UNITED STATES REPORTS VOLUME 129 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1888 J. C. BANCROFT DAVgk REPORTER ¿S? NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1889 COFYBIGHT, 1889, By BANKS & BROTHERS. JUSTICES * OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MELVILLE WJESTON FULLER, Chief Justice. SAMUEL FREEMAN MILLER, Associate Justice. STEPHEN JOHNSON FIELD, Associate Justice. JOSEPH P. BRADLEY, Associate Justice. JOHN MARSHALL HARLAN, Associate Justice. STANLEY MATTHEWS, Associate Justice.1 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. Justice Matthews, by reason of illness, took no part in the decision of any of the cases reported in this volume, except Liverpool and Great Western Steam Go. v. Phenix Insurance Go., Same v. Insurance Co. of North America, and Allen v. Smith, all argued or submitted at the last term. TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE Active Manufacturing Company, Peters v. . . . 530 Alden, Bank of Fort Madison v......................372 Allen v. Smith ........ 465 Anderson v. Miller . . . . . . . .70 Arms, Kimberly v........ 512 Arrowsmith v. Gleason ....... 86 Baldwin v. The State of Kansas......................52 Ball, Kimmish v................• . 217 Bank of Fort Madison v. Alden......................372 Barber, Harris v................................. 366 Barney, Chapman v....... 677 Barton v. United States ....... 249 Bate Refrigerating Company v. Hammond . . . 151 Beckwith, Minneapolis and St. Louis Railway Company v..................... . .26 B6ne v. Jeantet ......... 683 Board of Commissioners of the Taxing District of Brownsville, Norton v.............. 479 Brinkley, Marrow v........ 178 Brown v. Sutton....................................238 Burgess, Sargent -v.................................19 Butler, National Security Bank v. . . . . . 223 Camden v. Mayhew ....... 73 Carr v. Hamilton . . . . . . . . 252 Chapman v. Barney..................................677 Chicago and Evanston Railroad Company, Hill v. . . 170 City National Bank of Fort Worth v. Hunter . . 557 Cole, Shreveport v..................................36 vi TABLE OF CONTENTS. Table of Cases. PAGE Commissioners of the Taxing District of Brownsville v. Loague......................................493 Commissioners of the Taxing District of Brownsville, Norton v..................................505 Corwin, United States v. . ' . . . ... 381 Cory, Ruckman v....... . 387 Cotzhausen, White v...... . . 329 Currie, Mayor v. United States ex rel. Jacobs ... 44 Dent v. West Virginia...........................114 Eastern Railroad Company v. United States . . . 391 Ely v. New Mexico and Arizona Railroad Company . 291 Farmers’ Loan and Trust Company, Petitioner, The . 206 Farnsworth v. Territory of Montana .... 104 Fox, Goodwin v..................................601 Galigher v. J ones............................ 193 Gilmer, Morris v......... 315 Gleason, Arrowsmith v............................86 Goodwin v. Fox..................................601 Graham’s Administrator, McCormick v. . . . 1 Guardiola, Insurance Company of North America v. . 642 Hamilton, Carr v. ....... 252 Hammond, Bate Refrigerating Company v. . . . 151 Hammond, Noble v. ...... 65 Hanover Fire Insurance Company v. Kinneard . .176 Hanson, Peters v................................541 Harris v. Barber................................366 Harris, Walworth v..............................355 Hennick, Stoutenburgh v.........................141 Hill v. Chicago and Evanston Railroad Company . 170 Hunter v. City National Bank of Fort Worth . . 557 Inman v. South Carolina Railway Company . . 128 Insurance Company of North America v. Guardiola . 642 TABLE OF CONTENTS. vii Table of Cases. PAGE Insurance Company of North. America, Liverpool and Great Western Steam Company -w. 464 Jeantet, Ben6 v. . ......................... 683 Johnstone, Wallace v............. . . 58 Jones, Galigher v................................193 Kimberly v. Arms.................................512 Kimmish v. Ball .................................217 Kingman, Pattee Plow Company v. . . . . 294 Kinneard, Hanover Fire Insurance Company v. . . 176 Lancaster, Morley Sewing Machine Company v. . . 263 Ledoux, Pinkerton v........ 346 Liverpool and Great Western Steam Company v. Insur- ance Company of North America. . . . 464 Liverpool and Great Western Steam Company v. Phenix Insurance Company . . . . . . . 397 Loague, Commissioners of the Taxing District of Brownsville v.......................................493 Louisiana Construction Company, New Orleans v. . .45 McAlpine, Union Pacific Railway Company v. . . 305 McCormick v. Graham’s Administrator .... 1 McKenna v. Simpson.......................• „ 506 Marrow v. Brinkley...............................178 Marshall Silver Mining Company, United States v. . 579 Mayhew, Camden v..................................73 Metcalf, Wade v.................... . . . 202 Miller, Anderson v................................70 Minneapolis and St. Louis Railway Company v. Beckwith 26 Moore, Shotwell v........ ■ . 590 Morley Sewing Machine Company v. Lancaster . . 263 Morris v. Gilmer.................................315 National Security Bank v. Butler .... 223 New Mexico and Arizona Railroad Company, Ely v. . 291 New Orleans v. Louisiana Construction Company . 45 viii TABLE OF CONTENTS. Table of Case’s. PAGB Noble v. Hammond. . . . ' . . . .65 Norton v. Board of Commissioners of the Taxing District of Brownsville.........................479 Norton v. Commissioners of the Taxing District of Brownsville......................................505 Packer, Schraeder Mining and Manufacturing Company v. 688 Pattee Plow Company v. Kingman .... 294 Perkins, Robertson v..................................233 Peters v. Active Manufacturing Company . . . 530 Peters v. Hanson......................................541 Phenix Insurance Company, Liverpool and Great Western Steam Company v..................................397 Pinkerton v. Ledoux...................................346 Probst v. Trustees of the Board of Domestic Missions of the General Assembly of the Presbyterian Church . 182 Ralston v. Turpin . . .......................663 Richmond and Danville Extension Company, Woodstock Iron Company v...................................643 Robertson v. Perkins..................................233 Rosenwasser v. Spieth................................47 Ruckman v. Cory . . . . . . . 387 Sargent v. Burgess...................................19 Schraeder Mining and Manufacturing Company v. Packer 688 Seibert v. United States ex rel. Harshman . . . 192 Shotwell v. Moore . . . . . . . .590 Shreveport v. Cole................................... 36 Simpson, McKenna v.......................' . . 506 Smith, Allen v. .................................. 465 South Carolina Railway Company, Inman v. . . . 128 Spieth, Rosenwasser v..................................47 Stockslager, United States ex rel. Levey v. . . .470 Stoutenburgh v. Hennick.............................141 Sutton, Brown -v....................................238 Territory of Montana, Farnsworth v..................104 TABLE OF CONTENTS. ix Table of Cases. PAGE The Farmers’ Loan and Trust Company, Petitioner . 206 The State of Kansas, Baldwin Wash. C. C. 101 329 Butler v. Palmer, 1 Hill, 324 478 Cadman v. Peter, 118 U. S. 78 64 Callaghan v. Myers, 128 U. S. 617 524 Cameron v. Hodges, 127 U. S. 322 681 Canan v. Pound M’f’g Co., 23 : ; Blatchford, 173 .169 xii TABLE OF CASES CITED. PAGE Carpenter v. Providence Washington Ins. Co., 16 Pet. 495 443 Carpentier v. Montgomery, 13 Wall. 480 354 Case v. Clarke, 5 Mason, 70 328 Cassamajor r. Strode, 1 Sim. & St. 381 86 Chapman v. Forsyth, 2 How. 202 68, 69 Charles Morgan (The), 115 U. S. 69 447, 462 Chartered Bank of India v. Netherlands Steam Navigation Co., 9 Q. B. D. 118; 10 Q. B. D. 521 452, 459 Chicago &c. Railroads. Dunn, 52 Illinois, 260 341 Chicago &c. Railway Co. v. United States, 104 U. S. 680 396 Chicago and Alton Railroad v. Wiggins Ferry Co., 108 U. S. 18 42 Childress v. Hurt, 2 Swan, 487 82 Chirac v. Reinicker, 11 Wheat. 280 681 Church v. Hubbart, 2 Cranch, 187 445 Clapp v. Dittman, 21 Fed. Rep. 15 344 Clapp v. Nordmeyer, 25 Fed. Rep. 71 344 Clark v. Ewing, 9 Bissell, 440 511 Clement v. Packer, 125 U. S. 309 697 Clifton v. United States, 4 How. 242 386 Clough v. Barker, 106 U. S. 166 275 Cogswell v. Fordyce, 128 U. S. 391 177 Cohen v. South Eastern Railway, 2 Ex. D. 253 444 Coit v. Gold Amalgamating Co., 119 U. S. 343 378 Colclough v. Bolger, 4 Dow, 54 101 Colorado Coal and Iron Co. v. United States, 123 U. S. 307 588 Colt v. Owens, 90 N. Y. 368 202 Concord v. Portsmouth Savings Bank, 92 U. S. 625 490 Conley v. Nailor, 118 U. S. 127 670, 671 Consolidated Valve Co. v. Crosby Valve Co., 113 U. S. 157 276, 286 Continental Insurance Co. v. Rhoads, 119 U. S. 237 681 Cooley v. Board of Wardens, 12 How. 299, 148 Cooper v. Galbraith, 3 Wash. C. C. 546 328 Copeland v. New England Insurance Co., 2 Met. 432 438 Core v. Strickler, 24 West Va. 689 82 Cox v. United States, 6 Pet. 172 453 Coyle v. Davis, 116 U. S. 108 64 ! PAGE Credit Co. v. Arkansas Central Railway Co., 128 U. S. 258 174,506 Cridland, Ex parte, 3 Ves. & B. 94 445 Cud v. Rutter, 1 P. Wms. 572 201 Cummings v. State of Missouri, 4 Wall. 277 125 Curtis v. Delaware & Lackawanna Railroad, 74 N. Y. 116 458 Curtis v. Platt, note to Adie v. Clark, 3 Ch. Div. 134 280, 281,282 Dainese v.' Hale, 91 U. S. 13 445 Dartmouth College v. Woodward, 4 Wheat. 518 477 Davidson v. New Orleans, 96 U. S. 97 124 Davis v. Bilsland, 18 Wall. 659 293 Day v. Woodworth, 13 How. 363 36 Denny v. Bennett, 128 U. S. 489 364 Dowse v. Coxe, 3 Bing. 20 525 Duero (The), L. R. 2 Ad. & Ec. 393 446, 447 Duff v. Sterling Pump Co., 107 U. S. 636 276 Dunbar v. Tredennick, 2 Ball. & Beatty, 304 314 Duncan v. Dodd, 2 Paige, 99 82 Dwyer v. Dunbar, 5 Wall. 318 643 Dyke v. Erie Railway, 45 N. Y. 113 456 Edmonson v. Bloomshire, 7 Wall. 306 506 Ennis v. Smith, 14 How. 400 328,445 Everhart v. Huntsville College, 120 U. S. 223 ‘ 682 Ewing r. Burnet, 11 Pet. 41 191 Express Company v. Caldwell, 21 Wall. 264 ' 442 Express Company v. Kountze, 8 Wall. 341 438 Factors’ Insurance Co. v. Murphy, 111U. S. 738 512 Falconer v. Railroad Co., 69 N.Y. 491 490 Farmington v. Pillsbury, 114 U. S. 138 326 Farmington Co. v. County Commissioners, 112 Mass. 206 369 Field v. Geoghegan, 125 Illinois, 70 342 Fletcher v. Peck, 6 Cranch, 87 477 Forgay v. Conrad, 6 How. 201 213 Fort Edward &c. Plank Road Co. v. Payne, 15 N. Y. 583 662 Fosdick v. Schall, 99 U. S. 235 213 France v. Gaudet, L. R. 6 Q. B. 199 201 Freeborn v. Smith, 2 Wall. 160 643 Freund v. Yaegerman, 26 Fed. Rep. 812 344 Frost v. Spitley, 121 U. S. 552 292 Fryatt v. Lindo, 3 Edw. Ch. 239 236 TABLE OF CASES CITED. xiii PAGE Fuller v. Dame, 18 Pick. 472 657, 659, 662 Gaetano & Maria (The), 7 P. D. 137 444, 450 Gaines v. Fuentes, 92 U. S. 10 100 Gaither v. Watkins, 66 Mary- land, 576 371 Garland, Ex parte, 4 Wall. 333 125,126 Gazelle (The), 128 U. S. 474 435, 447, 462 Gee v. Spenser, 1 Vern. 32 699 General Insurance Co. v. Sher- wood, 14 Hun, 351 438 Gibbons v. Ogden, 6 Wheat. 448 150 Gibson v. The People, 5 Hun, 542 236 Gilman v. Philadelphia, 3 Wall. 713 148 Glenny v. Langdon, 98 U. S. 20 511 Gold Washing and Water Co. v. Keyes, 96 U. S. 109 41 Goodrich v. Wilson, 119 Mass. 429 511 Grace v. American Central Insur- ance Co., 109 U. S. 278 326, 681, 682 Graham v. McCormick, 10 Bissell, 39; 11 Fed. Rep. 859 9 Gray v. Jackson, 51 N. H. 9 458 Green v. Farmer, 4 Burrow, 2214: 5. C. 1 W. Bl. 651 .255 Green v. Van Buskirk, 5 Wall. 307 363, 365 Green v. Van Buskirk, 7 Wall. 139 «65 Gregory v. Mighell, 18 Ves. 328 314 Grigsby v. Purcell, 99 U. S. 505 506 Grill v. General Iron Screw Co., L. R. 1. C. P. 600; L. R. 3 C. P. 476 438 Gruman v. Smith, 81 N. Y. 25 202 Haggett v. Welsh, 1 Sim. 134 525 Hale v. New Jersey Steam Navi- gation Co., 15 Conn. 538; S. C. 39 Am. Dec. 398 455 Halsted v. Buster, 119 U. S. 341 682 Hamburg (The), 2 Moore P. C. (N. S.) 289; N. C. Brown & Lush. 253 444 Hampton v. Commonwealth, 19 Penn. St. 329 478 Hancock v. Holbrook, 112 U. S. 229 682 Hanley v. Donoghue, 116 U. S. 1 445 Harding v. Handy, 11 Wheat. 103 670 Harding v. Harding, 4 Myln. & Cr. 514 83 Harris v. Tremenheere, 15 Ves. 34 675 Harrisburg (The), 119 U. S. 199 444 Harshman v. Knox County, 122 U. S. 306 503 Hart v. Pennsylvania Railroad Co., 112 U. S. 331 442 ! —, PAGI Hartog v. Memory, 116 U. S. 588 326 327 Harvey v. Tyler, 2 Wall. 328 191 1 Hay’s Appeal, 51 Penn. St. 58 82 Heeser v. Miller, 19 Pac. Rep. 375 294 Hennequin v. Clews, 111 U. S. 676 68, 69 Henry v. Providence Tool Co., 3 Ban. & Ard. 501 167 Hershfleld v. Griffith, 18 Wall. 657 293 Hervey v. Rhode Island Locomo- tive Works, 93 U. S. 664 365 Hess v. Reynolds, 113 LT. S. 73 700 Higgins v. White, 118 Illinois, 619 390 Hill v. Chicago and Evanston Railroad Co., 129 U. S. 170 506 Holland v. Challen, 110 U. S. 15 292 Holliday v. Patterson, 5 Oregon 662 io7 Holly Springs Savings &c. Co. v. Marshall County, 52 Mississippi, 281 596 Horbach v. Hill, 112 U. S. 144 64 Hornbuckle v. Toombs, 18 Wall. 648 293 Househill Co. v. Neilson, 1 Web- ster Pat. Cas. 685 281 Howland v. Blake, 97 U. S. 624 64 Huntingdon Railroad Co. v. Eng- lish, 86 Penn. St. 247 201 Hurtado v. California, 110 U. S. 516 57, 124 Hylton v. Hylton, 2 Ves. Sen. 547 673 Inman v. South Carolina Railway, 129 U. S. 128 442, 463 Jackson v. Ashton, 8 Pet. 148 681 Jacobs v. Crédit Lyonnais, 12 Q. B. D. 589 452, 453 Jarrolt n. Moberly, 103 U. S. 580 491 Jefferson &c. Railroad v. Oyler, 60 Indiana, 343 294 Jenkins v. National Bank of Chi- cago, 127 U. S. 484 512 Jeter v. Hewitt, 22 How. 352 505 Johnes v. Johnes, 3 Dow, 1 341 Johnson v. Waters, 111 U. S. 640 99 Jones v. League, 18 How. 76 328 Jones v. Seward County, 10 Ne- braska, 154 596 Julien v. Peninsular & Oriental Co., 3 Moore P. C. (N. S.) 282, note; 75 Journal du Palais, 225 449 Jupe v. Pratt, 1 Webster Pat. Cas. 146 281 Kable v. Mitchell, 9 West Va. 492 82 Kahn v. Smelting Co., 102 U. S. 641 530 Karnak (The), L. R. 2 P. C. 505 450 Kellogg v. Richardson, 19 Fed. Rep. 70 343 Kelly v. Milan, 127 U. S. 139 492 xiv TABLE OF CASES CITED. PAGE Kendall v. Winsor, 21 How. 322 205 Kerbs v. Ewing, 22 Fed. Rep. 693 343 King Bridge Co. v. Otoe County, 120 U. S. 225 326 Kurtz v. Moffitt, 115 U. S. 487 111 Lady Pike (The), 21 Wall. 1 437 Lamar v. Micou, 112 U. S. 452; 114 U. S. 218 445, 453 Lansdown v. Elderton, 14 Ves. 512 85 Lester v. Foxcroft, 1 Colles Pari. Cas. 108 314 Life Association of America v. Levy, 33 La. Ann. 1203 260, 261 Linder v. Carpenter, 62 Illinois, 309 662 Little v. Giles, 118 IL S. 596 326 Liverpool Insurance Co. v. Massachusetts, 10 Wall. 566 161 Lloyd v. Guibert, L. R. 1 Q. B. 115; 8. C. 6 B. & S. 100 444, 445, 449, 450, 452, 455, 459 Loder v. Kekulfi, 3 C. B. (N. S.) 128 201 Lorillard v. Clyde, 86 N. Y. 384 235 Lottawanna (The), 21 Wall. 558 444 Louis (The), 2'Dodson, 210 446 McAlpine v. Union Pacific Rail- road Co., 23 Fed. Rep. 168 307 McClurg v. Kingsland, 1 How. 202 205 McCormick v. Talcott, 20 How. 402 273 McDaniel v. Chicago & Northwestern Railway, 24 Iowa, 412 456 McGee v. Mathis, 4 Wall. 143 477 Manchester &c. Railway v. Brown, 8 App. .Cas. 703 447 Mandeville v. Wilson, 5 Cranch, 15 681 Manhattan Insurance Co. v. Broughton, 109 U. S. 121 328 Mansfield, Coldwater &c. Railway v. Swan, 111 U. S. 379 325 Marianna Flora (The), 11 Wheat. 1 447 Markham v. Jaudon, 41 N. Y. 235 201 Martin v. Hausman, 14 Fed. Rep. 160 343 Matheson v. Grant, 2 How. 263 681 Mauarr v. Parrish, 26 Ohio St. 636 97 Maxwell Land Grant Case, 121 U. S. 325 588 May’s Heirs v. Fenton, 7 J. J. Marsh. 306 390 Medsker v. Bonebrake, 108 U. S. 66 524 Menard v. Gogan, 121 U. S. 256 682 Merchants’ Insurance Co. v. Allen, 121 U. S. 67 447 Metcalf v. Watertown, 128 U. S. 586 327 PAGE Mills v. Lockwood, 42 Illinois, 111 390 Milwaukee Railroad Co. v. Soutter, 5 Wall. 662 82 Miner’s National Bank’s Appeal, 57 Penn. St. 193 341 Missouri Pacific Railway Co. v. Finley, 38 Kansas, 550 220 Missouri Pacific Railway Co. v. Humes, 115 U. S. 512 31, 124 Missouri Pacific Railway Co. v. Mackey, 127 U. S. 205 32 Missouri Steamship Co., In re, 58 , Law Times (N. S.) 377 461 Mitchell v. Commissioners of Leavenworth County, 91 U. S. 206 596, 597 Mitchell v. Reed, 61 N. Y. 123 528 Montana (The), 17 Fed. Rep. 377 436 Moore v. City of New Orleans, 32 La. Ann. 726 42 More v. Steinbach, 127 U. S. 70 292 Morgan v. New Orleans &c. Railroad, 2 Woods, 244 455 Morley Sewing Machine Co. v. Lancaster, 23 Fed. Rep. 344 273 Musgrave v. Beckendorff'. 53 Penn. St.; 3 P. F. Smith, 310 201 Mvnard v. Syracuse Railroad, 71 N. Y. 180 443 Myrick v. Michigan Central Railroad, 107 U. S. 102 443 National Security Bank v. Price, 22 Fed. Rep. 697 226 Neal v. Clark, 95 U. S. 704 68, 69 Neal v. Delaware, 103 U. S. 370 42 Neilson v. Harford, 1 Webst. Pat. Cas. 295 278 Newcomb v. Almy, 96 N. Y. 308 259 Newcomb v. Wood, 97 U. S. 581 525 New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344 438 Niagara (The), 21 How. 7 437 Niles v. Anderson, 5 How. (Miss.) 365 101 Norton v. Brownsville, 129 U. S. 471 502 O’Brien v. Weld, 92 U. S. 81 511 Olcott v. Maclean, 73 N. Y. 223 511 Olivier v. Townes, 2 Martin (N. S.) 93 364 O’Reilly v. Morse, 15 How. 62 169,278 Orient Insurance Co. v. Adams, 123 U. S. 67 438 Oscanyan v. Arms Co., 103 U. S. 261 663 Owen v. Routh, 14 C. B. 327 201 Pacific Railroad Co. v. Seely, 45 Missouri, 212; 8. C. 100 Am. Dec. 369 662 Packer v. Schraeder Mining &c. Co., 97 Penn. St. 379 689, 697 Packet Co. v. Keokuk, 95 U. S. 80 222 TABLE OF CASES CITED. XV PAGE Palmer v. Hussey, 119 U. S. 96 68 Parkhurst v. Van Cortlandt, 14 Johns. 15; 8. C. 7 Am. Dec. 427 314 Pattee v. Moline Plow Co., 10 Bis- sell, 377; 9 Fed. Rep. 821 299 Paul v. Virginia, 8 Wall. 168 222 Payne ». Hook, 7 Wall. 425 98 Payne v. Treadwell, 16 California, 220 294 Peerless (The), 13 Moore P. C. 484 446 Pembina Mining Company v. Pennsylvania, 125 U. S. 181 28 Peninsular and Oriental Co. v. Shand, 3 Moore P. C. (N. S.) 272 444, 448,450,456,459, 460 Pennoyer v. Neff, 95 U. S. 714 124 Pennsylvania Co. v. Fairchild, 69 Illinois, 260 457 Pennsylvania Railroad v. Locomotive Truck Co., 110 IT. S. 490 541 553 People v. Betts, 55 N. Y. 600 371 People v. Brooklyn Assessors, 39 N. Y. 81 369 People v. Brooklyn Commissioners, 103 N. Y. 370 369 People v. The Mayor, 28 Barb. 240 236 People v. Walker, 23 Barb. 304 236 Perkins v. Gay, 3 S. & R. 327; 8. C. 7 Am. Dec. 653 699 Perry v. Corby, 21 Fed. Rep. 737 344 Peters v. Active Manufacturing Co., 21 Fed. Rep. 319 537 Phenix Insurance Co. v. Liver- pool &c. Steamship Co., 22 Blatchford, 372 436, 447 Phcenix Insurance Co. v. Erie Transportation Co., 117 U. S. 312 442, 462 Pierce v. Carskadon, 16 Wall. 234 126 Pierce v. Indseth, 102 U. S. 546 445 Pope v. Nickerson, 3 Story, 465 449 454, 458 Poppleton v. Yamhill County, 8 Oregon, 337 596 Potomac (The), 105 U. S. 630 462 Potter v. National Bank, 102 U. S. 163 631 Prescott, Ex parte, 1 Atk. 230 256 Preston v. Spaulding, 120 Illinois, 208 338, 341, 342 Prince George (The), 4 Moore P. C. 21 446 Prior v. Hembrow, 1 M. & W. 873 525 Pritchard v. Norton, 106 U. S. 124 453 Proctor v. Bennis, 36 Ch. Div. 740 281 Pulaski v. Gilmore, 21 Fed. Rep. 870 492 — _ . PAGE Pusey v. Desbouvene, 3 P. Wms. 816 699 Quinby v. Conlan, 104 U. S. 420 524 Racine County Bank v. Ayers, 12 Wisconsin, 512 662 Railroad Co. v. Androscoggin Mills, 22 Wall. 594 463 Railroad Co. v. Falconer, 103 U. S. 821 490 Railroad Co. v. Husen, 95 U. S. 465 221, 222 Railroad Co. ». Lockwood, 17 Wall. 357 439, 441, 443 Railroad Co. ». McClure, 10 Wall. 511 42 Railroad Co. ». National Bank, 102 U. S. 14 443 Railroad Co. v. Pratt, 22 Wall. 123 442 Railway Co. ». Ramsey, 22 Wall. 322 682 Railway Co. ». Sayles, 97 U. S. 554 274 Railway Co. ». Stevens, 95 U. S. • 655 442 Ralston ». Turpin, 25 Fed. Rep. 7 665 Reigal ». Wood, 1 Johns. Ch. 402 100 Reissner ». Sharp, 16 Blatchford, 383 168 Renaud ». Abbott, 116 IT. S. 277 445 Requa ». Rea, 2 Paige, 339 85 Richmond ». Tayleur, 1 P. Wms. 734 loi Robbins ». Shelby Taxing Dis- trict, 120 U. S. 489 148, 150 Robertson ». Cease, 97 IT. S. 646 681 Robertson ». Jackson, 2 C. B. 412 454 Robinson ». Bland, 1 W. Bl. 234 ; S. C. 2 Bur. 1077 448 Romaine ». Van Allen, 26 N. Y. 309 201 Santa Clara County ». Southern Pacific Railroad Co., 118 U. S. 394 28 St. Louis, Jacksonville &c. Rail- road v. Mathers, 71 Illinois, 592 662 Saunders ». Gray, 4 Myln. & Cr. 515 ; 8. C. Gray ». Gray, 1 Bea- van, 199 83 Scammon ». Kimball, Assignee, 92 U. S. 362 262 Scotland (The), 105 U. S. 24 444, 446 Scudder ». Union Bank, 91 U. S. 406 453 Scull ». United States, 98 U. S. 410 354 Seibert ». Lewis, 122 U. S. 284 193 Sheehy ». Mandeville, 6 Cranch, 253 681 Smith ». Alabama, 124 U. S. 365 443 Smith ». Arnold, 5 Mason, 414 85 Smith ». Ely, 15 How. 137 164 Smith ». Whitney, 116 U. S. 167 113 xvi TABLE OF CASES CITED. PAGE Snow v. United States, 118 U. S. 346 110, 111 Soon Hing v. Crowley, 113 U. S. 703 30 Spears’ Liquidator v. Spears, 27 La. Ann. 642 261 Spies v. Illinois, 123 U. S. 131 57 Spinetti v. Atlas Steamship Co., 80 N. Y. 71 443 Spinney v. Hyde, 16 La. Ann. 250 261 Starin v. New York, 115 U. S. 248 41 State v. Baldwin, 36 Kansas, 1 54 Statham v. Dusy, 11 Pac. Rep. 606 294 Steel v. State Line Steamship Co., 3 App. Cas. 72 447 Steinbach v. Stewart, 11 Wall. 566 390 Strang v. Bradner, 114 U. S. 555 68 Sullivan v. Fulton Steamboat Co., 6 Wheat. 450 681 Suydam v. Jenkins, 3 Sandford, 614 201 Swift v. Tyson, 16 Pet. 1 443 Talbot v. Seeman, 1 Cranch, 1 446 Tanner v. Radford, 4 Myln. & Cr. 519 83 Taubman v. Pacific Co., 26 Law Times (N. S.) 704 447 Taxpayers of Milan v. Tennessee Central Railroad, 11 Lea, 330 492 Taylor v. Stibbert, 2 Ves. Jr. 437 314 Thompson v. Bemis Paper Co., 127 Mass. 595 380 Tilghman v. Proctor, 102 U. S. 707 277, 279 Tilghman v. Proctor, 125 U. S. 136 524 Tillson v. United States, 20 C. Cl. 213 102 Tom Tong, Ex parte, 108 U. S. 556 113 Tool Company v. Morris, 2 Wall. 48 662 Transportation Co. v. Downer, 11 Wall. 129 438 Trimble v. Woodhead, 102 U. S. 647 511 Trittipo v. Morgan, 99 Indiana, 269 294 Turner v. Turner, 2 Rep. in Ch. 81 699 Tuttle v. The People, 36 N. Y. 431 236 Union Pacific Railway Co. v. United States, 20 C. Cl. 213 102 United States v. Beebe, 127 U. S. 338 588 United States v. Buford, 3 Pet. 12 386, 681 United States v. Corwin, 129 U. S. 381 643 United States v. Iron Silver Mining Co., 128 U. S. 673 588 United States v. Pico, 5 Wall. 536 354 United States v. Rockwell, 120 U. S. 60 ' 252 United States v. San Jacinto Tin Co., 125 U. S. 273 588 United States v. Schurz, 102 U. S. 378 477, 587 Van Norden v. Morton, 99 U. S. 378 46, 47 Von Hoffman v. City of Quincy, 4 Wall. 535 42 Wadsworth v. Supervisors, 102 U. S. 534 490 Walden v. Craig, 6 Wheat. 576 681 Watts v. Camors, 115 U. S. 353 453 Watts v. Territory of Washington, 91 U. S. 580 110 Welsh?;. Chicago, Burlington and Quincy Railroad, 53 Iowa, 632 65 Whitney v. Morrow, 95 U. S. 551 ; 112 U. S. 693 475, 476 Wilks ?;. Walker, 22 So. Car. 108 341 Williams v. County Commissioners, 35 Maine, 345 478 Williams v. Morgan, 111 U. S. 684 213 Williams v. Nottawa, 104 U. S. 209 326 Williamson v. Dale, 3 Johns. Ch. 290 82 Wills v. Stradling, 3 Ves. 378 314 Wilson v. Byers, 77 Illinois, 76 390 Wilson v. Whitaker, 49 Penn. St. ; 13 Wright, 114 201 Winchester and Partridge M’f’g Co. v. Creary, 116 U. S. 161 390 Winner v. Hoyt, 66 Wisconsin, 227 341 Wolf v. Stix, 99 U. S. 1 68, 69 Woodland (The), 7 Benedict, 110 ; 14 Blatchford, 499 ; 104 U. S. 180 450 Wright v. Bank of Metropolis, 110 N. Y. 237 202 Wright v. Hollingsworth, 1 Pet. 165 681 Yick Wo v. Hopkins, 118 U. S. 356 124 York County v. Central Railroad, 3 Wall. 107 643 Xantho (The), 12 App. Cas. 503 438 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. PAGE 1800, April 4, 2 Stat. 33, c. 19. . 256 1820, May 11, 3 Stat. 572, c. 85.'. 476i 1823, Feb. 21, 3 Stat. 724, c. 10.. 475 1839, March 3, 5 Stat. 354...166, 169 1841, Aug. 19, 5 Stat. 440, c. 9, 68, 69, 256 1851, March 3, 9 Stat. 635, c. 43, 440, 460 1354, July 22, 10 Stat. 308, c. 103, Qiq QK1 QKK 1861, July 17, 12 Stat. 258..’.. ..’ 251 1862, July 2, 12 Stat. 502 ... 126, 127 1862, July 17, 12 Stat. 589 ........ 179, 180, 181 1864, June 3, 13 Stat. 115, c. 106, 226 1865, Jan. 24, 13 Stat. 424......... 127 1867, March 2, 14 Stat. 516..........251 1867, March 2,14 Stat. 526, c. 176, 256 1867, March 2, 14 Stat. 635, c. 208........471, 473, 474, 475, 476, 477, 478 1867, March 30, 15 Stat. 353, 472, 473 1870, July 1,16 Stat. 646, c. 202 .. 355 1870, July 8, 16 Stat. 201 166, 167, 169 1874, June 23, 18 Stat. 253 ........ 110 1875, Feb. 16, 18 Stat. 315, c. 77, 435 1875, March 3, 18 Stat. 341, c. 128, 396 1875, March 3, 18 Stat. 470......... 325 1876, July 12, 19 Stat. 140, c. 259, 395 396 1878, June 17, 20 Stat. 140. .395,’ 396 PAGE 1879, Feb. 25, 20 Stat. 231...... 113 1882, Aug. 5, 22 Stat. 287.. .250, 251 1883, March 3, 22 Stat. 473, c. 97, 250, 251 1883, March 3,22 Stat. 501, c. 121, 236 1885, March 3, 23 Stat. 443. .Ill, 112, 113, 370 Revised Statutes § 699........................ 177 § 702...............109, 110, 118 § 705........................ 113 § 709..27, 44, 56, 110, 510, 511 § 858 ...................242, 630 § 914........................ 234 § 921........................ 177 § 1008....................... 680 § 1059....................... 474 § 1412....................... 251 § 1909...................110, 113 § 1911...................110, 113 § 2326............\.......... 584 § 2502....................... 236 § 3701....................... 593 §§ 4282-4289.................. 440 § 4288....................... 460 § 4887, 164,165, 167,168,169, 170 § 4888....................... 685 § 4899...................... 204 § 4972....................... 510 § 5117....................68, 69 § 5242..............226, 229, 231 (B.) Statutes of the States, Territories and District of Columbia. Arizona. Compiled Laws, 1877, c. 48, §§ 1, 22, 39, 256 ........ 293 Laws, 1881, c. 59........... 293 Arkansas. Rev. Stat. 1884. §§ 4453.................... 362 District of Columbia. Rev. Stat. § 680............ 370 § 681............ 370 § 684....... 370, 371 § 686............ 370 District of Columbia (coni.) Rev. Stat. § 687..................... 369 § 688 .................... 370 § 997................... 369 Georgia. Code. § 1847.................... 674 § 2666.................... 673 § 3177.................... 674 Illinois. 1877, July 1.............337, 339 xviii TABLE OF STATUTES CITED. PAGE Illinois (coni.) Rev. Stat. c. 45............ 388 Rev. Stat. (1874) c. 74, § 2.. 635 Rev. Stat. (1881) c. 74, p. 650....................... 377 Iowa. Code. § 1289..................... 27 § 4058......219, 220, 221, 222 § 4059......219, 220, 221, 222 Kansas. Compiled Laws, c. 80, art. 15, § 274 ..................... 54 Compiled Laws, c. 82, art. 11, §208....................... 54 Louisiana. i 1874, March 21............... 362 Civil Code, § 2209 .......... 260 Rev. Code. Art. 2705................ 362 Art. 2709 ................ 362 Code of Practice. Art. 375 ................. 261 Art. 395 .................. 46 Art. 396 .................. 46 Art. 397 .................. 46 Art. 398 .................. 46 Art. 399 ................. 46 Art. 400 .................. 46 PAGE Missouri. Stat. 1866, § 63 ........ 503, 504 1870, March 18............... 491 1871, Jan. 16............... 492 1872, Feb. 16................ 491 1872, March 29.............. 491 New Mexico. Compiled Laws. 1884, Sec. 1881.............. 188 Sec. 2768 ................... 187 New York. Code of Civil Procedure. § 481..................... 235 § 500................. 235 § 522................. 235 Ohio. 1879, June 20.........593, 594 Rev. Stat. p. 671, Swan & Critchfleld, 1860, §§ 6, 22-28.......................95,96 Rev. Stat. 1879. § 2736.................... 594 § 2737 ...........593, 594', 599 Tennessee. 1870, Feb. 8... .488, 493, 501, 502 1870, Feb. 24................ 501 Texas. Rev. Stat. 1879, p. 433...... 557 Virginia. Code, 1873, ch. 182.......... 178 (C.) Foreign Statutes. Canada. 1872, June 14, 35 Viet., c. 26 ....................165, 166 France. Code Napoléon. § 1291................... 260 CASES ADJUDGED & $ IN THE SUPREME COURT OF THE UNITED SPATES, AT OCTOBER TERM, 1888. McCORMICK v. GRAHAM’S ADMINISTRATOR.1 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 108. Argued December 5, 6,1888. — Decided January 7, 1889. Claims 1 and 2 of letters patent No. 74,342, granted to Alvaro B. Graham, February 11, 1868, for an improvement in harvesters, namely, “ 1. The combination, as set forth, in a harvester, of the finger-beam with the gearing-carriage, by means of the vibratable link, the draft-rod, and the two swivel-joints, M and M', so that the finger-beam may both rise and fall at either end, and rock forward and backward. 2. The combination, as set forth, in a harvester, of the finger-beam, gearing-carriage, vibratable link, draft-rod, swivel-joints, and arm, by which the rocking of the finger-beam is controlled,” are not infringed by a machine constructed under letters patent No. 193,770, granted July 31, 1877, to Leander J. McCormick, William R. Baker, and Lambert Erpelding, assignors to C. H. & L. J. McCormick. It is apparent from the proceedings in the Patent Office on the application for Graham’s patent, and from the terms of his specification and of claims 1 and 2 as granted, that the intention was to limit the modification which Graham made, to the particular location of the swivel-joint, Mz, on which the crosswise rocking movement takes place, and to the rigid arm by which the positive rocking of the finger-beam in both directions is affected and controlled. 1 The docket title of this case is McCormick and others v. Whitmer, Ad-ministrator of Graham. VOL CXXIX—1 2 OCTOBER TERM, 1888. Opinion of the Court. In the defendants’ machine there is no such rocking of the finger-beam as in Graham’s patent, but only a swinging movement, as in prior patents, on a pivot in the rear of the Anger-beam; and there is no arm which can depress the finger-beam, but only a loose connection to it, the same as existed before; and there is no swivel-joint, M', located and operating as in the Graham patent; and it does not infringe claim 1 or claim 2. In equity, for an accounting for infringement of letter0 patent. Decree awarding damages to the complainant. Respondents appealed. The case is stated in the opinion. J/r. Robert H. Parkinson, with whom was Mr. Joseph G. Parkinson on the brief, for appellants. Mr. Thomas A. Banning, with whom was Mr. Ephraim B(Mining on the brief, for appellee. Mr. Justice Blatchford delivered the opinion of the court. This is a suit in equity, brought in the Circuit Court of the United States for the Northern District of Illinois, by Hugh Graham against Cyrus H. McCormick, Leander J. McCormick, and Robert H. McCormick, on the 8th of June, 1877, founded on the alleged infringement of letters patent No. 74,342, granted to Alvaro B. Graham, February 11, 1868, for an “ improvement in harvesters.” In the course of the suit the defendant Cyrus H. McCormick having died, his executor, Cyrus II. McCormick, and his executrix, Nettie Fowler McCormick, were substituted as defendants in his stead. The defences set up in the answer were want of novelty and non-infringement. After issue joined, proofs were taken on both sides, and on the 24th of April, 1882, the court made an interlocutory decree, holding the patent to be valid as regarded its first and second claims, decreeing that the defendants had infringed those claims, awarding a recovery of profits to the plaintiff from the 12th of August, 1870, the date of the assignment of the entire patent by the patentee to the plaintiff, and referring it to a master to take an account of profits and damages. On the 21st of July, 1884, the master made a report awarding a sum of money in favor of the plaintiff, to McCORMICK v. GRAHAM. 