to complete the system of water works contem- 406 OCTOBER TERM, 1888. Statement of the Case. plated by his contract with the city, and deliver them to the company within a reasonable time; that by the agreement last mentioned the company, Starr being a director and the principal manager, as well as the subscriber for all of its capital stock except $5000, agreed to credit him forthwith with $195,000 on his subscription to its capital stock, and to deliver to him its bonds to the amount of $140,000, par value, and also to secure their payment by executing to the complainant in the cross-bill a mortgage upon all the property, rights and franchises then owned, or thereafter to be acquired by it; that said bonds were accordingly delivered to Starr, and the mortgage was duly executed to the complainant in the cross-bill; that after getting the bonds in his hands he forthwith placed them upon the market, and they are now held by a large number of persons and corporations; that the Water Works Company has made default in the payment of the interest coupons due on said bonds, and for more than four calendar months has continued to make default; and that, in obedience to the request made to it, according to the terms of the mortgage, by a majority in interest of the holders of bonds, the complainant in the cross-bill, as trustee, files its cross-bill for foreclosure. The bill still further avers that, in consequence of the assignment of Starr to the Water Works Company and the execution of said mortgage, the trustee was invested with the right, upon the payment of the purchase money due to Mrs. Brown, with interest thereon, to demand of her a specific performance of her agreement with Starr; that, as such mortgagee, the Guarantee Trust and Safe Deposit Company has always been willing to perform the agreement of Starr and to pay his vendor the residue of the purchase money due to her, with interest, on having a proper deed of conveyance, and is still ready and offers to pay the said residue; and that the WaterWorks Company is hopelessly insolvent, having no property, except that covered by the mortgage. The bill prays for a foreclosure and sale; that the proceeds thereof, after paying certain fees and current expenses, may be distributed in payment of said bonds and coupons; that an account may be taken of the amount due on account of the purchase money BROWN v. GUARANTEE TRUST CO. 407 Statement of the Case. due to Mrs. Brown from Starr; and that she be decreed to specifically perform her agreements to convey, so that said mortgage shall be a valid and first lien on the property. Mrs. Brown filed a demurrer to the amended cross-bill, alleging specifically that the same was multifarious. This demurrer having been overruled, she thereupon answered, averring her ignorance of the contracts between Starr and the city; admitting the entering into the written contract with Starr, but alleging that it was thereafter wholly and completely abandoned by him, and that neither he nor any person or corporation had ever offered or claimed the right to carry out that contract; admitting that he afterwards verbally negotiated for the purchase of a larger tract of land, but alleging that said negotiation, as a contract, w’as void, under the statute of frauds; that by its terms the payment of the entire purchase price was a condition precedent to the vesting in him of any title whatever; that the possession and the improvements were made without her consent, express or implied, and with his eyes open, and that she is entitled to the whole, augmented in value as it is by the improvements ; that she had made a great many efforts to secure the balance of the purchase money due from Starr, but had been unsuccessful ; that the negotiation and transaction, so far as he and those claiming under him or acting with him were concerned, had been a fraud upon her; that by reason of such failure on his part, and that of his successors and assigns, to comply with the terms of her contract with him, it had become broken, and was void; and that the amended cross-bill was multifarious ; and praying the same benefit of her answer as if she had specifically demurred to the bill. To this answer a replication was filed. Pursuant to a decree of the court on the 31st of March, 1883, upon the petition of John D. Paige, receiver, all the property and effects of the Water Works Company which it obtained from Starr, and all the rights accruing to it by virtue of the contract with Mrs. Brown, were sold, and bought by Joseph H. Foster, of Portsmouth, N. H. On June 9th, 1883, a decree of foreclosure was entered upon the cross-bill against the fund realized by the sale. 408 OCTOBER TERM, 1888. Argument for Appellants. After some other proceedings, not necessary to be stated, a further decree was entered, August 12th, 1883, adjudging that there was justly due to Harriet Brown, on account of said purchase money of the premises sold to Starr, including interest, the sum of $3964, and that her said agreement with Starr be performed and carried into execution. From this decree Mrs. Brown prayed and perfected the appeal which brought her case here. J/r. Charles A. Dupee and J/k ALonroe L. Willard for appellants. I. The cross-bill was multifarious. The right to specific performance against Mrs. Brown was a question entirely distinct from any which could or did arise in the foreclosure of the mortgage. She was in no way interested in any of the questions between the mortgagee and mortgagor, or those claiming under it. That this is so, and that Mrs. Brown was not a necessary party, the proceedings in the case demonstrate. The property was sold by the master April 28, 1883, but, by express order of the court, only such rights and interests in the real estate as belonged to the Water Works Company and those claiming under it were so sold. On June 9, 1883, a decree of foreclosure was rendered, purporting to be upon the cross-bill and the several answers thereto, but in no way adjudicating the questions relating to Mrs. Brown. And these questions remained unadjudicated until August following. If Mrs. Brown w7as a necessary party, her rights should have been passed upon before any sale was made of the land. But they were not until some time after the final decree of foreclosure. We see no reason in principle, or in the proceedings in fact had, why Mrs. Brown’s case should have been mixed up with the foreclosure; why the mortgagee should not, if it had a right to enforce Starr’s contracts, have filed an original bill for that purpose. Such a bill could have been speeded as rapidly as the same questions in the foreclosure case. If it had no such right, then the decree in question should be reversed. 1 Daniell’s Ch. Pl. and BROWN v. GUARANTEE TRUST CO. 409 Argument for Appellants. Pr. 339, c. 6, § 4; Story’s Eq. Pl. § 272 ; Dial v. Reynolds, 96 U. S. 340. II. The right and title claimed by appellant were adverse and paramount, or at least prior to the interests of both mortgagor and mortgagee, and therefore appellant was not a proper party to the cross-bill. The controversy in a foreclosure suit is not concerning claims of title paramount to the mortgagor, or adverse to him. It is a question regarding the validity of the mortgage and its amount. The object of the proceeding is to bar the equity of redemption of the person giving the mortgage, and those who have acquired rights under him inferior to the mortgage, and to convey to the purchaser under the decree the title mortgaged. It is not to give a perfect title, or to give him any better title than the mortgagor had, or even to determine whether he had any title at all. If it is proper to try title in a foreclosure suit, conversely it would be proper to try a foreclosure suit in an action to recover land. It would be immaterial whether it was the holder of the adverse title or the mortgagee who went forward. But “ one suit cannot thus be injected into another.” Peters v. Bowman, 98 U. S. 56, 60; Jones on Mortgages, §§ 1439, 1440, 1445. On the same principle, in a suit to foreclose a mortgage, made of land for the conveyance of which to him the mortgagor holds a bond, the vendor is not a proper party. He cannot be affected by the decree. Pridgen v. Andrews, 1 Texas, 461; Dial v. Reynolds, 96 U. S. 340 ; Chapman n. West, 17 H. Y. 125 ; Tasker v. Small, 3 Myl. & Or. 63. III. The evidence did not sustain the right to a decree for specific performance. It is unnecessary to cite authorities for the well-known principles of law applicable to the rights of a suitor for specific performance. He must himself have been at all times ready to carry out his part of the contract, and must have done or offered to do everything imposed upon him by the same. We believe the only real ground upon which the court can base a decision in favor of the bondholders is the fact that expensive improvements were made upon the premises. Did 410 OCTOBER TERM, 1888. Opinion of the Court. the law permit them on that account to arbitrarily ignore Mrs. Brown’s rights as they could not otherwise have done? Or should it have made them more than ever ready, willing and eager to observe those rights and do everything necessary to be done on their part to entitle them to a conveyance. Finally, the decree is against the evidence for the reason that no tender was ever made to Mrs. Brown — and, until the filing of the amended cross-bill, not even an offer—and no excuse is shown for the neglect. Doyle v. Teas, 4 Scammon, 202. Mr. J. L. High for appellees. Mr. Justice Lamar, after stating the case as above reported, delivered the opinion of the court. It is contended by the appellant that the decree below should be reversed on the ground that the cross-bill is multifarious. In Shields v. Thomas, 18 How. 253, 259, this objection was urged against a bill, and in considering the objection the court say: “ There is, perhaps, no rule established for the conducting of equity pleadings, with reference to which (whilst as a rule it is universally admitted) there has existed less of certainty and uniformity in application, than has attended this relating to multifariousness. This effect, flowing, perhaps inevitably, from the variety of modes and degrees of right and interest entering into the transactions of life, seems to have led to a conclusion rendering the rule almost as much an exception as a rule, and that conclusion is, that each case must be determined by its peculiar features.” So in Gaines v. Chew, 2 How. 619, 642, the court say: “In general terms, a bill is said to be multifarious, which seeks to enforce against different individuals demands which are wholly disconnected. In illustration of this, it is said, if an estate be sold in lots to different persons, the purchasers could not join in exhibiting one bill against the vendor for a specific performance. Nor could the vendor file a bill for a specific performance against all the purchasers. The contracts of purchase being distinct, in no way connected with each other, a BROWN v. GUARANTEE TRUST CO. 411 Opinion of the Court. • bill for a specific execution, whether filed by the vendor or vendees, must be limited to one contract. . . . It is well remarked by Lord Cottenham, in Campbell v. Mackay, 7 Sim. 564, and in 1 Myl. & Cr. 603, i to lay down any rule, applicable universally, or to say what constitutes multifariousness, as an abstract proposition, is, upon, the authorities, utterly impossible.’ Every case must be governed by its own circumstances ; and, as these are as diversified as the names of the parties, the court must exercise a sound discretion on the subject. Whilst parties should not be subjected to expense and inconvenience, in litigating matters in which they have no interest, multiplicity of suits should be avoided, by uniting in one bill all who have an interest in the principal matter in controversy, though the interests may have arisen under distinct contracts.” In that case the bill was filed against the two executors of the will of Daniel Clark, the heirs-at-law of his legatee, and the several purchasers of various pieces of property which had been sold off from the estate. The relief asked was an accounting in respect to the rents and profits of the several parcels, and for general relief, as the heir and devisee of Clark under a different testament. Under this state of facts, the court said, p. 643: “ The right of the complainant, Myra, must be sustained under the will of 1813, or as heir-at-law of Daniel Clark. The defendants claim mediately or immediately under the will of 1811, although their purchases were made at different times and for distinct parcels of the property. They have a common source of title, but no common interest in their purchases. And the question arises, on this state of facts, whether there is misjoindeir or multifariousness in the bill, which makes the defendants parties. . . . And the main ground of the defence, the validity of the will of 1811, and the proceedings under it, is common to all the defendants. Their interests may be of greater or less extent; but that constitutes a difference in degree only, and not in principle. There can be no doubt that a bill might have been filed against each of the defendants, but the question is whether they may uot all be included in the same bill. The facts of the pur- 412 OCTOBER TERM, 1888. Opinion of the Court. • chase, including notice, may be peculiar to each defendant’; but these may be ascertained without inconvenience or expense to codefendants. In every fact which goes to impair or establish the authority of the executors, all the defendants are alike interested. In its present form the bill avoids multiplicity of suits, without subjecting the defendants to inconvenience or unreasonable expense.” The case against one defendant may be so entire as to be incapable of being prosecuted in several suits; and yet some other defendant may be a necessary party to some portion only of the case stated. In the latter case the objection of multifariousness cannot be allowed to prevail. Attorney General v. Poole, 4 Myl. & Cr. 17, 31; Turner v. Rdbi/nson, 1 Sim. & St. 313; Attorney General v. Cradoek, 3 Myl. and Cr. 85. It is not indispensable that all the parties should have an interest in all the matters contained in the suit; it will be sufficient if each party has an interest in some material matters in the suit, and they are connected with the others. Addisons. Walker, 4 Yo. & Col. Ch. 442; Parr v. Attorney General, 8 Cl. & Fin. 409, 435 ; Worthy v. Johnson, 8 Georgia, 236. To support the objection of multifariousness, because the bill contains different causes of suit against the same person, two things must concur: first, the grounds of suit must be different; second, each ground must be sufficient as stated to sustain a bill. Bedsole v. Monroe, 5 Iredell Eq. 313; Larkins v. Biddle, 21 Alabama, 252; Nail v. Mobley, 9 Georgia, 278; Robinson v. Cross, 22 Connecticut, 171. Testing, now, the case at bar in the light of these authorities and their statements of the' principle involved, it will be useful to get a clear view of the exact relations of the parties. Assuming the statements of the cross-bill to be true, and the demands preferred by it to be meritorious, the objection of multifarious n ess, however presented, raises no question, save the technical one of an undue uniting of demands. The attitude of the parties is this : Mrs. Brown, by her contract with Starr, and by his agreement with the Joliet Water Works Company, BROWN v. GUARANTEE TRUST CO. 413 Opinion of the Court. had become the trustee of the legal title for the benefit of the company. Starr and the company, on the other hand, owed the purchase money to Mrs. Brown. By his assignment to the company, only an equitable title was conveyed, for he had not a legal title; so the Water Works Company’s mortgage to the Guarantee Trust and Safe Deposit Company was but the mortgage of an equity. Having no legal title itself, the mortgagor company could convey none to the mortgagee or the trustee. So, also, as to the other defendants to the crossbill, the intervenors under the original bill, whatever may be in fact the exact measure and nature of their various rights, all are in common interested in the legal title held, as above stated, by Mrs. Brown. Indeed, as to all the parties to the cross-bill, and their respective demands, she holds the key to the whole situation, especially in view of the fact that the reservoir and engines are on the land in question. Every defendant to the cross-bill, as well as the complainant therein, is directly interested in the calling in of the legal title. It will necessarily enhance the value of the property to be sold, not merely by the increase in value by the amount paid by the complainant under its tender, but also and to a greater extent by the settlement of the title. To paraphrase the language of the court in Gaines v. Chew, supra, “ In every fact which goes to establish the identity and value of the property sought to be sold ” all the defendants are directly interested; not interested to the same extent nor in the same way, but still, in a substantial sense, interested in any decree which may be rendered The case of Dial v. Reynolds, 96 U. S. 340, relied on by counsel for the appellant in this connection, and its cognate cases, are not opposed to this view. This is not an instance of an attempt, in a foreclosure proceeding, to call in and litigate an outstanding legal title. It is the only legal title in the field; it is that under and through which mortgagor and mortgagee equally claim. To say that the alleged trustee of that title, because he chooses to deny the trust relation, can defeat the proceeding without an adjudication on its merits, aud drive the mortgagee to a distinct and preliminary suit, is 414 OCTOBER TERM, 1888. Opinion of the Court. to assume a position not supported by authority, and in the opinion of this court, not maintainable. The appellant further claims that, as to Mrs. Brown, the case made out below was not such a one as calls for specific performance, and in support of this view relies on alleged unreasonable delay in the payment of the purchase money. The legal propositions applicable to this question are well settled in this court. In Secombe v. Steele, 20 How. 94, 104, it is said: “Time may be made of the essence of the contract by express stipulation, or it may become essential by considerations arising from the nature of the property or the character of the interest bargained. And the principle of the court of equity does not depend upon considerations collateral to the contract merely, nor on the conduct of the parties subsequently, showing that time was not of the essence of the contract in the particular case. But it must affirmatively appear that the parties regarded time or place as an essential element in their agreement, or a court of equity will not so regard it.” In Holgate v. Eaton, 116 U. S. 33, 40, the court say: “In the case of Taylor v. Longworth, 14 Pet. 172, 174, Mr. Justice Story uses language which has since become a legal maxim in this class of cases. ‘ In the first place,’ he says, ‘ there is no doubt that time may be of the essence of a contract for the sale of property. It may be made so by the express stipulation of the parties, or it may arise by implication from the very nature of the property, or the avowed objects of the seller or the purchaser. And even when time is not, thus, either expressly or impliedly, of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part; or if there has, in the intermediate period, been a material change of circumstances, affecting the rights, interests, or obligation of the parties; in all such cases courts of equity will refuse to decree any specific performance, upon the plain ground that it would be inequitable and unjust.’ ” Apply these principles to the contract between Starr and Mrs. Brown and what will be the result ? BROWN v. GUARANTEE TRUST CO. 415 Opinion of the Court. It was not even claimed that there was any express stipulation between the parties that time should be of the essence of the contract: nor, on the other hand, that such obligation arose from the nature of the property or the avowed object of the seller. It is asserted that there was an understanding* that Starr should have no right or title to the land, or the right to any conveyance of the land, until the full purchase price should be paid. But that is a very different proposition. It has relation to the security reserved, and not to the time of payment. It is true, that in his deposition of April 18, 1883, Hobbs, the agent of Mrs. Brown, states that Starr agreed to pay cash, and that such was “ the basis of the contract.” But no such claim was presented by the pleadings; and, moreover, Hobbs’s testimony shows that there was an agreement for the postponement of the payment while Starr should go to Philadelphia; and, finally, in the same deposition, and in a subsequent one, he states that Starr had agreed to pay eight per cent interest on the purchase money, — a proposition manifestly inconsistent with the theory of appellant’s insistence on a cash transaction. Without stopping to array them, it will suffice to say, that numerous matters in the record show, to the satisfaction of the court, that Mrs. Brown consented to Starr’s delay of payment, reluctantly perhaps, but nevertheless consented. Even were it granted that time was of the essence of the contract, the conduct of Mrs. Brown would have been a waiver of that fact. Her acceptance of a partial payment of $1000, on the 17th of February, 1881, was certainly not a disaffirmance of the contract, but the contrary. So, again, her demand for performance on the 27th of November, 1881, shows very plainly that up to that day it had not been abandoned. Hobbs m his first deposition states that there was a subsequent demand made by him on Starr for the money; and his second , deposition shows that he sought an interview with the attorney of the committee of the bondholders on the 26th of January, 1883, for the purpose of getting the money due to Mrs. Brown on the contract with Starr. The answer of Mrs. Brown declares that the contract was 416 OCTOBER TERM, 1888. Syllabus. abandoned and cancelled in November, 1881, in Philadelphia. Even if she had the power so to do under the circumstances, still it was not done. The averments of the answer are not only not proved, but are even disproved by Hobbs himself. Hobbs was an officer of the Water Works Company. In his first deposition he gives this version of the transaction relied on in the answer. He says: “ I got on the train and went to Philadelphia and told Mr. Starr we insisted upon the payment of that amount and others, and if it was not paid or absolutely provided for while I was there in the city for a day or so, that I should return to Joliet, and the understanding was that Mr. Knowlton and myself would withdraw from the company; Mr. Starr failed, after various plans he had made, to produce the money; he failed in furnishing it, and I returned, he following me back within a few days, and we then withdrew from the company.” The witness is here speaking, as elsewhere appears, of not only this debt, but also of the general liabilities of the concern. Subsequently to this, he still demanded the money from Starr. Pomeroy on Specific Performance, 395, 396: Reynolds v. Nelson, 6 Madd. 18, 19. As between the appellant and the bondholders, represented by the trustee, it would be inequitable to refuse the consummation of her bargain. The decree of the Circuit Court is affirmed. WOOD v. GUARANTEE TRUST AND SAFE DEPOSIT COMPANY. APPTCAT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOK THE NORTHERN DISTRICT OF ILLINOIS. No. 21. Submitted April 25, 1888. — Decided November 19,1888. A debt contracted for ‘ ‘ construction ” is not entitled to the priority of payment, in proceedings for the foreclosure of a mortgage of the property of a railroad corporation, which is recognized in Fosdick v. Schall, WOOD v. GUARANTEE TRUST CO. 417 Statement of the Case. U. S. 235, as the equitable right in some cases of a creditor for “ operating expenses.” The doctrine in Fosdick v. Schall has never yet been applied in any case except that of a railroad, and whether it will be applied to any other case, quaere. When a third party with his own money takes up maturing coupons on bonds of a corporation, without knowledge of the holders, it is a question of fact, to be determined by the proof, whether it is intended to be a payment, or a purchase which leaves the coupons outstanding. The coupons in dispute in this case having been dishonored before they came into the hands of the appellants, were subject in their hands to ail defences which existed against their assignor; and, it being evident that, without the knowledge of the holders of the bonds to which those coupons were attached, he used his money to pay the coupons on bonds which had been sold solely in order to enable him to float the rest of the issue; Held, that it would be inequitable to allow him, either a preference over those to whom he had sold the bonds, or coequal rights with them. The court stated the case as follows: This is an appeal by interveners in the suit, one branch of which has been disposed of in the preceding case of Brown v. Guarantee Trust and Safe Deposit Company, ante, 403. In addition to the facts set forth in that case, and which need not be repeated here, it may be stated that on the 23d of May, 1883, an order of the court below was entered, directing the holders of the bonds and coupons issued by the City of Joliet Water Works Company, and secured by mortgage to the appellee in this case, to present them to the clerk of the court, by a certain day, for payment thereon out of the funds then in the hands of that officer. Pursuant thereto, appellants in this case filed 473 of said coupons held by them, and with them a petition praying that said coupons be decreed to have, in the distribution of said funds, priority of payment as against any of the holders or owners of the said bonds or the subsequently maturing coupons. The petition alleges, in substance, that for material sold and delivered to Jesse W. Starr, which he used in the construction of his water works system, he was in debt to them $14,000, in Part payment of which he transferred to them, in October, 1882, these 473 coupons, at par value, amounting to $7095, vol. cxxvm—27 418 OCTOBER TERM, 1888. Alignment for Appellants. and interest from maturity; that the said coupons presented by appellants fell due before the completion of said water works; that upon many of them the amount due at maturity was advanced by Starr to the bondholders, who transferred the same to him; and that the said advance was made out of money which Starr ought to have applied to the payment of his indebtedness for the material so used, and which now constitutes a part of the system of the said water works. The answer of the appellee contains substantially the statements of the cross-bill set forth in the preceding case. It denies that the coupons presented by appellants had any validity whatever as a lien upon said funds in the custody of the clerk; alleges that all of them were delivered after they were due; and that of the 473 coupons held by appellants, 279 falling due January 1, 1881, and 77 of the 194 falling due July 1, 1881, were detached from the bonds by Starr before they were sold, and before the coupons themselves became due — only 117 being sold with the bonds prior to their maturity. It further alleges that these last coupons were extinguished, cancelled and paid; that the holders of the bonds, who, as requested, presented said coupons for payment at the office of Starr’s broker, had no thought of selling them, and, in fact, did not sell them; that all these acts of Starr — cutting off some and taking up others of said coupons — were withheld from the knowledge of said bondholders, were deceptive and fraudulent, were intended to conceal from appellee and the public the fact that the said Water Works Company was insolvent, and, in reality, making default in payment of the interest coupons; and that, as said coupons were delivered by Starr to appellants long after their maturity, they took them subject to all defences which might have been urged against Starr himself. On May 12th, 1884, the petition of appellants was dismissed at their costs, from which action they have brought this appeal. Jfr. Charles A. Dupee and Mr. Monroe L. Willard for appellants. WOOD ,v. GUARANTEE TRUST CO. . 