3 Opinion of the Court. which both parties filed exceptions. On a hearing, the court sustained some of the defendants’ exceptions and overruled all others, and rendered a money decree in favor of the plaintiff. Both parties prayed appeals to this court, but the plaintiff did not perfect his appeal. Since the record was filed in this court, the plaintiff has died, and his administrator, Peter Whitmer, has been substituted in his place as appellee. Only claims 1 and 2 of the patent are involved. The specification states, among other things, that one object of the improvements which constitute the invention set forth in the pafc ent, is to obtain a greater capacity of movement in a floating finger-beam, while retaining its connection with a gearingcarriage that is drawn forward by a stiff tongue; that, to that end, the first of the improvements of the patentee “ consists of the combination of the finger-beam with the gearing-carriage by means of a vibratable link extending crosswise to the line of draft, a draft-rod extending parallel with the line of draft, and two swivel-joints, the one for the vibratable link, and the other for the draft-rod, so that the finger-beam can rise and fall at either end, and rock forward or backward independently of the gearing-carriage, while maintaining its connection with it;” and that his “next improvement consists of the combination of the finger-beam, gearing-carriage, vibratable link, draft-rod, and swivel-joints, with an arm connected with the finger-beam, to enable it to be rocked for the purpose of setting its guard-fingers at any desirable inclination to a horizontal line.” The specification further says: “ My improvements may be embodied in a machine having the finger-beam arranged in advance of the axial line of the shaft or arbor of the drivingwheel, or arranged in the rear of that axial line. In the former case, the vibratable link that connects the finger-beam with the gearing carriage will be arranged in advance of the driving-wheel, and in the latter case in the rear of the driving— wheel. In the former case, also, the rod, hereinbefore called a i draft-rod ’ (because the strain to which it is subjected is a pulling-strain) becomes a pushing or thrust rod, and connects the inner end of the finger-beam with the rear of the gearing- 4 OCTOBER TERM, 1888. Opinion of the Court. carriage. In the former case, the radius-bar for the reel and raidng-platform connects with the rear end of the gearing-carriage, and in the latter case with its front end. I prefer to construct a harvesting-machine with the finger-beam in the rear of the line of the axle of the driving-wheel, and, as a description of such a machine, perfected by my improvements, will enable them to be fully understood, all of my improvements are embodied in the harvesting-machine of that description which is represented in the accompanying drawings, and which is an illustration of the • best mode which I have thus far devised of embodying them in a working-machine.” There are twelve figures of drawings. The specification states that the machine is what is commonly called a “combined machine,” and is adapted to reaping and mowing; that, when used for the former purpose, it is arranged as represented in figures 1 to 6 ; that, when used for the latter purpose, certain of its parts are removed, as thereinafter stated, and a grass-divider is substituted for the grain-divider, at .the outer end of the finger-beam; and that the gearing which imparts motion to the sickle and reel is mounted upon a carriage, A, which is supported by two running or ground wheels, and is provided with a tongue to which the horses are hitched. The parts of the specification which relate particularly to the subject-matter of claims 1 and 2 are as follows: “ The fingerbeam Gr of the machine projects at one side of the rear end of the gearing-carriage A, and is fitted with guard-fingers, H, through the slots of which a scalloped cutter, I, is arranged to reciprocate endwise. The end of this cutter that is nearest the gearing-carriage is connected with the crank-wrist g of the crank-shaft D2, by means of a connecting-rod, J. The finger-beam is connected with the rear end of the gearing-carriage in the following manner: The end of the beam nearer the carriage is provided with a shoe, K, from which lugs a a project upward. These lugs are perforated to admit a joint-bolt, a1, which connects the shoe with one end of a vibratable forked link, L, whose other end is connected by a swivel-joint, M, with a bracket, N, secured to the rear of the gearing-carriage. This swivel-joint is formed by a cross-head (m, Fig. la), the McCORMICK v. GRAHAM. 5 Opinion of the Court. centre of which is bored transversely, to permit a journal formed on the end of the forked link L to turn in it. The ends of the cross-head m are formed into journals, which turn in bearings upon the bracket N. Hence the finger-beam can both rise and fall freely at either end, and rock forward and backward, without twisting the link that forms its connection with the gearing-carriage. Moreover, the axis of the crosshead m of the swivel-joint is arranged in line, or thereabout, with the axis of the crank-shaft D2, that imparts motion to the cutter, so that such rising or falling, or rocking, does not materially change the distance between the crank-shaft and the cutter. The shoe K of the finger-beam is connected also with the front end of the gearing-carriage by a draft-rod, O, and the connection between the rear end of this draft-rod and the said shoe is a swivel-joint, M', of which the joint-pin d1 of the vibratable link L is the longitudinal axis, and its T-head m1 the horizontal axis. This swivel-joint, therefore, while maintaining a firm connection with the draft-rod, gives free play for both the longitudinal and rocking movements of the finger-beam. Hence, when the machine is used for cutting grass, the said finger-beam may be left free, not only to rise and fall at either end, but also to rock or to be rocked forward and backward, so that the points of its guard-fingers incline toward or from a horizontal plane. In order that the fingerbeam may be rocked by the conductor of the machine, the vibratable link L is fitted with an arm, I, whose upper end is connected by a rod with the lower end of a lever, P, that is pivoted to the gearing-carriage near its forward end. The upper end of this lever P extends within the reach of the driver, who sits upon the driver’s seat, Q, so that he may rock the finger-beam by moving the said lever to and fro. This rocking lever P is fitted with a spring-bolt, whose end can engage in any one of a number of notches formed in a segment, R, which is attached to the gearing-carriage concentrically with the pivot of the rocking lever, so that the finger-beam may be fastened in the desired position by the engagement of the spring-bolt in the appropriate notch. The rocking lever is fitted with a lever-handle, and rod connect- 6 OCTOBER TERM, 1888. Opinion of the Court. ing with the spring-bolt, by which the spring-bolt may be withdrawn from the notched segment and held disengaged therefrom during the movement of the lever. In order that the connection between the cutter on the finger-beam and the crank-shaft on the gearing-carriage may not obstruct the free rocking of the finger-beam, the connecting-rod J is connected with the cutter I by means of a swivel-joint, S, consisting (see Fig. lb) of a head, s, that is pivoted to the cutter-stock (by a shank that extends lengthwise therewith, and turns in an ear, s1, secured to the end of the cutter-stock), and of a cross-pivot, -S'2, that passes through the said head and through two ears formed upon the connecting-rod J.” •There are ten claims in the patent, claims 1 and 2 being as follows: “ 1. The combination, as set forth, in a harvester, of the finger-beam with the gearing-carriage, by means of the vibratable link, the draft-rod, and the two swivel-joints M and M1, so that the finger-beam may both rise and fall at either end, and rock forward and backward. 2. The combination, as set forth, in a harvester, of the finger-beam, gearing-carriage, vibratable link, draft-rod, swivel-joints, and arm, by which the rocking of the finger-beam is controlled.” , It will conduce to a solution of the questions involved in the case, to give a history of the progress of the application for the patent through the Patent Office, as gathered from certified copies of those proceedings found in the record. On the 4th of December, 1865, the patentee, Alvaro B. Graham, as assignor to himself, William B. Werden, and Cyrus A. Werden, filed in the Patent Office an application for a patent, which was sworn to by him on the 25th of February, 1864. The specification of this application stated that one object of the invention was the free passage of the finger-bar over the ground, and the perfect moving of it to adjust itself to the inequalities of surface over which it might pass; and that another object of the invention was the cutting in a proper manner of lodged grass or grain. It also stated that the machine had a finger-bar, I, the inner end of which was attached, by a joint, A, to a bar, J, which was at the rear of the main frame, A, and was connected thereto, at its left-hand side, by a swivel or universal joint, McCORMICK v. GRAHAM. 7 .Opinion of the Court. K, such joint being composed of a rod, z, which was allowed to turn in a bearing, J, attached to the main frame, the end of the bar J being cylindrical and allowed to turn in the rod i; that the joint K admitted of the bar J and finger-bar I being raised vertically, and also admitted of those bars being turned in a more or less inclined position, in their transverse section, to admit of the fingers and sickle being turned more or less down towards the ground, as might be required; that this adjustment of the fingers and sickle was effected through the medium of a lever, M, which was connected by a rod, Z, with an upright, wz, on the bar J; that this lever M might be retained in any desired position, within the scope of its movement, by means of a perforated bar, n, into the holes of which a pin on the lever caught; that the finger-bar I might be raised separately from the joint h, as a centre, through the medium of a lever, N, which, like the lever M, was attached to the main frame A, and had a chain or cord attached to its lower end, said chain or cord passing around a pulley, q, on the bar J, and being attached to the upper end of an upright, r, attached to the finger-bar at the joint h; that both bars, I and J, might be elevated simultaneously by a lever, O, which was also attached to the main frame A, and bore at its lower end on another lever, P, the outer end of which was connected by a chain, <$, with the bar J; that the lever O might be retained at any desired point, within the scope of its movement, by means of a rack-bar, P'; that, in case an obstruction presented itself to the inner end of the finger-bar I, the lever O was actuated in order to raise such end of the finger-bar, and, if an obstruction presented itself to the outer end of the finger-bar, the lever IT was actuated; and that the applicant did not claim the connecting of the finger-bar I to the bar J, by a joint A, for that had been previously done. There were five claims in the specification, the first two of which were as follows: 1. “ The attaching of the bar J to the main frame A by means of the swivel or universal joint K, when used in combination with the finger-bar I, attached to it by a joint, A, and this I claim irrespective of any peculiar position of the parts or particular application of the same to the 8 OCTOBER TERM, 1888. Opinion of the Court. frame of the machine, so long as the desired result is obtained.” 2. “ The arrangement of the lever N, chain or cord j?, and upright /•, substantially as shown, for raising the outer end of the finger-bar I, as set forth.” On the 30th of December, 1865, the Patent Office rejected claims 1 and 2 on a reference to prior patents. On the 24th of March, 1866, the applicant erased claims 1, 2 and 3, and substituted for claim 1 the following : 1. “ The combination of the finger-bar I and bar J attached to the frame A by means of the universal joint or swivel K, in the manner and for the purpose herein specified.” On the 4th of April, 1866, the Patent Office rejected this substituted claim 1, by a reference to a prior rejected application and to a prior patent. On the 1st of October, 1866, it allowed the two remaining claims applied for, which had been numbered 4 and 5 originally. On the 18th of June, 1867, the applicant filed a withdrawal of the amendments filed March 24, 1866, the effect being to limit the invention claimed under the patent to the two claims allowed October 1, 1866, and the patent wTas granted July 23, 1867, as No. 67,041, with those two claims, which in no manner relate to any question involved in the present suit. Prior to such withdrawal of June 18, 1867, and on the 11th of February, 1867, Mr. Graham filed an application which resulted in the patent in suit, No. 74,342, issued February 11, 1868. Claims 1 and 2 of the specification of that application originally read as follows: 1. “ The combination, in a harvester, of the finger-beam with the gearing-carriage, by means of a vibratable link, draught-rod, and two swivel-joints, so that the finger-beam may both rise and fall at either end, and rock forward and backward, substantially as set forth.” 2. “ The combination, in a harvester, of the finger-beam, gearing-carriage, link, draught-rod, swivel-joints, and arm, by which the rocking of the finger-beam is controlled, substantially as set forth.” There were fifteen claims in all made in the specification. On the 29th of July, 1867, the Patent Office rejected claims 1 and 2, by a reference to prior patents. On the 31st of December, 1867, the applicant amended claims 1 and 2 so as to read as they are in the patent as granted. The changes McCORMICK v. GRAHAM. 9 Opinion of the Court. thus made in those two claims, and which, under the circumstances, were made to secure the issuing of the patent, -the claims having been rejected in the shape in which they were first proposed, were these: In claim 1, “ the combination as set forth,” was substituted for “ the combination; ” “ the vibratable link,” for “ a vibratable link; ” “ the draught-rod,” 1 for “ draught-rod; ” “ the two swivel-joints, M and M',” for ■ “ two swivel-joints; ” and the words “ substantially as set forth ” ' were erased. In claim 2, “ the combination as set forth,” was ’ substituted for “ the combination; ” “ vibratable link,” for . “ link; ” and the words “ substantially as set forth ” were erased. In the second claim the word “ the ” was always prefixed to the enumerated elements composing the combination claimed. The principal question for determination, in the view we take of the case, is that of infringement. The Circuit Court, in its opinion, delivered on the making of the interlocutory decree, (10 Bissell, 39, and 11 Fed. Rep. 859,) considered especially two prior patents, one granted to David Zug, October 4, 1859, No. 25,697, and the other granted to F. Ball, October 18, 1859, No. 25,797. In considering those patents, on the question of infringement as well as on the question of novelty, the Circuit Court said: “ The two claims of the Graham patent, which are alone in controversy here, are the first and second. The first claim is for a combination of the finger-beam with the gearing-carriage by means of the vibratable link, the draft-rod, and the two swivel-joints, M and M', so that the finger-beam may both rise and fall at either end and rock backward and forward; and the second claim is the same as the first with this only added, that an arm is attached to the vibratable link by which the rocking of the finger-beam is controlled by the driver. The object of this invention, as set forth in these two claims, seems to be mainly to produce the rocking motion of the finger-beam as described and by the method described. In the Ball patent, while there may be said to be something equivalent to the swivel-joint M of the plaintiff’s machine, where it is attached to the frame, and also something similar to the draft-rod and the arm, there is noth- 10 OCTOBER TERM, 1888. Opinion of the Court. ing to produce the rocking motion, which is the essential object in the first two claims of the plaintiff’s machine; and consequently there is no swivel-joint M', as in the plaintiff’s machine; so that there is nothing in the Ball machine to prevent the validity of the combination in the first two claims of the plaintiff’s patent. The Zug machine has, if not a swivel-joint like that of the plaintiff’s at M, where connected with the frame, something which seems substantially similar. It has a vibratable link and it has something which is equivalent to the draft-rod, the main difference being that it is attached beneath the shoe instead of above, but there is no swivel-joint M7. There is an arm which is attached to the draft-rod and shoe by which it can be raised and lowered, but Zug claims in his patent that when the machine is in progress over the field, and when the finger-bar strikes any obstacle, there is a device in a box in which the forward part of the draft-rod is fastened, by which the finger-bar yields to the obstacle; and that there is also a mode by which the vibratable rod is attached to the frame, called ‘ joint 16,’ in his patent, and what has been termed an open clevis where the vibratable link is connected with the draft-rod, by which a motion is given to the finger-bar, and thus the finger-bar is relieved from the obstacle. Zug does not claim that the finger-bar in his machine has a rocking motion, but only that the mode by which the draft-rod is fastened and the motion given to the finger-bar, prevents the obstacle which the machine may meet from doing damage to it. These seem to be the main differences between the two machines, and the question is, whether there is anything in the Zug machine to prevent the combination named in the first two claims of the plaintiff’s patent from being valid. The defendants’ machine has the swiveljoint attached to the frame, the vibratable link in the same form as the plaintiff’s, and the draft-rod attached forward in substantially the same way as the plaintiff’s, but instead of having a swivel-joint at M', as stated in plaintiff’s machine, forward of the shoe, the draft-rod has a swivel-joint at the rear end of the shoe; and there is an arm attached to a part of the vibratable link substantially like that of the plaintiff’s; McCORMICK v. GRAHAM. 11 Opinion of the Court. and the substantial difference, as it seems, between the plaintiff’s’device as described in the first and second claims, and that of defendants’, is, that the draft-rod is attached to the rear part of the shoe, and not to the forward part, as in the plaintiff’s patent. There are also other devices in the defendants’ machine which may make it different from the plaintiff’s. But as to the swivel-joint, the vibratable link, and the mode in which the motion is produced in the finger-bar, there does not seem to be much difference in substance; and in both machines, and by substantially the same means, there is produced a rocking motion. In this connection it is noticeable that the defendants, in the claim set forth in the specification of their patent, make a rocking motion of the shoe and cutter a feature of their combination. In their second claim they say that they claim the combination of the ‘shoe, and the drag-bar extending over and in rear of the shoe, and its swiveled pin connecting it with the rear end of the shoe, whereby the drag-bar sustains the thrust of the shoe while leaving it free to rock on its hinges.’ Again, in their fifth claim, they say that they claim the combination ‘of the shoe, the forked coupling-arm, the drag-bar extending over and in rear of the shoe, the swivel-pin connecting the two, the rocking lever and the detent mounted on the drag-bar, and the adjustable link connection between the lever and couplingarm, whereby the shoe readily may be rocked or adjusted.’ And again, the motion which seems to be produced in the operation of plaintiff’s machine is more distinctly described in the seventh claim made by the defendants in their patent, as follows: The combination ‘of the shoe, the draff-bar, the lorked coupling-arm,’ and the other elements of mechanism before mentioned, ‘ whereby the shoe is first rocked, and then lifted by one continuous movement of the lever.’ It must be confessed that the difference between the Zug machine and the first two claims of plaintiff’s patent is not very marked. But in view of the description contained in the specifications of Zug’s patent and in those of the plaintiff’s patent, we are inclined to think that the plaintiff’s patent may be sustained on the ground that there is a difference in the manner in 12 OCTOBER TERM, 1888. Opinion of the Court. which the draft-rod is attached to the shoe, and the finger-bar to the shoe and to the vibrating link; and that there is also a difference in the manner in which the combination of the various parts are adjusted; and that there is an effect produced in the plaintiff’s machine which does not exist in the Zug machine. In the plaintiff’s machine there is a rocking motion, and not a mere vibratory motion, such as exists in the Zug machine in consequence of the open clevis; neither is there in the plaintiff’s machine the yielding of the draft-rod, as described in the Zug patent; and it is obvious, too, from the manner in which the parts are constructed in the Zug machine, that there is only a small vibratory action of the finger-bar; so that, on the whole, we think that the combination as described in plaintiff’s patent may be sustained. Then, from what we have said, we do not see that there can be any substantial difference between the combination, as described, in the plaintiff’s machine, of the swivel-joints, draft-rod, and vibratable link, with the frame and shoe and finger-bar, and that of the defendants’ machine. The differences which have been stated between the two machines in this respect do not constitute any difference in principle? The one is substantially the same as the other. The additions which have been made to defendants’ machine, such as the device by which the pressure of the cutting apparatus upon the ground is regulated, and other devices which have been made, do not affect the combination as claimed in the plaintiff’s machine. The attachment of the draft-rod to the rear part of the shoe instead of to the front part, which is substantially the only difference that there seems to be in the mode of construction, cannot constitute a difference in principle, and cannot prevent the defendants’ machine from being an infringement of the plaintiff’s patent. It may be said that there are differences also between the defendants’ machine and that of the plaintiff, in the manner in which the arm is attached to the vibratable link, and also as to the mode in which the force applied to the arm may operate upon the finger-bar; but these are differences of form and not of substance.” The specification referred to in that opinion as the specifica- McCORMICK v. GRAHAM. * 13 Opinion of the Court. tion of thè defendants, and quotations from claims 2, 5 and 7 in which are made, is a patent under which the defendants’ machines were constructed, No. 193,770, granted July 31, 1877, to Leander J. McCormick, William R. Baker, and Lambert Erpelding, assignors to C. H. and L. J. McCormick. The invention of the patentee is carried back to November or December, 1863, at which time he made a model containing his perfected invention, which he shortly afterwards sent to his patent solicitors, and which was sent to the Patent Office with the application sworn to February 25, 1864, and filed December 4,1865. The delay seems not to have been attributable to the applicant. The patents introduced in this case as affecting the questions of novelty and infringement, and which were prior to the invention of Graham, and which seem to be relied on by the appellee, were as follows : To George C. Dolph, No. 18,141, issued September 8, 1857 ; to W. S. Stetson and R. F. Maynard, No. 24,063, issued May 17, 1859 ; the Zug patent ; the Ball patent ; and one to Stephen S. Bartlett, No. 34,545, issued February 25, 1862. We are of opinion that the Circuit Court took an erroneous view of the question of infringement. The capacity of the finger-beam to “ rise and fall freely at either end,” spoken of in the specification of the plaintiff’s patent, was not a new thing with him, but had been used for many years in mowing and reaping machines, the finger-beam moving on a pivot at its inner end ; and the plaintiff, in the specification of his patent of July 23, 1867, stated that he did not claim the connecting of the finger-bar, I, to the bar, J, by the joint, A, because that had been previously done. It was also old to have a lever connected by a loose connection, by which the driver could tip up the front edge of the finger-bar arbitrarily, and secure it so that it could not fall below the inclination at which he had set it, although it was left free to tip up further automatically. The arrangement spoken of in the plaintiff’s specification, whereby the finger-beam can “rock forward and backward without twisting the link that forms its connection with the 14 OCTOBER TERM, 1888. Opinion of the Court. gearing-carriage,” was secured by making the pivot on which the crosswise tilt takes place, at a point in front of the beam, so that the pivot rises and falls with the guard-fingers, and an arm is provided by which the movement of the finger-beam in both directions is controlled by the driver, instead of its being independent of his control in its downward movement, as was the case in prior machines. It is apparent, from the proceedings in the Patent Office on his application, and from the terms of his specification and of claims 1 and 2 as granted, that the intention was to limit the modification which he made, to the particular location of the swivel-joint, M', on which the crosswise rocking movement takes place, and to the rigid arm by which the positive rocking of the finger-beam in both directions is effected and controlled. In a mowing machine for cutting grass, where it is desirable to cut near to the ground in order to cut and use as much of the grass as possible, the front edge of the finger-beam must bear closely on the surface of the ground, with a yielding pressure, so that it will rise freely in order to pass over such irregularities in the surface of the ground as do not require that the finger-beam should be bodily lifted. This yielding pressure is secured by a capacity in it to swing upward on its heel as a pivot, because, if its front edge were held rigidly down upon the ground, the guard-fingers would be driven into every obstruction. This necessity does not exist in machines for harvesting grain, because in them the finger-beam is set several inches above the ground, the grain being the desirable object, rather than the straw, and the carrying of the fingerbeam at an elevation prevents its meeting with obstructions; and hence there is no such occasion, as in mowing machines, for its front edge being left free to swing upward. The capacity, if any, which Graham added to the machines in general use, was one for raising and lowering the pivot of oscillation, which had before been stationary, and a further capacity for a positive downward tilt or forward rocking, which enabled the driver to tip up the heel of the finger-beam and force the fingers under lodged grain or grass. The rocking forward and backward, spoken of in the plaintiff’s specifi- McCORMICK v. GRAHAM. 15 ‘Opinion of the Court. cation, is applied to a tilting backward which rocks the front of the finger-beam upward, and to a tilting forward which rocks the heel of that beam upward and its front downward. In the defendants’ machine, there is no such rocking backward and forward, but there is a swinging motion, the same as in the prior Ball patent, the pivot on which the tilting takes place being in the rear of the finger-beam, and there being no means of positively tipping the front of the beam downward or of raising its heel to force its front edge and the fingerguards downwards. In the Ball patent, the draft-rod passes under the finger-beam, and in the defendants’ machine the draft-rod passes over the finger-beam, to reach the pivotal point, which is in both cases the same. In both of them, the weight of the finger-beam being in front of the pivot tends to hold its front edge down upon the ground, but, when the finger-guards strike any elevation, the front edge of the beam swings up freely on its rear pivot, the tendency being for its weight to carry it back to its original position as soon as the elevation is passed. In the Ball patent, there is a lever connected with a chain which can raise the finger-beam or hold it up, but cannot affirmatively depress it, its downward movement being dependent solely upon the fact that its weight is in front of the pivot on which it turns. In the defendants’ machine, there is a substitute for the Ball chain, namely, a loose sliding link, which permits of the same upward movement that the chain does, and which cannot force or hold the beam down. In both the Ball machine and the defendants’ machine, the propelling force from the draft-rod is exerted from the pivot in the rear, and in both the front edge of the finger-beam, where the guards are situated, is left free for the swinging movement above mentioned. In contradistinction to this, the pivotal connection between the finger-beam and the draft-rod in the plaintiff’s machine, instead of being at the heel of the finger-beam, is placed in front of it, at the swivel-joint, M', and a rigid arm, I, is mounted on the vibratable link, so that the beam can thereby be rocked backward and forward by the driver, to tip the heel of the shoe up and the front down, or the front up and 16 OCTOBER TERM, 1888. Opinion of the Court. the heel down, the heel of the finger-beam being lifted by the forward rocking of the arm Z, and its front being lifted by the backward rocking of such arm. By the locking of the lever which works the arm, the finger-beam can be set at any desired inclination. The movement of the finger-beam in each direction is positive. In the defendants’ machine, it swings on a pivot at its rear, which is not raised or lowered by the upward or downward tilt of the guard-fingers, while in the plaintiff’s machine, as the finger-beam rocks on the swivel-joint M', the heel of the finger-beam is lifted from the ground as the finger-guards are turned downward. In the Zug patent, of October, 1859, there is a finger-beam attached to the rear end of the machine by a vibratable link, which is itself attached at its rear end loosely to the machine, and is also fitted loosely within the draft-rod, so that there is a considerable rising and falling motion to the front end of the shoe, whereby the guard-fingers can be elevated and depressed to a considerable extent, and in substantially the same manner as in the defendants’ machine, the raising and lowering of them being accomplished at a similar point as in the defendants’ machine, the difference in the rising and falling motion of the finger-beam in the Zug and in the defendants’ machine being a difference only in degree. In the Ball patent of October, 1859, there is a finger-beam attached by a hinged, vibratable link, and there is a draft-rod, which is hinged at its front end. A shoe is attached to the rear end of the draft-rod, with a free up-and-down hinged joint. The finger-beam of the machine is attached in front of this hinge, and such hinged connection admits of the rising and falling of the front of the shoe and of the finger-beam. This motion is not a rocking motion, as in the plaintiff’s patent, but is substantially the same rising and falling motion that is found in the defendants’ machine, the only material difference being that, in the Ball patent, the draft-rod extends under the shoe and the finger-beam, and prevents them from falling down lower than a horizontal position; whereas, in the defendants’ machine, the draft-rod extends over the shoe and fingerbeam to the same point of attachment as in the Ball patent McCORMICK v. GRAHAM. 17 Opinion of the Court. and. thus the finger-beam can fall lower than in the Ball patent, and even to below a horizontal position ; but the finger-beam in the Ball patent can rise and fall as freely at either end as in the defendants’ or the plaintiff’s machine, and the crosswise rising and falling motion in the Ball patent is of the same character as in the defendants’ machine, but wholly unlike the rocking motion, or the forward and backward motion, of the finger-beam in the plaintiff’s patent. In the Bartlett patent of February, 1862, there is a fingerbeam attached at its rear by a vibratable link, which has a swivel-joint at its outer end and a free joint at its inner end, in connection with a shoe and with a draft-rod which extends from the front end of the machine to the rear end of thé shoe ; and the finger-beam is attached to the shoe in front of the vibratable link. There is also a lever which rocks forward and backward, and is so arranged that the finger-beam and the draft-rod rise and fall, and the finger-beam rocks forward and backward, substantially in the same manner as in the plaintiff’s patent, though with a less perfect motion. But there is considerable forward and backward rocking motion, and the rocking takes place with substantially rigid lever devices, and there is substantially the same rising and falling motion of the finger-beam at either end as in the plaintiff’s patent. In view of this prior state of the art, the question of infringement stands in this way : In the defendants’ machine, there is, in combination with the gearing-frame, a vibratable link connection with the finger-beam, not very materially different from the vibratable link connection in the plaintiff’s patent ; but the draft-rod in the defendants’ machine is different from that of the plaintiff’s patent, in that its forward connection is not substantially a swivel-joint, but is so hinged as to afford no torsional action, and the draft-rod is connected with the shoe at nearly the extreme rear end of the shoe, while the draft-rod in the plaintiff’s patent has swivel-joints at both its forward and rear ends, and such joints have substantially a free torsional capacity. So, too, the draft-rod in the plaintiff’s patent is attached to the shoe in front of the finger-beam, VOL. CXXIX—2 18 OCTOBER TERM, 1888. Opinion of the Court. instead of at the extreme rear end of the shoe, as in the defendants’ machine. As a consequence of these several arrangements, the finger-beam in the plaintiff’s patent rocks freely both forward and backward, in such manner that the rear of the finger-beam may be elevated and the guards be thrown down, or the front of it may be elevated and the guards be thrown up, with an equal rocking motion in either direction ; whereas, in the defendants’ machine, when the finger-beam is operated upon by the lever, the front part of it merely rises and falls with a swinging motion from its pivoted point in the rear. The defendants’ machine differs from the plaintiff’s patent, in that its finger-beam cannot be raised at all at its rear by the lifting lever, and cannot be positively moved downward by that lever. Therefore, as the finger-beam in the defendants’ machine does not have the motion which results from the combination of the elements specified in the first claim of the plaintiff’s patent, and does not “ rock forward and backward ” in the sense of that claim, or in the sense described in the specification of the plaintiff’s patent, it does not infringe such first claim. Nor does it contain the swivel joint M', specified in the first claim, located and operating as in the plaintiff’s patent. The first claim of that patent must, in view of the state of the art, and of the special limitations put upon it on the requirement of the Patent Office, be limited to the special construction and arrangement set forth in that claim. The same views apply to the second claim of the patent, which contains combined all the elements set forth in the first claim, with the addition of the rigid arm, I. That arm, in the plaintiff’s patent, has a rigid connection with the vibratable link to which it is attached, and through such arm the fingerbeam is made to rock backward or forward by positive action, in either direction; while in the defendants’ machine there is no such rigid arm, but only a connection by which the front of the finger-beam can be lifted, while it falls by its own weight when released, instead of being positively forced down, as in the plaintiff’s patent. This species of lifting device was old. In regard to the extracts set forth in the opinion of the Cir- SARGENT v. BURGESS. 19 Statement of the Case. cuit Court from the defendants’ patent of July, 1877, we are of opinion that the second, fifth, and seventh claims of that • patent, in speaking of the shoe as “ rocking,” can only refer to its swinging on a hinge at its rear end; and that the term “rocking” is not used in the sense in which it is used in the plaintiff’s patent, because, neither in the defendants’ patent nor in their machine has their shoe or their finger-beam any such rocking motion as is described in the plaintiff’s patent. It results from these views that, on a proper construction of claims 1 and 2 of the plaintiff’s patent, the defendants have not infringed it; and that The decree of the Circuit Court must he reversed, and the cause he remanded with a direction to dismiss the hill of complaint, with costs. SARGENT v. BURGESS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. No. 127. Argued December 12, 13, 1888. — Decided January 7,1889. Claim 3 of letters patent No. 223,338, granted to John M. Gorham, January 6th, 1880, for an improvement in wash-board frames, namely, “3. In combination with a wash-board, a protector located below the crownpiece and between the side pieces of the wash-board frame, and constructed to fold down into or upon said wash-board even with or below the general plane of said wash-board frame, substantially as and for the purpose shown,” cannot, in view of the state of the art, and of the course of proceeding in the Patent Office on the application for the patent, be so construed as to cover a protector which does not have the yielding, elastic or resilient function described in the specification. The defendant’s protector, constructed in accordance with letters patent No. 255,555, granted to Charles H. Williams, March 28th, 1882, and having no yielding or resilient function, and not being pivoted, or folding down, after the manner of the Gorham protector, does not infringe claim 3. In equity for tfye infringement of letters patent. The case is stated in the opinion. 20 OCTOBER TERM, 1888. Opinion of the Court. J/r. George II. Christy, with whom was J/?. J. Snowden. Bell on the brief, for appellants. Mr. James Parsons and Mr. Furman Sheppard, for appellee. Mr. Justice Blatchford delivered the opinion of the court. This is a suit in equity, brought by the administrators of John H. Gorham, deceased, against Edwin K. Burgess, in the Circuit Court of the United States for the Eastern District of Pennsylvania, to recover for the alleged infringement of letters patent No. 223,338, granted to John M. Gorham, January 6, 1880, for an improvement in wash-board frames. The following is a copy of the specification and drawings of the patent: “ To all whom it may concern: Be it known that I, John M. Gorham, of Cleveland, in the county of Cuyahoga and State of Ohio, have invented certain new and useful improvements in wash-board frames; and I do hereby declare the following to be a full, clear, and exact description oi the invention, such as will enable others skilled in the art to which it pertains to make and use it, reference being had to the accompanying drawings, which form part of this specification. “My invention relates to wash-boards, particularly to the combination, with a wash-board, of a protector constructed to bend or yield to pressure and to return to position when said pressure is removed. This protector is to shield the person of the washer from splashing water or suds. “Protectors have been heretofore employed in connection with wash-boards, and they have been of but two general types—one wherein the protector is rigid and rigidly attached to the wash-board frame. A protector thus constructed and attached is not capable of yielding or moving from its position, when the body of the operator presses against it; and it is on this account frequently objected to. The second type is when the protector is attached to the wash-board frame by a joint or pivot, and is allowed a swinging movement; but it SARGENT v. BURGESS. 21 Opinion of the Court. possesses no elastic or resilient quality or function, and, when moved by pressure, has no power to return again to normal position when said pressure is removed. My invention is designed to overcome the objections and defects presented in thesé two old types of protectors; and, as said invention broadly comprehends any wash-board protector constructed to bend or yield to pressure and to return to position when said pressure is removed, it is apparent that I am not to be confined to any specific form or mere construction of device, inasmuch as a variety of modified mechanical structures may be adopted in embodying my said invention. I will, however, illustrate and describe one or two effective forms of device according to this invention. “In the drawings, Fig. 1 illustrates a wash-board and its protector made according to my invention. This figure is in longitudinal vertical section, and it represents the protector as laid down upon the face of the board, as packed for shipment. Fig. 2 is a similar view of the same device, only the protector is shown as freed and sprung out into operative position. Fig. 3 is a front view of the device as shown in Fig. 2. Fig. 4 represents a modified form of my device, wherein the protector, instead of being formed from a rigid piece and elastically pivoted to the frame, as shown in Figs. 1, 2 and 3, is made from a piece of rubber, spring metal, or equivalent material susceptible of itself yielding and returning to position, and this is rigidly fixed to the wash-board frame, as shown. Fig. 5 shows another modified embodiment of my invention, merely illustrating a different spring-coupler, C', from that shown in Figs. 1, 2 and 3. “A is the wash-board frame, which may be of any size, description, or material. B is the rubbing-surface, which may also be of any character. “ C is the protector, and C' a spring, which may be either a coupler between the protector and wash-board frame, as shown in Fig. 5 of the drawings, or the protector may be pivoted to the frame and the spring C' act to push or pull the protector into the position illustrated in Figs. 2 and 3. “ The construction of the device shown in Fig. 4 I have 22 OCTOBER TERM, 1888. Opinion of the Court. SARGENT v. BURGESS. 23 Opinion of the Court. already sufficiently specified in the preceding explanation of the drawings. “ The operation of my device is readily uriderstood. The spring C', or the elastic character of the thing itself, as shown in Fig. 4, serves always to keep the protector in operative position. (See Figs. 2 and 3.) When the body of the operator presses against it, it yields in such a way as at the same time to press snugly against her person, and also to return at all times to position when said pressure is removed. It thus becomes very effective as a protector, while at the same time it is not wearing to the person or clothes of the operator. “Another peculiar feature of my wash-board is the flat manner in which it can be packed, as shown in Fig. 1 of the drawings. This is a great convenience and advantage in packing for shipment; and, moreover, when thus packed, the protector is itself protected from injury to which it would otherwise be exposed. This is accomplished by locating the protector, as shown in Figs. 1, 2 and 3 of the drawings, below the crown-piece and between the side pieces of the frame.” The claims of the patent are three in number, as follows: “ 1. In combination with a wash-board, a protector constructed substantially as described, so as to yield to pressure and to return to position when said pressure is relieved, substantially as and for the purpose shown. 2. The combination, with a wash-board, of a protector and a spring, said spring interposed between the wash-board and protector, and constructed to operate in retaining said protector in its open position and to return it to that position when removed therefrom. 3. In combination with a wash-board, a protector located below the crown-piece and between the side pieces of the wash-board frame, and constructed to fold down into or upon said washboard even with or below the general plane of said wash-board frame, substantially as and for the purpose shown.” Only claim 3 is alleged to have been infringed. The defences set up were wrant of novelty and non-infringe-ment. Several prior patents were introduced in evidence, as bearing upon the question of the proper construction of claim 3, and upon the question of infringement. They are No. 24 OCTOBER TERM, 1888. Opinion of the Court. 8161, to William T. Barnes, June 17, 1851; No. 127,325, to John Epeneter and Bernhardt Grahl, May 28, 1872; No. 146,433, to James A. Cole, January 13, 1874; No. 150,315, to Anna Frike, April 28, 1874; and No. 222,846, to Wyatt M. Stevens, December 23, 1879. The Circuit Court dismissed the bill and the plaintiffs have appealed. The specification of the Gorham patent clearly shows that the protector whose combination with a wash-board is the subject of the invention, is a protector constructed to bend or yield to pressure, and to return to its position when such pressure is removed, in contradistinction to a protector which is rigid and is rigidly attached to the wash-board frame; and also in contradistinction to a protector which is attached to the wash-board frame by a joint or pivot, and is allowed a swinging movement, but possesses no elastic or resilient function, and, when moved by pressure, has no power to return again to its normal position, when such pressure is removed. The specification states that the invention of Gorham is designed to overcome the defects presented in those two old types of protectors. The invention does not comprehend a protector which is not constructed so as to bend or yield to pressure, and to return to its position when such pressure is removed. The description and drawings of the Gorham protector are limited to such a construction, and do not show or indicate any other. The operation of the device is stated in the specification to be such, that the spring, or the elastic character of the protector itself, serves always to keep the protector in operative position, because it yields to pressure against it in such a way as always to press snugly against the person, and to return at all times to position when such pressure is removed. This feature of the protector is not claimed to have been infringed by the defendant. The defendant’s protector, constructed in accordance with the description contained in letters patent No. 255,555, granted to Charles H. Williams, March 28, 1882, has no spring and no elastic or resilient quality, does not yield to pressure, and has no capacity of returning automatically to its normal position. SARGENT v. BURGESS. 25 Opinion of the Court. In the defendant’s structure, the ordinary cap-piece of the wash-board has a rounded exterior surface, and its inner surface performs the function of a protector. Upon the upper edge of such cap-piece is mounted a supplemental protector, the two parts being locked rigidly together by a tongue-and-groove joint. From the ends of the supplemental protector are extended rigid arms, which are slotted and connected to the side pieces of the frame by means of pins, one of which passes through each slot. By removing the supplemental protector from the cap-piece, it can be placed between the side pieces of the frame, so as to stand edgewise therein, by drawing it slightly backward, by then raising it slightly, by then advancing it to the front, and by then dropping it and placing it edgewise within the frame. In this latter position, the structure is adapted for packing. Not only is the defendant’s protector without any yielding or resilient function, but it is not pivoted after the manner of the Gorham protector, nor does it fold down in the manner of the Gorham protector, in the sense of the words “ fold down,” as used in claim 3 of the Gorham patent. The contention of the plaintiff is, that claim 3 of the patent does not require, as an element of the combination covered by it, that the protector should have any yielding, elastic, or resilient function, or should be accompanied by a spring; but that it is sufficient if, by any mechanism, it can be so disposed of as to be packed away for convenience in shipment, or for other purposes, in a flat manner, in the vacant space in which it is packed; and that, as the defendant’s protector is to a large extent packed away in the same vacant space, claim 3 is infringed. It may be questionable whether, if the claim were to be construed thus broadly, it would not be for merely a new use of a device before used in many things besides wash-boards. But, in view of the state of the art, as shown by the patents above referred to, and in view of the course of proceeding in the Patent Office on the application for the Gorham patent, we are of opinion that claim 3 of that patent cannot be so construed as to cover a protector which does not have the 26 OCTOBER TERM, 1888. Syllabus. yielding, elastic, or resilient function of the Gorham protector, and is not accompanied by a spring or constructed substantially according to the description in the Gorham specification. Gorham evidently had no idea of such a construction as that of the Williams patent, found in the defendant’s wash-board ; and no person could, by following the description in the Gorham specification, arrive at the defendant’s structure. Claim 3 of the Gorham patent requires that the protector shall be “constructed to fold down,” “substantially as” “ shown.” The defendant’s protector is not constructed to fold down in the manner of the Gorham protector, and is not constructed substantially as shown in the Gorham specification. The decree of the Circuit Court is Affirmed. MINNEAPOLIS AND ST. LOUIS RAILWAY COMPANY v. BECKWITH. ERROR TO THE CIRCUIT COURT OK KOSSUTH COUNTY, STATE OK IOWA. No. 100. Argued December 3, 1888.—Decided January 7,1889. The provision in the Code of Iowa, § 1289, which authorizes the recovery of “ double the value of the stock killed or damages caused thereto” by a railroad, when the injury took place at a point on the road where the corporation had a right to erect a fence and failed to do so, and when it was not “ occasioned by the wilful act of the owner or his agent,” is not in conflict with the Fourteenth Amendment to the Constitution of the United States, either as depriving the company of property without due process of law, or as denying to it the equal protection of the laws. Corporations are persons within the meaning of the clauses in the Fourteenth Amendment to the Constitution concerning the deprivation of property, and concerning the equal protection of the laws. Santa Clara County v. Southern Pacific Railroad, 118 U. S. 394, and Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, followed. The Fourteenth Amendment to the Constitution does not limit the subjects in relation to which the police power of the State may be exercised for the protection of its citizens. Barbier v. Connolly, 113 U. S. 27, Soon MINNEAPOLIS RAILWAY CO. v. BECKWITH. 27 Opinion of the Court. Hing v. Crowley, 113 U. S. 703, and Missouri Pacific Railway v. Humes, 115 U. S. 512, considered and followed. The propriety and legality of the imposition of punitive damages for a violation of duty have been recognized by repeated judicial decisions for more than a century. The case is stated in the opinion of the court. Mr. Eppa Hunton for plaintiff in error. No appearance for defendant in error. Mr. Justice Field delivered the opinion of the court. This case comes before us from the Circuit Court of Kossuth County, Iowa, the highest court of that state in which the controversy between the parties could be determined. Rev. Stat. § 709. It was an action for the value of three hogs, run over and killed by the engine and cars of the Minneapolis and St. Louis Railway Company, a corporation existing under the laws of Minnesota and Iowa, and operating a railroad in the latter state. The killing was at a point where the defendant had the right to fence its road. The action was brought before a justice of the peace of Kossuth County. Proof having been made of the killing of the animals and of their value, and that notice of the fact, with affidavit of the injury, had been served upon an officer of the company in the county where the injury was committed, more than thirty days before the commencement of the action, the justice gave judgment for the plaintiff against the company for twenty-four dollars, double the proved value of the animals. The case was then removed to the Circuit Court of Kossuth County, where the judgment was affirmed. To review this latter judgment the case is brought here on writ of error. The judgment rendered by the justice was authorized by § 1289 of the Code of Iowa, which is as follows: “ Any corporation operating a railway that fails to fence the same against live stock running at large at all points where such right to fence exists shall be liable to the owner of any such stock injured or killed by reason of the want of such fence 28 OCTOBER TERM, 1888. Opinion of the Court. for the value of the property or damage caused, unless the same was occasioned by the wilful act of the owner or his agent. And in order to recover it shall only be necessary for the owner to prove the injury or destruction of his property; and if such corporation neglects to pay the value of or damage done to such stock within thirty days after notice in writing, accompanied by an affidavit of such injury or destruction, has been served on any officer, station or ticket-agent employed in the management of the business of the corporation in the county where the injury complained of was committed, such owner shall be entitled to recover double the value of the stock killed or damages caused thereto.” The validity of this law was assailed in the state court, and is assailed here, as being in conflict with the first section of the Fourteenth Amendment of the Constitution of the United States, in that it deprives the railway company of property without due process of law, so far as it allows a recovery of double the value of the animals killed by its trains; and in that it denies to the company the equal protection of the laws by subjecting it to a different liability for injuries committed by it from that to which all other persons are subjected. It is contended by counsel as the basis of his argument, and we admit the soundness of his position, that corporations are persons within the meaning of the clause in question. It was so held in Santa Clara County v. Southern Pacific Railroad Co., 118 U. S. 394, 396, and the doctrine was reasserted in Pembina Mining Company v. Pennsylvania, 125 U. S. 181, 189. We admit also, as contended by him, that corporations can invoke the benefits of provisions of the Constitution and laws which guarantee to persons the enjoyment of property, or afford to them the means for its protection, or prohibit legislation injuriously affecting it. We will consider the objections of the railway company in the reverse order in which they are stated by counsel. And first, as to the alleged conflict of the law of Iowa with the clause of the Fourteenth Amendment ordaining that no state shall deny to any person within its jurisdiction the equal protection of the laws. That clause does undoubtedly prohibit MINNEAPOLIS RAILWAY CO. v. BECKWITH. 29 Opinion of the Court. discriminating and partial legislation by any State in favor of particular persons as against others in like condition. Equality of protection implies not merely equal accessibility to the courts for the prevention or redress of wrongs and the enforcement of rights, but equal exemption with others in like condition from charges and liabilities of every kind. But the clause does not limit, nor was it designed to limit, the subjects upon which the police power of the State may be exerted. The State can now, as before, prescribe regulations for the health, good order and safety of society, and adopt such measures as will advance its interests and prosperity. And to accomplish this end special legislation must be resorted to in numerous cases, providing against accidents, disease and danger, in the varied forms in which they may come. The nature and extent of such legislation will necessarily depend upon the judgment of the legislature as to the security needed by society. When the calling, profession or business of parties is unattended with danger to others, little legislation will be necessary respecting it. Thus, in the purchase and sale of most articles of general use, persons may be left to exercise their own good sense and judgment; but when the calling or profession or business is attended with danger, or requires a certain degree of scientific knowledge upon which others must rely, then legislation properly steps in to impose conditions upon its exercise. Thus, if one is engaged in the manufacture or sale of explosive or inflammable articles, or in the preparation or sale of medicinal drugs, legislation, for the security of society, may prescribe the terms on which he will be permitted to carry on the business, and the liabilities he will incur from neglect of them. The concluding clause of the first section of the Fourteenth Amendment simply requires that such legislation shall treat alike all persons brought under subjection to it. The equal protection of the law is afforded when this is accomplished. Such has been the ruling of this court in numerous instances where that clause has been invoked against legislation supposed to be in conflict with it. Thus in Barbier v. Connolly, 113 U. S. 27, 32, it was objected that a municipal ordinance of San Francisco, prohibiting washing and ironing 30 OCTOBER TERM, 1888. Opinion of the Court. in public laundries, within certain designated limits of the city, between the hours of ten at night and six in the morning, was in conflict with that amendment, in that it discriminated between laborers engaged in the laundry business and those engaged in other kinds of business, and between laborers employed within the designated limits and those without them. But the court held that the provision was merely a police regulation ; that it might be a necessary measure of protection in a city composed largely of wooden buildings like San Francisco, that occupations in which fires are constantly required should cease during certain hours at night, and of the necessity of such a regulation that municipal body was the exclusive judge; that the same authority which directs the cessation of labor must necessarily prescribe the limits within which it shall be enforced, as it does the limits within which wooden buildings must not be constructed; and that restrictions of this kind, though necessarily special in character, do not furnish ground of complaint if they operate alike upon all persons or property under the same circumstances and conditions. “Class legislation,” said the court, “discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.” In Soon Hing v. Crowley, 113 IT. S. 703, 709, an objection was taken to a similar ordinance of San Francisco, that it made an unwarrantable discrimination against persons engaged in the laundry business, because persons in other kinds of business were not required to cease from labor during the same hours at night. But, the court said, there may be no risks attending the business of others, certainly not as great as where fires are constantly required; and that specific regulations for one kind of business, which may be necessary for the protection of the public, can never be the just ground of complaint, because like restrictions are not imposed upon business of a different kind. “ The discriminations, which are open to objection,” the court added, “ are those where persons engaged in the same business are subjected to different restric- MINNEAPOLIS RAILWAY CO. v. BECKWITH. 31 Opinion of the Court. • tions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the law.” . In The Missouri Pacific Railway Company v. Humes 115 U. S. 512, 523, a statute of Missouri requiring every railroad corporation within it to erect and maintain fences and cattle guards on the sides of its roads, where the same passed through, along, or adjoining inclosed or cultivated fields, or uninclosed lands, and, if it did not, making it liable in double the amount of damages to animals, caused thereby, was assailed as in conflict with the Fourteenth Amendment, on the same grounds urged in the present case; namely, that it deprived the defendant of property without due process of law, so far as it allowed a recovery of damages for stock killed or injured in excess of its value, and also that it denied to the defendant the equal protection of the laws, by imposing upon it a liability for injuries committed which was not imposed upon other persons. But the court said that authority for requiring railroads to erect fences on the sides of their roads, so as to keep horses, cattle and other animals from going upon them, was found in the general police power of the State to provide against accidents to life and property in any business or employment, whether under the charge of private persons or of corporations ; that in few instances could that power be more wisely or beneficently exercised than in compelling railroad corporations to inclose their roads with fences having gates at crossings, and cattle guards; that they are absolutely essential to give protection against accidents in thickly settled portions of the country; that the omission to erect and maintain them, in the face of the law, would justly be deemed gross negligence, and that if injuries to property are committed something beyond compensatory damages might be awarded in punishment of it. Referring to the rule which prevails of allowing juries to assess exemplary or punitive damages where injuries have resulted from neglect of duties, the court said: The statutes of nearly every State of the Union provide for the increase of damages where the injury complained of results 32 OCTOBER TERM, 1888. Opinion of the Court. from the neglect of duties imposed for the better security of life and property, and make that increase in many cases double, in some cases treble, and even quadruple the actual damages. And experience favors this legislation as the most efficient mode of preventing, with the least inconvenience, the commission of injuries. The decisions of the highest courts have affirmed the validity of such legislation. The injury actually received is often so small that in many cases no effort would be made by the sufferer to obtain redress, if the private interest were not supported by the imposition of punitive damages.” And as to the objection that the statute of Missouri denied to the defendant the equal protection of the laws, the court said that it made no discrimination against any railroad company in its requirement; that each company was subject to the same liabilities, and from each the same security was exacted by the erection of fences, gates and cattle guards, when its road passed through, along, or adjoining inclosed or cultivated fields or uninclosed lands ; and that there was no evasion of the rule of equality where all companies are subjected to the same duties and liabilities under similar circumstances. In Missouri Pacific Railway Co. v. Mackey, 127 U. S. 205, a statute of Kansas providing that “ every railroad company organized or doing business in this State shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employés, to any person sustaining such damage,” was assailed on the ground that it was in conflict with the Fourteenth Amendment to the Constitution in that it deprived the company of its property without due process of law, and denied to it the equal protection of the laws. In support of the first position the company referred to the rule of law that prevailed previously in Kansas and some other States, exempting from liability an employer for injuries to employés caused by the incompetency or negligence of a fellow-servant, and contended that the law of Kansas in creating on the part of the railroad company a liability in such cases not previously existing, in the enforcement of which MINNEAPOLIS RAILWAY CO. v. BECKWITH. 