419 Argument for Appellants. I. As to the coupons actually cashed by Starr. These coupons were about 117 in number. At the time Starr paid them he was owing R. D. Wood & Co. about $14,000 for material which they had, during the few months then preceding, furnished him for the construction of his water works system, and which material became a permanent component part of said system. The money which Starr had been and then was raising was raised for the express purpose of. defraying the expense of construction of said system. Therefore it was Starr’s primary duty to use his money for such purpose, —: just as it is the primary duty of railroad companies to apply the earnings of their roads to the payment of current expenses. But the coupons came due before he had finished his construction. If he should allow them to go to default, the whole enterprise would be wrecked. Therefore, honestly supposing, as we believe, that he would soon have his system completed and on a paying basis, he diverted the funds, which he should have used in paying R. D. Wood & Co., to the purpose of taking up the coupons, and thus avoiding a foreclosure—just as, in the hope of averting disastrous foreclosures, railroad companies have at times diverted funds, which should have been used in paying current expenses, to the payment of mortgage interest. The bondholders got not only the material, but the money which should have been applied in payment thereof. We submit that the claim of appellants, who took these coupons in actual part payment of their bill against Starr, comes exactly within the equitable principles laid down in Fosdick v. Schall, 99 U. S. 235, and that, without regard to whether the coupons were transferred or paid, or were subject to such set-offs as might have existed between the Water Works Company and Starr. The appellants contend that these coupons were transferred to Starr, and were not so paid as to extinguish their lien. Beasley & Co. suggested to Starr that it would be well for' them to pay the coupons. He assented. They informed some of the bondholders that the coupons would be paid at their mce m New York. By the mortgage, they were payable in hiladelphia. Beasley & Co. were at no time the company’s 420 OCTOBER TERM, 1888. Opinion of the Oourt. agents, but Starr’s. The bondholders knew this, or could have learned it by inquiry. The coupons were paid with Starr’s: money — not the company’s. The bondholders knew this, or could have learned it by inquiry. The facts put them on inquiry, but they made none; nor did they cancel the coupons or cause them to be cancelled. Under such circumstances Starr and his assignees for value should be subrogated to all the rights the holders of the coupons had. Ketchum, v. Duncan, 96 U. S. 659. II. As to the balance of the coupons, the appellants have similar equities. It is true the coupons do not stand in the position of having been cashed for the bondholders, but they were delivered to Starr by the company as part consideration for his construction contract, and remained in his possession until delivered by him to appellants in part payment for a portion of the cost of construction. The company never paid a dollar on them. It would be but carrying out the purpose of their delivery to Starr, to allow their payment in favor of the construction creditors who hold them, and who have suffered more from Starr than any of the bondholders, except, perhaps, one. There is no pretence that these coupons were ever paid by anybody. The fact that Starr defaced a large number of them cannot change this. Mr. J. L. High for appellees. Mr. Justice Lamar, after stating the case, delivered the opinion of the court. In this appeal the first claim advanced is, that since the 117 coupons, parcel of the lot in controversy, were paid by Starr with the funds that he had raised for the express purpose of defraying the expense of constructing the water works, it was his primary duty so to use the money ; and that his failure so to do amounted to a diversion, which will entitle the appel lants to a priority, under the doctrine of Fosdick v. Schall, U. S. 235. WOOD v. GUARANTEE TRUST CO. 421 Opinion of the Court. . The argument is unsound. There are several answers to it. First, it overlooks the vital distinction between a debt for construction, and one for operating expenses. The doctrine of Fosdick v. Schall is applicable wholly to the latter class of liabilities. In the case of Cowdrey v. Galveston Railroad, 93 U. S. 352, it was settled that the doctrine does not apply where it is a question of original construction. Secondly, it overlooks the important fact that the doctrine only applies where there is a diversion of the income of a “ going concern ” from the purpose to which that income is equitably primarily devoted; viz., the payment of the operating expenses of the concern. In other words, the income must be first devoted to the expenses of producing the income. In this case it is not pretended that the money used in paying the 117 coupons in question was income of the Water Works Company. Thirdly, the doctrine of Fosdick v. Schall has never yet been applied in any case, except that of a railroad. The case lays great emphasis on the consideration that a railroad is a peculiar property, of a public nature, and discharging a great public work. There is a broad distinction between such a case and that of a purely private concern. We do not undertake to decide the question here, but only point it out. There is other ample ground upon which to decide this question. It is further insisted, in reference to the 117 coupons, that appellants are entitled to recover on them in their own right, as owners, and independently of the doctrine of Fosdick v. Schall. These coupons matured July 1, 1881. Appellants came into possession of them in October, 1882 —fifteen months after they were dishonored. If any defence existed against them in Starr’s hands, the same defence is available now against Starr’s assignee. It is claimed by the appellee that before the appellants acquired them they had been in fact paid. This is denied; and the case of Ketchum v. Duncan, 96 U. S. 659, is relied on to support the denial. The facts and the reasoning of the court in that case are as follows: “ Duncan, Sherman & Co., who furnished the money 'which the former owners received for the coupons, did not intend to pay them in any such sense as to relieve the railroad 422 OCTOBER TERM, 1888. Opinion of the Court. company from its obligation. By advancing the money, and directing its payment to the holders of the coupons, they intended to take the place of those holders, and to become the owners of the evidences of the company’s debt; or, in other words, they intended to obtain for themselves the rights of purchasers. They did not advance the money either to or for the company. Certainly, they did not intend to extinguish the coupons. Of this the evidence is very full. The firm had made advances to the company to pay the coupons due in November, 1873, as well as interest due in January and March, 1874, amounting to a very large sum. These advances had not been repaid when the May coupons fell due. Those coupons the company was then utterly unable to take up. In near prospect of this inability, William B. Duncan, the head of the firm, on the 28th of April, 1874, telegraphed from New York to the company at Mobile that his firm would purchase for their own account sterling coupons, payable in London. The firm also telegraphed to the Bank of Mobile and to the Union Bank of London to purchase the coupons there presented for them, charging their account with the cost, and transmitting the coupons uncancelled. The railroad company acceded to the proposition made them, and the Bank of Mobile and the Union Bank did also. Similar arrangements were made respecting the November coupons, except that Duncan, Sherman & Co. arranged with the Credit Foncier to make the purchase in London. Both these banks were agents of the firm in the transactions. They were not agents of the railroad company. They had no funds of the company in hand. In taking up the coupons they acted for Duncan, Sherman & Co., charged the cost to their account, transmitted to them the coupons taken up without cancellation, and were repaid by them. In view of these facts it is manifest that, whatever may have been the nature of the transaction by which the coupons passed from the hands of the former holders into the possession of Duncan, Sherman & Co., it was not intended by the firm to be a payment or extinguishment of the company’s liability. Neither they, nor the company, nor the Bank of Mobile, nor the Union Bank, nor the Credit Foncier, WOOD v. GUARANTEE TRUST CO 423 Opinion of the Court. so intended or understood it. Was it, then, a payment? It is as difficult to see how there can be a payment and extinguishment thereby of a debt without any intention to pay it, as it is to see how there can be a sale without an intention to sell. “ But that the coupons were either paid, or transferred to Duncan, Sherman & Co. unpaid, is plain enough. The transaction, whatever it was, must have been a payment, or a transfer by gift or purchase. Was it, then, a purchase ? It is undoubtedly true that it is essential to a sale that both parties should consent to it. We may admit, also, that ‘ where, as in this case, a sale, compared with payment, is prejudicial to the holder’s interest, by continuing the burden of the coupons upon the common security, and lessening its value in reference to the principal debt, the intent to sell should be clearly proved.’ But the intent to sell, or the assent of the former owner to a sale, need not have been expressly given. It may be inferred from the circumstances of the transaction. It often is. In the present case, the nature of the subject cannot be overlooked. Interest-coupons are instruments of a peculiar character. The title to them passes from hand to hand by mere delivery. A transfer of possession is presumptively a transfer of title. And especially is this true when the transfer is made to one who is not a debtor, to one who is under no obligation to receive them or to pay them. A holder is not warranted to believe that such a person intended to extinguish the coupons when he hands over the sum called for by them and takes them into his possession. It is not in accordance with common experience for one man to pay the debt of another, without receiving any benefit from his act. We cannot close our eyes to things that are of daily occurrence. It is within common knowledge that interest-coupons, alike those that are not due and those that are due, are passed from hand to hand; the receiver paying the amount they call for, without any intention on his part to extinguish them, and without any belief in the other party that they are extinguished by the transaction. In such a case, the holder intends to transfer his title, not to extinguish the debt. In multitudes of cases, cou- 424 OCTOBER TERM, 1888. Opinion of the Court. pons are transferred by persons who are not the owners of the bonds from which they have been detached. To hold that in all these cases the coupons are paid and extinguished, and not transferred or assigned, unless there was something more to show an assent of the person parting with the possession that they should remain alive, and be available in the hands of the person to whom they were delivered, would, we think, be inconsistent with the common understanding of business men.” That case clearly settles the proposition that in such a matter as this, the question, as between payment and purchase, is one of fact rather than of law, to be settled by the evidence, largely presumptive, generally, in the case. It is a question of the intention of the parties. In Ketchum v. Duncan stress was laid on these circumstances, viz., that the persons alleged to have paid the coupons had no connection with the company issuing the coupons, or interest in it; that they had repeatedly and publicly notified the holders of the bonds and coupons that the coupons were to be purchased, not paid; and that the coupons were carefully received and preserved uncancelled. In the case at bar the conditions are radically different. Starr is essentially (that is, from a business point of view) the Water Works Company, owning, as he does, 19,500 of its 20,000 shares of stock. Its prosperity is manifestly his prosperity, its disaster his disaster, and any disbursement made by it is substantially made by him. There is, therefore, no inherent improbability that he intended to pay the coupons, as he indeed instructed his agents, the brokers, that he did. Moreover, such notice as was given to call in the coupons, was notice of payment, not of purchase, so far as the evidence discloses the character at all. Finally, the coupons were cancelled by Starr; all of them being punctured and defaced by mucilage, and about one-half having the word “ paid ” written across them, in which condition they were received by the appellants. Looking to the testimony, we decline to disturb the finding of the master and of the Circuit Court. ; The same consideration of the substantial identity between WOOD v. GUARANTEE TRUST CO. 425 Opinion of the Court. Starrand the Water Works Company is of great weight in the determination of the remaining question as to the other 356 coupons. Whatever might be the right of a holder of overdue coupons cut from a bond which is afterwards sold to a bona fide purchaser, as between such purchaser and the couponholder that question does not arise here. The case before us is a peculiar one, and must be adjudged on its own facts. As we have already said, Starr was, from a business point of view, substantially the company. Not only was it his object to float the bonds, but to float the company, as well. Hence, when he came to sell these bonds, he arranged with his brokers, Beasley & Co., in reference to the July coupons, (series No. 2). Under that arrangement, such of the coupons as were attached to, and had been sold with, the bonds sold early in the year of 1881, were paid by Beasley & Co., the price was charged to Starr, and the coupons were delivered to him. Such of the coupons as were attached to bonds not themselves sold until the month of June, 1881, were detached from the bonds before sale, and were not charged to Starr, but were delivered to him as property of the company. The coupons of January, 1881, were all detached from the bonds before they were deposited with Beasley. Now, why all this arrangement and management ? To use the language of Mr. Beasley: “ It would have been irregular and unbusinesslike to offer for sale or attempt to dispose of the bonds, not then known in the market^ with overdue coupons attached.” In brief, Starr was engaged in floating these bonds. They were not, as the testimony and the history of the case shows, good bonds. He was very careful to prevent anything from transpiring that would injure their credit. He cut off the coupons that were due and unpaid, so long as the bonds remained in his possession, and put up some money to redeem coupons which fell due on bonds that had been sold, so long as he was still engaged in selling other bonds. It looks very much as if Mr. Starr had dug a pit, and was anxiously keeping the pathway to it in good order. It would be inequitable, in °ur opinion, to allow him to bring forward these coupons as the basis of any preference over, or of even coequal rights with. 426 OCTOBER TERM, 1888. Statement of the Case. those to whom he sold his bonds; and the plaintiff, having taken these coupons when overdue, had no greater rights than he had in this respect. If the courts were to sanction such claims, the commercial securities of the world would be nullified. The decree of the Circuit Court is affirmed. FIRE INSURANCE ASSOCIATION (Limited) v. WICKHAM. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN. No. 1032. Submitted November 12, 1888. — Decided November 26,1888. Each question certified in a certificate of division of opinion — (1) Must be a distinct point or proposition of law, clearly stated, so that it can be definitely answered, without regard to other issues of law in the case; (2) Must be a question of law only, and not a question of fact, or of mixed law and fact, and hence must not involve or imply a conclusion or judgment on the weight or effect of testimony or facts adduced in the cause; and, (3) Must not embrace the whole case, even when its decision turns upon matter of law only, and even though it be split up into the form of questions. In a certificate of division of opinion the question whether parol evidence may or may not be introduced to explain such documents as those which were given in evidence by the defendant at the trial of this cause, and which are set forth in the statement of facts below, is a question of pure law, presenting but a single point for consideration, and the fact that many writings, all of the same general character, were offered to prove the same fact, does not make the case to differ. Motion to dismiss. The court stated the case as follows: This case comes here by writ of error and a certificate of division of opinion of the judges of the Circuit Court. The action was brought upon a policy of insurance against fire to recover damages occasioned by the burning of the propeller St. Paul, of which the plaintiffs below, the defendants in error, FIRE INSURANCE ASSOCIATION v. WICKHAM. 427 Statement of the Case. were the owners. The vessel was insured against fire in ten companies, including the plaintiff in error, which issued two policies amounting together to $5000. The St. Paul first took fire at Detour, where the River St. Mary enters Lake Huron, and had to be scuttled and sunk. She was then raised, and taken to Detroit for repairs. There she took fire a second time, and had to be again sunk. The mere injury to the vessel was settled and paid for by the insurers before it was due by the terms of the policies. The plaintiff contends that the expense of raising and saving the vessel was not included in this settlement, but was left for future adjustment, and this suit was brought to recover that part of the loss. Similar suits were brought against the other companies, all of which were, by agreement, to abide the event of this. The defendants in error had a verdict and recovered judgment for $2297.65, which would not have been sufficient to give this court jurisdiction but for the difference of opinion between the judges. That difference arose on the trial as will appear by the following statement of the case: It appeared in evidence that the first fire, at Detour, occurred on the 10th of November, 1883, and the second, at Detroit, on the 24th of the same month whilst the cargo was being unladen in order to make the necessary repairs. In both cases the vessel was sunk for the purpose of saving her and her cargo, and raised again at considerable expense. On the 15th of December, 1883, a written agreement was entered into between the plaintiffs and the adjusting agents of the several insurance companies for the purpose of adjusting the amount of loss caused by the fires to the hull, tackle, awnings, apparel, furniture, engine and boiler connections and appurtenances thereto belonging; by which agreement certain arbitrators were appointed to make such adjustment without reference to any other question or matter of difference within the terms and condition of the insurance, and of binding effect only as far as regards the actual cash value of, or damage to, such property covered by the policies. The adjustment under this agreement was completed December 26, 1883, showing a loss of $15,364.78, the proportion due by the plaintiffs in error 428 OCTOBER TERM, 1888. Statement of the Case. being $1920.60. The adjusting agent sent proofs of the loss to the companies with the following letter to each, viz.: “ Buffalo, January Vkth>, 1884. “ Gentlemen : I enclose herewith proofs, Jno. W. Wickham, Jr., managing owner, for loss and damage prop. St. Paul, which I trust will be found satisfactory : The claim as made covers only the loss and dam- age by fire and water, as per agreement, on the tackle, awnings, apparel, furniture, &c., of . . $1,735 08 And the appraisers’ award on hull, engines, mach’y, &c., of . ................................... 13,629 70 “ Aggregating in all.....................$15,364 78 “ The assured will make further claims for expenses of raising the propeller, and is now preparing the statement of such expenses to submit with his subsequent claim. “ Yours truly, W. D. Allen, Adjuster.” At the trial it was admitted that the cost of raising and saving the vessel was upwards of $15,000. The plaintiffs admitted that they had been paid the cost of repairing the vessel as set forth in the proofs of loss prepared and forwarded to the companies as aforesaid, but claimed that they had not been paid any part of the cost of raising and saving the vessel; that before the commencement of this suit they demanded payment thereof, which was refused, the insurers denying liability therefor, and the same remains unpaid. The defendants claimed that the payment of the cost of said repairs was made by way of accord and satisfaction of the plaintiffs’ entire claim, and offered in evidence the .following receipts: “ $1344.42. January 19, 1884. “ Received from the Fire Insurance Association of London, England, thirteen hundred and forty-four tVtt dollars, it being in full of all claims and demands for loss or damage by fire which occurred on the 10th and 24th days of November, 1883, FIRE INSURANCE ASSOCIATION v. WICKHAM. 429 Statement of the Case. to property insured by policy No. 180,617, Buffalo, New York, agency, and in consideration of said payment said policy is hereby cancelled and surrendered to said company, and all further claims by virtue of said policy forever waived. “(Signed) John W. Wickham, Jk., Managing Owner. W. B. Comstock, per Wickham.” There was also a receipt indorsed upon the policy No. 180,617, as follows: “January 19th, 1884. “ In consideration of four dollars, return premium, the receipt of which is hereby acknowledged, this policy is cancelled and surrendered to the Fire Insurance Association (Limited) of England. “(Signed) John W. Wickham, Jr., Managing Owner. W. B. Comstock, per Wickham, Jr.” A similar receipt for $576.18 was given by the plaintiffs to the defendant for the amount due on the other policy issued by the latter. And like receipts, all of the same date except two, which were a few days later, were given to the other companies concerned, all of which were given in evidence by the defendants. The defendant also gave in evidence the following paper signed by the plaintiffs, marked Exhibit QQ, viz.: “ New York, January VMh, 1884. u This is to certify that the loss and damage by fire which occurred on the 23d day of November, 1883, to the steamer St. Paul, is this day adjusted for the sum of fifteen thousand three hundred and sixty-four and dollars ($15,364.78) payable without discount upon presentation of the policies to the several companies interested by the assured, and apportioned among the several companies as follows, viz.: 430 OCTOBER TERM, 1888. Statement of the Case. Insures. Pays. Continental, of New York.... . $7,500 00 $2,880 90 London & Liverpool & Globe.. . 6,000 00 2,304 70 —Paid. Fire Insurance Association... . 3,500 00 1,344 42 —Paid. Queen’s, of England... ..... . 7,000 00 2,688 84 —Paid. Fire Ins. Ass’n, 2d policy . 1,500 00 576 18 —Paid. Security of New Haven...... . 2,500 00 960 30 — Will remit. Exchange, of New York . 2,500 00 960 30 —Paid 1, 19, ’84. Mechanics’, of New York.... . 2,500 00 960 30—Paid 1, 19, ’84. German, of Pa. . . 2,500 00 960 30 — Will remit. Prescott Insurance Co . 2,500 00 960 30 — Remitted. Greenwich, of New York . 2,000 00 768 24 —Paid 1, 19,’84. $40,000 00 $15,364 78 “(Signed) John W. Wickham, Jr., Managing Owner. W. B. Comstock, “John K. Oaklet, per John W. Wickham, Jr. J. H. Wellman, Committee” The court held that if these documents were sufficient evidence of an intent to compromise and settle the expense of raising and saving the propeller, although the amount paid was only that of the injury to the property, yet the anticipation of such payment nearly sixty days before, according to the terms of the policies, it was due, was a sufficient consideration for such compromise. The defendant having rested, the plaintiffs, in rebuttal, offered evidence tending to show that in January, 1884, the said Wickham went to New York; and that on the 19th of that month, the day on which the receipts given by him to the insurance companies, and the paper marked QQ were dated and signed, and before they were signed, he, the said Wickham, had an interview with Oakley and Wellman, the committee of the insurance companies who signed the last-named paper, and also evidence of certain communications between said committee and Wickham in that interview, which showed, or tended to show, that the said receipts and said paper QQ were not intended to refer to or embrace the claim FIRE INSURANCE ASSOCIATION v. WICKHAM. 431 Argument for the Motion. of the plaintiffs for raising and saving said vessel, but only the claim for the damages specially included in the adjustment made by the arbitrators before mentioned. The defendants objected to the introduction of this parol testimony tending to contradict the receipts and drafts given in evidence and the certificate of January 19th, Exhibit QQ, upon the ground that such evidence was not admissible in the absence of fraud, misrepresentation and mistake. These objections were overruled by the presiding judge, and the evidence was received and submitted to the jury. This is one of the points on which the judges differed in opinion. They state the question as follows : “ On the facts stated in the foregoing record, was the parol testimony offered in evidence by the plaintiffs admissible to vary and contradict the certificate of January 19th, 1884, Exhibit QQ, and the receipts and drafts hereinbefore set forth ? ” The evidence offered by the plaintiffs having been given to the jury, the defendants offered evidence tending to contradict the same, and to show that the whole matter arising out of the loss was intended to be compromised and settled, by what took place between the parties on the 19th of January, 1884. There was no evidence that said agreement of January 19th, Exhibit QQ, and the several receipts and discharges executed by the plaintiffs, were obtained by any fraud or misrepresentation of the defendants or their agents. After the evidence was closed the defendant requested the court to charge the jury that the defendant was entitled to a verdict. On this point the judges who tried the cause were also divided in opinion, the presiding judge being of opinion that the request should not be granted; and this is the second question certified to this court for its decision. The defendant in error now moves to dismiss the writ of error, mainly on the ground that the questions certified are not distinct points of law which can be properly certified to this court upon a difference of opinion between the judges of the Circuit Court. F. H. Canfield and 2ir. H. H. Swan for the motion. 432 OCTOBER TERM, 1888. Argument for the Motion. The first question certified does not present a point of law which gives this court jurisdiction. The question is expressly qualified by and wholly dependent for answer “ on the facts stated in the foregoing record.” There are no facts found upon which the question can be answered. The statement referred to is a mere narration of conflicting evidence. See Jewell v. Knight, 123 U. S. 426, 434; Ogilvie v. Knox Insurance Co.) 18 How. 577; Waterville v. Van Slyke, 116 U. S. 699, 704; Knfield v. Jordan) 119 U. S. 680 ; Dennistoun v. Stewart) 18 How. 565; Wilson v. Barnum, 8 How. 257; Webster v. Cooper, 10 How. 54. It is submitted that the first question certified is obnoxious to each one of these rulings: because (a) it explicitly and in terms asks, not a question of law upon ascertained facts, but one which can only be answered by reference to conflicting evidence, and which is dependent on the issues of fact in the case; (6) it is not a question which this court is able to decide without assuming or finding matters of fact which are for the jury; (c) it admits of different answers, as the evidence of the plaintiff or defendant is taken as the basis of the question; (¿Z) it is wholly dependent upon the character and intended function of the papers referred to in the question, which was a matter for the jury under the charge of the court. In reply to this, it may be urged that the purpose of the question is to elicit the opinion of this court on the legal effect and operation of the papers mentioned; i.e., whether they are contracts within the meaning of the rule excluding parol testimony to vary or contradict them. To this there are several obvious rejoinders: (1) The certificate does not ask that question. (2) If it did, it would present the whole case to this court. (3) To assume that the papers, Exhibit QQ, and the drafts and receipts constitute the contract of accord and satisfaction pleaded, is to beg the very question of fact in issue between the parties. The mere fact of payment of the fire loss before due is in law no consideration for the discharge of the salvage claim, for “ nothing is consideration that is not regarded as such by both parties.” To regard it as such “ would be to make a FIRE INSURANCE ASSOCIATION v. WICKHAM. 