33 Opinion of the Court. their property might be taken, authorized the taking of property without due process of law, and imposed a special liability upon railway companies that was not imposed upon other persons, and thus denied to the former the equal protection of the laws. But the court answered that the law in question applied only to injuries subsequently committed, and that it would not be contended that the State could not prescribe the liabilities under which corporations created by its laws should conduct their business in the future, where no limitation was placed upon its power in that respect by their charters ; that whatever hardship or injustice there might be in any law thus applicable to the future must be remedied by legislative enactment ; that the objection, that the railroad company was denied the equal protection of the laws, rested upon the theory that legislation special in its character was within the constitutional inhibition, but that so far from such being the fact the greater part of all legislation was special, either in the objects sought to be attained by it, or in the extent of its application ; that when such legislation applied to particular bodies or associations, imposing upon them additional liabilities, it was not open to the objection that it denied to them the equal protection of the laws, if all persons brought under its influence were treated alike under the same conditions ; that the hazardous character of the business of operating a railway called for special legislation with respect to railroad corporations, having for its object the protection of their employés as well as the safety of the public, which was not required by the business of other corporations not subject to similar dangers to their employés ; and that the legislation in question met a particular necessity, and all railroad corporations without distinction were subject to the same liabilities. From these adjudications it is evident that the Fourteenth Amendment does not limit the subjects in relation to which the police power of the State may be exercised for the protection of its citizens. That this power should be applied to railroad companies is reasonable and just. The tremendous force brought into action in running railway cars renders it abso-utely essential that every precaution should be taken against VOL. CXXIX—3 34 OCTOBER TERM, 1888. Opinion of the Court. accident by collision, not only with other trains, but with animals. A collision with animals may be attended with more serious injury than their destruction; it may derail the cars and cause the death or serious injury of passengers. Where these companies have the right to fence in their tracks, and thus secure their roads from cattle going upon them, it would seem to be a wise precaution on their part to put up, such guards against accidents at places where cattle are allowed to roam at large. The statute of Iowa, in fixing an absolute liability upon them for injuries to cattle committed in the operation of their roads by reason of the want of such guards, would seem to treat this precaution as a duty. It is true that, by the common law, the owner of land was not compelled to inclose it, so as to prevent the cattle of others from coming upon it, and it may be that, in the absence of legislation on the subject, a railway corporation is not required to fence its railway, the common law as to inclosing one’s land having been established long before railways were known. . But the obligation of the defendant railway company to use reasonable means to keep its track clear, so as to insure safety in the movement of its trains, is plainly implied by the statute of Iowa, which also indicates that the putting up of fences would be such reasonable means of safety. If, therefore, the company omits those means, the omission may well be regarded as evidence of such culpable negligence as to justify punitive damages where injury is committed; and if punitive damages in such cases may be given, the legislature may prescribe the extent to which juries may go in awarding them. The law of Iowa under consideration is less open to objection than that of Missouri, which was sustained in the case cited above. There double damages Could be claimed by the owner whenever his cattle had strayed upon the track of the railway company for want of fences on its sides, and had been killed or injured by the railway trains. Here such damages can be claimed for like injuries to cattle only "where the company has received notice and affidavit of the injury committed thirty days before the commencement of the action, and has persisted in refusing to pay for the value of the property MINNEAPOLIS RAILWAY CO. v. BECKWITH. 35 Opinion of the Court. destroyed or the damage caused. There must be not merely negligence of the company in not providing guards against accidents of the kind, but also its refusal to respond for the actual damage suffered. Without the additional amount allowed there would be few instances of prosecutions of railroad companies where the value of the animals killed, or injured by them is small, as in this case; the cost of the proceeding would only augment the loss of the injured party. As said in the Missouri case cited: “The injury, actually received is often so small that in many cases no effort would be made by the sufferer to obtain redress, if the private interest were not supported by the imposition of punitive damages.” 115 IT. S. 523. The legislation in question has been sustained in numerous instances by the Supreme Court of Iowa. In Welsh v. Chicago, Burlington a/nd Quincy Railroad Co., 53 Iowa, 632, 634, which was an action to recover double the value of a horse alleged to have been killed by one of the defendant’s engines at a point where it had the right to fence the road, the court below instructed the jury that it was the duty of the company to fence its road against live stock running at large at all points where such right to fence existed; and it was objected tb this instruction that no such duty existed; upon which the Supreme Court of the State, to which the case was taken, said: “ While it is true the statute does not impose an abstract duty or obligation upon railway companies to fence their roads, yet as to live stock running at large a failure to fence fixes an absolute liability for injuries occurring in the operation of the road by reason of the want of such fence. The corporation owes a duty to the owners of live stock running at large either to fence its road or to pay for injuries resulting from the neglect to fence.” And in Bennett v. The Wabash, St. Louis and Pacific Railway Co., 61 Iowa, 355, 356, the same court said: “We think the only proper construction of the statute is, tha’t in order to escape liability the company must not only fence, but keep the road sufficiently fenced ; and this has been more than once ruled,” As it is thus the duty of the railway company to keep its track free from animals, its 36 OCTOBER TERM, 1888. Syllabus. neglect to do so by adopting the most reasonable means for that purpose, the fencing of its roadway as indicated by the statute of Iowa, justly subjects it, as already stated, to punitive damages, where injuries are committed by reason of such neglect. The imposition of punitive or exemplary damages in such cases cannot be opposed as in conflict with the prohibition against the deprivation of property without due process of law. It is only one mode of imposing a penalty for the violation of duty, and its propriety and legality have been recognized, as stated in Day v. Woodworth, 13 How. 363, 371, by repeated judicial decisions for more than a century. Its authorization by the law in question to the extent of doubling the value of the property destroyed, or of the damage caused, upon refusal of the railway company, for thirty days after notice of the injury committed, to pay the actual value of the property or actual damage, cannot therefore be justly assailed as infringing upon the Fourteenth Amendment of the Constitution of the United States. Judgment affirmed. SHREVEPORT v. COLE. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF LOUISIANA. No. 106. Argued and submitted December 4,1888. — Decided January 7, 1889. Two “ residents of Shreveport, Louisiana,” sued in the Circuit Court of the United States for the Western District of Louisiana on a contract of that municipality, made in 1871, alleging, as the ground of Federal jurisdiction, that the constitution of Louisiana of 1879 had impaired the obligation of their contract. The municipality answered that it had been held by all the state courts that the provision of the constitution referred to did “not apply to contracts entered into prior to the adoption of the constitution of 1879.” The Supreme Court of Louisiana prior to the commencement of this suit had in fact so decided : Held, that this suit was an attempt to evade the discrimination between suits between citizens of the same State and citizens of different States, established by the Constitution and laws of the United States, and that the Circuit Court was without jurisdiction. SHREVEPORT v. COLE. 37 Statement of the Case. A constitution, or a statute, is construed to operate prospectively only, unless, on its face, the contrary intention is manifest beyond reasonable question. Jacobs and Smith filed their petition in the Circuit Court of the United States for the Western District of Louisiana, describing themselves as “ residents of Shreveport, Louisiana,” on the 11th day of February, 1882, against the city of Shreveport, “a municipal corporation, established by the State of Louisiana, situated in the parish of Caddo, in said State of Louisiana, and within said Western District,” alleging it to be “ justly indebted to petitioner in the sum of forty-seven thousand four hundred and sixty-six dollars, with five per cent per annum interest from Nov. 19th, 1871, as shown by itemized statement hereto annexed as part hereof,” upon a written contract annexed and made part of the petition, for the macadamizing of Commerce Street in said city, whereby the city agreed to pay five TVo dollars for each square yard of macadamizing, and sixty-five cents per cubic yard for grading, which amounted, upon completion of the work, to ninety-eight thousand one hundred and ninety-two TVo dollars, in which amount the city became indebted to petitioners; and that the sum of thirteen thousand four hundred and seventy-six dollars was paid thereon by property owners, and a warrant for three thousand two hundred and thirty-five T2^ dollars unpaid tax was also received by petitioners, leaving the indebtedness eighty-one thousand four hundred and eighty-six dollars. That by the terms of the contract the city obligated itself “ to pay the amount of its indebtedness arising thereunto out of funds realized from the collection of wrharfage dues, to be received by petitioners when paid by or collected from steamboats at the wharves of Shreveport, until the entire amount of such indebtedness under said contract was fully paid,” and had collected and paid over such wharfage dues up to December 20th, 1878, to the amount of thirty-four thousand and fourteen dollars, leaving a balance due of forty-seven thousand four hundred and sixty-six -/w dollars. The petition then proceeded as follows: “Petitioners allege that since the 20th day of December, 38 OCTOBER TERM, 1888. Statement of the Case. a.d. 1878, steamboats have arrived at the port of Shreveport from time to time up to present date, landed at the wharves of said city, and became thereby indebted for wharfage dues, collectible from such steamboats, their masters and owners, amounting in the aggregate to a large sum, say twelve thousand dollars, which should have been collected and paid over to petitioners by said city ; but your petitioners aver that since the 20th December, a.d. 1878, said city has failed, neglected, and refused to collect any wharfage dues from steamboats landing at its wharves, and has failed to pay petitioners the amount due them under said contract or any part thereof. “That on the 15th February, a.d. 1879, and on sundry days before and since said date, petitioners made amicable demand on said city to comply with its obligations under said contract by collecting and paying over to petitioners said wharfage dues, which said demands were by said city utterly disregarded. ■ “ Petitioners allege that in consequence of the neglect and refusal of said city to collect and pay over to them said wharfage, and by its default in complying with the terms of the said contract, the entire balance due thereunder, viz., said sum of forty-seven thousand four hundred and sixty-six 31-100 dollars, with interest, as hereinbefore claimed, became due by and exigible from said city. “ Petitioners allege amicable demand in vain. . “ They allege further that the law of the State of Louisiana, so far as same had any bearing on or relation to the said contract between them and said city and to the rights and obligations therefrom resulting, was by operation of law impliedly part of said contract, and there was an -implied contract between said city and petitioners that, in event of failure on part of either of the contracting parties to comply with the terms of said contract, the obligations resulting from and under said contract might be judicially enforced, and that under provisions of the law of Louisiana existing at date of said contract, petitioners had adequate remedies for the enforcement of their rights thereunder. “ But petitioners allege that Article 208 of the Constitution SHREVEPORT v. COLE. 39 Statement of the Case. of the State of Louisiana, adopted July 23d, a.d. 1879, and ratified by the people of said State on the first Tuesday of the month of December, a.d. 1879, has impaired the obligation of said contract by depriving your petitioners of all remedies for the enforcement of same, in this, viz., by limiting municipal taxation throughout said State for all purposes whatever to ten mills on the dollar of valuation. “ Petitioners represent that the assessed value of all property subject to tax by said city is one million eight hundred and fifty-three thousand eight hundred and twenty dollars; that the tax thereon, at rate of ten mills on the dollar, amounts to the sum of eighteen thousand five hundred and thirty-eight and 20-100 dollars; that the amount which the city is authorized to levy for license tax on trades, professions, and occupations does not exceed for any one year the sum of seventy-five hundred dollars. “ That said city has no property which can be seized under execution, and no revenues, except such as are derived from taxation; that the entire revenues of said city for any one year do not exceed the sum of thirty-one thousand dollars, an amount not more than sufficient for its alimony, and which must be appropriated for that purpose, and in consequence of said constitutional limitation, if same be valid and operative, no means exist under the law of Louisiana by which said city can raise funds wherewith to pay, or be compelled to pay, its just debts. “Petitioners allege that Article 208, so far as the same limits municipal taxation, is as to them null and void, because it violates the tenth section of the first Article of the Constitution of the United States, which prohibits the State of Louisiana (with all other States) from passing any law impairing the obligation of contracts. “That they are entitled to have said Article 208 of the constitution of the State of Louisiana declared null and void, so that they may have some remedy by means of which to compel said city to pay its indebtedness to them; that the case herein presented arises under the Constitution of the United States, and that your honorable court has jurisdiction thereof. 40 OCTOBER TERM, 1888. Statement of the Case. “ The premises considered, petitioners pray that the city of Shreveport be cited to answer hereto; that, after all legal notices and delays, they have judgment against said city, declaring said Article 208 of the constitution of the State of Louisiana violative of the Constitution of the United States, null and void, and condemning said city to pay to petitioners said sum of forty-seven thousand four hundred and sixty-six 31-100 dollars, with legal interest from November 19, a.d. 1879, and all costs. They pray for all orders and decrees necessary, and for general relief in the premises.” To this petition the city of Shreveport filed on May 2,1882, its exceptions and plea to the jurisdiction, stating “ that there is no law, ordinance, or constitutional provision in Louisiana which would impair the obligation of the alleged contract between the plaintiffs and defendant, and no probability of the courts of the State throwing any obstacles in the way of the execution of a judgment in their favor if one should be obtained.- On the contrary, all the state courts, from the highest to the lowest, in numerous decisions have held that the constitutional limitation of municipal taxation does not apply to contracts entered into prior to the adoption of the constitution of 1879, which this is admitted to be,” which were overruled February 26, 1883, and on March 1, 1883, the city filed its answer upon the merits. Trial being had, the court charged the jury, among other things : “ That if the jury find from the evidence the income of the city of Shreveport, which is collected under provision, Art. 208, is insufficient to pay more than the amount necessary for alimony, and that the operation of Art. 208 will prevent city from collecting taxes sufficient to pay its debts, then as to any debt contracted prior to the adoption of state constitution of 1879, said Art. 208 violates the Constitution of the United States, and is null and void.” Verdict was returned March 13th in these words : “We, the jury, find the following judgment, to wit: That the plaintiffs in this case have judgment against the defendant in the sum of $13,249.30, that being the amount of wharfage due the city of Shreveport, as proven on the trial to this date, reserving SHREVEPORT v. COLE. 41 Opinion of the Court. all the rights to the plaintiffs for the balance claimed by them.” Whereupon this judgment was rendered : “In this case, by reason of the law and evidence, and the verdict of the jury being in favor of the plaintiffs, Benj. Jacobs and Joseph R. Smith, it is ordered, adjudged, and decreed that the plaintiffs do have and recover of the defendant, the city of Shreveport, the full sum of thirteen thousand two hundred and forty-nine and 30-100 dollars, with 5 per cent per annum interest thereon from the 17th dayof February, 1882, and all costs of suit, said amount being wharfage dues which should have been collected by the defendant and paid over to plaintiffs up to March 13th, 1883. It is further ordered, adjudged, and decreed that said amount of $13,249.30 when paid is to be a credit on the amount due by defendant to the plaintiffs as claimed in their petition; and it is further ordered and decreed that the rights of plaintiffs for the balance due them as claimed are reserved to them.” From which judgment the city of Shreveport prosecuted the writ of error herein. J/r. Charles W. Homor, for plaintiff in error. Mr. T. Alexander and Mr. N. C. Blanchard, for defendants in error, submitted on their brief. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. Unless this suit was one “ arising under the Constitution or laws of the United States,” the Circuit Court had no jurisdiction ; and if it did not really and substantially involve a dispute or controversy as to the effect or construction of the Constitution or some law, upon the determination of which the recovery depended, then it was not a suit so arising. Starin v. New York, 115 U. S. 248, 257; Gold Washing and Water Co. n. Keyes, 96 U. S. 199. The case at bar was in effect an action at law to recover a balance alleged to be due the petitioners or plaintiffs upon a 42 OCTOBER TERM, 1888. Opinion of the Court. contract with the defendant, and the maintenance of the cause of action involved no Federal question whatever, nor is any such indicated in the judgment rendered. But the jurisdiction seems to have been rested upon the averments in plaintiffs’ petition, that under article 209 of the state constitution of 1879, providing that “ no parish or municipal tax for all purposes whatsoever shall exceed ten mills on the dollar of valuation,” the city of Shreveport, being so situated as to need all the revenue from such a tax, cannot raise funds to pay its just debts; that, therefore, plaintiffs are deprived by that article, “ if same be valid and operative,” of the remedy of enforcing payment by the levy of taxes, although their contract was entered into in 1871; and that so said article impairs the obligation of such contract. This contention, however, required the Circuit Court to assume that the courts of Louisiana would hold that the city could lawfully avail itself of the constitutional limitation in question as a defence to the collection by taxation of the means to liquidate the indebtedness, notwithstanding that would be to apply it retrospectively, to the destruction of an essential remedy existing when the contract was entered into, whereas the presumption in all cases is that the courts of the States will do what the Constitution and laws of the United States require. Chicago and Alton Railroad v. Wiggins Ferry Co., 108 U. S. 18; Neal v. Delaware, 103 U. 8. 370, 389. And we find in accordance with that presumption that the Supreme Court of Louisiana holds, and had held prior to the commencement of this suit, that article 209 “must have a rigid enforcement with regard to all creditors whose rights are not protected by the Constitution of the United States, and with regard to all future operations of the city government of every kind whatever. But it is perfectly clear that the rights of antecedent contract creditors are protected by the Constitution of the United States, and they are entitled to have them enforced £ in all respects as if ’ this provision of the Constitution ‘ had not been passed.’ Von Hoffman v. City of Quincy, 4 Wall. 535. The fact that the act of the State is a constitutional provision instead of a mere legislative act does not affect the case. Railroad Co. v. McClure, 10 Wall. SHREVEPORT v. COLE. 43 Opinion of the Court. 511, 515. It is apparent, therefore, that whatever percentage of taxation may be required to meet the maturing obligations in interest or principal of antecedent contract creditors must, in any and all events, be levied.” Moore v. City of New Orleans, 32 La. Ann. 726, 747. Constitutions as well as statutes are construed to operate prospectively only, unless, on the face of the instrument or enactment, the contrary intention is manifest beyond reasonable question. There is nothing on the face of article 209 evidencing an intention that it should be applied to antecedent contracts, and the highest tribunal of the .State has declared that it cannot be so applied. It is impossible, under these circumstances, to sustain the jurisdiction of the Circuit Court upon the ground, not that the city had been, but tliat it might perhaps be, allowed to interpose to defeat the enforcement, by the appropriate means, of payment of an alleged indebtedness, a constitutional provision inapplicable by the ordinary rules of law, and so determined to be by the deliberate decision of the state Supreme Court. Nor can it be held that a dispute or controversy as to the effect of the Constitution of the United States upon article 209 of the constitution of the State was involved in determining in this action whether the defendant was indebted to the plaintiffs, and if so, in what amount. The prayer of the petition was that judgment might be rendered for the amount claimed, and also that article 209 might be declared null and void; and some considerations supposed to bear upon the latter subject were addressed to the jury by the learned judge who presided upon the trial, to which the verdict made no response in terms; but it does not appear that an order for the assessment of taxes to pay the amount awarded, or for any supplementary proceedings of like nature, to the entry of which said article might in any view be claimed to be an obstruction, was authorized by statute to be made part of the judgment in such a case as this. And the judgment was simply for the recovery of so much money, to be thereafter collected as provided by law. When, in the instance of a judgment rendered on contract 44 OCTOBER TERM, 1888. Opinion of the Court. in a state court, remedies for its collection existing at the time of the making of the contract, are taken away, in substance, by state constitution or statute, and the deprivation enforced by the final judgment of the state courts, a writ of error under § 709 of the Revised Statutes enables this court to vindicate the supremacy of the Constitution and laws of the United States and administer the proper remedy; but had this record in its present shape come before us in that way even, we should have had no alternative save to dismiss the writ. In cases originally brought in the Circuit Court, or by removal from a state court, it is made the duty of the Circuit Court to dismiss or remand the same whenever it appears that the suit does not really and substantially involve a dispute or controversy properly within its jurisdiction, or that the parties to the suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable. As remarked in Bernards Township v. Stebbins, 109 U. S. 341, 353, it has been the constant effort of Congress and of this court to prevent the discrimination in respect to suits between citizens of the same State and suits between citizens of different States, established by the Constitution and laws of the United States, “from being evaded by bringing into Federal courts controversies between citizens of the same State.” We regard this suit as an evasion of that character. The judgment of the Circuit Court is reversed and the cause remanded, with directions to dismiss the petition. Currie, Mayor, v. United States ex rel. Jacobs. Error to the Circuit Court of the United States for the Western District of Louisiana. No. 107. Mr. Chief Justice Fuller. In this case a peremptory writ of mandamus was awarded, commanding the levj of a special tax for the payment of the judgment rendered in favor of Jacobs and Smith, and against the city of Shreveport, just reversed in the preceding case, No. 106, for want of jurisdiction. The judgment must, therefore, be reversed, and the cause remanded, with directions to dismiss the petition. NEW ORLEANS v. CONSTRUCTION CO. 45 Opinion of the Court. NEW ORLEANS v. LOUISIANA CONSTRUCTION COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA. No. 1104. Submitted December 17, 1888. —Decided January 7, 1889. An intervention by third opposition, under §§ 395 to 400 of the Code of Practice of Louisiana, by a person claiming that property seized on execution is exempt from seizure and sale, is a proceeding at law, and as such, is reviewable upon writ of error. The objection that third opposition cannot be availed of by a defendant in execution in regard to property situated as is the property in contention cannot be disposed of on a motion to dismiss or affirm. Motion to dismiss or affirm. The case is stated in the opinion. J/r. E. Howard Me Caleb for the motion. Mr. Henry C. Miller and Mr. Carleton Hunt opposing. Mr. Chief Justice Fuller delivered the opinion of the court. By the writ of error in this case a judgment of the Circuit Court of the United States for the Eastern District- of Louisiana is brought up for revision, which was rendered by that court, after a trial by jury and on the verdict found, against the city of New Orleans upon its “petition of intervention and of third opposition,” claiming certain property to have been exempt from seizure and sale on execution, which had been advertised for sale by the United States marshal under a writ of fieri facias issued upon a certain judgment recovered against said city by the Louisiana Construction Company, one of the defendants in error, and which, as appeared by an amended petition, was sold by said marshal to Isidore Newman, who, with Louis E. Lemaire, attorney in fact of said Construction Company, and R. B. Pleasants, the United States marshal, were made parties to said petition as amended. 46 OCTOBER TERM, 1888. Opinion of the Court. By articles 395, 396^ 397, 398, 399 and 400 of the Code of Practice of Louisiana, when property not liable is seized on execution, the remedy of the owner is by an intervention called a third opposition, on which, by giving security, an injunction or prohibition may be granted to stop the sale. If no injunction is issued, and the sale takes place, if the opposition is sustained, the seizure and sale are annulled, and the property restored. In the case at bar an order of prohibition was directed to be issued upon the city giving security as prescribed. This it failed to do, and the property was sold to Newman, as before stated. The Construction Company now moves that the writ of error be dismissed, upon the ground that the cause was in equity, and therefore should have been brought here by appeal, and if that motion is overruled, that the judgment be affirmed. The rule is thoroughly settled that remedies in the courts of the United States are at common law or in equity, according to the essential character of rhe case, uncontrolled in that particular by the practice of the state courts. In Van Norden v. Morton, 99 U. S. 378, where a bill addressed to the Circuit Court of the United States for the District of Louisiana, sitting in chancery, alleged that complainant was the owner of a dredge boat, which had been seized on an execution against another party, and prayed for an injunction, for the quieting of title and possession and for damages, it was held that, under the provisions of the Louisiana Code of Practice pertaining to the subject, the remedy was at law and not in equity, and the bill was for that reason dismissed. But it is urged that there the injunction was sued out by a third person, not originally a party to the cause, claiming ownership of the property seized; that the property was personal; and that it was not burdened with any trust; whereas, it is said that here the city was the defendant in execution; that the property seized was real; that the city claims it as trustee because locus publicus; and that the contention of the city involves the elements of trust, injunction and prevention of cloud on title, all exclusively cognizable in a court of equity. ROSENWASSER v. SPIETH. 47 Statement of the Case. The Circuit Court, however, took jurisdiction of the intervention of the city as “ third opponent,” and the intervention being answered, proceeded to trial on the merits, and to judgment accordingly. The objection of the Construction Company that third opposition cannot be availed of by a defendant in execution or in regard to such property, and so situated, as that involved in this case, should have been made in the Circuit Court, and cannot be properly disposed of on this motion. As the judgment stands, it is a judgment in a short and summary proceeding before the court under whose authority the marshal was acting, analogous to the statutory remedy given in many of the States to try the right of property at the instance of the party whose property is alleged to be wrongfully seized, and as such, as determined in Van Norden n. Norton, supra, is at law, and properly reviewable upon writ of error. The motion to dismiss is therefore denied, and as we do not think there was color for it, the motion to affirm must be denied also. ROSENWASSER v. SPIETH. appeal from the circuit court of the united states for the DISTRICT OF MAINE. No. 122. Argued December 11, 12, 1888. — Decided January 14,1889. The improvement in percolators, for which letters patent were granted April 18, 1882, to Nathan Rosenwasser, was anticipated by an apparatus described in Geiger’s Handbuch der Pharmacie, published at Stuttgart in 1830. In equity for an alleged infringement of letters patent. The bill prayed for a discovery, and an accounting, and the payment of all gains and profits discovered on the accounting, and for injunctions, both interlocutory and final. The answer denied that the plaintiffs invented the patented improvement or that the alleged invention was patentable. The final decree 48 OCTOBER TERM, 1888. Opinion of the Court. dismissed the bill, from which the plaintiffs appealed. The case is stated in the opinion. Mr. William Henry Clifford for appellants. Mr. Wilbur F. Lunt for appellee. Me. Justice Gray delivered the opinion of the court. This is a bill in equity for the infringement of letters patent granted April 18, 1882, to Nathan Rosen wasser for improvements in percolators, with the following specification and claim: “ My invention relates to percolating apparatus to be employed for filtering purposes, or for making fluid extracts or decoctions, and it consists in a device constructed and adapted to operate substantially in the manner hereinafter specified. “In the drawings, figure 1 represents my device in longitudinal section, and Fig. 2 shows the application of said device when used as a filter or in making fluid extracts. “ A is the main body of my percolator. B is a constricted inlet. C is the enlarged open end, which serves the double purpose of a discharge or outlet, and as an opening through which the percolator is charged with filtering substance when the device is to be used as a filter, or with any drug from which an extract is to be made. D is a perforated plate. This plate may, if desired, be replaced by any porous diaphragm or interposing substance, such as filter paper, cloth, pumice, or the like. This is to prevent the drug from escaping from the percolator during its use, and it is to be secured in position by suitable means. E represents the drug from which an extract is to be made, or if the device is to be used as a filter, then E represents charcoal, sand, or any suitable filtering material. “ I will describe my apparatus as employed in making fluid extracts. The container A is charged with any drug or substance, E, from which an extract is to be made. The drug E is charged into the container A through the enlarged mouth 0. Now, by the ordinary process and mechanism for making ROSENWASSER v. SPIETH. 49 Opinion of the Court. fluid extracts, it has heretofore been the practice to charge the menstruum into the large mouth C; but this method made it impracticable to obtain any increased or variable pressure upon the menstruum, unless a cap piece were fitted over the enlarged mouth C, and a tube or its equivalent attacned, and connected either to an elevated reservoir containing the menstruum, or else some special pressure apparatus connected with said tube. All this in practice is impracticable; but by the employment of my device and method it is a very easy matter to charge the container A, and by applying the menstruum in exactly an opposite manner from that heretofore adopted, viz., to the end of the container A, opposite the charging mouth C, to exert any desired pressure upon the menstruum. Fig. 2 of the drawings illustrates my method and mechanism, which consists, after the container A is charged in the usual manner through its enlarged mouth C, as already specified, in inverting the percolator, attaching a flexible or other tube, F, to the constricted mouth B, and applying the menstruum through said tube from an elevated reservoir G< When thus used, the enlarged mouth C becomes the ultimate discharge, which has never before, to my knowledge, been true in any method heretofore known or practised. By elevating the reservoir G more or less, a greater or lighter pressure is exerted by the menstruum, and it is therefore driven through the drug more or less forcibly and rapidly. This pressure, as may readily be seen, can be nicely adjusted and varied at pleasure to suit the requirements of any case. A stop-cock, H, may be used to govern the quantity of the menstruum admitted to the percolator A. “ What I claim is: The combination, with a vessel, G, and adjustable tube, F, of a percolator, A, having a large filling and discharge orifice at its lower end, and a restricted opening, B, at its upper end, with which connects the lower end of the adjustable tube or pipe F, substantially as set forth.” The description of the percolator, and of the mode of using it to make fluid extracts or decoctions of drugs, amounts to this: The percolator is a cylinder wholly open at the lower end, and with a cover at the upper end, having a small open- VOL. CXXIX—4 50 OCTOBER TERM, 1888. Opinion of the Court. ing, attached to which is a flexible or adjustable tube leading from a reservoir of the liquid to be used for steeping the drug. The percolator is turned bottom up while the drug is put in, and a perforated or porous diaphragm inserted to hold the drug in place. It is then turned bottom down again. The pressure of the liquid, and consequently the quickness of its passage through the drug, are increased or diminished by elevating or lowering the reservoir, or by turning a stop-cock in the tube; and the extract is discharged through the bottom of the percolator into a vessel placed below. The novelties suggested consist in having one end of the percolator open, serving both to receive the drug and to discharge the extract; in turning the percolator bottom up to put in the drug, and bottom down to let the extract drip out; in having a perforated or porous diaphragm to hold the drug in place; and in regulating the pressure of the liquid by means of a tube from the reservoir to the small opening in the covered end of the percolator. But, passing over the difficulty that the diaphragm is not claimed as part of the combination patented, neither the percolator open at one end, the diaphragm, the inversion of the percolator, the insertion of the tube in the small opening in the covered end, nor the making that tube flexible and with a stop-cock, is new. All those elements appear in the Real press, as modified by Beindorf, described in Geiger’s Handbuch der Pharmacie, published in 1830 at Stuttgart in Germany, which is an exhibit in the case, and a translation of the material parts of which, (vol. 1, pp. 157-160,) verified by the oath of a witness for the defendant, and included in the record, appears, though not quite grammatical, to be substantially accurate, notwithstanding the opposing testimony introduced by the plaintiff to impugn its correctness. It will be sufficient to quote from that translation the following passages:1 “The Real press consists principally of a 1 “ Die ReaVsche Presse besteht der Hauptsache nach aus einem hohlen Cylinder, in welchem die auszuziehende Substanz im gepulverten Zustande zwischen 2 siebförmig durchlöcherten Platten fest gepackt enthalten ist, so dass sie nach keiner Seite hin weichen kann. Wenn der Cylinder an beiden ROSENWASSER v. SPIETH. 51 Opinion of the Court. hollow cylinder, which contains the powdered substance to be exhausted between two perforated plates, tightly packed, so that the substance cannot move to [in] either direction. If the cylinder is open at both ends, a cover is fitted air-tight at one end, having a hole in the centre, into which a long tube is fitted, also air-tight. Between the cover and the perforated plate mentioned some space must remain. In extracting, the cylinder is placed vertical [upright], so that a vessel for gathering the liquid may be placed underneath.” “A very practical change in the construction of the Real press < has been introduced by Beindorf. The cylinder is fitted into a chair [frame], the cover or seat of which is movable, so that by turning [inverting] the same the press may be filled and connected with the tube.” “ The filled cylinder, turned bottom up, is placed upon a chair [frame] having a hole in the Enden offen ist, so wird an einem Ende ein Deckel luftdicht aufgepasst, welcher in der Mitte ein Loch hat, worein eine hohe Röhre ebenfalls luftdicht gesteckt wird. Zwischen dem Deckel und der obern siebförmigen Platte muss etwas Raum bleiben. Beim Extrahiren wird der Cylinder aufrecht festgestellt, so dass ein Gefäss zum Aufsammelu der Flüssigkeit untergestellt werden kann.” “ Eine sehr zweckmässige Abänderung der Real’schen Presse hat Beindorf vorgenommen. Der Cylinder wird in einen Stuhl gepasst, dessen Deckel beweglich ist, so dass durch Umdrehen desselben die Presse gefühlt und mit dem Rohr verbunden werden kann.” “Der gefühlte, mit dem Boden nach oben gerichtete Cylinder wird auf einen Stuhl gestellt, der in der Mitte ein Loch hat, in welches derselbe passt und mit seinem Wulste aufliegt.” “Den obern leeren Raum füllt man mit der auszuziehenden Flüssigkeiten an, und passt in die Oeffnung des Bodens eine Röhre: sie kann von Weissblech, Glas, Holz, oder ein lederner Schlauch u. s. w. seyn.” “ Neben das obere Ende der Röhre stelle man ein Gefäss mit der Ausziehungsflüssigkeit, so dass der Spiegel der Flüssigkeit etwas niederer als das Ende der Röhre steht. Man senke jetzt einen Heber in die Flüssigkeit und in die Röhre, ziehe durch die Röhre mit dem Munde etwas Luft an indem man mit den Lippen, dem Daumen und Zeigefinger das Eindringen derselben von aussen zu hindern strebt; die Flüssigkeit wird sich heben und durch den Heber in die Röhre auslaufen, diese wird selbst damit angefüllt, und so wirkt die Flüssigkeit drückend und lösend auf die Substanz. Sie durchdringt sie und kommt, mit extractiven Theilen beladen, anfangs oft von Syrupsdicke, vollkommen klar hervor.” “ Um die Wirkung nach Belieben auf hören zu machen, bringt man einen Hahn an die Röhre, den man schliesst, oder man verschliesst, nach weggenommenem Heber-das obere Ende der Röhre.” 52 OCTOBER TERM, 1888. Syllabus. middle, in which the cylinder fits and around which he [it] rests.” “ In the opening in the bottom, a tube is fitted, which may be made of tinned iron [tin plate], glass, wood, leather, etc.” “ Near the upper end of the tube is placed a vessel containing the menstruum [liquid solvent], the surface of which must be somewhat lower than the end of the tube. A syphon is now introduced into the liquid and in the tube, air sucked through the tube, so that the liquid will commence to flow through the syphon into the tube, which is thereby filled. The column of menstruum [liquid] thus obtained acts pressing and dissolving upon the substance to be extracted. It penetrates it, and arrives, laden with the soluble matter contained in the substance, at the lower end of the apparatus, often in a syrupy consistence.” “ In order to control the apparatus, stop or continue the operation, the tube is provided with a cock which may be closed if necessary, or the upper end of tube may be closed after removing the syphon.” This court concurs in opinion with the Circuit Judge that the plaintiff’s contrivance is not new, and, that if it were new, there would be grave doubt whether it involved any invention. 22 Fed. Rep. 841. As the plaintiff’s contrivance had been anticipated in the German publication half a century before, it is unnecessary to decide whether, if new, it would have been patentable. Decree affirmed. BALDWIN v. THE STATE OF KANSAS. EBROK TO THE SUPREME COURT OF THE STATE OF KANSAS. No. 1154. Argued December 17,1888.— Decided January 14, 1889. The plaintiff in error was convicted of murder in a state court in Kansas. The Supreme Court of that State affirmed the judgment. On a writ of error from this court, it was assigned for error that the jurors were not sworn according to the form of oath prescribed by the statute of Kansas, and that, therefore, the jury was not a legally constituted tribunal, and so the defendant would be deprived of his life without due process of law, and be denied the equal protection of the law. The statute did not BALDWIN v. KANSAS. 53 Opinion of the Court. give in words the form of the oath, but required that the jury should be sworn “ to well and truly try the matters submitted to them in the case in hearing, and a true verdict give, according to the law and the evidence.” The record did not state the form of the oath administered, but the journal entry stated that the jurors were “ duly” sworn “ well and truly to try the issue joined herein,” and the bill of exceptions stated that the jury was sworn “ to well and truly try the issues joined herein.” The verdict also recited that the jury was “ duly sworn” in the action. The record did not show that at the trial before the jury, any title, right, privilege, or immunity under the Constitution of the United States was specially set up or claimed. No objection was taken to the form of the oath at thé trial, nor at the making of motions for a new trial and for an arrest of judgment before the trial court. The point was first suggested in the Supreme Court of the State : Held, (1.) The recitals in the record, as to the swearing of the jury, were not to be regarded as an attempt to set out the oath actually administered, but rather as a statement of the fact that the jury had been sworn and acted under oath ; (2.) The objection could not be considered, because it was not taken at the trial. The question whether the evidence in the case was sufficient to justify the verdict, and the question whether the constitution of Kansas was complied with or not in certain proceedings on the trial, were not Federal questions which this court could review. The writ of error was dismissed for want of jurisdiction. The case which was claimed to raise a Federal question is stated in the opinion. Mr. B. P. Waggener and J/a IF. 1). Webb for plaintiff in error. J/r. & B. Bradford, Attorney General of the State of Kansas, for defendant in error. Mr. Justice Blatchford delivered the opinion of the court. This is a writ of error to the Supreme Court of the State of Kansas. William Baldwin was proceeded against, in the District Court of the Second Judicial District of Kansas, sitting in and for Atchison County, by an information charging him with the crime of murder. On a trial before a jury, he was found guilty. A motion for a new trial was denied ; and the 54 OCTOBER TERM, 1888. Opinion of the Court. judgment of the court was rendered that he be confined at hard labor, in the penitentiary of the State, for one year from January 11, 1886, and until the governor of the State should by order direct his execution, at which time, as specified in such order, not less than one year from that date, he should be hung. He removed the case by appeal to the Supreme Court of the State, and it affirmed the judgment, in December, 1886. An application for a rehearing was denied in July, 1887. The case is brought here by him. The decision of the Supreme Court of Kansas is reported as State v. Baldwin, 36 Kansas, 1. The errors assigned here are (1) that the jurors were not sworn according to the form of oath prescribed by the statute of Kansas, and that, therefore, the jury was not a legally constituted tribunal, and so the defendant will, under the judgment of the court, be deprived of his life without due process of law, and be denied the equal protection of the law; (2) that the evidence on which the judgment was founded was so inadequate to show that the defendant was guilty of the crime of murder, that the judgment amounts to a denial to the defendant of the equal protection of the law. As to the question of the oath administered to the jurors, the journal entry at the trial states that, issue being joined upon a plea of not guilty, there came a jury of twelve good and lawful men, whose names are given, “ having the qualifications of jurors, who being duly elected, tried, and sworn well and truly to try the issue joined herein,” the trial proceeded. The bill of exceptions states that “a jury was empanelled and sworn to well and truly try the issues joined herein.” The statute of the State of Kansas provides (Compiled Laws of Kansas, c. 82, art. 11, § 208 ; c. 80, art. 15, § 274,) that “the jury shall be sworn to well and truly try the matters submitted to them in the case in hearing, and a true verdict give, according to the law and the evidence.” The statute does not give in words the form of the oath. It is contended that the record affirmatively shows that the oath required by the statute of Kansas was not administered to the jurors, but that BALDWIN v. KANSAS. 55 Opinion of the Court. they were only sworn “ well and truly to try the issue joined herein,” or “to well and truly try the issues joined herein.” : The record does not purport to give ipsissimis verbis the form of the oath administered to the jurors. The statement of the oath is entirely consistent with the fact that the oath required by the statute of Kansas was administered, especially in view of the statement in the journal entry that the jurors were “ duly ” sworn. On this subject, the Supreme Court of Kansas says correctly, in its opinion : “ It is highly important and necessary that the oath should be administered with due solemnity, in the presence of the prisoner, and before the court, substantially in the manner prescribed by law. It may also be conceded that the record should show that the jury were sworn, and, when the record does purport to set out in full the form of the oath upon which the verdict is based, it must be in substantial compliance with law; otherwise the con vic-tion cannot stand. The assumption by counsel that the oath as actually administered is set out in full in the record, it seems to us, is unwarranted. What is stated in the record is but a recital by the clerk of the fact that the jury were sworn. The swearing was, of course, done orally, in open court, and it is no part of the duty of the clerk to place on the record the exact formulary of words in which the oath was couched. He has performed the duty in that respect when he enters the fact that the jury were duly sworn, and when that is done the presumption will be that the oath was correctly administered. The method of examining the jurors as to their qualifications, or whether the oath was taken by them while standing with uplifted hands, according to the universal practice in the State, or otherwise, is not stated. In making mention of the impanelling and swearing of the jury, there is no description of the parties between whom the jury are to decide; nor, indeed, are there any of the formal parts of an oath stated. The stater ment made is only a recital of a past occurrence; and it is manifest that there was no intention or attempt of the clerk to give a detailed account of the manner of impanelling the jury, or to set out the oath in hoec verba. It may be observed that in the form of the verdict returned, and which was pre- 56 OCTOBER TERM, 1888. Opinion of the Court. pared and presented to the jury by the trial judge, it was stated that the jury were duly impanelled and sworn.” The form of the verdict thus referred to was in these words: “We, the jury duly empanelled, charged and sworn, in the above entitled action, do, on our oath, find the defendant, William Baldwin, guilty of murder in the first degree, as charged in the first count of information.” The Supreme Court of Kansas held that the recitals in the record relative to the swearing of the jury were not to be regarded as an attempt to set out the oath actually administered, but rather as a statement of the fact that the jury had been sworn and acted under oath. We concur in this view. That court went on to say: “ A still more conclusive answer on this point is, that no objection was made to the form of the oath when it was administered, or at any other time prior to its presentation in this court. If there was any irregularity in this respect, it should, and probably would, have been objected to at the time it occurred. It is quite unlikely that there was any departure from the form of the oath so well understood, and which is in universal use in all of the courts of the State; but, if the form of the oath wTas defective, the attention of the court should have been called to it at the time the oath was taken, so that it might have been corrected. A party cannot sit silently by, and take the chances of acquittal, and subsequently, when convicted, make objections to an irregularity in the form of the oath. Not only must the objection be made when the irregularity is committed, but the form in which the oath was taken, as well as the objection, should be incorporated into the bill of exceptions, in order that this court may see whether or not it is sufficient. This was not done.” This statement of the condition of the record shows that no Federal question is presented, in regard to the oath administered to the jurors, of which this court can take jurisdiction. Section 709 of the Revised Statutes provides, that a final judgment in any suit in the highest court of a State, in which a decision in the suit could be had, where any title, right, privilege, or immunity is claimed under the Constitution, and the decision is against the title, right, privilege, or immunity BALDWIN v. KANSAS. ' 57 Dissenting Opinion: Harlan, J. “specially set up or claimed” by either party, under such Constitution, may be re-examined, and reversed or affirmed, in the Supreme Court, upon a writ of error. In the present case, the record does not show that, at the trial before the jury, any title, right, privilege or immunity under the Constitution of the United States was specially set up or claimed. No objection was taken to the form of the oath at the trial, nor at the making of the motion for a new trial before the trial court, nor at the making of the motion for arrest of judgment in that court. The point was first suggested in the Supreme Court of the State. That court, as it appears, refused to consider the objection, on the ground that it was not taken at the trial. For that reason, we, also, cannot consider it. In Spies v. Illinois, 123 U. S. 131, 181, this court said in regard to a question of this kind : “ 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.” Again: “If the right was not set up or claimed in the proper court below, the judgment of the highest court of the State in the action is conclusive, so far as the right of review here is concerned.” The question whether the evidence in the case was sufficient to justify the verdict of the jury, and the question whether the constitution of the State of Kansas was complied with or not in the proceedings on the trial which are challenged, are not Federal questions which this court can review. The writ of error is dismissed for want of jurisdiction. Mr. Justice Harlan dissenting, o I adhere to the opinion expressed by me in Hurtado v. California, 110 U. S. 539, that a State cannot, consistently with due process of law, require a person to answer for a capital offence, except upon the presentment or indictment of a grand jury. Upon that ground I dissent from the judgment in this case. 58 OCTOBER TERM, 1888. Citations for Appellees. WALLACE v. JOHNSTONE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE SOUTHERN DISTRICT OF IOWA. No. 94. Argued November 23, 1888. — Decided January 14,1889. A deed of lands, absolute in form, with general warranty of title, and an agreement by the vendee to reconvey the property to the vendor, or to a third person, upon his payment of a fixed sum within a specified time, do not of themselves constitute a mortgage; nor will they be held to operate as a mortgage unless it is clearly shown, either by parol evidence or by the attendant circumstances, such as the condition and relation of the parties, or gross inadequacy of price, to have been intended by the parties as a security for a loan or an existing debt. The fact of a collateral agreement by the grantee in a deed of real estate to reconvey to the grantor on the payment of a sum of money at a future day is not inconsistent with the idea of a sale. Whether the transaction in dispute was a sale or a mortgage is a question of fact, to be determined from the proof, and here the proof shows it to have been a sale. The case is stated in the opinion of the court. George Norris for appellant cited : Teal v. Walker, 111 U. S. 242; Nugent v. Riley, 1 Met. 117; xS. G. 35 Am. Dec. 355; Wilson v. Shoenberger, 31 Penn. St. 295; Dow v. Chamberlin, 5 McLean, 281; Bayley v. Bailey, 5 Gray, 505; Lane v. Shears, 1 Wend. 433; Friedley v. Hamilton, 17 S. & R. 70; S. G. 17 Am. Dec. 638; Shaw x. Erskine, 43 Maine, 371; Peugh v. Davis, 96 U. S. 332; Russell x. Southard, 12 How. 139 ; Shillaber v. Robinson, 97 U. S. 68; Conway v. Alexander, 7 Cranch, 218; Morris x. Nixon, 1 How. 126; Vernon v. Bethell, 2 Eden, 110; Oldham v. Halley, 2 J. J. Marsh. 113; Edrington v. Harper, 3 J. J. Marsh. 353; xS. C. 20 Am. Dec. 145. Mr. James Hagerman, with whom was Mr. Joseph G. Anderson for appellees, cited : Conway x. Alexander, 7 Cranch, 218 ; Snavely x. Pickle, 29 Gratt. 27; Slutz x. Desenburg, 28 Ohio St. 371; Flagg x. Mann, 14 Pick. 467; Glover v. Payn, 19 Wend. 518; Slowey x. McMurray, 27 Missouri, 113; S. C. 72 Am. Dec. 251; Galt v. Jackson, 9 Georgia, 151; WALLACE v. JOHNSTONE. 59 Opinion of the Court. Spence v. Steadman, 49 Georgia, 133; West v. Hendrix', 28 Alabama, 226; Puffier v. Womack, 30 Texas, 332; Pitts v. Cable, 44 Illinois, 103 ; Magnusson v. Johnson, 73 Illinois, 156; Hicks v. Hicks, 5 Gill & Johns. 75; McNamara v. Culver, 22 Kansas, 661; Budd v. Van Orden, 33 N. J. Eq. 143; Shaw v. Erskine, 43 Maine, 371; Treat v. Strickland, 23 Maine, 234; Hill v. Grant, 46 NT. Y. 496; Penn. Co. v. Austin, 42 Penn. St. 257; Stevenson v. Thompson, 13 Illinois, 186; Carr v. Rising, 62 Illinois, 14; Saxton v. Hitchcock, 47 Barb. 220; Howland v. Blake, 97 U. S. 624; Coyle v. Davis, 116 IT. S. 108 ; Cadman v. Peter, 118 IT. S. 73; Corbit v. Smith, 7 Iowa, 60; S. C. 71 Am. Dec. 431; Cooper v. Skeel, 14 Iowa,’578; Gardners. Weston, 18 Iowa, 533; Hyatt v. Cochran, 37 Iowa, 309; Sinclair v. Walker, 38 Iowa, 575; Zuver v. Lyons, 40 Iowa, 510; Woodworth v. Carman, 43 Iowa, 504; Kibby v. Harsh, 61 Iowa, 196; Knight n. McCord, 63 Iowa, 429. Me. Justice Lamar delivered the opinion of the court. This is a suit in equity originally brought in a state court by the appellees against the appellant and one E. R. Ford, to quiet the title to about 3184 acres of land in Sioux and Clay counties in the State of Iowa. The petition alleged that on February 17, 1875, the defendant, John A. Wallace, who was then the owner in fee of the land in dispute, by a deed of warranty, which was afterwards duly recorded, for a valuable consideration, sold and conveyed the same to the plaintiffs and one William Leighton; that on the same day said grantees executed and delivered to the defendant Ford a contract in writing, giving him the option, for the period of sixty days from that date, of purchasing the land in question, upon the payment by him of the sum of $5876, which contract was on that day assigned by Ford to defendant Wallace, and was afterwards duly recorded; that Leighton afterwards conveyed his undivided one-fourth inter-, est to the plaintiff C. F. Davis, who afterwards conveyed one-alf thereof to plaintiff Edward Johnstone; that neither of the efendants ever paid anything on the lands, and neither ever 60 OCTOBER TERM, 1888. Opinion of the Court. exercised the option of purchasing within the time specified in the option contract, or at any time thereafter, and that the rights of the defendants under that contract had become for-feited; that the plaintiffs, upon the purchase of the lands, assumed control of them, and had paid the taxes thereon; and that the defendants had no rights under the contract, nor any interest, legal or equitable, in the lands, but the contract, being upon the records of the counties where the lands lie, constituted a cloud upon the title to them. The prayer of the petition was, that the option contract be ' declared forfeited, rescinded and cancelled, and the title to the plaintiffs be quieted against all claims of the defendants, or either of them, and for further relief, etc. Defendant Wallace answered, admitting the execution and delivery of the deed and option contract of February 17,1875, but alleging that, taken together, they were understood by the parties thereto as constituting a mortgage for the security of the money received by him at that time, which was in reality a loan; alleging, further, that the transaction was to avoid the effect of the usury laws of Iowa, the plaintiffs not being willing to accept simply the legal rate of ten per cent interest on such loan; that the lands were worth at that time fully $20,000, and the money actually received by him was only about $4250; that defendant Ford never had any real interest in the option contract, but actually assigned it to him t before it was signed and executed by the plaintiffs and Leigh-j ton, all of which was well known to said parties; that the [loan was obtained in good faith, and he was willing to bind ■ himself, in the way he did, for said $5876, for the use of the said $4250 for sixty days, because he badly needed money, and " believed he could sell the land so as to pay off the loan and leave a large surplus for himself; and that this defendant has considered himself indebted to plaintiffs and Leighton in the sum of $4250, and lawful interest from February 17, 1875, and now asks that he be required to pay only that amount. He, therefore, prayed that said deed be declared by the court to be a mortgage; that the title to the real estate be decreed to be in the defendant, subject to such claim as the WALLACE v. JOHNSTONE. 