433 Argument for the Motion. contract for the parties to which their minds never assented.” An unknown or accidental consideration is not sufficient. Philpot v. GTuning er, 14 Wall. 570; Ellis v. Clark, 110 Mass. 389j, 392. And so the district judge charged the jury, in substance. The primary question is purely one of fact. The dependent and secondary question as to the medium of proof is inseparable from the inquiry into the fact, and is not a pure question of law. “ The rule which excludes parol testimony to contradict or vary a written instrument has reference to the language used by the parties. That cannot be qualified or varied from its natural import, but must speak for itself. The rule does not forbid an inquiry into the object of the parties in executing and receiving the instrument.” Brick n. Brick, 98 U. S. 514. It only applies when the parties to an agreement reduce it to writing, and agree or intend that that writing shall be their agreement. Harris v. Rickett, 4 II. & N. 46. See also Mobile (6 Montgomery Railroad v. Jurey, 111 U. S. 584; Wake v. Harrop, 6 H. & N. 768; Pym v. Campbell, 6 El. & BI. 370; Davis v. Jones, 17 C. B. 625 ; Guardhouse v. Blackburn, L. R. 1 P. & D. 109, 115. While these rulings expressly decide the question of evidence which would seem to belong rather to the argument upon the merits, the equally patent corollary from them is that in the conflict of evidence as to the existence of and consideration for the alleged agreement, the question first certified neither did nor could “ occur on the trial ” as a pure point of law within the meaning of the law, even if it were not qualified and limited to the admissibility of the evidence, “ on the facts stated in the foregoing record.” Again, if as has been urged, the papers mentioned in the question are inoperative against the claim for raising and saving the vessel, because of want of sufficient consideration, the inquiry is pertinent whether there is any actual conflict between the papers thus limited and the parol testimony. There is nothing on the face of Exhibit QQ, and the ’hafts and receipts, excepting the general words of release of claims under the policies to indicate that the words “ the loss vol. cxxvin—28 434 OCTOBER TERM, 1888. Opinion of the Court. and damage by fire ” were used in any larger sense in them than in Exhibit A. The amount of the expressed consideration is persuasive to the same construction. If that phrase has the same meaning in all the papers, or if there is doubt as to its interpretation, the oral testimony was competent to apply the writing to their subject-matter, and there was no conflict. Bradley v. Washington dec. Packet Co., 13 Pet. 89; United States v. Peck, 102 IT. S. 64; Barreda v. Silsbee, 21 How. 146; United States v. City Bank, 19 How. 385; and the question became one for the jury under the charge of the court — a mixed question of law and fact. J/r. C. I. Walker and Mr. F. A. Baker opposing. Mr. Justice Bradley, after stating the case as above reported, delivered the opinion of the court. This subject has been so often and so recently discussed by this court, that it is hardly necessary to do more than to state the conclusion that must be drawn from the case as presented. The law is so clearly stated, and the cases are so fully cited by Mr. Justice Gray in the recent case of Jewell v. Knight, 123 U. S. 426, 432, that nothing further need be said. It is there laid down, first that the question certified “ must be a distinct point or proposition of law, clearly stated, so that it can be definitely answered, without regard to other issues of law or fact in the case ; ” secondly, it must be a “ question of law only, and not a question of fact, or of mixed law and fact; hence it must not involve or imply a conclusion or judgment upon the weight or effect of testimony or facts adduced in the cause — as, for example, a question of fraud, which is necessarily compounded of fact and of law ; thirdly, it must not embrace “ the whole case, even when its decision turns upon matter of law only ; ” and even though it be split up into the form of questions. These propositions are illustrated by examples, ■which need not be repeated here. Applying them to the case in hand, we can have but little difficulty in disposing of the present motion. The second question certified is clearly o UNITED STATES v. FOSTER. 435 Statement of the Case. noxious to the second and third rules; it asks us to decide whether, upon all the evidence in the case, the defendant was entitled to a verdict. This would require us to decide upon the weight of the evidence and the conclusions to be drawn from the facts. It would also require us to decide the whole case. The first question is not open to these objections. It presents a single point of law, namely, whether parol evidence may or may not be introduced to explain such documents as those which were given in evidence by the defendant. We are not now asked to decide whether such evidence should have been allowed in this case. That will be the question for consideration when the case is argued on its merits. On the present motion we are only required to decide whether the question is one of pure law, and one that presents but a single point for consideration. We think it is of that character. If only a single writing had been offered in evidence by the defendant, the question whether parol evidence could have been given to alter or explain it would clearly have been a single question of law. The fact that many writings were offered, all of the same general character, and offered to prove the same fact, does not make the case to differ. The motion to dismiss the writ must be denied. UNITED STATES v. FOSTER. APPEAL FROM THE COURT OF CLAIMS. No. 1162. Submitted November 5,1888.—Decided November 19, 1888. The longevity acts of 1882, 1883, 22 Stat. 284, 287, c. 391; 473, c. 97, do not authorize a restatement of the pay accounts of an officer of the navy who served in the regular or volunteer army or navy, so as to give him credit in the grade held by him, prior to their passage for the time he served in the army or navy before reaching that grade. This was an appeal from a judgment against the United States in favor of the plaintiff, Foster, for the sum of $1393.40, 436 OCTOBER TERM 1888. Statement of the Case. as the amount due him under what is known as the longevity acts of Congress. Prior to November 28, 1861, he served in the navy as an enlisted man for six years and forty days; and he served as gunner in the regular navy from November 28, 1861, until April 14, 1868, a period of six years and 145 days, when he resigned. He was reappointed gunner December 27, 1869, since which date he served continuously in that capacity. Under the longevity acts of 1882 and 1883, 22 Stat. 284, 287, c. 391; 473, c. 97, he has been allowed credit, for prior services only upon his second warrant as gunner, and he has been credited upon that warrant with twelve years and 185 days, the entire period of his service, as enlisted man and gunner prior to his re-entering the service on the 27th day of December, 1869. If he had been allowed on his first warrant as gunner, for his previous service of six years and forty days as an enlisted man, he would have received, as the result of such credit, the sum of $1393.40, the amount of the judgment below, exclusive of the thirty-three and one-third per centum increase under General Order, No. 75, of May 26, 1866. Between the date of his resignation on April 14, 1868, and his reappointment as gunner, December 27, 1869, the plaintiff held no position in the navy. The longevity act of 1883, (the addition to the act of 1882 being shown by italics,) under which the present claim is made, provides that “ all officers of the navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer army or navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous and in the regular navy in the lowest grade having graduated pay held by such officer since last entering the service: Provided, That nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers: Provided, further, That nothing herei/n, contained shall be so construed as to give any additional pay to any such officer during the time of his UNITED STATES v. FOSTER. 437 Opinion of the Court. service m the volunteer army or navy T 22 Stat. 284, 287, c. 391 ; 473, c. 97. JZr. Assistant Attorney General Howard and J/r. F. P. Dewees for appellants. Mr. Robert B. Limes and Mr. John Paul Jones for appellee. Mr. Justice Harlan, after stating the case, delivered the opinion of the court. There is no claim that the plaintiff did not receive, on his first warrant as gunner, that is, for the whole period of his first continuous service in that position, all the compensation to which he was entitled as gunner, under the law as it was during that period. And it is found, in effect, that he has received credit, on his second warrant as gunner, for the actual time of his entire service prior to December 27, 1869, both as enlisted man and gunner, counting such service as if it had been continuous and in the regular navy in the lowest grade, having graduated pay held by him after he re-entered the service, that is, in the grade of gunner. In our judgment, he is not entitled to more under existing legislation. The acts of 1882 and 1883 do not require or authorize a restatement of the pay accounts of an officer of the navy who served in the regular or volunteer army or navy, so as to give him credit in the grade held by him, prior to their passage, for the time he served in the army or navy before reaching that grade. Congress only intended to give him credit in the grade held by him, after those acts took effect, for all prior services, whether as an enlisted man or officer, counting such services, however separated by distinct periods of time, as if they had been continuous and in the regular navy in the lowest grade having graduated pay held by him since last entering the service ; and that credit has been given to the plaintiff. In this view, the conclusion reached by the Court of Claims was erroneous. The judgment is reversed with di/rections to dismiss the petition. 438 OCTOBER TERM, 1888. Statement of the Case. HENNESSY v. WOOLWORTH. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA. No. 74. Argued November 13, 14, 1888. —Decided November 26,1888. Specific performance is not of absolute right, but rests entirely in judicial discretion, to be exercised according to settled principles of equity, but always with reference to the facts of the particular case. A decree for specific performance should never be granted unless the terms of the agreement sought to be enforced are clearly proved, nor when it is left in doubt whether the party against whom relief is asked in fact made such an agreement as is alleged. The assent of the husband of a married woman to the terms of an agreement made by an agent for the sale and conveyance of lands of the wife situated in Minnesota is not sufficient to bind the wife. In this case, it not being clearly established that the wife assented to the agreement for the sale of her real estate of which a specific performance is sought to be enforced, though the assent of the husband is shown, the decree is refused. The court stated the case as follows: The appellees, S. B. Wool worth, and Clara Woolworth, his wife, the plaintiffs below, claiming to have been for more than ten years prior to the 13th of June, 1883, in the constant, actual and lawful possession of lots 4 and 9, block 20, Robert and Randall’s addition to St. Paul, Minnesota, and averring that the appellant, the defendant below, wrongfully asserted an interest therein adverse to them, brought this suit in one of the courts of the State, for the purpose of obtaining a decree adjudging that the defendant has no right, title, estate, lien, or interest in those lots, and for such other relief as was proper. The suit wTas based upon a statute of Minnesota providing that “ an action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein, or lien upon the same, adverse to him, for the purpose of determining such adverse claim, estate, lien, or interest; and any person having or claiming title to vacant or unoccupied real estate may bring HENNESSY v. WOOLWORTH. 439 Statement of the Case. an action against any person claiming an estate or interest therein adverse to him, for the purpose of determining sucli adverse claim, and the rights of the parties respectively.” General Statutes of Minnesota 1878, c. 75, § 2, p. 814. The suit was subsequently removed into the Circuit Court of the United States. The original complaint having been ordered to stand as a complaint in equity in the Circuit Court, the defendant filed an answer controverting all of its material allegations, and, also, by leave filed a cross-bill, seeking a decree for the specific execution of a written agreement, which was put upon record, and is alleged to have been made between him and the plaintiffs on the 23d of December, 1881, for the sale and conveyance by them to him of the lots in question. That agreement is as follows: “Received at St. Paul, Minn., this 23d day of December, 1881, of David J. Hennessey, of Dubuque, Iowa, the sum of fifty dollars as earnest and in part payment of the price of lots four (4) and nine (9), in block twenty (20), of Robert and Randall’s addition to St. Paul, Minn., which, as the authorized agent of Clara Woolworth and S. B. Woolworth, her husband, of the last-named city and State, I have bargained and sold to the said Hennessey for ten thousand dollars to be paid, and which the said Hennessey stipulates to pay, as follows, to wit; twenty-five hundred dollars, less aforesaid earnest money, on delivery to the said Hennessey of good warranty deed with full covenants, which shall convey to the said Hennessey from the said Wool worths good, clear, and perfect title, except as to the notes and mortgages hereinafter mentioned, to said property and to all improvements and appurtenances thereunto belonging, and after the said Hennessey shall have been furnished by the said Woolworths with a complete, official, and certified abstract of title to the said property, which shall show title in them thereto as aforesaid, and nineteen hundred dollars on or before one year, and nineteen hundred dollars on or before two years, and nineteen hundred dollars on or before three years from the delivery as aforesaid and the giving to 440 OCTOBER TERM, 1888. Statement of the Case. said Hennessey of possession of said premises and the emoluments, with interest at the rate of seven per centum per annum, payable annually, except in case of a note taken up before due, and the three last-mentioned sums are to be secured by mortgage back on the said premises, and the said Hennessey is to assume, from and after the last-mentioned date and from and after that date only, a certain note and mortgage for eighteen hundred dollars, which plaintiffs made August 10th, 1880, and running from Seth B. Wool worth and Clara Woolworth to Edwin W. Rice, which said mortgage is recorded in the office of the register of deeds of said Ramsay County, in Book 59 of Mortgages, on page 218, and which the said Hennessey agrees, under and in accordance with the said stipulations herein contained, and each of them, to pay when due. “It is, moreover, agreed that if there are any clouds or defects in the title to the said property they and each of them shall be removed and cured with becoming diligence by the said Woolworths, and if not removable or curable the aforesaid fifty dollars is to be refunded and this contract to be null and void, at the option of the said Hennessey, and to be void, also, at the option of the said Hennessey, in the event of the-neglect or failure on the part of the said Wool worths to remove or cure the clouds or defects which may be on said title. “P. T. Kavanaugh, “Agent of Cla/ra Woolworth and 8. B. Woolworth. 11 Witnesses: “ David J. Hennessey. “H. A. Estes. “H. M’Carthy.” Replications to the answer and cross-bill were filed by the plaintiffs, and a decree rendered dismissing the cross-bill and giving them the relief asked by the original bill or complaint. By that decree it was, among other things, adjudged that the instrument of Dec. 23, 1881, was not authorized by the plaintiffs, or either of them, and was void; that the defendant has no right or interest in said lots in virtue of that writing. The HENNESSY v. WOOLWORTH. 441 Opinion of the Court. defendant and all persons claiming under him were enjoined from asserting any interest in the lots as against the title or possession of the plaintiffs or either of them. It was in proof that the plaintiffs, under date of December 8, 1881, executed and delivered to Kavanaugh a writing as follows: “St. Paul, Dec. 8, 1881. “P. T. Kavanaugh: We hereby authorize you to sell for us lots 4 and 9, block 20, Robert & Randall’s Addition to St. Paul, for ten thousand dollars net to us. “Clara Woolworth. “S. B. Woolworth.” There was some evidence tending to show that when Hennessey purchased there was exhibited to him a writing purporting to be signed by the plaintiff, and which authorized Kavanaugh to make sale of these lots upon substantially the terms embodied in the written agreement of December 23, 1881. The lots, it should be stated, were the property of Mrs. Woolworth, having been purchased with her means. J/r. Martin F. Morris for appellant. Mr. I. K D. Heard for appellees. Mr. Justice Harlan delivered the opinion of the court. After stating the facts as above reported, he continued : It is not claimed, as it could not well be, that the writing executed by plaintiffs on Dec. 8, 1881, invested Kavanaugh with authority to assent, on behalf of the appellees, to the terms contained in the agreement of December 23, 1881. Authority to sell the lots for “ $10,000 net ” to the plaintiffs was not authority to impose upon them the burdensome conditions embodied in the last writing. Besides, it is clear from the evidence that Hennessey declined to enter upon negotiations for the lots unless Kavanaugh obtained from appellees some 442 OCTOBER TERM, 1888. Opinion of the Court. writing conferring upon him as their agent larger powers than were given by the writing of December 8,1881. The controlling question, therefore, as the court below properly said, was whether the appellees invested Kavanaugh with authority to make sale of the property upon the terms set forth in the writing of December 23, 1881. It may be conceded, for the purposes of the present case, that in executing that writing Kavanaugh did not exceed the authority given him by Woolworth, and that the latter gave Hennessey to understand that he assented to a sale on the terms contained in it. But the husband did not own the property, and his assent alone was insufficient to pass the title of the wife. General Stats. Minn. 1878, c. 69, §§ 2, 4, p. 769. Under any, even the most liberal interpretation of the local statutes relating to the contracts of married women for the sale of their real property, the appellant could not have a specific performance of the agreement of December 23, 1881, unless it was satisfactorily shown that Mrs. Woolworth, in some legal form, authorized its execution by Kavanaugh on her behalf. We are of opinion that a case is not made which would justify a decree in plaintiff’s favor on the cross-bill. Specific performance is not of absolute right. It rests entirely in judicial discretion, exercised, it is true, according to the settled principles of equity, and not arbitrarily or capriciously, yet always with reference to the facts of the particular case. Willard v. Tayloe, 8 Wall. 557, 567; Marble Co. v. Ripley, 10 Wall. 339, 357; 1. Story’s Eq. Jur. § 742; Seymour v. Delan-cey, 6 Johns. Ch. 222, 224. The question in cases of specific performance, Lord Eldon said, is not what the court must do, but what, under the circumstances, it may do, in the exercise of its discretion to grant or withhold relief of that character. White v. Damon, 1 Ves. 30, 35; Radcliffe v. Warrington, 12 Ves. 326, 331. It should never be granted unless the terms of the agreement sought to be enforced are clearly proved, or, where it is left in doubt whether the party against whom relief is asked in fact made such an agreement. Colson v. Thompson, 2 Wheat. 336, 341; Cam' v. Duval, 14 Pet. 77, 83; Huddleston v. Briscoe, 11 Ves. 583, 591; Lam v. McLaughlin, 14 JONES v. EAST TENNESSEE &c. RAILROAD CO. 443 Counsel for Parties. Minnesota, 72; Waters v. Howard, 1 Maryland, Ch. 112, 116. That Mrs. Wool worth united with her husband in the writing of December 8, 1881, is clearly established. But that she ever signed any other writing relating to the sale of the lots in question, or authorized or directed her husband, or Kavanaugh, or any one else, to sell the lots upon the terms embodied in the writing of December 23, or that she approved or ratified a sale to Hennessey upon such terms, is to say the least, very doubtful under the conflicting evidence in this cause. The Circuit Court did not, therefore, err in refusing specific performance and dismissing the cross-bill. And as the agreement of December 23, 1881, was not shown to be the tract of Mrs. Wool worth, the appellees were entitled to such a decree as was rendered on the original bill. The decree of the Circuit Court is affirmed. JONES v. EAST TENNESSEE, VIRGINIA AND GEORGIA RAILROAD COMPANY. error to the circuit court of the united states for the EASTERN DISTRICT OF TENNESSEE. No. 58. Argued November 2, 1888. — Decided November 12,1888. hen, in an action by an employé of a railroad company against the company to recover damages for a personal injury inflicted upon him, by reason of an engine in motion striking him, it is conceded that the defendant company was in fault on account of the manner of running its trains, and the defence is set up that the plaintiff was guilty of contributory negligence, and there is conflicting evidence on that point, the plaintiff is entitled to have that question submitted to the jury. The case is stated in the opinion of the court. Henry H. Ingersoll for plaintiff in error. Hr. William M. Baxter for defendant in error. 444 OCTOBER TERM, 1888. Opinion of the Court. Mr. Justice Miller delivered the opinion of the court. This is an action brought by W. C. Jones against the East Tennessee, Virginia and Georgia Railroad Company to recover damages for a personal injury inflicted upon him by his being struck by an engine belonging to the defendant company. The suit was originally brought in the local state court, but was afterwards removed by the railroad company into the Circuit Court of the United States for the Eastern District of Tennessee. On the trial, after considerable testimony had been introduced on both sides, the court gave the jury following instruction : “ This case, gentlemen, does not come within the purvie\v\J sub-sections [3, 4,] of section 1166 of the Code of Tennessee. It must be determined upon the principles of the common law as interpreted and administered by the Supreme Court of the United States. It is not necessary for me to explain what would or would not be negligence on the part of the defendant ; for it may be conceded that the defendant was negligent in running its train, without its brakes in good condition, at a higher rate of speed than was proper or safe under the circumstances of this case, and still the plaintiff would not be entitled to recover, simply because such negligence, if it existed, did not cause the injury complained of. In the judgment of this court, based upon the facts shown in evidence and not controverted by the argument, touching the manner of plaintiff’s collision with defendant’s engine, the plaintiff was guilty of such contributory negligence as precludes him from all right to recover in this action. The court therefore instructs you to return a verdict for the defendant.” It will be seen from his language that, while the court was of the opinion that the company was guilty of such negligence as would render it liable in this action, it was relieved from that liability by contributory negligence on the part of the plaintiff. It did not, therefore, permit the jury to pass either upon the negligence of the defendant company or the contributory negligence of the plaintiff. The ground upon which the court based this decision is not JONES v. EAST TENNESSEE &c. RAILROAD CO. 445 Opinion of the Court. shown, except so far as appears from the statement in the extract above quoted, that “ upon the facts shown in evidence and not controverted by the argument, touching the manner of the plaintiff’s collision with defendant’s engine, the plaintiff was guilty of such contributory negligence as precludes him from all right to recover in this action.” It is not to be inferred from this statement that counsel for the plaintiff conceded that he was guilty of contributory negligence ; but the court proceed upon the idea that the facts, which in its judgment were shown in evidence, not being controverted by argument, were sufficient to establish such negligence. The evidence is embodied in the bill of exceptions before us, and we cannot agree with the Circuit Court that there was such a clear case of negligence on the part of the plaintiff as to justify the court in withdrawing the whole subject from the consideration of the jury. The plaintiff himself states that he was in the depot of the defendant on business ; that the passenger platform was alongside the tracks, which ran between it and the dépôt ; there was also a side-track that went through the dépôt ; that he passed out of the depot by the usual way, and was struck between the wall of the depot and the platform. He further says that the way he was going he could not see a train approaching from the east because there was a car on the side-track, and he had no warning of any approaching train, although he listened as he went out of the depot. There is also some evidence that there was so much noise about the place of exit from the depot that the sound of the advancing train could not be distinguished. On the other hand, there is some testimony to show that the plaintiff ran carelessly through the depot ; that he knew the tram was approaching, and that he might ha ve guarded himself against it if he had stopped at the exit of the depot long enough to have looked about him. But we think these are questions for the jury to determine. We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed Questions of fact, why it should not decide such questions as lusse as well as others. There is nothing in a case in which 446 OCTOBER TERM, 1888. Syllabus. it is conceded, fully and unreservedly, that the defendant company is in fault on account of the manner of running its trains, such as the high rate of speed and other careless matters mentioned by the court in its instructions, which should justify the court in refusing to submit to the jury the question whether the defendant company is relieved from the liability incurred by it, by reason of the acts of the plaintiff showing that, in some degree, he may not have been as careful as the most cautious and prudent man would have been. Instead of the course here pursued a due regard for the respective functions of the court and the jury would seem to demand that these questions should have been submitted to the jury, accompanied by such instructions from the presiding judge as would have secured a sound verdict. We think the case is covered by that of Kane v. The Northern Central Railway Co., ante, 91, in which the opinion of this court was delivered by Mr. Justice Harlan, October 22, 1888. We forbear to discuss the facts further at this time, as we do not wish to prejudice the case before the jury, in the further proceedings which must be had. The judgment of the Circuit Court is reversed, with instructions to grant a new trial. POLLAK v. BRUSH ELECTRIC ASSOCIATION OF ST. LOUIS. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA. No. 43. Argued and submitted October 29,1888. — Decided November 19, 1888. In Alabama, when a defendant pleads specially and generally, and the special plea contains nothing of which the defendant cannot avail himself under the general issue, an error in sustaining a demurrer to the special plea, as it works no injury, constitutes no ground for reversal. In Alabama a written agreement between the parties may be read in evidence without proof of its execution, unless the execution is denied by plea, verified by affidavit. The agreement which formed the subject of controversy in this action POLLAK v. BRUSH ELECTRIC ASSOCIATION. 447 Statement of the Case. related to a renewal of the existing contract of the plaintiff in error for lighting certain streets in Montgomery, and not to an enlargement of that contract so as to include other streets; and being so construed, the requisite renewal was effected by the acts of the parties referred to in the opinion of the court, without a written contract, covering a fixed period of time. Covenants are to be considered dependent or independent, according to the intention of the parties, to be deduced from the whole instrument; and in this case the covenants of the plaintiff in error, to pay money for goods sold and delivered, were independent of the covenants of the defendant in error to transfer certificates of stock in a corporation. This writ of error brought up for review a judgment in favor of the Brush Electric Association of St. Louis, plaintiff below, against the plaintiff in error for the sum of $6458.10. Besides the common count for goods and merchandise sold to the defendant, Pollak, the complaint contained a special count based on a written agreement between the parties, executed November 13, 1883. By the first article of that agreement, Pollak agreed to pay to the plaintiff the sum of $7942 as follows: “ Seven thousand dollars in cash on the execution of this agreement, and the sum of nine hundred and forty-two dollars on the first day of January, 1884, in full settlement and satisfaction of all claims and demands due by Pollak & Co. and the Brush Electric Light and Power Company of Montgomery, Alabama, to the said Brush Electric Association of St. Louis; and the Brush Electric Association agrees to transfer or cause to be transferred to said Ignatius Pollak, without recourse, all the shares now held by the said Brush Electric Association and the Brush Electric Company of Cleveland, Ohio, in the said Brush Electric Light and Power Company of Montgomery, Alabama.” The remaining articles of the agreement were in these words: “ Second. The said Brush Electric Association of St. Louis agrees to furnish to the said Ignatius Pollak one number 8 dynamo-electric machine, one automatic dial for said machine, and forty arc lamps of two thousand candle power each, of different styles, for which the said Ignatius Pollak agrees to pay to the said Brush Electric Association of St. Louis by the 448 OCTOBER TERM, 1888. Statement of the Case. first day of January, 1885, twelve per cent of the cost of said machinery as per card rate hereto attached, signed by the parties and made a part of this agreement, which card rate is agreed by the parties to be the cost of said machinery. This twelve per cent, it is agreed by the parties, is to be considered a rental of said machinery, dial and lamps for the term of one year, and which are furnished to enable the said Ignatius Pollak to comply with his contract with the city council of Montgomery to light the streets of the city of Montgomery with electric lights. “ Third. It is further agreed that in case the city council of Montgomery shall conclude to adopt the Brush electric light for the future lighting of the streets of the said city of Montgomery, Alabama, after the expiration of the time of the present contract between said Pollak and Company and the city council of Montgomery, that the said Ignatius Pollak will pay to the said Brush Electric Association of St. Louis, Missouri, by the first day of January, 1885, the cost of said machinery, dial and lamps as fixed and ascertained by said card rate hereto attached, and in that event the said Ignatius Pollak is not to pay the said twelve per cent, said twelve per cent being a separate and distinct arrangement, as a fair rental for the use of said machinery, dial and lamps by the said Ignatius Pollak and for the risk assumed by the Brush Electric Association in furnishing the same to the said Ignatius Pollak in case the said city council of Montgomery shall conclude not to continue lighting the streets of Montgomery with the Brush electric light after the expiration of their present contract with said Pollak & Co. “Fourth. It is further understood and agreed that in case the said city council of Montgomery shall not conclude to continue lighting the streets of the said city of Montgomery with the Brush electric light after the expiration of their present contract with said Pollak & Co., the said Ignatius Pollak shall deliver the said dynamo-electric machine, said automatic dial, and said lamps by the first day of January, 1885, fully repaired and in good working order, to the said Brush Electric Association of St. Louis, at Cleveland, Ohio, POLLAK v. BRUSH ELECTRIC ASSOCIATION. 