61 Opinion of the Court. plaintiffs may legitimately have against it by virtue of that deed, and any taxes they have paid; and that defendant have a legal right to redeem, as provided by law, upon such terms of payment of such amount as the court shall think just and proper, and for other and further relief, etc. The suit was then removed into the United States Circuit Court for the Southern District of Iowa, upon the ground of diverse citizenship of the parties, where defendant Wallace filed a cross-bill substantially in matter and form the same as his answer, asking to redeem. Plaintiffs replied to the answer of Wallace, and answered his cross-bill denying every material allegation therein not in harmony with the allegations of the petition. Defendant Ford answered, admitting all the allegations of plaintiffs’ petition, and disclaiming any interest in the lands. Testimony was taken, and the decree of the Circuit Court was in favor of the plaintiffs; the option contract was cancelled and annulled; the title to the lands in question was quieted in the plaintiffs forever as against any claim thereto on the part of either of the defendants or any one claiming under them through the option contract; and the cross-bill of defendant Wallace was dismissed. From this decree Wallace prayed and perfected an appeal, which brings the case into this court. The sole question presented in the case is — was the transaction of February 17, 1875, an absolute sale or a mortgage? If this question could be determined by inspection of the written papers alone, the transaction was clearly not a mortgage, but an absolute sale and deed, accompanied by an independent contract between the vendee and a third person, not a party to the sale, to convey the lands to him upon his payment of a fixed sum within a certain time. Upon their face there are none of the indicia by which courts are led to construe such instruments to be intended as a mortgage or security for a loan ; nothing from which there can be inferred the existence of a debt, or the relation of borrower and lender between the parties to the deeds or between the parties to the contract. The question whether the extrinsic proof shows that the 62 OCTOBER TERM, 1888. Opinion of the Court. $4250 was a loan to Wallace, and that the deed and option contract were made to secure its repayment with large interest, is a question of fact to be determined by the circumstances attending the execution of the instruments in question. The evidence, as it appears in the record, is much less contradictory than is usual in such cases where it is sought by parol testimony to change an absolute conveyance, with a collateral agreement for a repurchase, into a mortgage. With the single exception of the appellant, all the witnesses conversant with the negotiations between the parties unite in giving testimony tending to show that the transaction was a purchase of the lands by the appellees for the purpose of acquiring the property, and that they made a collateral agreement with Ford that if he, or his assigns, should, within sixty days, deposit in bank to their credit the sum of $5876, they wrould convey the lands to them. It is not necessary to discuss the testimony in detail. There are two points, however, to which we will make reference. Edward Johnstone, one of the appellees, after giving the particulars of the contract, as expressed in the papers, says: “ Upon the purchase of these lands we went into possession of them, and we paid taxes for them, and sold a portion; and I never heard anything of any claim of Mr. Wallace of this being a loan, until I saw it set up in his answer to this case. . . . I never heard from Dr. Ford or Mr. Wallace that he wanted a loan; there was never such a thing as a loan intimated. “ Did you ever hear Mr. Leighton say anything on the subject ? “ I talked frequently to Mr. Leighton and Mr. Davis and Mr. Connable, and I never heard a word said that would intimate that a loan was desired by Mr. Wallace; it was all with reference to the purchase of these lands.” Both Davis and Connable testify to the same effect. Each denies, positively, that a loan was proposed, or a debt incurred, or a mortgage at any time contemplated. These statements are strongly corroborated by the other witnesses, and are not contradicted even by the appellant. -i .; WALLACE v. JOHNSTONE. 63 Opinion of the Court. E. R. Ford, the agent of Wallace, who initiated negotiations between the parties, and who was present at the execution and delivery of the papers, the option contract being made with him, being called as a witness for the appellant, testified: “ That the deed and option contract expressed the whole transaction. ... I didn’t so understand it as a loan.” In response to the question, “In your negotiation you did not understand it in that light as a loan ? ” he answered : “ I did not. From the beginning, in St. Louis I think it was, my own suggestion as to this option of repurchase, knowing that a mortgage or deed of trust would not be accepted for a short loan, as no loan was contemplated, the subject-matter of a loan was left out of the question altogether.” And he proceeds afterwards to state, in reference to his suorgestion to Mr. Wallace, that he should make a sale and take back the contract of repurchase within a stipulated time and for a stipulated price, that it was the only method he thought of, believing, as he did, “ that a sale might be effected, but that a short loan could not be made upon unimproved lands; hence I am quite positive that the subject of loans was not entertained at all.” He also states: “ That the question of interest was never discussed between the parties, and that whatever compensation the purchasers would consider in the matter would be in the nature of a profit of the land in selling.” W. B. Collins, who was the attorney for the appellees, states that the appellant, his agent, Ford, and Leighton, one of the purchasers, frequently met at his office and conversed about the pending negotiations for the sale of the land; that they always spoke of it as a sale and purchase, and that he did not hear at any time of its being a loan. There is but one witness, the appellant Wallace, who testifies that the transaction was a loan. His statements as to any particular fact are singularly indefinite, inconsistent, and unsatisfactory. His testimony consists, largely, of his version of certain conversations and arrangements with Leighton, who died before the commencement of the suit. These arrangements looking to the loan and mortgage he expected, as he alleges, to be carried out by the appellees; but 64 OCTOBER TERM, 1888. Opinion of the Court. he admits, after many indirect answers, that he does not remember any conversations with the appellees, or any one of them, in which the transaction was spoken of by himself, or by them, as a loan, or in which the subject of interest was mentioned between them ; or in his own language, “it is more than likely that I did not have such conversation.” If there was no other testimony in the case than that of the appellant, we do not think the proof sufficient to overcome the effect due to the clear and distinct terms of the written instruments. But it is urged by appellant’s counsel that the disparity between the price paid for the lands and their actual value shows the transaction to be a loan, and not a purchase. The evidence on this subject is at first view contradictory ; some of the witnesses putting a market value per acre of such lands in large lots at the price paid for them by the appellees; others stating their value to be from $2.50 to $3.00 per acre. The real fact, taking all the testimony together, seems to be that those lands, when sold in small areas to actual settlers for the purposes of habitation, would bring the higher prices, whilst in large quantities they could be sold to speculators, for profit, only at the lower prices. Nothing presented by the assignment of errors calls for correction. The legal questions which they raise have been settled beyond doubt or controversy by repeated decisions of this court. A deed of lands, absolute in form with general warranty of title, and an agreement by the vendee to reconvey the property to the vendor or a third person, upon his payment of a fixed sum within a specified time, do not of themselves constitute a mortgage; nor will they be held to operate as a mortgage, unless it is clearly shown, either by parol evidence or by the attendant circumstances, such as the condition and relation of the parties, or gross inadequacy of price, to have been intended by the parties as a security for a loan or an existing debt. Cadman v. Peter, 118 IT. S. 73, 80; Coyle v. Davis, 116 U. 8. 108; Howland v. Blake, 97 IT. S. 624; Horbach v. Hill, 112 IT. S. 144. The fact of such a collateral agreement to reconvey is not inconsistent with the idea of a sale. NOBLE v. HAMMOND. 65 Statement of the Case. When the time fixed for the payment elapsed, Wallace’s right to repurchase became extinct, and appellees held the lands discharged from any claim upon his part. The decree of the court below is Affirmed. NOBLE v. HAMMOND. ERROR TO THE SUPREME COURT OF THE STATE OF VERMONT. No. 101. Argued December 3, 1888. — Decided January 14,1889. A for his own accommodation asked B to collect money for him, without compensation, and to keep it until A called for it. B collected the money, and, without actual fraud or fraudulent intent, deposited the proceeds to his own credit with his own funds. By an unexpected revulsion he was forced into bankruptcy before he had paid it over, and made a composition with his creditors: Held, that the debt thus incurred by B to A was not a debt created by fraud or embezzlement of the bankrupt, or while he was acting in a fiduciary capacity within the exception provided for in Rev. Stat. § 5117. The word “fraud” as used in Rev. Stat. § 5117 means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not merely implied fraud, or fraud in law. The court stated the case as follows: This is an action of general assumpsit originally brought in the county court of Franklin County, Vermont, by the late firm of Hammond & Burt, of which the defendant in error, DeForest Hammond, is the survivor, against the plaintiff in error, Sylvester C. Noble, to recover the sum of $1000 iff money alleged to have been received by him of and from them. The defendant pleaded the general issue, and also gave notice under the statute, as a special defence, of his discharge by composition in bankruptcy, as provided for by the United tates statutes. The case was tried by a jury, resulting in a verdict in favor of plaintiffs for $1149.83, for which, with costs, judgment was rendered. The Supreme Court of the VOL. CXXIX—5 66 OCTOBER TERM, 1888. Statement of the Case. State affirmed this judgment, and the defendant thereupon sued out the writ of error which brings the case here. The material facts in the case are as follows: In October, 1877, the Central Vermont Railroad Company, having its principal office in St. Albans, Vermont, where the plaintiff in error also resided, was indebted to the firm of Hammond & Burt, residents of Franklin, in that State, in about the sum of $3600. It was the custom of that company to pay its debts of the character of this one in instalments, and at its own convenience. Hammond & Burt, having experienced considerable difficulty in collecting prior debts from the company, requested the plaintiff in error, as a matter of accommodation to them, to collect said indebtedness for them, and he consented to do so. In pursuance of this arrangement they called at his office on the 2d of October, 1877, he at the time being out, and left for him an order of which the following is a copy : “St. Albans, Vt., Oct. 2, 1877. “ Central Vermont Railroad will please pay to S. C. Noble or order the whole amount due to us. “ Hammond & Burt.” Immediately after they had left his office the plaintiff in error came in, and, the order being handed to him, he stepped to the door of the office, called to them as they were crossing the street on their way to the depot, and asked them what he should do with the money when collected. They testified that they then told him “ to keep the money until they called for it.” He testified that they told him “ to keep and use the money until they called for it,” or words to that effect. On this order the plaintiff in error collected $1000 from the railroad company — $500 on October 3 and $500 on October 12,1877 — and deposited these sums as collected in bank, to his own credit, as he deposited his own funds. On the 26th of the same month he failed, and on the 6th of November, 1877, on the petition of his creditors, was adjudged a bankrupt. Subsequently, an offer of composition to his creditors was duly accepted and confirmed by a majority of them, but was not accepted by these plaintiffs. NOBLE v. HAMMOND. 67 Opinion of the Court. It appears from the bill of exceptions that “there was no evidence tending to show any actual fraud or any fraudulent intent in the defendant’s mingling the money with his own and using it.” The jury returned a verdict for the defendants in error, under instructions from the court which authorized such a verdict only if the instructions given by the defendant in error to the plaintiff in error were to keep the money until they demanded it. Mr. Guy C. Noble, (with whom was Mr. A. P. Cross and Mr. E. Curtis Smith on the brief,) for plaintiff in error, cited: Chapman v. Forsyth, 2 How. 202; Neal v. Clark, 95 IT. S. 704; Hennequin v. Clews, 111 IT. fe. 676; Hammond v. Noble, 57 Vermont, 193; Johnson v. Worden, 47 Vermont, 457; Darling x. Woodward, 54 Vermont, 101; Woolsey v. Cade, 54 Alabama, 378; McAdoo v. Lummis, 43 Texas, 227; Green v. Chilton, 57 Mississippi, 598; Upshur v. Briscoe, 37 La. Ann. 138; Hennequin v. Clews, 77 N. Y. 427; Phillips v. Russell, 42 Maine, 360; Gibson v. Gorman, 44 N. J. Law, 325 ; Chipley v. Frierson, 18 Florida, 639 ; Pierce v. Shippee, 90 Illinois, 371: PaVmer v. Hussey, 59 N. Y. 647; S. C. 87 N. Y. 303; Stratford v. Jones, 97 N. Y. 586; Hayes v. Nash, 129 Mass. 62; Grover <& Baker v. Clinton, 8 Nat. Bank. Reg. 312; Owsley v. Cobin, 15 Nat. Bank. Reg. 489; Wells v. Lamprey, 16 Nat. Bank. Reg. 205; In re Shafer, 17 Nat. Bank. Reg. 116; In re Rodger, 18 Nat. Bank. Reg. 252; In re Smith, 18 Nat. Bank. Reg. 24. Mr. Henry R. Start, for defendant in error, cited : People v. Hennessey, 15 Wend. 147; Commonwealth v. Foster, 107 Mass. 221; Strang v. Bradner, 114 U. S. 555 ; Mackay v. Dillon, 4 How. 421; Hammond v. Noble, 57 Vermont, 193. Mr. Justice Lamar delivered the opinion of the court. The case presented upon the record, as found by the jury, is that of a produce dealer who, having been requested by parties to collect money for them as an accommodation, and without compensation, and to keep it until they called for it, 68 OCTOBER TERM, 1888. Opinion of the Court. proceeded to make such collection, and, without actual fraud or fraudulent intent, deposited the proceeds to his own credit with his own funds; and who, before he paid it over was, by an unexpected revulsion, forced into bankruptcy, and made a composition with his creditors. The question involved is, whether the debt thus incurred was within the exception provided for in § 5117 Rev. Stat., which is as follows: “No debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy. . . .” The judge on the trial charged the jury that the money under such circumstances was received in a fiduciary character, and that the plaintiffs must recover. The Supreme Court of Vermont affirmed the judgment of that court on the ground that, though the above charge was technically erroneous, it was harmless, because the act of the defendant, in mingling the money with his own and using it, was, in the face of the plaintiffs’ instruction to keep it until they called for it, a wrongful and fraudulent act, a betrayal by the defendant of the trust reposed in him, and, therefore, a fraud ■which created a debt that was not discharged by the defendant’s composition with his creditors under the provisions of the bankrupt law. The effect to be given to the phrases “ while acting in a fiduciary character ” and “ created by the fraud of the bankrupt,” has been considered and fully settled by this court in the following cases: Chapman v. Forsyth, 2 How. 202; Neal n. Clark, 95 U. S. 704;. Wolf v. Stix, 99 U. S. 1; Henneqwin n. Clews, 111 U. S. 676; Strang v. Bradner, 114 IT. 8. 555; and Palmer v. Hussey, 119 IT. S. 96. The class of debts held by the decisions in those cases to be excepted from the operation of bankrupt proceedings has been stated and illustrated with a clearness and fulness, which leaves but little opening for any controversy with regard to the application of the clause under consideration to particular cases. Under the bankrupt act of 1841, which excepted from discharge debts of the bankrupt, created in consequence of & defalcation as a public officer, or as executor, administrator, NOBLE v. HAMMOND. 69 Opinion of the Court. guardian, or trustee, or while acting in any other fiduciary capacity, this court, in Chapman v. Forsyth, held that the cases enumerated in the act are cases not of implied but special trusts; that the phrase, “ in any other fiduciary capacity,” referred, not to those trusts which the law implies from the contract, and which form an element in every agency, and in nearly all the commercial transactions in the country, but to technical trusts; and hence that a factor who had sold the property of his principal, and had failed to pay over to him the proceeds, did not owe to him a debt created in a fiduciary capacity within the meaning of the act. That decision is stated by Mr. Justice Bradley, in the opinion in Hennequin v. Clews, to have been “ not only followed but approved by the highest courts of several of the States.” Under § 5117, which is substantially a re-enactment of the provision of the act of 1841, in this regard, with the single additional provision that “ no debt created by fraud shall be discharged,” etc., this court, on the line of the same reasoning, has construed the word “ fraud,” as used in that section, to mean positive fraud, or fraud in fact — involving moral turpitude or intentional wrong, as does embezzlement, and not implied fraud or fraud in law; and hence it does not apply to a debt created by purchasing in good faith, from an executor, bonds belonging to his decedent’s estate at a discount, although such an act was held to be a constructive fraud. Neal v. Clark, (supra). Nor does it include such fraud as the law implies from the purchase of property from a debtor with intent thereby to hinder and delay creditors in the collection of their debts. Wolf v. Stix, (supra). Nor does it refer to a debt arising from the conversion by a party to his own use of bonds held by him merely as a collateral security for the payment of a debt, or the performance of a duty, and which he fails to restore, after the payment of the debt or performance of the duty, to the person who entrusted them to his keeping. Hennequin n. Clews, (supra). In all these cases the defendant was held to be released by the subsequent discharge in bankruptcy. The decisions of the state courts in a great number and TO OCTOBER TERM, 1888. Syllabus. variety of cases, as shown by the citations in the brief of counsel for plaintiff in error, are in accord with the construction, by this court, of these clauses of the section in question, and have applied it to cases of agents, factors, commission merchants, and bailees, who have failed to account for proceeds of the sale of property committed to them for that purpose or moneys received upon collections entrusted to them. The finding of the jury, that the agreement of the plaintiff in error was to collect the money and keep it until the defendants in error called for it, cannot be taken to imply an obligation to keep and deliver to them the identical bills or coins. • Even if the agreement between the parties might be construed as creating a trust in some sense, it was clearly not such a trust as comes within the provisions of the bankrupt act. Nor can the subsequent mingling, by the plaintiff in error, of the money collected with his own, constitute the actual, positive fraud contemplated by that act, but only such an implied fraud as is involved in most, or all, cases of conversion of property or of breach of contract. The judgment of the Supreme Court of Vermont is in conflict with the principles laid down by the decisions of this court, as well as the general drift of those of the several state courts, and is, therefore, reversed, and The case is remanded to the court below, with an instruction to grant a new trial and to take such further proceedings as ma/y not be inconsistent with this opinion. ANDERSON v. MILLER. APPT AT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE EASTERN DISTRICT OF VIRGINIA. No. 135. Argued December 19,1888. — Decided January 14, 1889. On the proofs the court holds that there has been no infringement of the appellant’s patent by the appellees. ANDERSON v. MILLER. 71 Opinion of the Court. The case is stated in the opinion. JZr. Charles 8. Whitman for appellant. Mr. John 8. Wise for appellees. Mr. Justice Lamar delivered the opinion of the court. This is a suit in equity, brought in the Circuit Court of the United States for the Eastern District of Virginia, by the appellant against the appellees, founded on an alleged infringe-ment by them of letters patent No. 265,733, granted to appellant, October 10, 1882, upon an application filed June 24, 1882, for an improvement in drawers. The alleged infringement consisted in appellees’ placing on drawers manufactured by them a patch extending down the front and lapping the seam of the crotch by at least half an inch, which process of reenforcing the garment, it was alleged, was the invention of the appellant. The bill avers that “ the defendants, Henry T. Miller and William Mitchell, both of the city of Richmond, in the county of Henrico and State of Virginia, and citizens of the said State of Virginia, constituting the firm of Henry T. Miller & Co., doing business at Richmond, in the county, State, and district aforesaid, . . . are now using said patented improvements, or improvements in some parts thereof substantially the same in construction and operation as in the letters patent mentioned, and, in violation of his rights, have made, used and vended within the Eastern District of Virginia . . . large quantities of drawers described and claimed in the letters patent aforesaid,” etc. The answer of the defendants, in their own separate names, with the firm name, precisely as they are stated by the bill, in response to complainant’s interrogatories, admits that they are residents of Richmond, Virginia, and engaged in the business 0 the manufacture and vending of drawers for the clothing trade in that city. The averments of the answer, material to this inquiry, are, OCTOBER TERM, 1888. Opinion of the Court. “ that drawers, as reenforced as described in letters patent of plaintiff, had been made and in public use and on sale by sundry and divers persons for many years prior to plaintiff’s application ; ” that they, the defendants, “ have beemmanufacturing one particular kind, and only one particular kind, of reenforced drawers for more than five years hitherto continuously, a specimen of which drawers, manufactured by them, is filed as ‘ Exhibit A,’ etc., and that these are the only kind of reenforced drawers that have been manufactured by them, or either of them, during the last five years;” and that, “ even if the drawers manufactured by them are either identically or substantially the same as those manufactured by the complainant, he is entitled to no relief whatever against them, because these respondents are prepared to prove that Henry T. Miller & Co. and Henry T. Miller have hitherto continuously for over five years manufactured the identical reenforced drawers filed as ‘Exhibit A,’ and that for over four years prior to the application for said patent they used and sold reenforced drawers of the pattern and design of those now filed as ‘Exhibit A,’ and none other.” The Circuit Court dismissed the bill, and an appeal from that decree of dismissal brings the case here. It is contended by the appellant that the answer of the defendants below did not contain a sufficient notice, under the statute, of the defence of want of novelty and two years’ public use, in that it did not state the names and places of residence of the persons by whom and where it was used. The object of this statutory requirement is, to apprise the plaintiff of the nature of the evidence which he must be ready to meet at the trial. This object is substantially and fully accomplished by the pleadings in this case, and we decline to disturb the action of the court below overruling the motion made at the hearing to strike out the testimony of the witnesses for the defence, who testified to the prior use of the patented article. We do not deem it necessary to consider the question whether the patent of the appellant is for a new and useful invention within the meaning of § 4886 et seq.y Rev. Stat., CAMDEN v. MAYHEW. 73 Statement of the Case. inasmuch as it is the opinion, of this court that there has been no infringement of it in this case by the appellees. It is satisfactorily shown by the evidence in the record that for more than two years prior to the application for the patent in question the appellees had been manufacturing, at their place of business at Richmond, Virginia, garments identical in pattern with those that are now alleged to infringe appellant’s patent. The decree of the Circuit Court is Affirmed. CAMDEN v. MAYHEW. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOB • THE DISTRICT OF WEST VIRGINIA. No. 80. Argued November 14, 15, 1888. — Decided January 14,1889. When the decree of a court of equity, for the sale of a tract of land, requires the sale to be made “ upon the terms, cash in hand upon the day of sale,” and a person bidding for it at the sale is the highest bidder, and as such is duly declared to be the purchaser, no confirmation of the sale by the court is necessary in order to fix liability upon him for the deficiency arising upon a resale, in case he refuses, without cause, to fulfil his contract; and, if the purchaser refuses to pay the amount bid, the court, without confirming the sale, may order the tract to be resold, and that the purchaser shall pay the expenses arising from the non-completion of the purchase, the application and the resale, and also any deficiency in price in the resale. When a purchaser at a sale of real estate, under a decree of a court of equity, refuses, without cause, to make his bid good, he may be compelled to do so by rule or attachment issuing out of the court under whose decree the sale was had; or he may be proceeded against in the same suit by rule, (or in any other mode devised by the court, which will enable him to meet the issue as to his liability,) in order to make him liable for a deficiency resulting from a resale caused by his refusal to make his bid good. The court stated the case as follows *. This is an appeal from a final order in the suit, in the court below, of Mayhew, dec. v. West Virginia Oil and Oil La/nd 74 OCTOBER TERM, 1888. Statement of the Case. Company, &c., requiring the appellant Camden to pay the difference between the amount bid by him for certain real estate offered for sale, at public auction, under the decree in that suit, and the amount the same property brought on a resale had because of his refusal to comply with the terms of his bid. In the order of resale the court reserved, for future determination, the question as to his liability for any deficiency in the amount the property might bring. The history of the proceedings out of which the present appeal arises, so far as it is necessary to be stated, is as follows : By a decree rendered, November 17, 1883, in the above suit, it was adjudged that the West Virginia Oil and Oil Land Company was indebted, in specified amounts, to various creditors, who were entitled to be paid out of the property in question, according to certain priorities, and that upon its failure to pay them, within a prescribed time, the property should be sold at public auction, “ upon the terms cash in hand on the day of sale” The decree shows that William D. Thompson, Richard A. Storrs, and Heman Loomis held debts that were to be first paid, equally and ratably, out of the proceeds of sale. The other debts, made liens upon the property by the decree, were held by James H. Carrington, A. C. Worth, W. H. Beach, the Toledo National Bank, R. S. Blair, Benjamin B. Valentine and Heman Loomis. Before the property was offered for sale, a writing was prepared purporting in its caption to be an “ agreement made this -----day of November, 1883, between J. N. Camden, J. H. Carrington, W. H. Beach, A. C. Worth, Toledo National Bank, R. S. Blair, B. B. Valentine and Heman Loomis.” It provided, among other things, that Camden should purchase the property, when sold under the decree, for the mutual benefit of “ the parties hereto,” if it sold for a sum not exceeding the aggregate amount of the claims against it, including interest and costs ; that if he bought, he should, as agent and trustee of the parties, apply their claims in payment of the purchase money required at the sale, and place on record a declaration of trust showing that the property was held by him in trust CAMDEN v. MAYHEW. 75 Statement of the Case. for the payment of said debts, but that it should belong to him, in fee simple, when he paid them off; the rents, issues, and profits thereof, after deducting necessary expenses, to be applied by the trustee as follows: “ 1. The balance, if any, due to J. N. Camden, assignee of W. D. Thompson, shall be fully paid. 2. Then forty per cent of the proceeds of said property shall be paid to Hernan Loomis and sixty per cent thereof to the said Carrington, Worth, Beach, Toledo National Bank, Blair and Valentine, according to their rights and priorities, as fixed by the said decree, as between the six parties last named, until they and each of them are fully paid. 3. Then sixty per cent of said proceeds shall be paid to said Carrington, so far as to reimburse and indemnify him such sums of money, if any, as he may be held liable for as maker, acceptor, or indorser of two certain bills of exchange, for the payment of which the said West Virginia Oil and Oil Land Company is primarily liable, one of which bills is supposed to be held by Marietta Arnold, of Michigan, and is for the sum of $1500, and the other is held by the National Bank of Commerce in New York, and is for the sum of $2431.39. 4. After the payment of the foregoing amounts the said property shall be held in trust for the payment of any balance due the said Hernan Loomis until the same is fully paid.” This writing was signed by all the parties named in its caption, except «Beach and the Toledo National Bank. It should be here stated that before any sale took place several judgment creditors of the West Virginia Oil and Oil Land Company were allowed to intervene in the cause by petition, each asserting a right to have his demand paid out of the proceeds; some of them claiming priority over any creditor whose debt had been specifically provided for by the decree. On the 1st of May, 1884, the property was offered by commissioners for sale at public auction, and Charles H. Shattuck became the purchaser at the price of $163,000, although he was at the time special receiver of the rents, profits and product arising therefrom. He was personally interested in his id to the extent of about $20,000. Who his associates were is 76 OCTOBER TERM, 1888. Statement of the Case. not disclosed by the record. The sale was duly reported, the commissioners receiving from Shattuck on the day of sale the entire amount bid by him. William P. Thompson and Oliver H. Payne, with William N. Chancellor as their surety, having executed a bond conditioned that if the property was resold they would bid the sum of $173,000, and having deposited the sum of $10,000, as additional security, the court directed a resale, and required the commissioners to return to the purchaser (which they did) the moneys theretofore received from him. The next sale occurred on the 1st day of October, 1884, when Thompson and Payne, by Camden, acting as their agent, bid the sum of $173,000. But Camden bid, in his own name, the sum of $173,050, and, being the highest bidder, was declared the purchaser. In their report of sale the commissioners state: “ The said Camden did not, and has not as yet, paid to your commissioners the sum of money so bid and offered by him for said property as aforesaid,, or any part thereof; but when your commissioners required the cash from said Camden, pursuant to the terms of said sale, he tendered to us a paper purporting to be a copy of a contract in writing made between several of the creditors mentioned in said decree of the 17th of November, 1883, authorizing the said Camden, as the agent or trustee of the said creditors who signed said contract, to purchase the said property at any sale thereof that might be made under said decree, and assigning to him the amounts decreed in favor of each of said several creditors, for the purpose of his using and applying the same in payment of the sums so bid by him for said property. Said copy of the contract, with the paper thereto attached, signed by Hemau Loomis, by B. M. Ambler, his attorney, bearing date September 30, 1884, is herewith filed. Said Camden also exhibited to your commissioners the original of the said contract from which the copy hereto attached was made. Your commissioners declined to receive the said contract in payment, in whole or in part, of the purchase money so bid by said Camden for said property, or to accept anything in payment thereof except lawful and CAMDEN v. MAYHEW- 77 Statement of the Case. current money of the United States, and this the said Camden has not as yet paid.” The “ paper ” here referred to was a letter from Loomis, in which he notified Camden that the latter would be held liable if he did not buy the property pursuant to the terms, and conditions of the writing of November, 1883. On the 6th of October, 1884, Camden filed his petition in said suit, in which he states that it was distinctly agreed by all whose names are mentioned in its caption, that he should, as their agent, purchase the property, and that each of them did, in person, or by their representatives, assent to that contract and its terms. He alleges: “Your petitioner now discovers that the paper was not actually signed by W. H. Beach or by said bank. He believes and charges that both are bound by said agreement, though they did not sign the same; but to avoid any vexatious litigation your petitioner is willing to pay, if required by the court, the full amount of the claims of said Beach and of said bank in cash. Your petitioner prays that, the premises being considered, he may be allowed to apply the claims and debts adjudged by said decree in discharge of his liability for the purchase money; that his compliance with the terms of said contract may be considered and decreed a compliance with the terms of said sale; that the said contract may be received in discharge of his bid ; that the sale be confirmed, and that a deed be made to your petitioner for the said property, and that the court will make such further order or decree, and grant such other and general and further relief m the premises as your honors may deem right, as in equity may be proper.” Exceptions were filed by Carrington, Worth, Beach, the Toledo National Bank, Valentine and Blair to the report of sale; and, on their motion, a rule was awarded against Camden to show cause why he should not pay the sum of $173,050 bid by him for the property, or why the sale should not be set aside, and a resale had at his risk and cost. His petition above referred to was accepted as his answer to that rule. After answers filed by various creditors to Camden’s petition, the court, upon application of Thompson and Payne, made an 78 OCTOBER TERM, 1888. Statement of the Case. order cancelling their bond, and ordering that the ten thousand dollars, deposited in the registry of the court, be returned to them, which was done. Subsequently a motion was made by several creditors to set aside that order as having been improperly procured and made, without notice to them. The exceptions to the report of sale were sustained, the sale set aside, and the commissioners directed to resell the property at the cost of Camden for cash in accordance with the original decree; and “ if the said property shall be sold for a less sum than one hundred and seventy-three thousand and fifty dollars, the said bid of the said Camden, the court reserves for future determination in this cause the question whether the said Camden will be required to pay the deficiency.” The third sale occurred March 17, 1885, and the property then brought only $119,100, Shattuck becoming the purchaser, and paying that amount in cash to the commissioners. To this sale certain creditors filed exceptions on the ground, among others, that the amount bid was grossly inadequate. In addition some of them filed petitions which Camden answered, whereby an issue was made as to the confirmation of the last sale, and as to his liability for the deficiency. Upon these matters the parties took proof. The cause was heard before Chief Justice Waite, when a final order was made June 6, 1885, reciting, among other things, that the court was of opinion that, if the last sale was confirmed, Camden, by virtue of his bid, was liable to pay the difference between the sum of one hundred and seventy-three thousand and fifty dollars and the amount, one hundred and nineteen thousand and one hundred dollars, bid by Shattuck, and all costs rendered necessary by his failure to comply with the terms of sale, and that the last sale to Shattuck should be confirmed, unless either Camden or Thompson and Payne would take the property at the amounts of their respective bids. The record shows that after announcing this opinion the court offered Camden, who was then present, with his counsel, the privilege of taking the property at the sum bid by him, and of having his purchase confirmed, if he would pay in cash the amount bid by him. This offer was refused, Camden CAMDEN v. MAYHEW. 79 Argument for Appellant. declaring in open court that he would not take the property unless the sale was confirmed on the basis of the alleged contract of November, 1883, between him and others. The court then called on him, as the agent of Thompson and Payne, to ¡elect for them whether they would take the property at the sum he had bid for them, and pay the cash therefor; and he thereupon declared that, while he had authority to make the bid originally, he had not authority to make an election for them under the offer now made. An order was, thereupon, May 15, 1885, entered, vacating the order of the 3d day of November, 1884, cancelling the bond of Thompson, Payne, and Chancellor, confirming the last sale to Shattuck, and directing the commissioners, by proper deed, to convey the property to him. It was further decreed that Camden pay into the registry of the court, for the benefit of such of the parties to the suit or other persons as might be entitled thereto, the sum of fifty-three thousand nine hundred and fifty (53,950) dollars, with interest, and the costs rendered necessary by his failure to comply with the terms of his bid in cash. Mayhew v. West Virginia Oil and Oil Land Co., 24 Fed. Rep. 205. This is the decree which is here for review upon Camden’s appeal. Mr. Attorney General (with whom was Mr. J. B. Jackson on the brief) for appellant. I. There can be no liability upon Camden for any deficiency upon a resale of the property, because his bid for the property at the sale made October 1, 1884, was only an offer to take the property at the price bid, should the court receive his bid, and confirm the sale. Kahle v. Mitchell, 9 West Virginia, 517. It is true, a rule was issued against Camden to show cause why he should not pay the amount' of his bid, and further, to show cause why the sale should not be set aside. But it fully appears by the Record that, upon the hearing of the rule, no order or decree was entered accepting his bid. On the contrary, it does appear that the sale so made to him was set aside, and as a consequence thereof his bid was rejected. 80 OCTOBER TERM, 1888. Argument for Appellant. II. It is further submitted that it was error in the court to issue the rule until the court had first confirmed the sale. In Anonymous, .2 Ves. Jr. 335, decided 17th June, 1794, Mr. Richards moved that a person reported best purchaser should complete his purchase and pay in his money on or before the 5th of July. The report had been confirmed wm, and the motion was occasioned by a doubt as to the practice whether a purchaser can be quickened before the report is confirmed absolutely. The Lord Chancellor said he felt a difficulty, because, till confirmation, the purchaser is always liable to have the biddings opened; till that, non-constat, that he is the purchaser. In the case under consideration the court did that which the Lord Chancellor in the case cited said could not be done. It was an endeavor to quicken the purchaser; to compel him to pay his money into court before confirmation. This, we submit, was error. Confirmation is the judicial sanction of the court. Until it takes place the bargain is incomplete, and the sale confers no right. Busey n. liar din, 2 B. Mon. 407; Blair v. Core, 20 West Virginia, 265; Core v. Strickler, 24 West Virginia, 696; Richardson v. Jones, 3 G. & J. 163; 8. C. 22 Am. Dec. 393. The rule that the Master’s report of a purchase must be confirmed before the contract can be considered as binding applies equally to cases in which it is sought to compel a purchaser to complete his purchase, as where it is sought to enforce the contract against the vendor. As a preliminary step, therefore, towards enforcing the completion of the contract, it is necessary to have the report confirmed. 2 Daniell Ch. Pr. (5th Am. Ed.) *1281; Cooper v. Heplyurn et al., 15 Grattan, 566. The bidder, not being considered the purchaser until the report is confirmed, is not liable to any loss by fire or otherwise, which may happen to the estate in the interim; nor is he, until the confirmation of the report, compellable to complete his purchase. 1 Sugden Vendors & Purchasers, bottom pp. 70-71 (7th Am. Ed.); Ex parte Minor, 11 Ves. 559 ; Twigg v. Fifield, 13 Ves. 577. The bid made by the purchaser at the sale must be con- CAMDEN v. MAYHEW. 81 Argument for Appellant. sidered as his offer to the court through its commissioners, and in making it he agrees to be bound thereby if it is accepted and approved by the court; it is discretionary with the court whether it will accept the bid and confirm the sale, or set it aside. starling v. Robrecht, 13 West Va. 440, 474; Long v. Wilier, 29 Grattan, 347, 355. In this proceeding Camden occupies an anomalous and trying position. He is required to pay nearly fifty-four thousand dollars and gets nothing to show for it. He has no title to the property, and has no option to take it, as the title is in another, and yet he must pay this large sum. This is not regular by any means, but it quite reverses the well-recognized rule in orderly and consistent judicial proceedings. It is directly at war with the doctrine as laid down in the somewhat noted case of Williamson v. Berry, 8 How. 495, 545-546, and it ignores the views expressed in Blossom v. Railroad Co., 3 Wall. 196, 207. This court, in Stuart v. Gay, 127 U. S. 518, 527, gives full sanction to the proposition here contended for in citing with approbation authorities sustaining this position. See, also, Campbell v. Gardner, 3 Stock. (11 N. J. Eq.) 423-425; S. C. 69 Am. Dec. 598; Conover v. Walling, 2 McCarter (15 N. J. Eq.) 173. The case from 3 Stockton, with citations, would seem conclusive on the point. After the report of sale by a Master is confirmed there are, according to the English practice, three means of remedying the failure of the purchaser to comply with the terms of sale. 1st. If it appears that the purchase has been made by a person unable to perform his contract, the parties interested in the sale may, upon motion, obtain an order simply discharging him from his purchase, and directing the estate to be resold. 2d. If the purchaser is responsible the court will, if required, make an order that he shall within a given time pay the money into court, and if the purchaser, on being served with the order, fails to obey it, his submission to it may be enforced by attachment. 3d. Or an order will be made for the estate to be resold, and for the purchaser to pay the expenses arising from the non-completion of the purchase and VOL. CXXIX—6 82 OCTOBER TERM, 1888. Opinion of the Court. resale, and any deficiency in price arising under the second sale. Lansdown v. Elderton, 14 Ves. 512; Harding v. Harding, 4 Myln. & Or. 514; Anderson v. Foulke, 2 Har. & Gill, 346; Brasher v. Cortla/ndt, 2 Johns. Ch. 505; 2 Daniell Ch. Pr. vbi supra; Clarkson v. Read, 15 Grattan, 288, 291; Hill n. Hill, 58 Illinois, 239. III. The decree directing the sale gave no day to the purchaser to redeem. It is the invariable rule to give such day in suits by mortgagee against mortgagor to foreclose mortgage. Long v. Weller, 29 Grattan; Clark v. Reyburn, 8 Wall. pp. 318, 322-324. The same rule applies in judicial sales. The contract is treated substantially as a contract between the purchaser, on one side, and the court, as vendor, on the other. For these reasons, the decree appealed from should be reversed. Hr. C. C. Cole and Mr. George Wadsworth for appellee. Mr. W. L. Cole was with them on the brief. Mr. Justice Harlan, after stating the case, delivered the opinion of the court. It is undoubtedly true that Camden’s bid of one hundred and seventy-three thousand and fifty dollars was, in legal effect, only an offer to take property at that price; and that the acceptance or rejection of that offer was within the sound equitable discretion of the court, to be exercised with due regard to the special circumstances of the case and to the stability of judicial sales. Milwaukee Railroad Co. v. Soutter, 5 Wall. 662; Williamson v. Dale, 3 Johns. Ch. 290, 292; Kahle v. Mitchell, 9 West Va. 492, 509; Core v. Strickler, 24 West Va. 689, 696; Busey v. Hardin, 2 B. Mon. 407, 411; Hay’s Appeal, 51 Penn. St. 58, 61; Childress v. Hurt, 2 Swan, 487, 489 ; Duncan v. Dodd, 2 Paige, 99, 100,101. It is further contended that an acceptance of that offer could only have been manifested by an order confirming the sale; and as no such order was in fact made, that Camden could not be held CAMDEN v. MAYHEW. 83 Opinion of the Court. liable for a deficiency arising upon a resale of the property. In support of this position his counsel cite 2 Daniell’s Chancery Practice and Pleading, *1281, Cooper’s 5th Am. ed., in which it is said: “ The rule that the Master’s report of a purchase must be absolutely confirmed before the contract can be considered as binding, applies equally to cases in which it is sought to compel a purchaser to complete his purchase, as where it is sought to enforce the contract against the vendor. As a preliminary step, therefore, towards enforcing the completion of the contract, it is necessary to have the report confirmed.” The present case, however, is not one in which it is sought to compel the purchaser to complete his purchase. It may be that if the court below had determined to hold Camden to his bid for the property, a necessary preliminary step to that end would have been the formal confirmation of the sale, and, perhaps, the tender of a deed, to be followed by an order compelling him to pay the whole amount that he offered. But it was not restricted to that particular mode of securing the rights of the parties for whose benefit the property was sold; for, upon appellant refusing to pay the amount bid, the court, without confirming the sale by a formal order, could have held him to his offer, and ordered a resale in the meantime at his risk, both in respect to the expenses of the resale and any deficiency resulting therefrom. The latter course was approved by Lord Cottenham in Harding v. Harding, 4 Myln. & Cr. 514, and was in accordance with previous decisions. Saunders v. Gray, 4 Myln. & Cr. 515; A. C., Gra/y v. Gray, 1 Bea van, 199; Tanner v. Radford, 4 Myln. & Cr. 519. So in Daniell’s Chancery Pr. & Pl. (vol. 2, *1282): “According, however, to the present practice, a more complete remedy is afforded against the purchaser refusing, without cause, to fulfil his contract; for the plaintiff may obtain an order for the estate to be resold, and for the purchaser to pay as well the expenses arising from the non-completion of the purchase, the application, and the resale, as also any deficiency in price arising upon the second sale.” In view of the terms of the decree of November 17, 1883, there is no ground for the contention that the confirmation of 84 OCTOBER TERM, 1888. Opinion of the Court. the sale to Camden was necessary in order to fix liability on him for the deficiency arising upon the resale. The decree expressly required that the sale should be made “ upon the terms cash in hand on the day of sale; ” thus practically making the payment in cash on the day of sale of the sum bid a condition precedent to the right of the purchaser to demand a confirmation of the sale. The commissioners appointed had no authority to accept from the purchaser anything but cash, nor could they postpone payment of the sum offered beyond the day of sale. They conformed in all respects to the terms of the decree, and Camden bid in his own name, without any previous notice to them that he represented others in so bidding, or that he desired or intended to use the debts of particular creditors in making payment in whole or in part. His application to the court, after the report of sale, that he be permitted to complete his purchase by using the alleged “ contract ” of November, 1883, was properly denied, for several reasons: First, the writing of that date could not become a contract binding upon those signing it until it was executed by all whose names appear in its caption; Second, after the original decree was passed, and before the first sale took place, judgment creditors, for whom the decree made no provision, intervened in the cause, claiming a lien upon the proceeds of any sale that might be made, some of them asserting priority even over the creditors named in the decree; Third, the court was not bound, in deference merely to the wishes of a part of the creditors, to depart from the terms of sale, especially as the creditors whose names appear in the alleged contract of November, 1883, did not, prior to the sale, ask such modification of those terms as would enable them to use their claims in purchasing and paying for the property. But if there was any ground to insist that a confirmation of the sale was necessary before Camden could be made liable for the deficiency resulting from the resale, all difficulty upon that point was removed by the distinct offer made in open court, to confirm the sale to him, upon his complying with the terms thereof, by paying, in cash, the amount of his bid. This offer having been refused, and the court having been thereby in- CAMDEN v. MAYHEW. 85 Opinion of the Court. formed that he did not wish to complete the purchase according to the terms of the decree and of his bid, there was no necessity to go through the form of confirming the sale to him, and then, immediately, ordering a resale, at his risk and cost; but, as we have seen, the court was at liberty, without such formal confirmation, to order a resale, holding him responsible for any deficiency resulting therefrom. The only question that remains to be considered is whether the liability of Camden for the deficiency in the price of the property on the last sale ought to have been ascertained and enforced by an original, independent suit. We are of opinion that the mode adopted in the present case was entirely regular. Where a purchaser refuses, without cause, to make his bid good, he may be compelled to do so by rule or attachment issuing out of the court under whose decree the sale is had. It was so held in Blossom v. Railroad Co., 1 Wall. 655, 656, where it was said that a purchaser or bidder at a Master’s sale in chancery subjects himself quoad hoc to the jurisdiction of the court, and can be compelled to perform his agreement specifically. In Lansdown n. Elderton, 14 Ves. 512, a motion that the person reported to be the best bidder before the Master pay within a given time the purchase money or stand committed, was sustained by Lord Chancellor Eldon, who observed that the purchaser could not be permitted to disobey an order, more than any other person. That case was followed in Brasher n. Va/n, Cortlandt, 2 Johns. Ch. 505, 506, where Chancellor Kent, after observing that the purchaser ought to be compelled to complete the purchase, said : “ If no order of this kind could be made, in this case, it would follow that not only the purchaser, but the committee of the lunatic, would be permitted to baffle the court, and sport with its decree. ... I have no doubt the court may, in its discretion, do it in every case where the previous conditions of the sale have not given the purchaser an alternative.” See also Blossom v. Railroad Co., 3 Wall. 196, 207; Smith v. Arnold, 5 Mason, 414, 420; Requa v. Rea, 2 Paige, 339, 341; Cassamajor v. Strode, 1 Sim. & St. 381; Anderson v. Foulke, 2 Har. & Gill, 346, 362, 373. If, as is 86 OCTOBER TERM, 1888. Syllabus. clear, the purchaser can be required, by rule or attachment, to pay into court the entire sum bid by him and thus complete his purchase, it is difficult to see why a bidder, sought to be made liable for a deficiency resulting from a resale caused by his refusal to make his bid good, may not be proceeded against in the same suit by rule, or in any other mode devised by the court that will enable him to meet the issue as to his liability. That issue in the present case was tried upon pleadings and proof, and there is no pretence that the appellant had not full opportunity to present his defence before the final order now under review was made. It is suggested by the learned counsel for the appellant that his client occupies an anomalous position, being required to pay a very large sum, without getting anything in return therefor. It is only necessary to say that, even if the late Chief Justice was mistaken in supposing that the appellant was directly or indirectly interested in the last purchase by Shattuck, his failure to obtain a conveyance of the property was due entirely to his persistent refusal to comply with the terms of his own bid, made with full knowledge of the terms of sale. Decree affirmed. ARROWSMITH v. GLEASON. APPEAL FROM THE CIRCUIT COURT OE THE UNITED STATES FOK THE NORTHERN DISTRICT OF OHIO. No. 133. Argued December 18,1888. — Decided January 14,1889. Iq the State of Ohio one freehold surety to a guardian’s bond for the faithful discharge of his duties is sufficient, if he has enough property to make the bond required by the statute good. Arrowsmith v. Harmening, 42 Ohio St. 259, followed as to the validity of the sales attacked in these proceedings. A guardian’s bond executed by a surety upon condition that another surety should be obtained is valid against third parties, in a collateral proceeding, although no such surety was obtained. The other conditions of jurisdiction being satisfied, a Circuit Court of the United States has jurisdiction in equity to set aside a sale of an infants ARROWSMITH v. GLEASON. 87 Statement of the Case. lands, fraudulently made by his guardian, under authority derived from a Probate Court, and may give such relief therein as is consistent with equity. The case was stated by the court as follows: This suit involves the title to certain lands inherited by the plaintiff, and sold some years ago by his statutory guardian, the defendant Gleason, under authority conferred by proceedings instituted by him in the Probate Court of Defiance County, in the State of Ohio. The plaintiff attacks the order of sale as invalid, prays that the deeds executed to the purchaser be declared void, that an accounting in respect to rents and profits be had, and that such other relief be granted as may be proper. The court below sustained demurrers to the bill, and dismissed the suit. We arc, therefore, to inquire, upon this appeal, whether the bill discloses a cause of action entitling the appellant to relief in a court of equity. The case made by the bill is substantially as follows: The lands in controversy formerly belonged to John C. Arrow-smith, who died in 1869; his wife, and the plaintiff, his only child and heir-at-law, surviving him. On the 15th of July, 1869, Gleason petitioned said Probate Court to be appointed guardian of the estate of the plaintiff, then but six years of age. He applied to one Henry Hardy, a freeholder, to become surety upon his bond as guardian, in the penalty of $5000, which Hardy did, upon the express agreement that, before the bond was delivered, Gleason would procure another surety of equal responsibility. Gleason filed the bond in the Probate Court, without obtaining the signature of an additional surety. The bond contained no condition except that if Gleason “shall faithfully discharge all his duties as guardian, then the above obligation is to be void; otherwise, to remain in full force.” Upon its being filed, an order was made appointing Gleason guardian of the plaintiff’s estate, and letters of guardianship were issued to him. On the 22d of July, 1869, Gleason filed a petition in the Probate Court of Defiance County, representing that no personal estate of the ward had ever come to his possession or 88 OCTOBER TERM, 1888. Statement of the Case. knowledge, and that there was no such estate dependent upon the settlement of the father’s estate, or upon the execution of any trust; that his ward was the owner of the fee simple of certain tracts of lands in Defiance County, one being section thirty-six in that county, containing 640 acres, less a small strip containing 6T2^ acres used and occupied by the Wabash, St. Louis and Pacific Railroad Company as way-ground, and others, aggregating 400 acres; and, in addition, a tract of about seven acres in Paulding County; that the ward was, also, the owner of the fee simple, by virtue of tax titles, of certain other described tracts of lands in Defiance County, aggregating nearly one thousand acres, all of which, the petition alleged, were wild lands, yielding no income; that he had received no rents whatever from any of the ward’s real estate; that its sale was necessary for the maintenance and education of the ward, who was indebted for boarding and lodging in the sum of $210; that there were no liens upon it, to his knowledge, and that the widow had a dower interest in said lands. The prayer of the petition was that the infant and widow be made defendants; that dower be set off to the latter; that the guardian be ordered to sell the real estate for the purposes above set forth; and that petitioner have such other relief as was proper. The court ordered notice to be served upon the widow and infant of the hearing of the petition on the 10th day of August, 1869. Personal notice was given to the former, and the latter was notified by a written copy being left at the residence of his mother. The widow filed an answer in the Probate Court, waiving a formal assignment of dower by metes and bounds, and asking such sum out of the proceeds of sale, in lieu of dower, as was just and reasonable. On the 10th of August, 1869, the cause was heard, the Probate Court deciding that the real estate named therein should be sold. Thereupon appraisers were appointed to report its fair cash value. On the 17th of August, 1869, the Probate Court, without having taken any bond from the guardian, except the one above referred to, which was conditioned simply for the faithful discharge of his duties, made ARROWSMITH v. GLEASON. 89 Statement of the Case. this order: “ It is, therefore, ordered by the court that the same [the report] be, and it is hereby, approved and confirmed; and the said Edward H. Gleason having upon his appointment as such guardian given bond with reference to the value and sale of the said real estate of his said ward, which bond is now adjudged to be sufficient for the purposes hereof, therefore, the giving of additional bond is hereby dispensed with.” And on the 10th day of November, 1869, the following order of sale was entered in said cause: “ Said guardian is ordered to proceed to sell said lands, or any parcel thereof, at private sale, but at not less than the appraised value thereof, and upon the following terms: One-third cash in hand on the day of sale, one-third in one year, and one-third in two years, with interest, payable annually, and the deferred payments to be secured by mortgage on the premises sold.” Within a few days after this order was made, Gleason reported to the Probate Court that he had sold to John Frederick Harmening, at private sale, and for the sum of 81537.50, “ that being the full amount of the appraised value thereof,” the southeast quarter of said section thirty-six, excluding the small strip occupied by the railway company. The sale was approved, and the guardian directed to make a conveyance to the purchaser, reserving for the widow, in lieu of dower, the sum of $400 out of the proceeds. The bill charges that on the 15th of February, 1873, more than three years after the said order of sale was entered, and without any new or further appraisement of plaintiff’s lands, though their value, as he was informed, had greatly t advanced, and without any additional bond having been executed, Gleason, “for the purpose of getting money into his hands for his own private gain, and without reference to the true interest of his ward,” and “willing to allow the said Harmening to get at a low and under-price the lands ” of the plaintiff, and “though there was no necessity whatever for said sale, as he, the said Gleason, and the said Harmening well knew,” sold to the latter at private sale, for the sum of $872.10, the east half of the southwest quarter of section thirty-six in Defiance County, containing eighty acres, and the 90 OCTOBER TERM, 1888. Statement of the Case. tract of acres in Paulding County; which sale, being reported to the Probate Court, was by it wrongfully approved and a deed directed to be made and was made to the purchaser, the sum of $200 being reserved out of the proceeds, pursuant to the order of the court, for the dower interest of the widow. The plaintiff also alleges that notwithstanding there was no necessity for any further sale or sacrifice of his estate of inheritance, Gleason, on the 4th day of December, 1874, although having in his hands, unexpended, large sums derived from the sale of the above premises, as well as considerable sums received from th£ release of tax titles, all of which was known to Harmening, and without any new appraisement of the plaintiff’s lands, (though they had risen greatly in value,) and without giving an additional bond or obtaining a new order of sale, (“ for the purpose of getting money into his hands for his own private gain, without reference to the true interest of your orator in the premises, and willing that the said Harmening should get the lands bought at a low and under-price, connived and colluded with him, the said Harmening, to sell the said lands hereinafter described in violation of his duties and the trust imposed on him, claiming to act on the said order of sale long since entered in said court, sold, Dec. 4,1874, to Harmening the following described lands, situated in Defiance County aforesaid, viz.: the north half of section thirty-six, in township four north of range three east, and the west half of the same section in the same township and range, containing together four hundred acres, for the sum of six thousand dollars, and reported the sale to the said court on the same day, and the same was, without proper examination, or opportunity for the friends of the said ward, your orator, or his relatives, to examine the same and advise the said court or the said Gleason in the premises, improperly, —illegally confirmed the said sale, and ordered the said guardian to make, execute, and deliver a deed for the same to the said Harmening on his compliance with the terms of sale, and further ordered the said guardian to pay out of the proceeds of said sale the sum of fifteen hundred dollars as and for the dower interest therein held by the said Mary Arrowsmith ”). ARROWSMITH v. GLEASON. 