449 Statement of the Case. or St. Louis, Missouri, as may be directed by the said Brush Electric Association of St. Louis, and that the title and property in and to said machinery, dial and lamps shall be and remain in the said Brush Electric Association of St. Louis, until and unless the said Ignatius Pollak pays the cost of said machinery, dial and lamps, as provided by this agreement, in the third clause thereof. “ Fifth. It is further understood and agreed that the said Ignatius Pollak shall have the right to purchase from the said Brush Electric Association of St. Louis any machinery and any pieces and parts of machinery which may be necessary for repairing and keeping in working order the present machinery in said city of Montgomery, and the machinery furnished to him by this agreement, at the same rates at which such machinery and pieces and parts of machinery are sold at the time to other private consumers by the said Brush Electric Association of St. Louis.” There was appended to this agreement a stipulation, signed by the parties, that the “delivery of said dynamo-electric machine, dial and lamps on board the cars at said city of Montgomery, consigned to the said Brush Electric Association of St. Louis, at Cleveland, Ohio, or St. Louis, Missouri, as said Brush Electric Association may direct, costs of transportation prepaid, by the first day of January, 1885, shall be considered and held a delivery by said Ignatius Pollak, as provided in the fifth clause of the aforegoing agreement.” The card rates attached to the above agreement, and referred to in its second article, were these : “ ¡St. Louis, Mo., .Nov. 13, 1883. “Mr. Ig. Pollak, Montgomery, Ala., “ ’83. Bought of the Brush Electric Association. “Oct. 25. 30 No. 11 Lamps, 60 1800 6 “ 3 “ 60 ....... . 360 2 « 2 “ 50 100 2 “ IT « 60 120 1 « 8 dynamo 3600 1 « 8 dial 200 6180” vol. cxxvm—29 450 OCTOBER TERM, 1888. Statement of the Case. At the time this agreement was made Pollak had a contract with the city of Montgomery for the lighting of its streets, which expired November 1,1884. On the 4th of October, 1884, he addressed a. communication to the city council, referring to the fact that the contract between him and the city “ for twenty-three electric lights for street purposes ” would expire on the 1st of November, and asking prompt action as to whether it would be renewed by the city, or whether additional lights would be taken. He further said in his communication : “ Having incurred very heavy expense in bringing extra machinery here, and having to pay a heavy rental for the additional dynamo required for the city purposes, it becomes absolutely necessary that your decision should be rendered as early as possible, so that in the event of your declension to renew the contract I may be able to take down, pack and deliver the machinery at Cleveland, Ohio, within the time stipulated with the parent company of the Brush Electric Association.” On the 6th of October, 1884, that communication was referred by the city council to the gas committee; and, on the 3d of November, 1884, the recommendation of the committee, “ that the contract with Pollak & Co. to furnish the city with twenty-three electric lights be renewed for one year,” was adopted by the council. At a subsequent meeting of that body, held January 19,’ 1885, it was resolved that, “renewing the contract for the electric light, the mayor is authorized and instructed to make the contract with the Brush Electric Light and Power Company.” Of that company Pollak was president, and seemed to have exclusive control and direction of its business, including the property and machinery connected therewith. It was in proof that the dynamo and machinery sued for in this action were received by the defendant and used by him in performing his contract ; that, at the time of the trial below, they were in use at the works of the last-named corporation, which had furnished the electric light during the existence of the contract, between the city and Pollak ; and that the city continued after November 1,1884, to make monthly payments to the defendant. POLLAK v. BRUSH ELECTRIC ASSOCIATION. 451 Citations for Plaintiff in Error. It was also in proof that there were about eighty miles of streets and more than one hundred different streets within the corporate limits of Montgomery, and that only a small portion of the city was ever lighted by the Brush electric light; that Commerce street and Dexter avenue were the only thoroughfares or streets that were thus lighted continuously all the way from end to end; that only twenty-three electric lights or lamps in all were or ever had been used or employed in the city for street lighting purposes; that the remainder of the lights not used on Commerce street and Dexter avenue were employed on parts of certain streets and were confined within a narrow compass, mainly in the business centre of the city; that no greater number of lights or lamps were employed or contracted for, at any time, in the city for street lighting purposes than were used in the year 1884 up to the 1st of November of that year; that the area or territory covered with these lights had not in any manner been enlarged; and that there were a great variety of electric lights other than the Brush electric light serviceable for lighting streets, and in use in various cities of the United States. It was further proven by a witness that the legislature of Alabama convened in Montgomery on the 11th of November, 1884, remaining in session before its recess, during the balance of that month and a part of the succeeding month ; that in the absence of any contract between the city and the defendant after the 1st day of November, 1884, the mayor of the city made a temporary arrangement with the defendant to furnish the Brush electric light to the city for the purpose of keeping the portion of the city above described lighted during the balance of the month of November and the month of December, 1884. This was in substance all the proof in the cause. The court charged the jury that if they believed the evidence the plaintiff was entitled- to recover the prices of the machinery, as fixed in the above card of rates, with interest from January the 1st, 1885. Verdict for plaintiff and judgment on the verdict. Mr. Samuel F. Rice and JTr. A. A. Wiley, for plaintiff in error, submitted on their brief, citing: Nash v. Towne, 5 Wall. 452 OCTOBER TERM, 1888. Opinion of the Court. 689; Bank of Columbia v. Hagner, 1 Pet. 455; Barreda v. Silsbee, 21 How. 146; Merriam v. United States, 107 U. S. 437 ; Davenport v. Lamb, 13 Wall. 418 ; Harkness v. Bussell, 118 U. S. 663; Young v. Hunter, 6 N. Y. 203; United States v. Peck, 102 U. S. 64 Mr. H. C. Tompkins, for defendant in error, cited: Ka/nnady v. Lambert, 37 Alabama, 57; Chambers County v. Clews, 21 Wall. 317; Holloway v. Tolbert, 70 Alabama, 389; Beadle v. Graham, 66 Alabama, 99 ; Darden v. Jam.es, 48 Alabama, 33; Bank of Columbia v. Patterson, 7 Cranch, 299; Dermott v. Jones, 2 Wall. 1; Ferguson v. Liarwood, 7 Cranch, 408; Harrison v. Weaver, 2 Porter (Ala.) 542; Weaver v. Lapsley, 42 Alabama, 601; S. C. 94 Am. Dec. 671; McBae v. Baser, 9 Porter (Ala.) 122; Goodlet v. Louisville c& Nashville Bailroad, 122 U. S. 391; Bandolph v. B. & O. Bailroad, 109 U. S. 478; City Council v. Montgomery Water Works, 77 Alabama, 248; Whitehead v. Lane, 72 Alabama, 39, 42; Lowery v. Peterson, 75 Alabama, 109 ; Goldsborough v. Orr, 8 Wheat. 217; Walker v. Clay, 21 Alabama, 797; Phil., Wilm. Balt. Bailroad Co. v. Howard, 13 How. 307, 339; Emigrant Co. v. Adams County, 100 U. S. 61; Hill v. Bishop, 2 Alabama, 320; Pordage v. Cole, 1 Saund. 310; Crawford v. Weston, 131 Mass. 283; L.ucesco Oil *Co. v. Brewer, 66 Penn. St. 351; Quigley n. DeHaas, 82 Penn. St. 267, 273 ; Scott v. Kittanning, 89 Penn. St. 231; Johnson v. Johnson, 3 Bos. & Pull. 162; Young & Conant Mfg Co. v. Wakefield, 121 Mass. 91; Barth v. Clise, 12 Wall. 400; Philpot v. Gruninger, 14 Wall. 570; Walbrun v. Babbitt, 16 Wall. 577; Chicago dec. Bailroad v. Boss, 112 U. S. 377, 395; Pennywit v. Eaton, 15 Wall. 382; Hall v. Jordan, 19 Wall. 271; Lnsurance Co. v. Iluchbergers, 12 Wall. 164; Prentice v. Pickersgill, 6 Wall. 511. Mr. Justice Harlan delivered the opinion of the court. He stated the case as above reported, and continued: 1. The special pleas contained nothing of which the defendant could not have availed himself under his. plea of the gen- POLLAK v. BRUSH ELECTRIC ASSOCIATION. 453 Opinion of the Court. eral issue. If the court erred in sustaining the demurrer to any of the special pleas, it was an error without injury, and, therefore, not constituting a ground of reversal. Code of Alabama, 1886, § 2675; Kannady v. Lambert^ 37 Alabama, 57, 59. 2. It was not error to allow the written agreement between the parties to be read in evidence without proof of its execution. The Code of Alabama provides that “every written instrument, the foundation of the suit, purporting to be signed by the defendant, his partner, agent, or attorney in fact, must be received in evidence without proof of the execution, unless the execution thereof is denied by plea, verified by affidavit.” § 2770. There was no such plea in this case. 3. By the terms of the agreement between the parties, the defendant was to pay a certain amount to the plaintiff, by a named day, for the machinery, dial and lamps, provided the city council of Montgomery concluded “to adopt the Brush electric light for the future lighting of the streets” of that city, after the expiration of the contract which Pollak & Company then had with the city. The main question in the case is, whether the contingency just stated happened prior to January 1, 1885; if so, the contract between the parties became one of absolute sale, and bound the defendant to pay on that day the specified card rates for the property. The defendant insists that the agreement, construed in the light of the circumstances attending its execution, contemplated something more than the adoption by the city council of the Brush electric light for the limited territory covered by the contract which Pollak & Co. then had with the city; and that the parties made their agreement with reference to an enlargement, after the expiration of that contract, of the area in the city to be lighted with the Brush electric light. We do not assent to this construction. The agreement was made in view of the fact that the city was then using, under the contract with Pollak & Co., only twenty-three of the Brush electric lights. The machine, dial and lamps furnished by the defendant were used, and presumably were needed, in order that Pollak & Co. might perform that contract. He was to 454 OCTOBER TERM, 1888. Opinion of the Court. pay only .certain, rental therefor in case the city council concluded “not to continue lighting the streets of Montgomery with the Brush electric light after the expiration of the present contract with said Pollak & Co.,” and if the council concluded otherwise, then the machine, dial and lamps were to be returned to the defendant, fully repaired and in good working order, by January 1, 1885. These provisions clearly show that the lighting of the streets after November 1, 1884, with the Brush electric light, under an arrangement for that purpose with the city council, even*to the limited extent provided for by the contract with Pollak & Co., was, within the meaning of the parties, such an adoption of that light by the city as bound the plaintiff to purchase the machine, dial and lamps in question and pay therefor, by January 1, 1885, the sum of $6180. It could not have been their intention to make the permanent adoption of the Brush electric light, for an indefinite period for all the streets of the city, or for a larger territory than that stipulated for in the contract with Pollak & Co., a condition precedent to the defendant’s obligation to buy the property at the aggregate price fixed. The communication of Pollak to the city council, under date of October 4, 1884, supports this conclusion. He distinctly says that if the then existing contract was not renewed, he was under a duty by his agreement with the defendant to take down, pack and deliver the machinery at Cleveland, Ohio; implying that if his contract was renewed no such duty would rest upon him. And that the contingency happened upon which the defendant became bound to purchase the property outright at the price above named, appears from the fact that the contract of Pollak & Co. was renewed. That renewal is shown by the action of the city council on the 3d of November, 1884. Its action in response to the written communication of Pollak, under date of October 4, and its monthly payments thereafter to him, operated as an effective renewal of his contract with the city, although such renewal was not evidenced by a written contract covering a fixed period of time. City Council of Montgomery v. Montgomery Water Works, Alabama, 248, 254. 4. It is also contended that the plaintiff was not entitled to POLLAK y. BRUSH ELECTRIC ASSOCIATION. 455 Opinion of the Court. recover, except upon averment or proof that it had transferred or offered to transfer to the defendant the shares of stock held by it and by the Brush Electric Company of Cleveland, Ohio, in the Brush Electric Light and Power Company of Montgomery. This cannot be, unless, as insisted, his promise to pay, in the contingency named in the third article of the agreement of November 13, 1883, the sum of $6180, was in consideration of the plaintiff’s promise to transfer, or have transferred to him, the above shares. In support of this position the case of Bank of Columbia v. Hagner, 1 Pet. 455, 465, is cited. It was there said that the inclination of the courts strongly favors, as obviously just, that construction of contracts which makes the covenants or promises of the parties dependent rather than independent. After observing that the seller ought not to be compelled to part with his property without receiving the consideration, nor the purchaser to part with his money without an equivalent in return, the court said: “ Hence, in such cases, if either a vendor or a vendee wish to compel- the other to fulfil his contract, he must make his part of the agreement precedent, and cannot proceed against the other without an actual performance of the agreement on his part, or a tender or refusal.” But it is clear, as said in Philadelphia, Wilmington <& Baltimore Railroad Company v. Howard, 13 How. 307, 339, that covenants are to be considered dependent or independent, according to the intention of the parties, to be deduced from the whole instrument. It is manifest that the covenant of the plaintiff in relation to the transfer of stock in the Brush Electric Light and Power Company is wholly independent of the agreement in relation to the machine, dial and lamps in question. The consideration for such transfer, and for the settlement and satisfaction of all claims due by Pollak & Co. and by the Brush Electric Light and Power Company to the plaintiff, was the payment by Pollak of a certain amount, part in cash on the execution of the agreement of November 13,1883, and the balance on the 1st of January, 1884. On the other hand, the consideration for Pollak’s agreement to pay, in a certain contingency, a specified sum for the machine, 456 OCTOBER TERM, 1888. Syllabus. dial and lamps, was his becoming the absolute owner of those articles, upon the happening of that contingency. The cost of the articles was fixed by the agreement at a certain aggregate sum, without reference to the transfer of the above-mentioned stock. There is nothing whatever in the contract indicating that the payment for the machine, dial and lamps was to depend, in any degree, upon the transfer of the stock, or that the transfer of the stock was to depend upon the adoption of the Brush Electric Light by the city. The covenants were wholly independent; and, therefore, it was not essential, to the plaintiff’s right to recover, that it should allege or prove that its agreement to transfer, or have transferred, to the defendant, the above-described stock, had been performed. That may be the subject of a separate suit. As the court below correctly interpreted the agreement between the parties, and as the evidence showed that the contingency happened which entitled the plaintiff to recover the sum specified in the agreement as the value of the property, the direction to the jury to find for the plaintiff was right. Goodlet v. Louisville <& Nashville Railroad, 122 IT. S. 391; Kane n. Northern Central Railroad, ante, 91. The judgment is affirmed. CORNELIUS v. KESSEL. ERROR TO THE SUPREME COURT OF THE STATE OF WISCONSIN. No. 60. Submitted November 2,1888. — Decided November 19,1888. In Wisconsin an equitable defence may be set up in an action at law; but it must be separately stated, in order that it may be considered on its distinctive merits, and in order that, if established, the appropriate relief may be administered. When, under the practice prevailing in a State, an equitable defence is set up in an action for the possession of land, the grounds set forth must be sufficient to entitle the defendant to a decree that the property be transferred from the plaintiff to him, or that the plaintiff be enjoine from prosecuting the action for the possession of the property. CORNELIUS v. KESSEL. 457 Opinion of the Court. When an entry is made of two or more tracts, one of which is not at the disposal of the United States by reason of being within a swamp-land grant to a State, the validity of the entry of the remainder is not affected thereby.. When an entry is made upon public land subject to entry, and the purchase money for it is paid, the United States then holds the legal title for the benefit of the purchaser, and is bound, on proper application, to issue to him a patent therefor; and if they afterwards convey that title to another, the purchaser, with notice, takes subject to the equitable claim of the first purchaser, who can compel its transfer to him. The power of supervision possessed by the Commissioner of the General Land Office over the acts of the register and receiver of the local land offices is not unlimited or arbitrary, but can only be exerted when an entry is made upon false testimony, or without authority of law; and cannot be exercised so as to deprive a person of land lawfully entered and paid for. When the Commissioner of the General Land Office, without authority of law, makes an order for the cancellation of an entry of public land made in accordance with law, and accompanied by the payment of the purchase money, the person making the entry and those claiming under him can stand upon it, and are not obliged to invoke the subsequent reinstatement of the entry by the Commissioner. The case is stated in the opinion of the court. Jfr. Conrad Krez for plaintiff in error. No appearance for defendant in error. Mr. Justice Field delivered the opinion of the court. This case comes to us from the Supreme Court of Wisconsin. It is an action for the possession of forty acres of land, being part of a quarter section in Township 16 of Range 20, in the county of Sheboygan, in that State, and was brought in the Circuit Court of that county. The complaint alleges that the plaintiff has the lawful title as the owner in fee simple, and the right to the possession of the demanded premises; and that the defendant wrongfully withholds them from him to his damage of three hundred dollars. It therefore prays that the defendant may be adjudged to surrender to the plaintiff their possession and to pay the said damages. In support of his alleged title the plaintiff relies on a patent 458 OCTOBER TERM, 1888. Opinion of the Court. of the United States for a tract embracing the demanded premises, issued to one Myron H. Puffer on the 4th of June, 1877, upon a homestead entry made by him in December of the previous year, and sundry mesne conveyances from the patentee. The answer of the defendant admits that she was in possession of the premises at the commencement of the action, but denies generally and specifically the other allegations of the complaint, and pleads in bar of the action an entry upon the premises by her, and those through whom she derives her interest, under claim of title, exclusive of any other right, founded upon a written instrument as a conveyance thereof, and their occupation under such claim for more than ten years prior to the commencement of the action. The answer also sets forth, under a separate heading or count, by way of counter-claim, various matters which the defendant claims constitute in equity a defence to the action and entitle her to a decree that she has a right to the title and possession of the premises. Those matters, briefly stated, are substantially as follows : In January, 1856, one Henry I. Davidson entered two tracts of land in Township 16 of Range 20, in Sheboygan County, one of which constitutes the premises in controversy, as public lands of the United States subject to entry, paid the full purchase price to the receiver of the land office for the district, and obtained from him the usual duplicate receipt therefor, which was duly recorded in the office of register of deeds of the county in April, 1857. Subsequently Davidson and his wife conveyed the tract in controversy to one Joseph Hein, and from him, through sundry mesne conveyances, all of which are on record in the register’s office of the county, the property, in October, 1869, became vested in Jacob Kessel, the husband of the defendant. Kessel died in July, 1876, in possession of and thus owning the premises, leaving the defendant, as his widow, and four children surviving him. By his last will and testament, which has been admitted to probate, he devised to the defendant a life estate in the premises in controversy, and she is now in possession, holding the same thereunder, the fee thereof being in the CORNELIUS v: KESSEL. .459 Opinion of the Court. children, subject to her life estate. And she alleges that, from the time of the entry by Davidson down to the death of Kessel, there was an uninterrupted possession and claim of title by Kessel and his predecessors, and that valuable improvements were made thereunder, without their knowledge of any adverse claim or of the assertion of interest of any kind. In October, 1857, an order was made by the Commissioner of the General Land Office, cancelling the entry of Davidson for the two tracts of land, on the alleged ground that one of them, not the tract embracing the premises in controversy, was included in a prior grant to the State, and therefore was not subject to entry. The order of cancellation was made without previous notice of any kind to Davidson or any party in interest under the entry, and the purchase money paid was never returned or offered to him or to any of his successors in interest; and the defendant contends that the order was erroneously and improperly made. The Commissioner of the General Land Office afterwards came to the same conclusion, and in June, 1879, he directed the entry to be reinstated as to the tract which had not been previously granted to the State; that is, the tract in controversy in this case. It was between the cancellation and the reinstatement of the entry as to this tract that the homestead entry was made by Myron H. Puffer, and the patent issued to him. The answer also imputes fraudulent conduct to the register or receiver of the land office of the district, alleging, on information and belief, that the entry of Puffer was made in his interest, but it is not deemed necessary to repeat the imputations. It concludes with a prayer that the title to the premises may be adjudged to have been in Jacob Kessel at the time of his death, and that the defendant is entitled to the possession thereof, or that such other and further relief be granted as may be just. The practice of setting up in actions at law defences, whether of a legal or equitable character, is permissible under the laws of Wisconsin. They are required, however, to be separately stated that they may be considered on their distinctive merits, and if established, that the appropriate relief may be admin- 460 OCTOBER TERM, 1888. Opinion of the Court. istered. When, as in this instance, the action is for the possession of land, the grounds set forth must be sufficient to entitle the defendant to a decree that the title of the property be transferred from the plaintiff to him, or that the plaintiff be enjoined from prosecuting the action for the possession of the property. The equitable defence is, therefore, to be first considered and determined, for, if sustained, there will be no occasion for proceeding with the remedy at law, Quinby v. Conlan, 104 U. S. >420; and that course was pursued in the present case. The court took up the matters alleged as grounds for equitable relief and considered the evidence adduced in their support; and it thereupon found that the allegations of the answer as to those matters were sustained in all particulars. Judgment was accordingly rendered in favor of the defendant, declaring that the entry of Myron H. Puffer and the patent thereon issued to him were null and of no effect as a conveyance of the premises; that the defendant’s testator died vested with an equitable title to them, and entitled to their possession and to a patent therefor from the United States, and that the defendant has such estate and possession during her life; and directing that the complaint of the plaintiff be dismissed with costs. On appeal to the Supreme Court of the State the judgment was affirmed. The forty acres in controversy were subject to entry in January, 1856, when Davidson entered them together with another tract. The validity of the entry of those acres was not affected by the fact, that the second tract belonged to the State of Wisconsin under the .swamp-land grant, and was not therefore subject to the disposal of the United States. A defect in the title of one of several parcels sold does not invalidate the sale of the others if the purchaser makes no objection. When the tract, wThich was subject to entry, was thus purchased and paid for, it ceased to be subject to the disposal of the United States; it was not in equity their property. Carroll v. Safford, 3 How. 440, 460; Witherspoon v. Duncan, 4 Wall. 210, 218. The legal title, it is true, was retained by them, but they held it as trustee for the benefit of the purchaser; and they were bound upon proper application CORNELIUS v. KESSEL. 461 Opinion of the Court. to issue to him a patent therefor. If from inadvertence or mistake as to their rights, or other cause, they afterwards conveyed that title to another, the grantee with notice took it subject to the equitable claim of the first purchaser, who could compel its transfer to him. In all such cases a court of equity will convert the second purchaser into a trustee of the true owner and compel him to convey the legal title. Lindsey v. Haioes, 2 Black, 554 ; Stark v. Starrs, 6 Wall; 402, 419. The power of supervision possessed by the Commissioner of the General Land Office over the acts of the register and receiver of the local land offices in the disposition of the public lands, undoubtedly authorizes him to correct and annul entries of land allowed by them, where the lands are not subject to entry, or the parties do not possess the qualifications required, or have previously entered all that the law permits. The exercise of this power is necessary to the due administration of the land department. If an investigation of the validity of such entries were required in the courts of law before they could be cancelled, the necessary delays attending the examination would greatly impair, if not destroy, the efficiency of the department. But the power of supervision and correction is not an unlimited or an arbitrary power. It can be exerted only when the entry was made upon false testimony, or without authority of law. It cannot be exercised so as to deprive any person of land lawfully entered and paid for. By such entry and payment the purchaser secures a vested interest in the property and a right to a patent therefor, and can no more be deprived of it by order of the Commissioner than he can be deprived by such order of any other lawfully acquired property. Any attempted deprivation in that way of such interest will be corrected whenever the matter is presented so that the judiciary can act upon it. In Lindsey v. Hawes we have a noted instance in which the court inquired into the facts of a disputed entry of public lands, and gave effect to a lawful entry, which had been set aside, and the certificate issued cancelled, by order of the Commissioner of the General Land Office. In that case it appeared that Lindsey had, in 1839, applied to the register 462 OCTOBER TERM, 1888. Opinion of the Court. and receiver of the land office at Galena to purchase land, claiming the right of preemption under the act of 1838, by reason of cultivation and actual residence thereon, and having established his claim to the satisfaction of those officers, he received from them, in June, 1839, the proper certificate, stating the receipt of the purchase money, and that on its presentation to the Commissioner of the General Land Office he would be entitled to a patent. Subsequently, in 1845, the Commissioner set aside this entry, and ordered the certificate to be cancelled, on the ground that a mistake had been made in the original survey of the land, and that by a new survey ordered in 1844, it was ascertained, as he supposed, that the house in which Lindsey resided, when he made his claim in 1839, was not on the land for which he received his certificate. After this, one Hawes claimed a preemption right to the same land; and the Commissioner directed the register and receiver to hear proof of his right, and to adjudicate upon it. They accordingly heard his proof, and gave him a certificate, upon which a patent was afterwards issued to him. Lindsey died in the same year in which he made his entry; and his heirs, who had no notice of the new survey made five years afterwards, or of the proceedings by which Hawes established his claim before the register and receiver, brought suit against Hawes and grantees from him, to compel a transfer by them of the title obtained by the patent. It appeared that the residence of Lindsey was on the line which, according to the new survey, divided the quarter section he entered from an adjoining quarter section; so that in one sense it may be said that he resided on both quarter sections. The court held that the government was bound by the original survey; that Lindsey’s residence was sufficiently on the section which he claimed; that the patent certificate was rightfully issued to him; that the act of the Commissioner in setting it aside was illegal, and did not destroy the right thus vested; that the land was not, therefore, subject to entry by Hawes; that the patent obtained by him was wrongfully and illegally issued to him; and that the heirs of Lindsey were entitled to a conveyance of the legal title from him and his codefendants. CORNELIUS v. KESSEL. 463 Opinion of the Court. That case covers the present one in all essential particulars. The interest of Davidson in the tract, which embraces the premises in controversy, acquired by him by his entry, was not lost or impaired by the order directing its cancellation. That order was illegally made, and those claiming under him can stand upon the original entry and are not obliged’ to invoke the subsequent reinstatement of the entry by the Commissioner. As that entry, with the payment of the purchase money, gave Davidson a right to a patent from the United States, his heirs are entitled to a conveyance of the legal title from those holding under the patent wrongfully issued to Puffer. Whether Davidson or his successors would have had a right to surrender his entry, upon learning that one of the tracts entered had been previously granted to the State, and claim a return of the purchase money, is a question that does not arise here. It is sufficient to say that, until such objection was raised by them, it did not lie with the land department to oppose the completion of his title to the tract which was subject to entry. The judgment entered in the court below would have been in better form had it directed a conveyance to the heirs of Jacob Kessel, subject to the life estate of the defendant, from those holding under the patent to Puffer, of the legal title which he had acquired to that portion which was subject to entry. The heirs would thus avoid the necessity of applying to the land department for a patent, which it might refuse to issue, until the patent already issued had been cancelled by judicial proceedings. The Supreme Court of the State makes some comment upon the form of the judgment, but observes that, there is nothing in it of which the plaintiff can complain. He cannot be prejudiced by the cancellation of the patent, because the legal title vested in him by that instrument must inure to those who have the superior right to it. The judgment is, therefore, Affirmed. 464 OCTOBER TERM, 1888. Statement of the Case. HUNT v. BLACKBURN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. No. 16. Submitted November 1, 1888. —Decided November 26,1888. At common law, when lands are granted to husband and wife as tenants in common, they hold by moieties as other distinct and individual persons do. The privilege of secrecy upon communications between a client and an attorney-at-law is a privilege of the client alone ; and if he voluntarily waives it, it cannot be insisted upon to close the mouth of the attorney. The Supreme Court of Arkansas and the Circuit Court of Desha County having both adjudged that the appellee and her husband held the tract of land which is the subject of controversy in moieties, and that those through whom the appellant claims became the owners in fee, successively, of the husband’s undivided half, these decrees, standing unreversed, are binding adjudications in favor of the complainant’s title, and justified him in advancing money upon the strength of it. The evidence fails to satisfy the court that there was any deceit practised towards the appellee, or any misapprehension on her part of the transactions recited in the record, or any advice given to her in fraud, or in mistake of fact or law. The submission of the motion to reinstate this case after its dismissal at October term, 1887, for want of jurisdiction is reported 127 U. S. 774. On the 22d October, 1888, (at the present term,) the order of dismissal made at the last term was set aside, and the case was restored to the docket, and was, on the 1st of November, submitted. The case was stated by the court as follows : Munt filed his bill in equity in the District Court for the Eastern District, of Arkansas, on the 25th of June, 1881, against Sallie S. Blackburn, Charles B. Blackburn, and W. P. Smith, claiming as a purchaser for value, with the knowledge and assent of Sallie S. Blackburn, of an undivided half of a plantation in Desha County Arkansas, of which the defendant, Sallie S. Blackburn, owned the other half ; and deraigning title by sundry mesne conveyances from one Shepard to W. A. Buck, whose wife said Sallie S. then was, by Buck and wife to Drake, Drake to Winfrey, who, as Hunt alleged, pur- HUNT v. BLACKBURN. 465 Statement of the Case. chased for value with Mrs. Buck’s knowledge and assent, Win frey’s assignee to Weatherford, and Weatherford to himself; setting up certain decrees hereinafter mentioned, and praying, after averments appropriate to such relief, that his title be quieted, and for partition. Defendant Sallie S. Blackburn answered April 25, 1883, asserting sole ownership of the lands under a deed from Shepard to W. A. Buck, her then husband and herself, and charging, in respect to the decrees upon the title, that she was misled by her attorney and confidential adviser, Weatherford, as to her rights, and was not estopped thereby or by any Conduct of hers, in faith of which either Winfrey or Hunt acted in purchasing. The cause was heard and the bill dismissed March 10th, 1884, and from that decree this appeal was prosecuted. The case made upon the pleadings and evidence appeared to be as follows: Sallie S. Blackburn, then Sallie S. Btck, wife of Walter A. Buck, on the 24th day of April, 1868, purchased of one Shepard an undivided half of 973 acres of land in Desha County, Arkansas, partially improved, and took a title bond stipulating for a mode of division to be made between her and her vendor, as soon as practicable, so that each should have half the improved land, and for a conveyance in fee to Mrs. Buck when the division was made. Mrs. Buck was put in possession of an undivided half in accordance with the agreement. In June, 1868, W. A. Buck, the husband, purchased the other half of Shepard, who gave him a written memorandum evidencing the purchase. Buck then, in January, 1869, sold his half to J. S. Drake, conveying the same to him on the second day of that month by warranty deed, in which his wife, Sallie S., joined, her acknowledgment being that for relinquishment of dower. The evidence tends to show that during 1868 Shepard executed and delivered a deed of the property to Mr. and Mrs, Buck, so drawn as to recognize their separate interests, which deed was not recorded, but in January, 1869, when Buck sold to Drake, the latter’s then attorney was not satisfied and drew another deed of the entire property for Shepard to execute, vol. cxxvin—30 466 OCTOBER TERM, 1888. Statement of the Case. which he did, running directly to Walter A. Buck and Sallie S. Buck, and bearing the same date as the deed to Drake, January 2d, 1869. Drake and Buck and wife farmed the land in partnership up to 1872, when, on the 7th of February of that year, Drake sold to J. T. Winfrey, and gave him an agreement to convey. In the meantime Buck died, and on the 11th day of March, 1872, Mrs. Buck filed her sworn bill in equity against the children and heirs at law of Buck, deceased, Shepard, Drake, Winfrey, and others, in the Circuit Court of Desha County, claiming an undivided half of the land, setting forth the ownership by her husband of the other half, his sale to Drake and Drake’s to Winfrey, and praying that her title to “ said undivided half of said property” be quieted, and for partition. Upon this bill a decree was rendered September 12th, 1873, which found the purchase by Mrs. Buck of Shepard, April 24th, 18|8, of an undivided half of the lands, and the subsequent purchase by Buck of the other half, and Buck’s sale and conveyance of “his half of said land” to Drake, and quieted Mrs. Buck’s title to an undivided half. Shepard derived title to the lands through a purchase under a deed of trust given by Henry J. Johnson to one Tate, and by mistake one parcel was omitted from the trust deed, and the mistake had been inadvertently carried through all the successive conveyances down to the Bucks. In 1872 Randolph, a judgment creditor of Johnson, had caused an execution to be levied on the omitted parcel, and Mrs. Buck and Drake filed a bill in the Desha Circuit Court against Randolph, Winfrey, and others, to enjoin sale upon the execution, correct the mistake, quiet the title and compel Winfrey to complete his purchase. Pending the suit, Mrs. Buck changed her name by intermarriage with Blackburn, who was made a party, and subsequently died. This case went to decree, dismissing the bill, from which an appeal was prosecuted to the Supreme Court of Arkansas, the decision of which tribunal is reported under the title, Blackburn v. Randolph, in 33 Arkansas, 119. The opinion, after setting forth Shepard’s title, states that he sold “an undivided half HUNT v. BLACKBURN. 467 Statement of the Case. of the lands to complainant S. S. Buck, and still later the other undivided half to her husband, W. A. Buck, since deceased, but who in his lifetime sold his interest to complainant Drake, who afterwards sold to Winfrey.” The decree of the Circuit Court was reversed, and a decree entered in the Supreme Court, at the November Term, 1878, “ vesting in complainant Sallie S. Blackburn and defendant J. T. Winfrey, all the legal and equitable title in and to said plantation that was in Henry J. Johnson at the time of the execution of the deed of trust to said Tate.” It appears, also, from the report of this case, that Johnson had given a mortgage on the land to one Graddy, who filed a bill to foreclose it, setting up the sale to Shepard and his sale to W. A. and Sallie S. Buck, who were made parties, and that a decree was rendered in said cause, October 28th, 1869, confirming the title to said lands in Buck and wife under said purchases. In the conveyance by Buck and wife to Drake, January 2, 1869, it was provided that if any recovery was had in the suit of Graddy against Johnson, and “it results as an incumbrance upon this property, the first party are only liable to the extent of their one-half interest in said lands, and the second party takes subject to this liability.” During 1878 Winfrey filed his voluntary petition in bankruptcy in the United States District Court for Middle Tennessee, scheduling half of the lands among his assets, and the register in bankruptcy conveyed, November 1st, 1878, to Harry Harrison, Winfrey’s assignee. The property was sold and conveyed by the assignee to Weatherford, January 30th, 1880, and Weatherford conveyed to Clarence P. Hunt, July 11th, 1880. Weatherford testifies that Mrs. Buck informed him that she had been told she could “ beat Mr. Drake out of any interest in the place,” but had replied “ that she did not wish to beat him out of it, as her husband had sold to him in good faith; all she wanted was to have him settle in accordance with the agreement made in her husband’s lifetime;” and Weatherford commended her reply, and told her he did not think “ she could beat Drake if she were to try.” Exactly when this con« 468 OCTOBER TERM, 1888. Statement of the Case. versation took place is not clearly made out, but the evidence tends to show that it was in 1871 or 1872, and before March 11th, 1872, the date of the commencement of the suit of Mrs. Buck against Buck’s heirs. Weatherford had drawn the original conveyance from Shepard, recognizing, as he believes, the separate interests; and Weatherford acted as solicitor for Drake and Mrs. Buck, afterwards Blackburn, in the litigation which resulted in the decree by the Supreme Court of Arkansas, and for Mrs. Buck in that against Buck’s heirs, which went to decree in the Desha County Circuit Court. Originally Mrs. Buck’s attorney, he had as time went on become Drake’s attorney, and it was as such that he purchased the property at the assignee’s sale, and then sold and conveyed to Hunt at Drake’s request, receiving himself only the amount of his charges, but Drake receiving acquittance of several thousand dollars which Hunt had advanced to him upon the strength of Drake’s interest in the property, in respect to which Weatherford had advised Hunt that it was ample to insure him against loss. Weatherford was not, at this time, acting as Mrs. Blackburn’s attorney. She had resorted to another professional adviser in relation to her interest in the land in 1876, who died in 1878, when she consulted his surviving partner. So far as appears, Weatherford had.no knowledge or information which would have led him to suppose, up to June, 1880, when he conveyed to Hunt, that Mrs. Blackburn was determined to claim the whole land as her own. In 1875 Mrs. Blackburn wrote Weatherford: “It is Mr. Drake’s half of the place that has been sold for taxes, and not mine. I think Mr. Winfrey has given up all idea of having anything to do with the place, as they have all left here, and I am in possession and never intend to give it up until Drake and Winfrey settle, and I know to a certainty who it belongs to, so I can have a permanent division. I am having rails made, so as to fence my half when I know where it is.” This letter and some others in the record were apparently written to Weatherford as a friend rather than as an attorney, but a motion was made on behalf of Mrs. Blackburn to sup- HUNT v. BLACKBURN. 469 Opinion of the Court. press Weatherford’s depositions, of which there were two, and the letters, upon the ground that the former related to matters communicated to Weatherford in confidence as her attorney, and that the letters were equally confidential. J/r. J. B. Ileishell for appellant. No appearance for appellees. Mr. Chief Justice Fuller delivered the opinion of the court. Undoubtedly, at common law, husband and wife did not take, under a conveyance of land to them jointly, as tenants in common or as joint tenants, but each became seized of the entirety, per tout, et non per my ; the consequence of which was that neither could dispose of any part without the assent of the other, but the whole remained to the survivor under the original grant. 2 Bl. Com. 182; 2 Kent’s Com. 113; 1 Washburn, Real Prop. (4th ed.) 672. Nor had this rule been changed at the time of these transactions by the constitution or statutes of Arkansas. lioltlnson v. Eagle, 29 Arkansas, 202. But it was also true at common law, that, as “in point of fact, and agreeable to natural reason, free from artificial deductions, the husband and wife are distinct and individual persons, . . . when lands are granted to them as tenants in common, thereby treating them without any respect to their social union, they will hold by moieties, as other distinct and individual persons would do.” 1 Preston on Estates, p. 132; 1 Inst. 187 b; 1 Washburn, Real Prop. (4th ed.) p. 674; McDermott v. French, 15 N. J. Eq. (2 McCarter) 78, 80. The Supreme Court of Arkansas and the Circuit Court of Desha County must have proceeded upon the conclusion that Buck and his wife held by moieties, in decreeing that, through their conveyance, Drake and Winfrey became the owners in Ice, successively, of Buck’s undivided half of the lands in question ; and the decrees of these two courts to that effect, standing unreversed, would seem to be binding adjudications in favor of complainant’s title. 4Ï0 OCTOBER TERM, 1888. Opinion of the Court. In the Circuit Court case Mrs. Buck sought and obtained a decree quieting her title to an undivided half as between her and Buck’s heirs and Drake, Buck’s grantee, and holding a tax title to have been acquired for the benefit of Drake and herself, and she is to be held to have embraced her whole cause of action in one suit. In the Supreme Court case she had joined with Drake, in seeking relief as co-owners, against an execution sale of a parcel of the land, the rectification of a mistake in the deeds, and the vesting of title in herself and Drake, and the compelling Winfrey to accept title to the Drake half, and that relief was in substance accorded by the decree. Under such circumstances it cannot be denied that Hunt was justified in advancing his money upon the strength of the Drake-Winfrey title. Defendant Blackburn insists, however, in her answer, that the part she took in the litigation of these two cases was the result of misplaced confidence in her counsel, by whom she alleges she was deceived, misadvised and misled; that she was ignorant of her rights; and that she ought not to be held estopped in the premises, while at the same time, it is objected on her behalf, that her attorney, on the ground of privileged communications, should not be permitted to defend himself by testifying to the facts and circumstances under which he advised her and the advice which he actually gave. The rule which places the seal of secrecy upon communications between client and attorney is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure. But the privilege is that of the client alone, and no rule prohibits the latter from divulging his own secrets; and if the client has voluntarily waived the privilege, it cannot be insisted on to close the mouth of the attorney. When Mrs. Blackburn entered upon a line of defence which involved what transpired between herself and Mr. Weatherford, and respecting which she testified, she waived her right to object UNITED STAPES v. McDONALD. 471 Syllabus. to his giving his own account of the matter. As, for instance, when she says that the original deed from Shepard was drawn by Weatherford, that she has not got it, and that she thinks she gave it to him, it is clear that her letter of July 6, 1875, calling for that deed, and Weatherford’s reply of July 14th, enclosing it, are admissible in evidence. But, apart from Weatherford’s evidence, the testimony of Mrs. Blackburn and Drake, together with the documents in the case, fail to satisfy us that there was any deceit or misapprehension in the premises, or any advice given Mrs. Blackburn in fraud or in mistake of fact or law. Buck and his wife purchased the separate halves at different times, and with the intent of holding in moieties, and conveyed Buck’s half to Drake, who paid therefor in good faith and without actual notice. The second deed of Shepard was so drawn as to run directly to Buck and wife, and upon the language in which it was couched this claim is set up. And yet that second deed was given, on request of Drake’s attorney, at the very time when Buck and his wife were conveying to Drake for valuable consideration. The injustice of allowing Mrs. Blackburn to insist, years afterwards, that by that deed she acquired an estate by entirety is too apparent to need comment; nor could such deed divest the title which had once vested in her husband and herself by the former conveyance from the same grantor, nor alter its nature. The decree will he reversed and the cause remanded for further proceedings in conformity with this opinion. UNITED STATES v. McDONALD. APPEAL FROM THE COURT OF CLAIMS. No. 1161. Submitted November 5, 1888. — Decided November 26,1888. The claim of a navy officer for his expenses when travelling under orders rests, not upon contract with the government, but upon acts of Congress; • and when part of such a journey is performed when one statute is in 472 OCTOBEE TERM, 1888. Opinion of the Court. force, and the remainder after another statute takes effect, providing a different rate of compensation, the compensation for each part is to be at the rate provided by the statute in force when the travelling was done. The case is stated in the opinion. Mr. Assistant Attorney General Howard and Mr. F. P. Dewees for appellants. Mr. John Paul Jones and Mr. Robert B. Lines for appellee. Mr- Justice Lamar delivered the opinion of the court. This is an appeal by the United States from a judgment of the Court of Claims. The appellee, Joseph McDonald, (plaintiff below,) a boatswain in the navy, on the 21st of June, 1876, was ordered by Rear Admiral Werden, commanding at Callao, Peru, “ to proceed to your home in the United States, and upon your arrival, report to the honorable the Secretary of the Navy.” Pursuant to said order, McDonald travelled from Callao to Washington, via Panama, and reported as directed. By the act of June 16th, 1874, 18 Stat. 72, c. 285, “only actual travelling expenses ” were “ allowed to any person holding employment or appointment under the United States. By the act of June 30th, 1876, 19 Stat. 65, c. 159, so much of the preceding act as was “ applicable to officers of the navy ’ was repealed ; “ and the sum of eight cents per mile ” was “ allowed such officers ” “ in lieu of their actual expenses.” The journey from Callao to Panama was made prior to June 30th, 1876, and from Panama to Washington after that date. He was paid his actual travelling expenses for the whole distance, to wit, $256.60, under the 1st section of the act of June 16th, 1874. McDonald claimed that he should have received eight cents per mile for the distance actually travelled, under the act of June 30th, 1876, which would have been $368, or $111.40 in excess of the amount received by him. The Treasury Department having refused to accede to his UNITED STATES v. McDONALD. 473 Opinion of the Court. demand, he brought suit in the Court of Claims against the United States to recover said sum of $111.40. That court held, that McDonald should receive only his actual expenses for that part of his journey performed prior to the passage of the act of June 30th, 1876, to wit, from Callao to Panama, and mileage for that portion performed after the passage of said last-mentioned act, to wit, from Panama to Washington; and rendered judgment in his favor accordingly for $74, that amount being the excess of such mileage from Panama to Washington, over and above his actual travelling expenses for that portion of his journey. An appeal by the United States from this judgment brings the case here. It is contended on behalf of the United States that the order was made and the travel undertaken while the law of 1874 was in force, and therefore with the understanding that only actual travelling expenses should be paid; and that the rule as to payment under a contract is, that the terms under which the contract is undertaken shall control the amount to be paid. The reply to this is that the claim of this officer rests not upon any contract, expressed or implied, with the government, but upon the acts of Congress which provide for his compensation. The case cited by the Assistant Attorney General in support of his contention, Washington dec. Packet Com,pang v. Sickles, 10 How. 419, was a suit upon a special contract between private parties. The compensation paid to public officers of the United States for their services, or for travelling expenses incidental thereto, is always under the control of Congress, except in the cases of the salaries of the President and the judges of the courts of the United States. As said by this court, in Embry v. United States, 100 U. S. 680, 685, “all agree that Congress has full control of salaries, except those of the President and judges of the courts of the United States. The amount fixed at any one time may be added to or taken from at will. No officer except the President or a judge of a court of the United States can claim a contract right to any particular amount of unearned compensation.” The act of June 30th, 1876, having repealed that of June 474 OCTOBER TERM, 1888. Syllabus. 16th, 1874, so far as it applied to the travelling expenses of officers of the navy, became operative upon the date of its approval, and thereafter the travelling expenses were regulated and defined by its provisions. Had the court decided in favor of the contention of the appellants that the claimant was entitled to his travelling expenses only, it would have enforced a repealed statute, and would have disregarded the provisions of existing law. The judgment of the Court of Claims is Affirmed. THE GAZELLE AND CARGO. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE DISTRICT OF MARYLAND. No. 73. Argued November 9,12,13,1888. —Decided November 26,1888. A charter-party of a vessel to a “ safe, direct, Norwegian or Danish port, as ordered on signing bills of lading, or as near thereunto as she can safely get and always lay and discharge afloat,” requires the charterer to order her to a port which she can safely enter with cargo, or which, at least, has a safe anchorage outside, where she can lie and discharge afloat. Findings of fact by the Circuit Court in admiralty, that a port to which charterers have ordered a vessel is one having a bar across its mouth, which it was impossible for her to pass, either in ballast or with cargo, and that the only anchorage outside is not a reasonably safe anchorage, nor a place where it is reasonably safe for a vessel to lie and discharge, are not controlled or overcome by a statement in the findings that many vessels have in fact discharged their cargoes at that anchorage. The omission of the Circuit Court in admiralty to make any findings upon a fact put in issue by the pleadings can only be availed of by bill of exceptions. A charter-party of a vessel “to a safe, direct, Norwegian or Danish port, or as near thereunto as she can safely get and always lay and discharge afloat,” cannot be controlled by evidence of a custom to consider as safe, within the meaning of such a charter-party, a particular Danish port, which in fact cannot be entered by such a vessel, and has no anchorage outside where it is reasonably safe to lie and discharge. If a charterer prevents the performance of the voyage by refusing to order the vessel to such a port as is designated in the charter-party; and the THE GAZELLE AND CARGO. 475> Statement of the Case. master flies successive libels for demurrage accruing under it, until the. charterer files a cross libel contending that the master had committed a breach of the charter-party; and it is found, at a hearing upon all the libels, that the time required to perform the voyage stated in the charter-party would have been about the same as elapsed before the vessel procured another charter, that another charter was procured as soon as possible, and that the expenses of the vessel in port were not less than on the voyage — the shipowner is entitled to the whole of the stipulated freight. In admiralty, if a libellant propounds with distinctness the substantive facts upon which he relies, and prays, either specially or generally, for appropriate relief, (even if there is some inaccuracy in his statement of subordinate facts, or of the legal effect of the facts propounded,) the court may award any relief which the law applicable to the case warrants. This was an appeal from a decree in admiralty on cross libels for breaches of a charter-party of the Norwegian barque Gazelle, by which, on June 16, 1881, Herman Brun, her master, chartered her to Meissner, Ackermann & Co. for a voyage from Baltimore “ to a safe, direct, Norwegian or Danish port, as ordered on signing bills of lading, or as near thereunto as she can safely get and always lay and discharge afloat,” on the terms, among others, that the charterers should furnish a full cargo of refined petroleum in barrels, and pay freight of three shillings and three pence sterling a barrel; that the vessel should be loaded by July 6, and that demurrage of eleven pounds sterling should be allowed for each day’s detention by their default. On July 11, and August 1, 9 and 22, the master filed successive libels against the cargo, setting forth the making and the principal provisions of the charter-party, and annexing a copy thereof; and further alleging that the vessel was duly loaded by July 6, and on that day the charterers tendered to the master for signature bills of lading ordering her to the port of Aalborg, in Denmark, as the port of discharge, “to be landed at Aalborg, or as near thereto as the vessq^ can safely get; ” that the master refused to sign the bills of lading, for the reason that Aalborg was not a safe port, and it was impossible for a vessel to enter it with cargo, or to land her cargo at the port or at any anchorage or landing-place near it, so as 47« OCTOBER TERM, 1888. Statement of the Case. . always to lay and discharge afloat; and that he expressed to the "charterers his willingness to perform the charter, and requested them to name a safe port, but they refused. Each of those libels claimed demurrage according to the charter, amounting in all to $2070.20; the fourth libel claimed also $400 for the expenses of taking out most of the cargo; and each libel contained a prayer for general relief. The charterers filed answers, admitting the making of the charter-party and the refusal of the master to sign bills of lading; alleging that the port of Aalborg is a safe port, well known to commerce, especially in the petroleum trade, and one to which vessels of deeper draught than the Gazelle are habitually despatched under charter-parties of like terms with that in controversy; and further alleging that, by the established and uniform usage and custom of trade between Baltimore and other Atlantic ports of the United States, and ports of Norway and Denmark, the port of Aalborg is recognized as being, and understood to be, a safe, direct port of Denmark, within the terms and provisions of such a charter-party; denying that there is no safe place or anchorage outside that port where the vessel could always lay afloat and discharge her cargo, or that there had been any detention of the vessel by their default; and alleging that the entire delay and the damages, if any, resulting therefrom, were due solely to the default of the master. On August 20, the charterers filed a cross libel against the vessel, alleging the same matters as in their answers to the other libels, and claiming $8000 damages for breach of the charter-party, and general relief. The master filed an answer to the cross libel, presenting the same issues as the other libels and answers. The District Court sustained the libels of the master, and dismissed that of the charterers, and entered decrees accordingly. 11 e it f urther enacted, That all town or village lots, out-lots, or common field lots, included in such surveys, which are not rightfully owned or claimed by any7 private individuals, or held as commons belonging to such towns or villages, or that the President of the United States may not think proper to reserve for military purposes, shall be, and the same are hereby reserved for the support of schools in the respective towns or villages aforesaid : Provided, That the whole quantity of land contained in the lots reserved for the support of schools in any one town or village, shall not exceed one-twentieth part of the whole lands included in the general survey of such town or village.” There are numerous acts of Congress, confirming titles reported upon favorably by this commission, to be found in the years subsequent to its appointment, as well as many statutes displaying the utmost liberality in extending the time within which parties might apply to this commission, or to an officer who as recorder succeeded to it, so that the patience and generosity with which Congress endeavored to have these claims originating in those early days established, where there was any basis of right whatever, is conspicuous. Congress also dealt with the State of Missouri, in regard to contributions for the erection of public buildings and for the promotion of education, in the same liberal manner as it did in regard to other regions which were admitted as new States, GLASGOW V. BAKER. 565 Statement of the Case. that had previously been governed for a while as Territories under its enactments. By the act of March 3, 1811, Congress extended the system of the surveys of the public lands over this region, and in the tenth section, providing for sales of such public lands as should have been surveyed, declared that “ All such lands shall, with the exception of the section ‘ number sixteen,’ which shall be reserved in each township for the support of schools within the same, with the exception also of a tract reserved for the support of a seminary of learning, as provided for by the seventh section of this act, and with the exception also of the salt springs and lead mines, and lands contiguous thereto, which by the direction of the President of the United States may be reserved for the future disposal of the said States, shall be offered for sale to the highest bidder,” etc. 2 Stat. 665, c. «, § 10. When the time came for the admission of Missouri into the Union, among the propositions which Congress submitted to the people of the Territory upon which it might be admitted as a State, the first was “that section numbered sixteen in every township, and when such section has been sold, or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the State for the use of the inhabitants of such township, for the use of schools.” Act of March 6, 1820, c. 22, § 6, subdivision 1. 3 Stat. 547. The acceptance by the State of this proposition, as one of the conditions under which it entered the Union, forms the basis of the title claimed by the plaintiff in this suit. By the general system of surveys of public lands which had been established prior to the act of 1811, all the public lands of the United States, and all those within the general boundary, as fast as they were surveyed at all, were divided first into townships of six miles square, each of which was then subdivided into sections of 640 acres. These townships and sections were controlled by meridians of latitude and longitude, and not by natural objects; and although the lines, if actually protracted upon the ground, might extend over places of considerable population, and include lands owned by private citizens, yet 566 OCTOBER TERM, 1888. Argument for Plaintiff in Error. as it was necessary to the completion of the general system of Congressional surveys, they were made to cover the whole country and to include the entire territory. As regards the sixteenth section, of course when these surveys were protracted, either by a simple calculation or by actual survey over lands which were claimed or owned by private persons, or which had been reserved for public purposes, they had no effect to defeat or establish such titles, but all that came within the lines of such sixteenth section, which was not otherwise appropriated, became the property of the State for school purposes. The conflict in this case grows out of the assertion by the plaintiff that the land in controversy passed to the State by virtue of the act of 1820, as part of a sixteenth section, while the defendants claim that the title and right to it passed out of the government of the United States by the act of 1812, eight years prior to admission of the State into the Union, and the act granting each sixteenth section to the State. It is not denied that the lines of the sixteenth section of township forty-five north, range seven east of the principal meridian, include the land in dispute, nor, if there was no reason to the contrary, that it passed to the State of Missouri under the provisions of the act admitting it into the Union. Neither is there any dispute that the plaintiff in error in this case, who was also plaintiff below, is invested as commissioner for the purposes of this suit with the right of the State of Missouri to the possession. The defendants say, on the other hand, that they and their predecessors from whom they derive title became the owners of this land by operation of the act of 1812, and that the United States, having by that act parted with its title, had nothing to give to the State of Missouri by the act of 1820, and did not intend to give to that State that which had been granted and confirmed already to private parties. These two propositions present sharply the issue to be tried in the present case. J/r. Elmer B. Adams and Mr. John TT. Dryden (with whom was Mr. M. L. Gray on the brief) for plaintiff in error. GLASGOW v. BAKER. 567 Argument for Plaintiif in Error. I. The reservation, created by the second section of the act of June 13th, 1812, for the schools of the village of St. Louis, presents no obstacle to plaintiff’s recovery under the grant to the State of Missouri of March 6th, 1820, for the schools of the township. (1) Because such reservation did not take away from the United States, by act of its Congress, the power of disposition of the lands so reserved, c. 99, §§ 1, 2, act of June 13, 1812, 2 Stat. 749, 750; c. 184, § 2, act of May 26, 1824, 4 Stat. 65, 66; c. 22, § 6, act of March 6, 1820, 3 Stat. 547; Slidell v. Grandjean, 111 U. S. 412, 439; Ham v. Missouri, 18 How. 126; Kissell v. St. Louis Public Schools, 18 How. 19, 25; Frisbie v. Whitney, 9 Wall. 187; The Yosemite Valley Case, 15 Wall. 77; Hammond n. St. Louis Public Schools, 8 Missouri, 65 ; Cdbanne v. Walker, 31 Missouri, 275 ; State v. Ham, 19 Missouri, 592; c. 12, act of January 27, 1831, 4 Stat. 435. (2) Because the land in controversy is not included within the out-.boundary line required to be surveyed by the 1st section of the act of 1812 (and afterwards actually surveyed), and is therefore not within the area of the supposed reservation, and is not covered or affected by it; the grant being made subject to a contingency which never happened, became absolute. Act of June 13, 1812, §§ 1, 2, 2 Stat. 749; Kissell v. St. Louis Public Schools, 18 How. 19; Cousin v. Blanc, 19 How. 202; West v. Cochran, 17 How. 403; Stanford v. Taylor, 18 How. 409 ; Slidell v. Grandjean, 111 U. S. 412; Glasgow v. Hortiz, 1 Black, 595; Eberle v. St. Louis Public Schools, 11 Missouri, 247, 264; Boyce v. Papin, 11 Missouri, 16 ; Trotter v. Public Schools, 9 Missouri, 69; Kissell v. St. Louis Public Schools, 16 Missouri, 553; Papin v. Byan, 32 Missouri, 21; Bryan v. Forsyth, 19 How. 334; Dredge v. Forsyth, 2 Black, 563 ; Water cfc Mining Co. v. Bugbey, 96 U. S. 165. (3) No intent or purpose can be imputed to Congress not to include within the grant of 1820, to the State of Missouri, the particular sixteenth section sued for in this action, on the ground that it fell within the exterior limits of the Grand Prairie Common Field ; so supposed to have been reserved for the schools of the village: because (a) presumptions should be indulged in favor of the grant rather than 568 OCTOBER TERM, 1888. Argument for Plaintiff in Error. against it; (5) the grant to the State was for a valuable consideration ; ( expenses when travelling under orders rests, not upon contract with the government, but upon acts of Congress; and when part of such a journey is performed when one statute is in force, and the remainder after another statute takes effect, providing a different rate of compensation, the compensation for each part is to be at the rate provided by the statute in force when the travelling was done. United States v. McDonald, 471. CLAIM AGENT. See Statute, A, 1, 2. COMMISSIONER OF THE GENERAL LAND OFFICE. See Public Land, 3, 4. 4 COMMISSIONER OF PENSIONS. 1. The Commissioner of Pensions by receiving the application of a Pen" «■ sioner for an increase of his pension under the act of June 16, 1880, INDEX. 707 21 Stat. 281, c. 236, and by considering it and the evidence in support of it, and by deciding adversely to the petitioner, performs the executive act which the law requires him to perform in such case; and the courts have no appellate power over him in this respect, and no right to review his decision. Dunlap v. Black, 40. 2. A decision of the Commissioner of Pensions adverse to the application of a pensioner for an increase of pension, under a statute granting ¡an increase in certain cases, being overruled by the Secretary of the Interior on the ground that the applicant comes under the meaning of the law granting the increase, and the Commissioner refusing to carry out the decision of his superior, the pensioner is entitled to a rule upon the Commissioner to show cause why a writ of mandamus should not issue to compel him to obey the decision of the Secretary of the Interior, lb. CONSTITUTIONAL LAW. A. Of the United States. 1. Following Mugler v. Kansas, 123 U. S. 623: Held, that a State has the right to prohibit or restrict the manufacture of intoxicating liquors within its limits; to prohibit all sale and traffic in them in the State; to inflict penalties for such manufacture and sale; and to provide regulations for the abatement, as a common nuisance, of the property used for such forbidden purposes; and that such legislation does not abridge the liberties or immunities of citizens of the United States, nor deprive any person of property without due process of law, nor contravene the provisions of the Fourteenth Amendment of the Constitution of the United States. Kidd v. Pearson, 1. 2. A statute of a State which provides (1) that foreign intoxicating liquors may be imported into the State, and there kept for sale by the importer, in the original packages, or for transportation in such packages and sale beyond the limits of the State; and (2) that intoxicating liquors may be manufactured and sold within the State for mechanical, medicinal, culinary, and sacramental purposes, but for no other, not even for the purpose of transportation beyond the limits of the State — does not conflict with Section 8, Article 1, of the Constitution of the United States by undertaking to regulate commerce among the States, lb. 3. The right of a State to enact a statute prohibiting the manufacture of intoxicating liquors within its limits, is not affected by the fact that the manufacturer of such spirits intends to export them when manufactured. lb. 4. The police power of a State is as broad and plenary as the taxing power (as defined in Coe v. Errol, 116 U. S. 517), and property within the State is subject to the operation of the former, so long as it is within the regulating restrictions of the latter. Ib. 5. A state statute which requires locomotive engineers and other persons, employed by a railroad company in a capacity which calls for the ability 708 INDEX. ■ to distinguish and discriminate between color signals, to be examined in this respect from time to time by a tribunal established for the purpose, and which exacts a fee from the company for the service of ex-' amination, does not deprive the company of its property without due process of law, and, so far as it affects interstate commerce, is within the competency of the State to enact, until Congress legislates on the subject. Nashville, Chattanooga, fyc., Railway v. Alabama, 96. 6. The provision in Article III. of the Constitution of the United States which provides that the trial of all crimes “shall be held in the State where the said crimes shall have been committed,” relates only to trials in Federal courts, and has no application to trials in state courts. Ib. 7. A state law exacting a license tax to enable a person within the State to solicit orders and make sales there for a person residing within another State, is repugnant to that clause of the Constitution of the United States which gives Congress the power to regulate commerce among the several States, and is void. Asher v. Texas, 129. 8. A general law for the punishment of offences which endeavors by retro- active operation to reach acts before committed, and also provides a ' like punishment for the same acts in future, is void so far as it is retrospective, and valid as to future cases within the legislative control. Jaehne v. New York, 189. 9. ' The act of the legislature of Minnesota of March 7,1881, c. 148, entitled ■■ ’ “ An Act to prevent debtors from giving preference to creditors, and to secure the equal distribution of the property of debtors among their ! -creditors, and for the release of debts against debtors,” which provides that whenever the property of a debtor is seized by an attachment or ' ¡execution against him, he may make an assignment of all his property 1 and estate, not exempt by law, for the equal benefit of all his creditors who shall file releases of their debts and claims, and that his property shall be equitably distributed among such creditors, is not repugnant to the Constitution of the United States, so far as it affects citizens of States other than Minnesota. Denny, v. Bennett, 489. 10. Statutes limiting the right of the creditor to enfore his claims against - the property of the debtor are part of all contracts made after they take effect, and do not impair "the obligation of such contracts, lb. 11. The Kentucky statute of March 24, 1882, which authorizes the city government of Louisville to open and improve streets and assess the cost thereof on the owners of adjoining lots, does not deprive such owners of their property without due process of law, and does not deny them the equal protection of the laws, and is not repugnant to section 1 of the Fourteenth Amendment to the Constitution of the United States. Walston v. Nevin, 578. See Infamous Punishment. B. Of the States. See Local Law, 1. INDEX. 709 CONTEMPT. 1. An order committing for contempt is a nullity if the court making it was without jurisdiction of the person of the offender; and he can be discharged upon writ of habeas corpus, though such writ cannot be used to correct mere errors and irregularities however flagranti. Ex parte Terry, 289. 2. Upon original application to this court for a writ of habeas corpus on behalf of a person committed by order of a Circuit Court of the United States for contempt committed in its presence, the facts recited in such order as constituting the contempt must be taken as true, and would be so taken upon a return to the writ if one were awarded. Ib. 3. The facts in this case, as detailed in the papers before the court, and as they must be regarded in this collateral proceeding, show nothing in conflict with the fundamental principles of Magna Charta; nor do they show that the alleged offence was committed at a time preceding and separated from the commencement of the prosecution; but, on the contrary, the commission of the contempt, the retirement of the offender from the court-room to the marshal’s office in the same building, and the making of the order of commitment all took place substantially on the same occasion, and constituted, in legal effect, one continuous, complete transaction, occurring on the same day, arid at the same session of the court. Ib. See Habeas Corpus ; Jurisdiction, B, 2, 3, 4. CONTRACT. ■ < 1. Time is not of the essence of a contract for the sale of property, unless made so by express stipulation, or unless it may be implied to be so from the nature of the property, or from the character of the interest bargained, or from the avowed object of the seller or of the purchaser. Brown v. Guarantee Safe and Trust Deposit Co., 403. 2. Applying these principles to the contract which forms the subject- matter of this suit: Held, that time was not of its essence. Ib. 3. On the proofs the court holds that the contract upon which this Suit is brought never went into effect; that the condition upon which it was to become operative never occurred;, and that the case is one of-that class, well recognized in the law, by which an instrument, whether delivered to a third person as an escrow, or to the obligee in it, is made to depend, as to its going into operation, upon events to occur or to be ascertained thereafter. Ware v. Allen, 590. 4. Parol evidence is admissible, in an action between the parties, to show that a written instrument, executed and delivered by the party obligor to the party obligee, absolute on its face, was conditional and was not intended to take effect until another event should take place. Ib. See Charter-Party; Equity, 5, 6, 7, 8, 14, 15; Covenant ; Local Law, 12. 710 INDEX. CONTRIBUTORY NEGLIGENCE. See Court and Jury, 1, 3. COPYRIGHT. 1.. Where the judge of the Supreme Court of a State prepares the opinion or decision of the court, the statement of the case and the syllabus or head-note, and the reporter of the court takes out a copyright for such matter in his name “for the State,” the copyright is invalid. Banks v. Manchester, 244. 2. A copyright, as it exists in the United States, depends wholly on the legislation of Congress, lb. 3. The judge who, in his judicial capacity, prepares the matter above mentioned, is not its author or proprietor, in the sense of § 4952 of the Revised Statutes, so that the State can become his assignee and take out a copyright for such matter. Ib. 4. Although there can be no copyright in the opinions of the judges of a court, or in the work done by them in their official capacity as judges, there is no ground of public policy on which a reporter, who prepares a volume of law reports, of the usual character, can be debarred from obtaining a copyright, for the vplume, which will cover the matter which is the result of his intellectual labor. Callaghan v. Myers, 617. 5. He has a right to take such copyright when there is no legislation for- bidding him to do so, or directing that the proprietary right which would exist in him shall pass to the State, or that the copyright shall be taken out for or in the name of the State, as the assignee of such right, even though he is a sworn public officer, with a fixed salary, lb. 6. The copyright of the volume taken by the reporter, as author, will cover the parts of the book of which he is the author, although he has no exclusive right in the judicial opinions published. Ib. 7. Such copyright may cover the title page, the table of cases, the head- notes or syllabuses, the statements of facts, the arguments of counsel, and the index, comprehending, also, the order of arrangement of the cases, the division of the reports into volumes, the numbering and paging of the volumes, the table of the cases cited in the opinions, and the subdivision of the index into appropriate condensed titles, involving the distribution of the subjects of the various head-notes, and cross references, lb. 8. The three conditions prescribed by the copyright act of February 3, 1831, c. 16, 4 Stat. 436, namely, the deposit before publication of the printed copy of the title of the book, the giving of information of the copyright by the insertion of a notice thereof on the title page or the next page, and the depositing of a copy of the book, within three months after the publication, are conditions precedent to the perfection of the copyright, lb. 9. A certified copy, under the hand and seal of the clerk of the District Court of the United States, in whose office the copy of the title of the INDEX. 711 book was deposited, of the record of the same, the certificate bearing date, the day of such deposit, with a memorandum underneath of the fact and date of the deposit of the work, signed by the same clerk, is sufficient prima facie evidence not only of the fact and date of tlie deposit of the title, but of the fact and date of the deposit of the work ; and it will be presumed, in the absence of evidence to the contrary, that the deposit of the title was made before publication, and also that where the work purports to have been deposited within three months after the date of the deposit of the title, it was deposited within three months after publication. Ib. 10. Where the deposit of the title and the deposit of the work purport to have been made on the same day, it will be presumed, in the absence of evidence to the contrary, that the deposit of the title was made before publication, and that the deposit of the work was not made prior to publication, lb. 11. Where the work purports to have been deposited more than three months after the deposit of the title, it will not be presumed that the deposit of the work was made within three months after publication. 12. The case distinguished from Merrell v. Tice, 104 U. S. 557. lb. 13. The delivery by the reporter, of copies of a volume of reports to the prescribed officer of a State, under a statute, for its use, accompanied by the payment of the reporter therefor, was a publication of the book, so as to require the deposit of the work in the clerk’s office within three months after such publication, to make the copyright valid, lb. 14. Where the copy of the title and the work were deposited in the clerk’s office on the same day the copies were delivered by the reporter to the State, it will be presumed, in the absence of evidence to the contrary, that the deposit of the title preceded the publication, and that the delivery of the copies to the State preceded the deposit of the work. Ib. 15. Where the title was deposited in 1867 and the notice printed in thé volume purported to show that the copyright was entered in 1866, the variance was immaterial. Ib. 16. Where the title was deposited by “ E. B. Myers & Chandler,” a firm, as proprietors, and the printed notice of entry of copyright in the volume stated that the copyright was entered by “ E. B. Myers,” a member of such firm, the variance was immaterial. Ib. 17. A written transfer of the manuscript of the volume from thé reporter to the person taking out the copyright as proprietor was not necessary, and parol evidence was competent to show his ownership thereof at the time of the infringement. Ib. 18. On the evidence, it was held that the plaintiff had not consented to or acquiesced in the infringement or abandoned his copyright, or been guilty of laches, lb. .712 INDEX. 19. The question of: infringement considered and decided in favor of the plaintiff. lb. ...... 20. It is proper, ip an interlocutory decree for an accounting before a master in a copyright case; to direct that the defendant may be examined in regard to the »subject-matter of the accounting, and may be required to produce his account books and papers, lb. 21. Although the bill prays for a forfeiture to the plaintiff, under the statute, of copies in the possession of the defendant of the infringing volume, and for their delivery to the plaintiff, yet, if the final decree does not award any forfeiture, the defendant, is not injured by anything done under such provision of the interlocutory decree; nor can the penalties given by § 7 of the act of 1831 be enforced in a suit in equity; nor can evidence obtained from the defendant through his examination and the production by him of his books and papers be used against him in any other suit in which a forfeiture is sought, lb. 22. The cost of stereotyping a volume is not a proper credit to be allowed to a defendant; nor is the amount paid to the members of a defendant firm for their services in the way of salaries, during the time of infringement, as a part of the expense of conducting its business; nor is the cost of producing copies of the volume which were not sold; nor is the amount paid for editorial work in preparing the infringing volume, lb. 23. It is proper to charge the defendant with his profit on the resale by him of copies once sold by him, and then repurchased, although he is also charged with his profit on the original sale of such copies, lb. 24- The lawful matter in the infringing volume being useless without the unlawful, and it being impossible to separate the profit on the latter from that on the former, and the volume being sold as a whole, the defendant is responsible for the consequences, and the plaintiff is entitled to recover the entire profit on the sale of the volume, if he so elects, lb. 25. In considering exceptions to a master’s report in matters of fact, questioning his conclusions in respect to the amount of the defendant’s profits, those conclusions, depending on the weighing of conflicting testimony, will not be set aside or modified, unless there clearly appears to have been error or mistake on his part. lb. CORPORATION. See Municipal Bond; Railroad. COUPON. See Equity, 5, 6. COURT AND JURY. 1. In an action by an employe of a railroad company against the company to recover damages for personal injuries received by reason of the INDEX. 713 negligence of the company, in order to determine whether the employe, by recklessly exposing himself to peril, has failed to exercise the care for his personal safety that might reasonably be expected, and has thus by his own negligence contributed to causing the accident, reo-ard must always be had to the circumstances of the case, and the exigencies of his position; and the decision of this question ought not to be withheld from the jury unless the evidence, after giving the plaintiff the benefit of every inference to be fairly drawn from it, so conclusively establishes contributory negligence, that the court would be compelled, in the exercise of a sound judicial discretion, to set aside any verdict returned in his favor. Kane n. Northern Central Railway Co., 91. 2. Acourt of the United States, in submitting a case to the jury, may at its discretion express its opinion upon the facts; and such an opinion is not reviewable on error, so long as no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury. Lovejoy v. United States, 171. 3. When, in an action by an employe of a railroad company against the company to recover damages for a personal injury inflicted upon him, by reason of an engine in motion striking him, it is conceded that the defendant company was in fault on account of the manner of running its trains, and the defence is set up that the plaintiff was guilty of contributory negligence, and there is conflicting evidence on that point, the plaintiff is entitled to have that question submitted to the jury. Jones v. East Tennessee, Virginia Georgia Railroad, 443. See Exception. COURT OF CLAIMS. See Jurisdiction, D. COURTS OF THE UNITED STATES. See Court and Jury, 2; Jurisdiction, A, B, C, D; Jury. CRIMES, TRIAL OF. See Constitutional Law, A, 6. COVENANT. Covenants are to be considered dependent or independent, according to the intention of the parties, to be deduced from the whole instrument, and in this case the covenants of the plaintiff in error, to pay money for goods sold and delivered, were independent of the covenants of the defendant in error to transfer certificates of stock in a corporation. Pollak v. Electric Brush Association, 446. 714 INDEX. DIVISION OF OPINION. 1. Each question certified in a certificate of division of opinion : (1) Must be a distinct point or proposition of law, clearly stated, so that it can be definitely answered, without regard to other issues of law in the case ; (2) Must be a question of law only, and not a question of fact, or of mixed law and fact, and hence must not involve or imply a conclusion or judgment on the weight or effect of testimony or facts adduced in the cause; and (3) Must not embrace the whole case, even when its decision turns upon matter of law only, and even though it be split up into the form of questions. Fire Insurance Association v. Wickham, 426. 2. In a certificate of division of opinion, the question whether parol evi- dence may or may not be introduced to explain such documents as those which were given in evidence by the defendant at the trial of this cause, and which are set forth in the statement of facts in this case, is a question of pure law, presenting but a single point for consideration, and the fact that many writings, all of the same general character, were offered to prove the same fact, does not make the case to differ. lb. See Jurisdiction, A, 8. EJECTMENT. 1. When, under the practice prevailing in a State, an equitable defence is set up in an action for the possession of land, the grounds set forth must be sufficient to entitle the defendant to a decree that the property be transferred from the plaintiff to him, or that the plaintiff be enjoined from prosecuting the action for the possession of the property. Cornelius v. Kessel, 456. 2. In the United States courts a recovery in ejectment can be had upon the strict legal title only, and a court of law will not uphold or enforce an equitable title to land as a defence in such action. Johnson v. Christian, 374. EQUITY. 1. It is settled law that courts of the United States lose none of their equitable jurisdiction in States where no such courts exist; but, on the contrary, are bound to administer equitable remedies in cases to which they are applicable, and which are not adapted to a common law action. Ridings v. Johnson, 212. 2. The complainant, being the owner of a tract in Louisiana, sold it to the intestate of one of the defendants, receiving a part of the purchasemoney in cash, and notes for the remainder secured by a mortgage of the tract, which was not recorded. The purchaser afterwards mortgaged the tract to the other defendant, and then died insolvent. The second mortgagee then caused the tract to be sold under judicial proceedings to pay his mortgage debt, no notice being given to the com INDEX. 715 plainant, although he was aware of the nature of his claim upon the property. The complainant, having caused his mortgage to be recorded, filed this bill to enforce his rights by a rescission of the sale to the decedent, offering to refund the cash received by him, and to give up the unpaid mortgage notes: Held, that it was a proceeding in equity. Tb. 3. A debt contracted for “ construction ” is not entitled to the priority of payment, in proceedings for the foreclosure of a mortgage of the property of a railroad corporation, which is recognized in Fosdickv. Schall, 99 U. S. 235, as the equitable right in some cases of a creditor for “ operating expenses.” Wood v. Guarantee Trust and Safe Deposit Co., 416. 4. The doctrine in Fosdick v. Schall has never yet been applied in any case except that of a railroad, and whether it will be applied to any other case, quaere. ' lb. 5. When a third party with his own money takes up maturing coupons on bonds of a corporation, without knowledge of the holders, it is a question of fact, to be determined by the proof, whether it was intended to be a payment, dr a purchase which leaves the coupons outstanding, lb. 6. The coupons in dispute in this case having been dishonored before they came into the hands of the appellants, were subject in their hands to all defences which existed against their assignor; and it being evident that, without the knowledge of the holders of the bonds to which those coupons were attached, he used his money to pay the coupons on bonds which had been sold solely in order to enable him to fibat the rest of the issue: Held, that it would be inequitable to allow him, either a preference over those to whom he had sold the bonds, or coequal rights with them. lb. 7. Specific performance is not of absolute right, but rests entirely in judicial discretion, to be exercised according to settled principles of equity, but always with reference to the facts of the particular case. Hennessey v. Woolworth, 438. 8. A decree for specific performance should never be granted unless the terms of the agreement sought to be enforced are clearly proved, nor when it is left in doubt whether the party against whom relief is asked in fact made such an agreement as is alleged, lb. 9. This court concurs with the Circuit Court in its opinion upon the effect of the proofs in this case, and affirms the decree below. Hoyt v. Han-bury, 584. 10. Relief in equity to restrain unfair trade is granted only where the defendant, by his marks, signs, labels, or in other ways, represents to the public that the goods sold by him are those manufactured or produced by the plaintiff, thus palming off his goods for those of a different manufacture, to the injury of the plaintiff. Goodyear Glove Co. v. Goodyear Rubber Co., 598. 11. A court of equity will not enjoin a judgment at law, unless it is shown 716 INDEX. • that the complainant was prevented from resorting to a legal defence by fraud or unavoidable accident, without fault or negligence on his part; but it will do so if the matters set up in the bill, as a ground of relief, constitute equities as a defence in the action at law. Johnson v. Christian, 374. 12. On the only issue of fact raised by the pleadings, the allegations of the bill are sustained by the proof. Ib. 13. Specific performance cannot be decreed of an agreement to convey property which has no existence, or to which the defendant has no title; and if the want of title was known to the plaintiff at the time •■■■ of beginning the suit, the bill will not be retained for assessment of damages. Kennedy v. Hazleton, 667. 14. One who agrees to assign to another any patents that he may obtain for improvements in certain machines, and who afterwards invents such an improvement, and, with intent to evade his agreement and to defraud the other party, procures a patent for his invention to be obtained upon the application of a third person, and to be issued to him as assignee of that person, and receives profits under it, cannot be compelled in equity to assign the patent or to account for the profits, lb. See Copyright, 20, 21, 22, 23, 24, 25; Ejectment, 1,2; Patent for Invention, 15. EQUITY PLEADING. 1. A bill in equity, filed in Kentucky, by the receiver of a national bank located in Arkansas, against a married woman and her husband, alleged to be citizens of Kentucky, to enforce against the separate property of the wife the collection of an assessment by the comptroller of the currency of 50 per cent of the par value of the stock, as an individual liability of the shareholders, averred that when the bank suspended, the wife was the owner of 100 shares of the stock, and that it still stood in her name on the books of the bank, and that she possessed property in her own right sufficient to pay such assessment: Held, on demurrer to the bill, that, so far as appeared, the remedy was in equity, and the bill was sufficient on its face. Bundy v. Cocke, 185. 2. In a hearing on bill and answer, allegations of new matter in the answer are to be taken as true. Banks v. Manchester, 244. 3. It is not indispensable that all the parties to a suit in equity should have an interest in all the matters contained in the suit; it will be sufficient, in order to avoid the objection of multifariousness, if each party has an interest in some material matters in the suit, and they are connected with the others. Brown v. Guarantee Trust and Safe Deposit Co., 403. 4. To support the objection of multifariousness to a bill in equity, because . the bill contains different causes of suit against the same person, two INDEX. 717 things must concur: first, the grounds of suit must be different; second, each ground must be sufficient, as stated, to sustain a bill. Ib. 5. Testing the bill in this case by these principles, it is Held not to be multifarious. Ib. See Patent eor Invention, 4. ESTOPPEL. 1. The Supreme Court of Arkansas and the Circuit Court of Desha County having both adjudged that the appellee and her husband held the tract of land which is the subject of controversy in moieties, and that those through whom the appellant claims became the owners in fee, successively, of the husband’s undivided half, these decrees, standing unreversed, are binding adjudications in favor of the complainant’s title, and justified him in advancing money upon the strength of it. Hunt v. Blackburn, 464. 2. An application by the assignee of an insolvent debtor, under a state statute, to be admitted as a party in a suit pending in a Circuit Court of the United States against the insolvent, in which his property was attached by the marshal on mesne process, and for a dissolution of the attachment, and an order of the Circuit Court allowing him to become a party, but refusing to dissolve the attachment, do not make the assignee a party to that suit without further action on his part, and do not estop him from setting up a claim to the property in the hands of the marshal under the attachment. Denny v. Bennett, 489. See Municipal Bond, 5. EVIDENCE. 1. When a letter is found in the record as part of the evidence taken before a master, and it is certified by the clerk as filed on the same day as other exhibits specifically referred to in a deposition, and the record shows no objection taken to its admission at the hearing before the court, it must, in this court, be deemed to have been admitted by consent. Hoyt v. Hanbury, 584. See Copyright, 17; Contract, 4; Local Law, 11,12. EXCEPTION. 1. Instructions given to a jury upon their coming into court after they have retired to consider then’ verdict, and not excepted to at the time, cannot be reviewed on error, although counsel were absent when they were given. Stewart v. Wyoming Cattle Ranche Co., 383. 2. Affidavits filed in support of a motion for a new trial are no part of the record on error, unless made so by bill of exceptions. Ib. See Circuit Courts of the United States, 1; Copyright, 25; Mandamus, 3. 718 INDEX. EXECUTIVE. See Commissioner of Tensions; Mandamus ; Public Land, 3, 4. EX POST FACTO LAW. See Constitutional Law, A, 8. FALSE REPRESENTATIONS. 1. Although silence as to a material fact is not necessarily, as matter of law, equivalent to a false representation, yet concealment or suppression by either party to a contract of sale, with intent to deceive, of a material fact which he is in good faith bound to disclose, is evidence of, and equivalent to, a false representation. Stewart v. Wyoming Ranche Co., 383. 2. The evidence fails to satisfy the court that there was any deceit prac- tised towards the appellee, or any misapprehension on her part of the transactions recited in the record, or any advice given to her in fraud, or in mistake of fact or law. Hunt v. Blackburn, 464. FEME COVERT. See Equity Pleading, 1; Insurance, 2, 3, 4; Husband and Wife ; Local Law, 7, 8, 9. FORFEITURE. See Statute, A, 1. FORGED CHEQUE. See Limitation, Statutes of. FRAUDULENT CONVEYANCE. 1. An insolvent debtor, making an assignment for the benefit of his credi- tors, cannot reserve to himself a beneficial interest in the property assigned, or interpose any delay, or make provisions which would hinder and delay creditors from their lawful modes of prosecuting their claims. Means v. Dowd, 273. 2. In this case the deed of assignment, which forms the subject of con- troversy, has the obvious purpose of enabling the insolvent debtors who made it to continue in their business unmolested by judicial process, and to withdraw everything they had from the effect of a judgment against them. lb. 3. Though this bill is not sustainable under the provisions of the bank- rupt act against a preference of creditors in fraud of the act, because the proceedings were not commenced within the time prescribed by that act as necessary to avoid a preference, yet a right is shown to INDEX. 719 relief on the ground that the instrument was made to hinder and delay creditors, lb. See Insolvent Debtor, 1; Insurance, 2, 3, 4. GENERAL LAND OFFICE. See Public Land, 3, 4. GOOD-WILL. See Partnership; Trade-Mark, 4, 5. HABEAS CORPUS. 1. This court is not required to exercise the power conferred upon it by Rev. Stat. §§ 751-753, to inquire upon writ of habeas corpus into the cause of the restraint of the liberty of any person who is in jail under or by color of the authority of , the United States, or who is in custody in violation of the Constitution of the United States, if it appears, upon the petitioner’s own showing, that, if brought into court, and the cause of his commitment inquired into, he would be’ remanded to prison. Ex parte Terry, 289. 2. Upon original application to this court for a writ of habeas corpus on behalf of a person committed by order of a Circuit Court of the United States for contempt committed in its presence, the facts recited in such order as constituting the contempt must be taken as true, and would be so taken upon a return to the writ if one were awarded, lb. See Contempt, 1, 2. HUSBAND AND WIFE. . At common law, when lands are granted to husband and wife as tenants in common, they hold by moieties as other distinct and individual persons do. Hunt v. Blackburn, 464. See Equity Pleading, 1; Insurance, 2, 3, 4; Local Law, 7, 8, 9. INFAMOUS PUNISHMENT. On the authority of Mackin v. United States, 117 U. S. 348, it is again held that imprisonment in a state prison or penitentiary, with or without hard labor, is an infamous punishment. United States v. De Walt, 393. INSOLVENT DEBTOR. 1. A clause in an assignment for the benefit of creditors under the Minnesota statute of March 7, 1881, directing the payment to the assignor of any surplus remaining after payment in full to creditors proving their debts, does not invalidate the assignment. Denny v. Bennett, 489. 720 INDEX. 2. A state statute providing for the distribution of the property of a debtor among his creditors, and his discharge from his debts, does not release a debt due to a citizen of another State, who does not prove his debt, nor become subject to the jurisdiction of the court. Ib. See Constitutional Law, A, 9; Estoppel, 2; Fraudulent Conveyance. INSURANCE. 1. It is a general rule that a life-insurance policy, and the money to become due under it, belong the moment it is issued to the person named in it as beneficiary, and that there is no power in the person procuring the , insurance, by any act of his, by deed or will, to transfer to any other person the interest of the person named. Central Bank of Washington v. Hume, 195. 2. A married man may rightfully devote a moderate portion of his earn- ings to insure his life, and thus make reasonable provision for his family after his decease, without being thereby held to intend to hinder, delay, or defraud his creditors, provided no such fraudulent intent is shown to exist, or must be necessarily inferred from the surrounding circumstances. lb. 3. The payment of premiums to a life insurance company by a married man residing in the District of Columbia, who is insolvent at the times of the payments, in order to effect and keep alive a policy of insurance , upon his own life, made by his wife for the benefit of herself and their children, is not necessarily a fraudulent transfer of his property with intent to hinder, delay and defraud creditors within the meaning of 13 Eliz. c. 5; and in the absence of specific circumstances showing a fraudulent intent, his creditors, after his decease, will have no interest in the policy, lb. 4. In order to maintain an action on behalf of creditors of a deceased per- son against a life insurance company, to recover back premiums alleged to have been fraudulently paid by the decedent while insolvent to the company in order to make provision for his wife and children, it must be alleged and proved thfit the company participated in the fraud, lb. INTERSTATE COMMERCE. See Constitutional Law, A, 1, 2, 3. INTOXICATING LIQUORS. See Constitutional Law, A, 1, 2, 3. JUDGMENT. A remittitur, in a judgment on a verdict, of all sums in excess of $5000, made on the day following the entry of the judgment, on motion of INDEX. 721 plaintiff’s counsel, in the absence of defendant or his counsel, is no abuse of the discretion .of the court. Pacific Postal Tel. Co. V. O'Connor, 394. See Estoppel. •JURISDICTION. A. Jurisdiction of the Supreme Court. 1. To give this court jurisdiction to review the judgment of a state court under § 709, Rev. Stat, because of the denial by the state court of any title, right, privilege or immunity, claimed under the Constitution or any treaty or statute of the United States, it must appear on the record that such title, right; privilege or immunity was “ specially set up or claimed ” at the proper time, in the proper way. Chappell v. Bradshaw, 132. 2. An action upon a bond given to supersede a judgment or decree of a court of the United States is not a “case brought on account of the deprivation of any right, privilege or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States,” so as to give this court jurisdiction of it in error or on appeal under the fourth subdivision of Rev. Stat., § 699, “without regard to the sum or value in dispute.” Cogswell v. Fordyce, 391. 3. As the matter in dispute in this case, exclusive of costs, does not exceed the sum or value of $5000, the writ of error is dismissed, lb. 4. The petition for a writ of error forms no part of the record of the court below. Clark v. Pennsylvania, 395. 5. In error to a state court, to review one of its judgments, this court acts only upon the record of the court below, and, in order to give this court jurisdiction it is essential that the record should disclose, not only that the alleged right, privilege or immunity, was set up and claimed in the court below, but that the decision of that court was against the right so set up or claimed, lb. 6. These records do not disclose whether the refusal of the court below to give the instructions requested amounted to a denial of the claim of the plaintiff in error to immunity, and the writs of error are therefore dismissed, lb. 7. In error to a state court, a Federal question not raised in the court below will not support this court’s jurisdiction. Quimby v. Boyd, 488. 8. This court has no jurisdiction of a writ of error to the Circuit Court by reason of a certificate of division of opinion upon questions arising on demurrers, to several defences in the answer, each of which questions, instead of clearly and precisely stating a distinct point of law, requires this court to find out the point intended to be presented, by searching through the allegations of the answer and the provisions of a statute, and by also examining either the whole constitution of the State, or vol. cxxvin—46 722 INDEX. • else reports or records of decisions of its courts, made part of the answer. Dublin Township v. Milford Savings Institution, 510. See Division of Opinion; Writ of Error, 1, 2. B. Jurisdiction of Circuit Courts of the United States. 1. A Circuit Court of the United States has no jurisdiction to set aside a decree of partition in a state Probate Court authorized by law to make it; nor can it refuse to give full effect to the decree unless the Probate Court was without jurisdiction in the case. Robinson v. Fair, 53. 2. The power of Circuit Courts of the United States to punish contempts of their authority is incidental to their general power to exercise judicial functions, and the cases in which it may be employed are defined by acts of Congress. Ex parte Terry, 289. 3. A Circuit Court of the United States, upon the commission of a con- tempt in its presence, may, upon its own knowledge of the facts, without further proof, without issue or trial, (and without hearing an explanation of the motives of the offender,) immediately proceed to determine whether the facts justify punishment, and to inflict such punishment therefor as the law allows. Ib. 4. The jurisdiction of a Circuit Court to immediately inflict punishment for a contempt committed in its presence is not defeated by the voluntary retirement of the offender from the court-room to a neighboring room in the same building after committing the offence; but it is within the discretion of the court either to at once make an order of commitment, founded on its own knowledge of the facts, or to postpone action until the offender can be arrested on process, brought back into its presence, and given an opportunity to make formal defence against the charge of contempt; and any abuse of that discretion is at most an irregularity or error, not affecting the jurisdiction of the court. Ib. 5. A Circuit Court of the United States has no jurisdiction over suits for the violation of a trade-mark if the plaintiff and defendant are citizens of the same State, and the bill fails to allege that the trade-mark in controversy was used on goods intended to be transported to a foreign country. Ryder v. Holt, 525. , 6. The assignee of a judgment founded on a contract suing in a Circuit or District Court of the United States, on the ground of citizenship, to recover on the judgment, cannot maintain the action unless it appears affirmatively in the record that both the plaintiff and his assignor were not citizens of the same State with the defendant. Metcalf ' • Watertown, 586. 7. The fact that a suit is brought to recover the amount of a judgment o a court of the United States, does not, of itself, make it a su^ arising under the Constitution and laws of the United States. Ib. 8. Where the original jurisdiction of a Circuit Court of the United States INDEX. 723 is invoked upon the sole ground that the determination of the suit depends upon some question of a Federal nature, it must appear at the outset, in order to give the court jurisdiction, that the suit is one of which the court, at the time its jurisdiction is invoked, can properly take cognizance. Ib. See Circuit Courts of the United States ; Judgment. C. Jurisdiction of District Courts of the United States. An action of trespass on the case for damages by fire to the plaintiff’s vessel in a port of the United States, alleged to have resulted from thé negligence of the defendant’s servants in cutting a burning scow or lighter loose from a wharf, and allowing it to drift against the vessel, is “a common law remedy” which the common law “is competent to give,” and which is saved to suitors by the provisions of § 563, Rev. Stat., conferring admiralty and maritime jurisdiction upon District Courts of the United States. Chappell v. Bradshaw, 132. D. Jurisdiction of the Court of Claims. 1. The Court of Claims has jurisdiction to hear and determine a claim of a commissioner of a Circuit Court of the United States for keeping a docket and making entries therein in regard to parties charged with violations of the laws of the United States, which has been duly presented to the Circuit or District Court of the United States through the district attorney, and which the court has refused to act upon, although it may not have been presented at the Treasury Department and disallowed there; and the claimant is not obliged to resort to mandamus upon the Circuit Court for his remedy. United States v. Knox, 230. 2. The Court of Claims has jurisdiction over claims and demands of patentees of inventions for the use of their inventions by the United States with the consent of the patentees. United States v. Palmer, 262. 3. No opinion is expressed upon the question whether a patentee may waive an infringement of his patent by the government, and sue upon an implied contract, lb. JURY. The act of June 30, 1879, c. 52, § 2, prescribing the mode of drawing jurors, does not repeal § 804 of the Revised Statutes, or touch the power of the court, whenever for any reason the panel of jurors previously summoned according to law is exhausted, to call in talesmen from the bystanders. Lovejoy v. United States, 171. LIABILITY. See Statute, A, 1. T24 INDEX. LIMITATION, STATUTES OF. If a bank, upon which a check is drawn payable to a particular person or order, pays the amount of the check to one presenting it with a forged indorsement of the payee’s name, both parties supposing the indorsement to be genuine, a right of action to recover back the money accrues at the date of the payment, and the statute of limitations begins to run from that date. Leather Manufacturers’ Bank n. Merchants’ Bank, 26. LOCAL LAW. 1. The state constitution in force in California prior to 1880 authorized the legislature to confer upon Probate Courts j urisdiction of proceedings for the partition of real estate, as ancillary or supplementary to the settlement and distribution of the estates of deceased persons coming within the cognizance of such courts. Robinson v. Fair, 53. 2. The legislature of California, under the constitution in force prior to 1880, conferred upon the Probate Courts of the state power, after final settlement of the accounts of a personal representative, and after a decree of distribution, defining the undivided interests of heirs in real estate in the hands of such representative, (neither the title of the decedent nor the fact of heirship being disputed,) to make partition of such estate among the heirs, so as to invest each separately with the .exclusive possession and ownership of distinct parcels of such realty, as against coheirs; and such a grant of power does not appear to be foreign to the jurisdiction usually pertaining to such tribunals in this country, lb. 3. The decisions of the Supreme Court of California examined and shown to be in harmony with the two points above stated, lb. 4. The record in this case does not support the contention that proper notice of the proceedings in the Probate Court for the partition of the real estate was not given to the minor children, lb. 5. At the time w’hen the proceedings took place, which form the subject of controversy in this suit, there being no provision of law in force m California, requiring the appointment of guardians ad litem of infants, in probate proceedings, it was sufficient for them to be represented in such proceedings by an attorney, appointed by the court for that purpose. Jb. 6. Since the passage of the act of 1855, p. 335, codified in the Revised Statutes of Louisiana of 1870, p. 617, an unrecorded mortgage has no effect as to third persons, not parties to the act of mortgage or judgment, even though they had full knowledge of it. Ridings v. Johnson, 212. 7. The provision in § 1783 of the Code of Georgia, (ed. 1882,) that “the wife is a feme sole as to her separate estate, unless controlled by the settlement,” and that “ while the wife may contract she cannot bind her separate estate by . . . any assumption of the debts of er INDEX. 725 husband, and any sale of her separate estate made to a creditor of her husband in extinguishment of his debt shall also be void,” does not apply to a settlement made upon her by the husband, by deed of trust conveying the property to a trustee free from the debts and liabilities of the husband, and providing that whenever the husband and the wife shall by written request so direct, the trustee shall execute mortgages of the property; and does not invalidate an otherwise valid mortgage, executed by the trustee, on such written request, in order to secure a debt due from the husband. Brodnax v. .¿Etna Ins. Co., 236. 8. The assent of the husband of a married woman to the terms of an agreement made by an agent for the sale and conveyance of lands of the wife situated in Minnesota is not sufficient to bind the wife. Hennessey v. Woolworth, 438. 9. In this case, it not being clearly established that the wife assented to the agreement for the sale of her real estate of which a specific performance is sought to be enforced, though the assent of the husband is shown, the decree is refused, lb. 10. In Alabama, when a defendant pleads specially and generally, and the special plea contains nothing of which the defendant cannot avail himself under the general issue, an error in sustaining a demurrer to the special plea, as it works no injury, constitutes no ground for reversal. Pollak v. Brush Electric Association, 446. 11. In Alabama a written agreement between the parties may be read in evidence without proof of its execution, unless the execution is denied by plea, verified by affidavit, lb. 12. The agreement which formed the subject of controversy in this action related to a renewal of the existing contract of the plaintiff in error for lighting certain streets in Montgomery, and not to an enlargement of that contract so as to include other streets; and being so construed, the requisite renewal was effected by the acts of the parties referred to in the opinion of the court, without a written contract, covering a fixed period of time. lb. 13. In Wisconsin an equitable defence may be set up in an action at law; but it must be separately stated, in order that it may be considered on its distinctive merits, and in order that, if established, the appropriate relief may be administered. Cornelius v. Kessel, 456. See Equity, 2. LONGEVITY PAY. 1. A cadet-midshipman at the naval academy is an officer of the navy within the meaning of the provision in the act of March 3, 1883, 22 Stat. 473, c. 97, respecting the longevity pay of officers and enlisted men in the army or navy. United States v. Cook, 254. 2. The longevity acts of 1882,1883, 22 Stat. 284, 287, c. 391; 473, c. 97, do not authorize a restatement of the pay accounts of an officer of the 726 INDEX. navy who served in the regular or volunteer army or navy, so as to give him credit in the grade held by him, prior to their passage, for the time he served in the army or navy before reaching that grade. United States v. Foster, 435. MAGNA CHARTA. See Contempt, 3. MANDAMUS. 1. The courts will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even: where those duties require an interpretation of the law ; no appellate power being given them for that purpose. Dunlap v. Black, Commissioner, 40. 2. When an executive officer of the government refuses to act at all in a case in which the law requires him to act, or when, by special statute, or otherwise, a mere ministerial duty is imposed upon him, that is, a service which he is bound to perform without further question, if he refuses, mandamus lies to compel him to do his duty. Ib. 3. In this case a mandamus was issued, commanding the judge of a Cir- cuit Court, of the United States to settle a bill of exceptions according * to the truth of the matters which took place before him on the trial of an action before the court, held by him and a jury, and to sign it, 1 when settled, he having refused to settle and sign it on the ground that the term of the court at which the action was tried had expired, and the time allowed for signing the bill had expired. Chateaugay • Ore and Iron Co., Petitioner, 544. See Commissioner of Pensions, 2; Jurisdiction, D, 1. I 77 1 MANDATE. See Practice,'3. MASTER AND SERVANT. . See Court and Jury, 1, 3. MASTER’S REPORT. See Copyright, 25. MINERAL LAND. See Public Land, 7, 8, 9,10, IL MISSOURI. See Municipal Bond, 1, 5< Public Land, 5, 6. INDEX. 727 MORTGAGE. See Equity, 3, 4, 5, 6; Local Law, 6, 7. MOTION TO DISMISS OR AFFIRM. 1. On motion to dismiss or affirm it is only necessary to print so much of the record as will enable the court to act understandingly, without referring to the transcript. Walston v. Nevin, 578. 2. The party objecting that enough of the record is not printed to enable the court to act understandingly, on a motion to dismiss should make specific reference to the parts which he thinks should be supplied, lb. 3. When on a motion to dismiss a writ of error or an appeal for want of jurisdiction or affirm the judgment below, it appears that there ■was color for the motion to dismiss, and that the contention of the plaintiff in error or the appellant has been often pressed upon the court and as often determined adversely, the motion to affirm will be granted, lb. MULTIFARIOUSNESS. See Equity Pleading, 3, 4, 5; Patent for Invention, 4. MUNICIPAL BOND. 1. In this case bonds issued by Livingston County in Missouri, on behalf of Chillicothe township, in payment of a subscription to the stock of the Saint Louis, Council Bluffs and Omaha Railroad Company were held valid. Livingston County v. First National Bank of Portsmouth, 102. 2. The vote of the township, given in May, 1870, was in favor of the issue of the bonds to the Chillicothe and Omaha Railroad Company, a Missouri corporation. Afterwards, under a statute existing at the time of the vote, that company was consolidated with an Iowa corporation, under the name of the corporation to which the bonds were subsequently issued: Held, that the consolidation was authorized and that the privilege of receiving the subscription passed to the consolidated company. Ib. 3. The vote having contemplated the construction of the railroad which the consolidated company built, there was no diversion from the purpose contemplated by the vote, in the fact that the stock was subscribed, and the bonds issued, to the consolidated company. Ib. 4. The doctrine of Harshman v. Bates County, 92 U. S. 569, and County of Bates v. Winters, 97 U. S. 83, that a County Court in Missouri could not, on a vote by a township to issue bonds to a corporation named, issue the bonds to a corporation formed by the consolidation of that corporation with another corporation, would not be, if applied here, a sound doctrine. Ib. 5. On the recitals in the bonds, and the other facts in this case, the county was estopped from urging, as against a bona fide holder of the bonds, 728 INDEX. the existence of any mere irregularity in the making of the subscription or the issuing of the bonds. 1 b. 6. Bonds issued by Franklin County, Illinois, to the Belleville and Eldo- rado Railroad Company, in November, 1877, held invalid. German Savings Bank v. Franklin County, 526. 7. The vote of the people of the county in favor of subscribing to the stock of the company was taken in September, 1869, the subscription to be payable in bonds, which were to be issued only on compliance with a specified condition, as to the time of completing the road through the county. At the time of the vote, the act of April 16, 1869, was in force authorizing the county to prescribe the conditions on which the subscription should be made, and declaring that it should not be valid until such condition precedent should have been complied with. The bonds were issued without a compliance with the condition: Held, that, under the constitution of Illinois, which took effect July 2, 1870, the issuing of the bonds was unlawful, because it had not been authorized by a vote of the people of the county taken prior to the adoption of the constitution. Ib. 8. Before the bonds were issued the Supreme Court of Illinois, in Town of Eagle v. Kohn, 84 Ill. 292, had decided the meaning of the act of April 16, 1869, to be that bonds issued without a compliance with such condition precedent were invalid, even in the hands of innocent holders without notice. Ib. 9. The fact that the bonds were registered by the state auditor, under the act of April 16, 1869, did not make them valid. Ib. 10. The bonds of the town of Lansing in the State of New York, issued to aid in the construction of the New York and Oswego Midland Railroad, having been put out without a previous designation by the company of all the counties through which the extension authorized by the New York act of 1871, c. 298, would pass, were issued without authority of law, and are invalid. Purdy v. Lansing, 557. MUNICIPAL CORPORATION. See Constitutional Law, 11; Municipal Bond. NATIONAL BANK. See Equity Pleading, 1. NEGLIGENCE. See Court and Jury, 1, 3. NEW TRIAL. See Exception, 2. INDEX. 729 OFFICER OF THE NAVY. See Claims against the United States ; Longevity Pay. PARTIES. See Estoppel, 2. PARTITION. 1. The difference between distribution and partition of real estate among heirs pointed out. Robinson v. Fair, 53. 2. The jurisdiction of a Probate Court to make partition of real estate of a decedent among his heirs is not defeated by the fact that the proceedings for it were originated by a petition of the administratrix, who was also an heir-at-law, asking for a settlement of her accounts as administratrix, and for the adjudication of her rights as heir-at-law, by partition of the real estate; the record showing that the court made the decree for the final settlement and distribution of the estate before it entered upon the question of partition, lb. See Jurisdiction, B, 1. PARTNERSHIP. When a partner retires from a firm, assenting to or acquiescing in the retention by the other partners of the old place of business and the future conduct of the business by them under the old name, the goodwill remains with the latter of course. Menendez v. Holt, 514. See Trade-Mark, 4, 5. PATENT FOR INVENTION. 1. Claim 1 of letters patent No. 42,580, granted May 3d, 1864, to J. F. T. Holbeck and Matthew Gottfried, for an “ improved mode of pitching barrels,” namely, ** The application of heated air under blast to the interior of casks by means substantially as described, and for the purposes set forth,” is a claim to an apparatus, and is void for want of novelty. The process carried on by means of the apparatus was not new, as a process. Crescent Brewing Co. v. Gottfried, 158. 2. In respect to the apparatus, the patentees, at most, merely applied an old apparatus to a new use. Ib. 3. Claim 2 of the patent held not to have been infringed, lb. 4. A bill in equity which assails two patents, issued nearly a year apart, but to the same party, and relating to the same subject, both held by the same corporation defendant, and used by it in the same operations, is not multifarious. United States v. American Bell Telephone Co., 315. 5. Where a patent for a grant of any kind, issued by the United States, has been obtained by fraud, by mistake, or by accident, or where there 730 INDEX. is any error in the patent itself capable of correction, a suit by the United States against the patentee is the appropriate remedy for relief. This proposition is supported by precedents in the High Court of Chancery of England, and in other courts of that country, lb. 6. The more usual remedy, under the English law, to repeal or revoke a patent, obtained by fraud from the king, was a writ of scire facias, returnable either into the Court of King’s Bench or of Chancery; though it has been said that the jurisdiction of the Court of Chancery arises, not from its general jurisdiction to give relief for fraud, but because the patents issuing from the king were kept as records in the petty bag office of that court. The case, however, of The Attorney General v. Vernon, 1 Vernon, 277, and other cases seem to indicate that, by virtue of its general equity powers, the Court of .Chancery had jurisdiction to give relief against fraud in obtaining patents. Ib. 7. In England grants and charters for special privileges were supposed to issue from the king, as prerogatives of the crown ; and the power to annul them was long exercised by the king by his own order or decree. This mode of vacating charters and patents gradually fell into disuse; and the same object was obtained by scire facias, returnable into the Court of King’s Bench, or of Chancery. Ib. 8. In this country, where there is no kingly prerogative, but where patents for lands and inventions are issued by the authority of the government, and by officers appointed for that purpose, who may have been imposed upon by fraud or deceit, or may have erred as to their power, or made mistakes in the instrument itself, the remedy for such evils is by proceedings before the judicial department of the government, lb. 9. Both the Constitution and the acts of Congress organizing the courts of the United States have, in express terms, provided that the United States may bring suits in those courts ; and they are all very largely engaged in the business of affording a remedy where the United States has a legal right to relief. Ib. 10. The present suit — a bill in Chancery in the Circuit Court of the United States for the District of Massachusetts, wherein the United States are plaintiffs, brought against the defendant to set aside patents for inventions on the ground that they were obtained by fraud — is a proper subject of the jurisdiction of that court, as defined in § 1, c. 37, act of March 3, 1875, 18 Stat. 470; and is well brought under the direction of the Solicitor General on account of the disability of the Attorney General to take part in the case ; and its allegations of fraud and deception on the part of the patentee in procuring the patents are sufficient, if sustained, to authorize a decree setting aside and vacating the patents as null and void. lb. 11. Section 4920 of the Revised Statutes, which enumerates five grounds of defence to a patent for an invention that may be set up by any one charged with an infringement of the rights of the patentee, was not . intended to supersede, nor does it operate as a repeal or withdrawal of INDEX. 731 the right of the government to institute an action to vacate a patent for fraud. Ib. 12. In a patent for an improvement in corn-planters, having the rear main frame mounted on supporting wheels and a front runner-frame hinged or pivoted to the main frame, the claim was for a slotted lever connected with the runner-frame by a bolt passing through the slot, in combination with a shaft journaled at one end to the main frame and at the other to the seat-standard, with a lifting hand-lever rigidly attached to that shaft, for elevating, depressing, and controlling the runners. Twenty-three months afterwards, a reissue was obtained, containing claims for any form of foot-lever and hand-lever used in combination for the purpose of elevating and depressing the runners, and ott^er claims, differing only in being restricted to a hand locklever used in connection with the foot-lever, or in requiring the two levers to be rigidly connected together. Before the plaintiff’s invention, a foot-lever and hand-lever had been used in combination, rigidly connected together, and with a lock on the hand-lever: Held, that the reissue was void. Farmers’ Friend Manufacturing Co. v. Challenge Corn Planter Co., 506. 14. Letters patent for an invention, issued without the signature of the Secretary of the Interior, have no validity, although in every other respect the requirements of law may be complied with, and although the issue without the Secretary’s signature was unintentional, accidental and unknown to the Department of the Interior or to the patentee; but this omission may be supplied by the Secretary or Acting Secretary of the Interior at the time when the correction is made, and from that time forward the letters operate as a patent for the invention claimed. Marsh v. Nichols, 605. 15. An accounting for profits in a suit in equity to restrain an infringement of letters patent can only be had when the infringement complained of took place before the suit was commenced and continued afterwards. Ib. 16. The act of February 3, 1887, c. 93, “for the relief of Elon A. Marsh and Minard Lefever,” 24 Stat. 378, has no retroactive effect, lb. See Cases Explained; Equity, 14; Jurisdiction, D, 2, 3. PAYMENT. See Equity, 5, 6. PENALTY. See Statute, A, 1, 2. PENSION. See Commissioner of Pensions. 732 INDEX. PENSION AGENT. See Statute, A, 1, 2. PLEADING. See Admiralty; Ejectment ; Local Law, 10,13. POLICE POWER. See Constitutional Law, A, 4. PRACTICE. 1. When a bill in equity is dismissed by the court below on a general demurrer, without an opinion, it is an imposition on this court to throw upon it the labor of finding out for itself the questions involved, and the arguments in support of the decree of dismissal. Ridings v. Johnson, 212. 2. In the state of the record it is impossible to determine whether the complainant is entitled to all, or to a part, or to any of the relief which he seeks, and, the court below having erred in dismissing his bill for want of jurisdiction, the case is remanded for further proceedings. lb. 3. The court denies a motion for an order for a mandate, no notice of it having been given to the other party. Means v. Dowd, 583. See Cases overruled; Circuit Courts of the United States; Division of Opinion; Mandamus ; Motion to dismiss or affirm. Removal of Causes. PRINCIPAL AND AGENT. When a person, who has been in the habit of dealing with an agent, has no knowledge of the revocation of his authority, he is justified in acting upon the presumption of its continuance. Johnson v. Christian, 374. PRIORITY OF PAYMENT. See Equity, 3, 4, 5, 6. PROBATE COURT. See Jurisdiction, B, 1; Local Law, 1, 2, 3, 4, 5; Partition, 2. PUBLIC LAND. 1. When an entry is made of two or more tracts, one of which is not at the disposal of the United States by reason of being within a swamp- INDEX. 733 land grant to a State, the validity of the entry of the remainder is not affected thereby. Cornelius n. Kessel, 456. o When an entry is made upon public land subject to entry, and the pur-’ chase money for it is paid, the United States then holds the legal title for the benefit of the purchaser, and is bound, on proper application, to issue to him a patent therefor; and if they afterwards convey that title to another, the purchaser, with notice, takes subject to the equitable claim of the first purchaser, who can compel its transfer to him. 3 The power of supervision possessed by the Commissioner of the General Land Office over the acts of the register and receiver of the local land offices is not unlimited or arbitrary, but can only be exerted when an entry is made upon false testimony, or without authority of law; and cannot be exercised so as to deprive a person of land lawfully entered and paid for. lb. , •+„ 4. When the Commissioner of the General Land Office, withou au on y of law, makes an order for the cancellation of an entry of public land made in accordance with law, and accompanied by the payment of the purchase money, the person making the entry and those claiming under him can stand upon it, and are not obliged to invoke the subsequent reinstatement of the entry by the Commissioner lb. . 5 The act of June 13, 1812, 2 Stat. 748, c. 99, « making further provisions for settling the claims to land in the Territory of Missouri was a grant in preesenti of all the title of the United States to all lands in the Grand Prairie Common Field of St. Louis which had been inhabited, cultivated, or possessed, prior to the treaty with France of April 30, 1803, leaving in them no title to such lands which could pass to the State of Missouri by the act of March 6, 1820, c. 22, 3 Stat. 545, authorizing the people of Missouri Territory to form a constitution and state government, etc. Glasgow v. Baker, 560. > . 6. In ejectment in Missouri, to recover a part of the Grand Prairie Common Field of St. Louis, the plaintiff claiming under the act of Congress of March 6, 1820, c. 22, § 6, subdivision 1, and the defendant claiming under a possession, occupation and cultivation under Frenc law prior to the cession of Louisiana to the .United States, it being proved that the land in controversy was either part of that Common Field or had been inhabited, cultivated, or possessed prior to the cession, the defendant is not required to prove with certainty and precision the time when, and the person by whom, the cultivation oi occupation was made, but it is sufficient if there is satisfactory proo that according to the terms of the statute, the tract in dispute and all the land within the Grand Prairie Common Field had been inhabited, cultivated, or possessed prior to the year 1803. lb. 7. Misrepresentations, knowingly made by an applicant for a ramera patent, as to discovery of mineral, or as to the form in which the mineral appears, whether in placers, or in veins, lodes or ledges, will Ï34 INDEX. justify the government in moving to set aside the patent. United States v. Iron Silver Mining Co., 673. 8. In such cases the burden of proof is upon the government, and the presumption that the patent was correctly issued can be overcome only by clear and convincing proof of the fraud alleged. The doctrine of the Maxwell Land Grant Case, 121 U. S. 325, and of Colorado Coal and Iron Company v. United States, 123 U. S. 307, on this point affirmed lb. 9. Exceptions made by the statute cannot be enlarged by the language of a patent. The statute only excepts from placer patents, veins or lodes known to exist at the date of the application for patent. Ib. 10. To establish the statutory exception from a placer patent the lodes or veins must be clearly ascertained, and be of such extent as to render the land more valuable on that account and justify their exploitation. 11. The certificate of the surveyor general is made by statute evidence of the sufficiency of work performed and improvement made on a mining claim. In the absence of fraudulent representations respecting them to him by the patentee, his determination as to their sufficiency, unless corrected by the Land Department, before patent, must be taken as conclusive. His estimate is open to examination by the Department before patent, and any alleged error in it cannot afterwards be made ground for impeaching the validity of the patent. Ib. 12. When lands are granted according to an official plat of their survey, the plat, with its notes, lines, descriptions and landmarks, becomes as much a part of the grant or deed by which they are conveyed, and, so far as limits are concerned, control as much as if such descriptive features were written out on the face of the deed or grant. Cragin v. Powell, 691. 13. It is not within the province of a Circuit Court of the United States or of this court to consider and determine whether an official survey duly made with a plat thereof filed in the District Land Office is erroneous ; but, with an exception referred to in the opinion, the correction of errors in such surveys have devolved from the earliest days upon the commissioner of the General Land Office, under the supervision of the Secretary of the Executive Department to whom he is subordinate, whose decisions are unassailable by the courts, except by a direct proceeding, lb. 14. When the General Land Office has once made and approved a governmental survey of public lands, the plats, maps, field notes and certificates, having been filed in the proper office, and has sold or disposed of such lands, the courts have power to protect the private rights of a .party, who has purchased in good faith from the government, against the interferences or appropriations of subsequent corrective surveys made by the Land Office. Ib. 15. One who acquires land knowing that it covers a portion of a tract INDEX. 735 claimed by another will be held either not to mean to acquire the tract of the other, or will be considered to be watching for the accidental mistake of another, and preparing to take advantage of them, and as such not entitled to receive aid from a court of equity. Ib. See Commissioner of the General Land Office. RAILROAD. 1. The incorporation of a railroad company by a State, the granting to it of special privileges to carry out the object of its incorporation, particularly the authority to exercise the State’s right of eminent domain to appropriate private property to its uses, and the obligation, assumed by the acceptance of the charter, to transport all persons and merchandise upon like conditions and for reasonable rates, affect the property and employment with a public use, and thus subject the business of the company to a legislative control which may extend to the prevention of extortion by unreasonable charges, and favoritism by discriminations. Georgia Railroad and Banking Co. v. Smith, 174. 2. In order to exempt a railroad corporation from legislative interference with its rates of charges within a designated limit, it must appear that the exemption was made in its charter by clear and unmistakable language, inconsistent with any reservation of power by the State to that effect, lb. 8. Although the general purpose of a proviso in a statute is to qualify the operation of the statute, or of some part of it, it is often used in other senses, and is so used in the act of the legislature of Georgia of December 21, 1833, incorporating the Georgia Railroad Company ; and that act does not exempt the corporation created by it, or its successors, from the duty of submitting to reasonable requirements concerning transportation rates made by a railroad commission created by the State. Ib. See Constitutional Law, A, 5; Equity, 3; Court and Jury, 1, 3; Municipal Bond. RECORD. See Jurisdiction, A, 4, 5, 6. REMITTITUR. See Judgment. REMOVAL OF CAUSES. 1. The manner or the time of taking proceedings, as the foundation for the removal of a case by a writ of error from one Federal court to another, is a matter to be regulated exclusively by acts of Congress, or, when they are silent, by methods derived from the common law, from ancient English statutes, or from the rules and practice of the courts of the United States. Chateaugay Ore Co., Petitioner, 544. 736 INDEX. REPORTER. See Copyright, 4, 5, 6, 7, 17. ST. LOUIS. See Public Land, 5, 6. SCIRE FACIAS. See Patent for Invention, 6, 7. SHIP. See Charter Party. SPECIFIC PERFORMANCE. See Equity, 7, 8, 13. STATUTE. A. Construction of Statutes. 1. Section 13 of the Revised Statutes, which enacts that “the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability,” clearly excepts from the operation of c. 181, § 1 of the act of July 4, 1884, 23 Stat. 98, 99, repealing the act of June 20, 1878, “relating to claim agents and attorneys in pension cases,” 20 Stat. 243, c. 367, all offences committed before the passage of that repealing act. United States v. Reisinger, 398. 2. The words “ penalty,” “ liability ” and “ forfeiture,” as used in Rev. Stat. § 13, are synonymous with the word “punishment,” in connection with crimes of the highest grade, and apply to offences against the act of June 20, 1878, 20 Stat. 243, c. 367, relating to claim agents and attorneys in pension cases, lb. See Railroad, 3. B. Statutes of the United States. See Appeal, 4; Habeas Corpus, 1; Circuit Courts of the Jurisdiction A, 1, 2; United States, 1; Jury; Commissioner of Pensions, 1; Longevity Pay ; Copyright, 3, 8, 21; Patent for Invention, 10,11,16; Public Land, 5, 6. INDEX. 737 C. Statutes of the States and Territories. Alabama. See Constitutional Law, A, 5. California. See Local Law, 1, 2. Georgia. See Local Law, 7; Railroad, 3. Illinois. ■ See Municipal Bond, 7, 8, 9. . Iowa. See Constitutional Law, A, 1, 2. Kentucky. See Constitutional Law, A, 11. Minnesota. See Constitutional Law, A, 9; Insolvent Debtor, 1, 2. Missouri. See Municipal Bond, 2. New York. See Constitutional Law, A, 8; Municipal Bond, 10. Texas. See Constitutional Law, A, 7» STATUTE OF LIMITATIONS. See Limitation, Statutes of. ’ SUNDAY. See Appeal, 4. SUPREME COURT OF THE UNITED STATES. See Cases overruled; Jurisdiction, A; Division of Opinion; Writ of Error. TAX AND TAXATION. See Constitutional Law, A, 7. TENANTS IN COMMON. See Husband and Wife. TIME. See Appeal, 4; Contract, 1. TRADE-MARK. 1. On the proofs the court holds: (1)-That the complainant was not the first person to use the design of a star on plug tobacco ; (2) that there is no resemblance between the design of a star as used by the appellee and that used by the appellant. Liggett and Myers Tobacco Co. v. Finzer, 182. 2. A combination of words, made by a firm engaged in mercantile busi- ness, from a foreign language, in order to designate merchandise selected by them in the exercise of their best judgment as being of a certain standard and of uniformity of quality, may be protected to them and for their use as a trade-mark, and does not fall within the vol. cxxvni—47 T38 INDEX. rule in Manufacturing Co. v. Trainer, 101 U. S. 51. Menendez v. Holt, 514. 3. The addition of the infringer’s name to a trade-mark in the place of the owner’s does not render the unauthorized use of it any less an infringement. lb. 4. A trade-mark may be part of the good-will of a firm, and in this case it was part of the good-will of the appellee’s firm. Ib. 5. A person who comes into an existing firm as a partner, and, after re- maining there a few years, goes out, leaving thé firm to carry on the old line of business under the same title in which it did business both before he came in and during the time he was a partner, does not take with him the right to use the trade-marks of the firm, in the absence of an agreement to that effect, lb. 6. The intentional use of another’s trade-mark is a fraud ; and when the excuse is that the owner permitted such use, that excuse is disposed of • by affirmative action to put a stop to it and no estoppel arises, lb. 7. The name of “ Goodyear Rubber Company,” being a name descriptive of well-known classes of goods produced by the process known as Goodyear’s invention, is not one capable of exclusive appropriation; and the addition of the word “ Company ” only indicates that parties have formed an association to deal in such goods, either to produce or to sell them. Goodyear India Rubber Glove Co. v. Goodyear Rubber Co., 596. 8. On the proofs the court held, that the complainant’s right to the exclu- sive use of his alleged trade-mark was not established; and that he was not entitled to the equitable relief which he asked for in this suit. Stachelberg n. Ponce, 686. See Equity, 10 ; Jurisdiction, B, 5; Partnership. TRAVELLING EXPENSES. e See Claims against the United States. TRESPASS ON.THE CASE. See Jurisdiction, C. WRIT OF ERROR. 1. A writ of error, in which both the plaintiffs in error and the defendants in error are designated merely by the name of a firm, containing the expression “& Co.” is not sufficient to give this court jurisdiction, but, as the record discloses the names of the persons composing the firms, the writ is, under § 1005 of the Revised Statutes, amendable by this court, and will not be dismissed. Estis v. Trdbue, 225. 2. Where the judgment below is a money judgment against the “ claim INDEX. 739 ants ” and their two sureties in a bond, naming them, jointly, and the sureties do not join in the writ of error, and there is no proper summons and severance, the defect is a substantial one, which this court cannot amend, and by reason of which it has no jurisdiction to try the case, and it will, of its own motion, dismiss the case, without awaiting the action of a party, lb. See Jurisdiction, A, 4.