91 Argument for Appellees. The bill further charges that the order authorizing said sales to be made as well as the orders confirming them were illegal; that the sales made by Gleason were in violation of his trust and in fraud of his rights, “ as the said Harmening and the said Gleason well knew; ” that he has never received from said Gleason or from any source, to his knowledge, any of the proceeds of such sales, nor to his knowledge, belief, or information, have any part thereof been applied for his benefit; and that the deeds, placed upon record by Harmening, so cloud his title to said lands that he cannot sell them or otherwise enjoy the beneficial use of them. After averring that he has been a non-resident of Ohio since 1869; that Harmening enjoyed, up to his death, all the rents and profits of said lands; that his heirs at law, who are infants, and defendants herein, are in possession of them, claiming to hold them under said pretended sales and deeds; and that Gleason has been for a long time hopelessly insolvent, so that an action at law against him would be unavailing ; he prayed that a decree be rendered setting aside and vacating the order of sale in the Probate Court, and all proceedings therein affecting his title to the lands, and declaring the same, as well as the deeds executed by his pretended guardian, to be void and of no effect. He also prayed for the additional relief, specific and general, indicated in the beginning of this opinion. Mr. Henry Newbegin and Mr. Benjamin B. Kingsbury for appellant. Mr. Henry B. Harris and Mr. William C. Cochran for appellees. Mr. John P. Ca/meron was with them on the brief. I. The appellant’s title, if he has any, is a legal title, for which he has a plain, adequate and complete remedy at law, — an action for possession, with which, under the laws of Ohio, he may couple an action for mesne profits. Rev. Stat. Ohio, § 5019; McKinney v. McKinney, 8 Ohio St. 423. 92 OCTOBER TERM, 1888. Argument for Appellees. If the proceedings in the Probate Court were such as to divest the legal title of appellant, and vest it in Harmening, he has no remedy, unless the proceedings were void for want of jurisdiction, or unless the orders were obtained by fraud, to which Harmening was a party. If the sales were void for want of jurisdiction, or for fraud in obtaining the orders, the remedy is equally adequate at law. Hipp n. Babin, 19 How. 271; Hiles v. Caldwell, 2 Wall. 35; Blamchard v. Brown, 3 Wall. 245; Grand Chute v. Winegar, 15 Wall. 373; Lewis v. Cocks, 23 Wall. 466 ; Ellis v. Davis, 109 IT. S. 485 ; Killian v. Ebbinghaus, 110 U. S. 568 ; Fussell v. Gregg, 113 IT. S. 550; United States v. Wilson, 118 IT. S. 86; Frost v. Spitley, 121 IT. S. 552. Instead of this complete remedy at law, he seeks inadequate relief in equity. Although he alleges that such order and deeds and entries “ cloud the title ” to the said lands so that he cannot effectually dispose of them, or otherwise make any beneficial use of them, he disclaims any intention to make this a bill to quiet title, for he would be met by the objection that a Court of Equity cannot sustain such a bill, because the complainant, by his own admission, is out of possession. 2 Story’s Eq. Jur. § 859 ; Bispham’s Principles of Equity, § 575; Orton v. Smith, 18 How. 263; Stark v. Starrs, 6 Wall. 402; United States v. Wilson, 118 IT. S. 86; Frost v. Spitley, 121 IT. S. 552 ; Clark v. Hubbard, 8 Ohio, 382; Rhea v. Dick, 34 Ohio St. 420. Section 5779 of Ohio Revised Statutes provides, “That an action may be brought by a person in possession, by himself or tenant of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest.” By necessary implication a person out of possession cannot maintain such an action. II. The Circuit Court of the United States has no power to grant the specific prayer of the bill, and set aside and vacate the orders of the Probate Court of Defiance County, and declare the same to be void and of no effect. Fouvergne v. New Orleans, 18 How. 470; Tarver v. Ta/rver, 9 Pet. 174; ARROWSMITH v. GLEASON. 93 Argument for Appellees. Adams v. Preston, 22 How. 473 ; Case of Brodericks Will, 21 Wall. 503 ; Ellis v. Davis, 109 U. S. 485; Fussell v. Gregg, 113 IT. S. 550 ; Amory v. Amory, 3 Bissell, 266. The cases of Gaines n. Fuentes, 92 IT. S. 10, as limited and explained in Ellis v. Davis, supra, and of Johnson n. Waters, 111 IT. S. 640, are not in conflict with these authorities. We do not deny the right of courts of general jurisdiction to set aside their own judgments and decrees on bills of review, for errors apparent on the record, or original bills in the nature of bills of review for fraud in obtaining the judgments or decrees, where such bills are part of the recognized practice of the courts. Most of the cases cited by counsel for appellant are of this nature, and do not at all support the theory that one court can entertain a bill to set aside the decree of another. Taylor v. Walker, 1 Heiskell, 734: Newcomb v. Dewey, 27 Iowa, 381; Lloyd v. Kirkwood, 112 Illinois, 329 ; Kuchenbeiser v. Beckert, 41 Illinois, 172; Lloyd v. Malone, 23 Illinois, 43 ; Wright v. Killer, 1 Sandf. Ch. .103 ; Reynolds v. McCurry, 100 Illinois, 356; McKeever v. Ball, 71 Indiana, 398 ; Sheldon v. Tiffin, 6 How. 163; Long v. Mulford, 17 Ohio, 484; S. C. 93 Am. Dec. 638; Bank of United States v. Ritchie, 8 Pet. 128. Assuming, for the sake of argument, that the Circuit Court has the right to entertain a bill for setting aside the orders and sales of a Probate Court on the ground of fraud in obtaining such orders, are the allegations of the bill in this case, taken in connection with the record which is annexed to and forms a part of it, sufficient to bring the case within such jurisdiction ? Where there is a discrepancy between the allegations of the bill as to what the record discloses and the record itself, the latter must be taken as conclusive. 1 Daniell’s Ch. Pl. and Pr. (5th ed.), * 546. As to the allegations concerning Hardy’s agreement with Gleason, and his want of knowledge and consent to the filing of his bond without another surety, it is enough to say that the fraud, if there was any, was upon Hardy; that Harmen-ing was in no way connected with it; that the validity of the bond when filed in court was not affected thereby, and 94 ' OCTOBER TERM, 1888. Opinion of the Court. that Hardy could not escape his liability upon it. Bigelow v. Comegys, 5 Ohio St. 256; Dangler v. Baker, 35 Ohio St. 673-677; Elliott v. Stevens, 10 Iowa, 418; Bloom v. Burdick, 1 Hill, 130 ; A. C. 37 Am. Dec. 299; Glezen v. Rood, 2 Met. 490, 492; Dair n. United States, 16 Wall. 1; Keys v. Williamson, 31 Ohio St. 562, 563. It is nowhere alleged in the bill that Hardy is insolvent, or that the money could not be made out of him. There is absolutely nothing in the allegations of the bill, thus far, that points to fraud upon the part of Gleason, Harmening, or the court, in obtaining these orders or rtiaking this sale, and, on the contrary, everything is consistent with the utmost good faith on the part of all concerned. When examined closely, the allegations amount to little more than a charge that said orders, sales, confirmations, etc., were irregular in some respects and, in the opinion of counsel for appellant, erroneous. The necessity for the sales, and the sufficiency of the price were matters of fact which the court must pass upon before confirmation, and unless there is some specific allegation of corrupt action on his part, or fraudulent misrepresentations or concealement on the part of Gleason and Harmening, by which the court was imposed upon and induced to make unjust decisions in ignorance of what he ought to have known, his action must be held as final. United States v. Throckmorton, 98 U. S. 61. If this court should consider that it is its province to examine the proceedings of the Probate Court of Defiance County with a view to determining whether the same were erroneous or not, we submit that in such investigation they would be governed by the rules applicable to a similar proceeding on a bill of review, and would be limited in the investigations to errors of law apparent on the face of the record. Griggs n. Greer, 3 Gilman (Illinois), 2; Whiting n. Bank of the United States, 13 Pet. 6. Mr. Justice Harlan, after stating the case, delivered the opinion of the court. ARROWSMITH v. GLEASON. 95 Opinion of the Court. One of the grounds of demurrer was that the plaintiff had, upon his own showing, a plain, adequate and complete remedy at law, namely, an action of ejectment for the recovery of the lands in controversy. The statutes of Ohio, in force at the time Gleason was appointed guardian, as well as when these lands were sold by him, provides that: “Before any person shall be appointed guardian of the estate of any minor, he . . . shall give bond, with freehold sureties, payable to the State of Ohio, . . . which bond shall be conditioned for the faithful discharge of the duties of said person as such guardian, and shall be approved by the court making such appointment.” Rev. Stat. Ohio, p. 671, Swan & Critchfield, 1860. The same statutes prescribe the mode in which, and the purposes for which, the real estate of a minor may be sold. They give power to the Probate Court, by which the guardian of the person and estate, or of the estate only, was appointed, upon the application by petition of such guardian, to order the sale of the minor’s real estate, whenever necessary for his education or support, or for the payment of his just debts, or for the discharge of any liens on his real estate, or when such estate is suffering unavoidable waste, or a better investment of the value thereof can be made; and, if it is satisfied that his real estate ought to be sold, then three freeholders must be appointed to appraise, under oath, its fair cash value. It is further provided: “ Sec. 27. Upon the appraisement of said real estate being filed, signed by said appraisers, the court shall require such guardian to execute a bond, with sufficient freehold sureties, payable to the State of Ohio, in double the appraised value of such real estate, with condition for the faithful discharge of his duties, and the faithful payment and accounting for of all moneys arising from such sale according to law. “Sec. 28 [as amended by the act of February 15, 1867]. Upon such bond being filed and approved by the court, it shall order the sale of such real estate, . . . Provided, liovo-ever,^ That if it is made to appear to such Probate Court that it will be more for the interest of said ward to sell such real estate at private sale, it may authorize said guardian to sell, 96 OCTOBER TERM, 1888. Opinion of the Court. either in whole or in parcels, and upon such terms of payment as may be prescribed by the court; and in no case shall such real estate be sold at private sale for less than the appraised value thereof.” Rev. Stat. Ohio, 1 Swan & Critch-field (1860), 671, 672, 675 ; §§ 6, 22 to 28 inclusive; 1 S. & 8. 383. It is evident that the bill was framed upon the theory: 1. That the bond given by the guardian at the time of his ap pointment was void, because filed in violation of Gleason’s agreement with Hardy, and because it contained the name of but one surety; 2. The Probate Court was without jurisdiction, and its proceedings were absolutely void, because the guardian did not execute the additional bond required by the two sections last above quoted. If these propositions were sound it might be, as contended, that the plaintiff has a plain, adequate, and complete remedy at law. But we are of opinion that they cannot be sustained. As to the first one, it is clear that the delivery of the bond that Hardy signed, without procuring an additional surety, was a thing of which he, but not the plaintiff, may complain. Besides, the statute, upon any reasonable interpretation, does not require a bond with more than one freehold surety. The words “ with freehold sureties” are not to be taken literally, so as to forbid the acceptance of a guardian’s bond, with one surety, having sufficient property to make it good for the entire amount prescribed by the statute. As to the suggestion that the proceedings in the Probate Court were void, because of its failure, upon the return of the appraisement, to require from the guardian an additional bond conditioned “ for the faithful discharge of his duties, and the faithful payment and accounting for of all moneys arising from such sale according to law,” we are of opinion that it is fully met by the decision of the Supreme Court of Ohio m Arrowsmith v. Ilarmening, 42 Ohio St. 254, 259. That was an action at law by the present appellant against Harmening to recover possession of the real estate now in controversy. The question was there distinctly made by him that the order of sale by the Probate Court was void, by reason of its ARROWSMITH v. GLEASON. 97 Opinion of the Court. neglecting to take this additional bond. Adhering to its prior decision in Mauarr v. Parrish, 26 Ohio St. 636, the court held that, although the order of sale and the confirmation of the sales may have been erroneous, the Probate Court had jurisdiction of the subject matter, and of the parties, and its action, therefore, was not void. It further said that the decision in Mauarr v. Pa/rrish had become a rule of property in Ohio, and could not be disturbed without consequences of a mischievous character. It is thus seen that the question now presented, as to the jurisdiction of the Probate Court to make the order for the sale of the lands now in controversy, and to confirm the several sales reported by the guardian, has been determined adversely to the appellant in an action brought by him against the present appellees. As this construction of the local statute should, under the circumstances stated by the Supreme Court of Ohio, be followed by the Circuit Court, we cannot approve the suggestion that the appellant has an adequate remedy by an action of ejectment for the recovery of these lands. But is the appellant without remedy for the wrong alleged to have been done him ? We think not. If all the substantial averments of his bill are true — and, upon demurrer, they must be so regarded — he makes a case of actual fraud, upon the part of his guardian, in which Harmening to some extent participated, or of which, at the time, he either had knowledge or such notice as put him upon inquiry. According to these averments, there was no necessity whatever for these sales, at least for the sale of the east half of the southwest quarter of section thirty-six, township four north, range three east, in Defiance County, containing eighty acres, or of the smaller tract in Paulding County, or of the four hundred acres in Defiance County that were sold in December, 1874. It is alleged, and by the demurrer it is admitted, that when the last sale was made, Gleason had in his hands unexpended, as Harmening well knew, large sums derived from the previous sales, as well as considerable amounts received from releases of tax titles on lands held by appellant; and yet, by collusion with Harmening, and in order that the latter , might get the VOL. CXXIX—7 98 OCTOBER TERM, 1888. Opinion of the Court. lands for less than their value, he made the sale of the four hundred acres. But it is insisted that the Circuit Court of the United States, sitting in Ohio, is without jurisdiction to make such a decree as is specifically prayed for, namely, a decree setting aside and vacating the orders of the Probate Court of Defiance County. If by this is meant only that the Circuit Court cannot by its orders act directly upon the Probate Court, or that the Circuit Court cannot compel or require the Probate Court to set aside or vacate its own orders, the position of the defendants could not be disputed. But it does not follow that the right of Harmening, in his lifetime, or of his heirs since his death, to hold these lands, as against the plaintiff, cannot be questioned in a court of general equitable jurisdiction upon the ground of fraud. If the case made by the bill is clearly established by proof, it may be assumed that some state court, of superior jurisdiction and equity powers, and having before it all the parties interested, might afford the plaintiff relief of a substantial character. But whether that be so or not, it is difficult to perceive why the Circuit Court is not bound to give relief according to the recognized rules of equity, as administered in the courts of the United States, the plaintiff being a citizen of Nevada, the defendants citizens of Ohio, and the value of the matter in dispute, exclusive of interest and costs, being in excess of the amount required for the original jurisdiction of such courts. A leading case upon this point is Payne v. Hook, 7 Wall. 425, 430. That was a suit, in the Circuit Court of the United States for Missouri, by a citizen of Virginia, against a public administrator, to obtain a distributive share of an estate then under administration in a court of Missouri. It was objected that the complainant, if a citizen of Missouri, could obtain redress only through the local Probate Court, and that she had no better or different rights by reason of being a citizen of Virginia. But this court, observing that the constitutional right of the citizen of one State to sue a citizen of another State in the courts of the United States, instead of resorting to a state tribunal, would be worth nothing, if the court in ARROWSMITH v. GLEASON. 99 Opinion of the Court. which the suit is instituted could not proceed to judgment and afford a suitable measure of redress, said: “ We have repeatedly held, ‘ that the jurisdiction of the courts of the United States, over controversies between citizens of different States, cannot be impaired by the laws of the States which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power? If legal remedies are sometimes modified to suit the changes in the laws of the States and the practice of their courts, it is not so with equitable. The equity jurisdiction conferred on the Federal courts is the same as that the High Court of Chancery in England possesses; is subject to neither limitation or restraint by state legislation, and is uniform throughout the different States of the Union. The Circuit Court of the United States for the District of Missouri, therefore, had jurisdiction to hear and determine this controversy, notwithstanding the peculiar structure of the Missouri probate system, and was bound to exercise it, if the bill, according to the received principles of equity, states a case for equitable relief. The absence of a complete and adequate remedy at law is the only test of equity jurisdiction, and the application of this principle to a particular case must depend on the character of the case as disclosed in the pleadings.” While there are general expressions in some cases apparently asserting a contrary doctrine, the later decisions of this court show that the proper Circuit Court of the United States may, without controlling, supervising, or annulling the proceedings of state courts, give such relief, in a case like the one before us, as is consistent with the principles of equity. As said in Barrow v. Hunton, 99 U. S. 80, 85, the character of the case “ is always open to examination, for the purpose of determining whether, ration# materiae, the courts of the United States are incompetent to take jurisdiction thereof. State rules on the subject cannot deprive them of it.” This whole subject was fully considered in Johnson v. Waters, 111 U. S. 640, 667. That was an original suit in the Circuit Court of the United States for the District of Louisiana. It was brought by a citizen of Kentucky against citizens of OCTOBER TERM, 1888. Opinion of the Court. ■¿¿uisiaqak^Tts main object was to set aside as fraudulent and void ^06mn sales made by a testamentary executor under the orders of a Probate Court in the latter State. It was contended that the plaintiff was concluded by the proceedings in the Probate Court, which was alleged to have exclusive jurisdiction of the subject matter, and that its decision was conclusive against the world, especially against the plaintiff, a party to the proceedings. This court, while conceding that the administration of the estate there in question properly belonged to the Probate Court, and that, in a general sense, the decisions of that court were conclusive and binding, especially upon parties, said: “ But this is not universally true. The most solemn transactions and judgments may, at the instance of the parties, be set aside or rendered inoperative for fraud. The fact of being a party does not estop a person from obtaining in a court of equity relief against fraud. It is generally parties that are the victims of fraud. The Court of Chancery is always open to hear complaints against it, whether committed in pais or in or by means of judicial proceedings. In such cases the court does not act as a court of review, nor does it inquire into any irregularities or error's of proceeding in another court; but it will scrutinize the conduct of the parties, and if it finds that they have been guilty of fraud in obtaining a judgment or decree, it will deprive them of the benefit of it, and of any inequitable advantage which they have derived under it”—citing Story’s Eq. Jur. §§ 1570-1573 ; Kerr on Fraud and Mistake, 352-353; Gaines v. Fuentes, 92 U. S. 10; and Barrow v. Hunton, 99 U. S. 80. So, in Reigal v. Wood, 1 Johns. Ch. 402, 406: “Belief is to be obtained not only against writings, deeds, and the most solemn assurances, but against judgments and decrees, if obtained by fraud and imposition. ’ To the same effect is Bowen n. Eroans, 2 H. L. Cas. 257, 281: “If a case of fraud be established equity will set aside all transactions founded upon it, by whatever machinery they may have been effected, and notwithstanding any contrivances by which it may have been attempted to protect them. It is immaterial, therefore, ' whether such machinery and contrivances consisted of a decree TILLSON v. UNITED STATES. 101 Syllabus. of equity, and a purchase under it, or of a judgment at law, or of other transactions between the actors in the fraud.” See also Colclough v. Bolger, 4 Dow, 54, 64 ;• Barnesly v. Powel, 1 Ves. Sen. 120, 284, 289; Richmond v. Tayleur, 1 P. Wms. 734, 736; Niles v. Anderson, 5 How. ( Miss.) 365, 386. These principles control the present case, which, although involving rights arising under judicial proceedings in another jurisdiction, is an original, independent suit for equitable relief between the parties; such relief being grounded upon a new state of facts, disclosing not only imposition upon a court of justice in procuring from it authority to sell an infant’s lands when there was no necessity therefor, but actual fraud in the exercise, from time to time, of the authority so obtained. As this case is within the equity jurisdiction of the Circuit Court, as defined by the Constitution and laws of the United States, that court may, by its decree, lay hold of the parties, and compel them to do what according to the principles of equity they ought to do, thereby securing and establishing the rights of which the plaintiff is alleged to have been deprived by fraud and collusion. The decree is reversed and the cause remanded, with directions to overrule the demurrers, to require the defendants to answer, and for further proceedings consistent with law. TILLSON v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 227. Submitted December 19,1888. ■—Decided January 14,1889. In a contract by which the owner of a quarry on an island on the coast agrees to furnish and deliver at a public building in the interior the granite required for its construction, at specified prices by the cubic foot, and to furnish all the labor, tools and materials necessary to cut, dress and box the granite at the quarry, the United States, under a stipulation to pay “ the full cost of the said labor, tools and materials, and insurance on the same,” are not bound to pay anything for insurance, unless effected by the other party; nor are they, under a stipulation to 102 OCTOBER TERM, 1888. Opinion of the Court. “ assume the risk of damage to cutting on said stone while being transported to the site of said building,” bound to pay any part of the expense of raising granite sunk by a peril of the sea with its cutting uninjured. The case is stated in the opinion. Halbert E. Paine for appellant. Mr. Assistant Attorney General Howard (with whom was Mr. W. 1. HiU) for appellees. Mr. Justice Gray delivered the opinion of the court. This was a suit to recover money under contracts made in 1873 and 1877 between the supervising architect of the Treasury, in behalf of the United States, and the petitioners. The Court of Claims dismissed the petition. 20 C. Cl. 213. The petitioners appealed, and at the argument in this court have insisted upon two claims only. By the contract of 1873, the petitioners agreed to cut and furnish from their quarry at Hurricane Island in the State of, Maine, and to deliver at St. Louis in the State of Missouri, as much granite as might be required for the construction of a custom-house at St. Louis; the United States agreed to pay them specified prices by the cubic foot for the granite upon its delivery and acceptance at the site of the custom-house; the petitioners agreed “ to furnish all the labor, tools and materials necessary to cut, dress and box at the quarry all the granite aforesaid; ” and the United States agreed to pay them “in lawful money of the United States, the full cost of the said labor, tools and materials, and insurance on the same, -increased by fifteen per centum thereof.” The Court of Claims found as facts that in performance of this contract the petitioners delivered at St. Louis a large quantity of dressed granite, which was transported by sea from Hurricane Island to Baltimore, and thence by railway to St. Louis. It also found the reasonable price and value of marine insurance on the granite from Hurricane Island to Baltimore, as compared with the value of the granite, and TILLSON v. UNITED STATES. 103 Opinion of the Court. • with the cost of cutting it; that no part of such insurance or of fifteen per cent thereon had been paid to the petitioners; and that no insurance on the granite was actually effected or paid for by them. The first claim is based upon the clause in this contract by which the United States agreed to pay to the petitioners “ the full cost of the said labor, tools and materials, and insurance on the same.” The petitioners contend that the insurance thus agreed to be paid for is insurance on the cost of the labor, tools and materials used, that is to say, on that part of the value of the cut granite which was represented by the cost of the labor, tools and materials used in cutting and boxing it. We have not found it necessary to consider whether the words “insurance on the same” mean insurance on the granite, or insurance on the cost of the labor, tools and materials used in cutting and boxing it, or only insurance on the materials so used; because, it being found as a fact that the petitioners never did effect or pay for any insurance whatever, we are clearly of opinion that they are not entitled to recover anything for insurance. The United States have not agreed to obtain insurance, or to become insurers themselves, but only to pay to the petitioners the “ cost of insurance,” which is as much as to say, reasonable premiums of insurance paid by the petitioners. By the terms of the contract, the United States are no more bound to pay for insurance which has not been effected, than for tools or materials which have not been used, or for labor which has not been performed. The second claim arises under the contract of 1877, in which the contract of 1873 was modified; the clause as to insurance omitted; the petitioners agreed to furnish, cut, dress and box and deliver at St. Louis the granite required for the exterior walls of the building; and the United States “assume all risk of damage to cutting on said stone while being transported to the site of said building, provided such damage does not result from the carelessness or negligence of” the petitioners. A vessel laden with granite cut and dressed under this con- 104 OCTOBER TERM, 1888. Statement of the Gasei • tract was sunk at sea by collision, and her cargo was raised by wreckers employed by the master, and was taken to Baltimore in another vessel. The petitioners seek to recover from the United States such a proportion of the expense of raising the cargo as the value of the cutting bore to the whole value of the granite. But the only risk assumed by the United States under this contract wTas of “ damage to cutting on said stone while being transported,” which evidently looks only to injuries to the smooth surface or the sharp edges of the cut granite in the course of transportation, and not to a loss, by a peril of the sea, of th'e granite with its cutting uninjured. Such a loss, as well as any expenses incurred by the petitioners in recovering the granite, fell upon them by virtue of their agreement to deliver the granite at St. Louis. Judgment affirmed. FARNSWORTH v. TERRITORY OF MONTANA. ERROR TO THE SUPREME COURT OF THE TERRITORY OF MONTANA. No. 93. Argued November 23, 1888. — Decided January 14,1889. A writ of error does not lie from this court to the Supreme Court of the Territory of Montana to review a judgment of that court, affirming the judgment of a District Court in that Territory, finding the plaintiff in error guilty of the crime of misdemeanor, and sentencing him to pay a fine. The act of March 3,1885, (23 Stat. 443,) held not to apply to a criminal case. This was a writ of error to the Supreme Court of the Territory of Montana, in a criminal case, brought by George W. Farnsworth, who was proceeded against by an information in the Probate Court in and for Gallatin County, in that Territory, for the crime of misdemeanor, in having, in violation of a statute, as a commercial traveller, offered for sale in that Territory merchandise to be delivered at a future time, without first having obtained a license. He was arrested, and pleaded FARNSWORTH v. MONTANA. 105 Argument for Plaintiff in Error. not guilty, and was tried by the court, no jury having been asked for or demanded. The court found him guilty, and its judgment was that he pay a fine of $50, and costs of the prosecution, $17.70, and stand committed until such fine and costs should be paid. He took an appeal to the District Court for the county of Gallatin, and the case was tried by that court, a jury being expressly waived, and it found him guilty and sentenced him to pay a fine of $50 and all costs of prosecution. He then took an appeal to the Supreme Court of the Territory. That court affirmed the judgment of the District Court, in January, 1885. Territory v. Farnsworth, 5 Montana, 303, 324. To review that judgment the defendant brought the case to this court by a writ of error. Jfr. James Lowndes, for plaintiff in error, argued the case when it was reached on the docket, November 23. Subsequently, on the 15th December, at the request of the court, he filed an additional brief on the subject of jurisdiction, as follows: Congress clearly has constitutional power to give such jurisdiction to the Supreme Court, and the only question is whether it has in fact given it. The following are the statutory provisions regulating the appellate jurisdiction of this court over the judgments and decrees of territorial courts: “The final judgments and decrees of the Supreme Court of any Territory, except the Territory of Washington, in cases where the value of the matter in dispute, exclusive of costs, to be ascertained by .the oath of either party or other competent witnesses, exceeds one thousand dollars, may be reviewed and reversed or affirmed in the Supreme Court, upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a Circuit Court. In the Territory of Washington the value of the matter in dispute must exceed two thousand dollars, exclusive of costs. And any final judgment or decree of the Supreme Court of said Territory in any cause [when] the Constitution or a statute or a treaty of the 106 OCTOBER TERM, 1888. Argument for Plaintiff in Error. United States is brought in question, may be reviewed in like manner.” Rev. Stat. § 702. The last two clauses of this section apply exclusively to the Territory of Washington. Snow n. United States, 118 U. S. 346. By the act of March 3, 1885, 23 Stat. 442, c. 355, it was enacted that: “ Sec. 1. No appeal or writ of error shall hereafter be allowed from any judgment or decree in the Supreme Court of any of the Territories of the United States unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars. “ Sec. 2. The preceding section shall not apply to any case wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, but in all such cases an appeal or writ of error may be brought without regard to the sum or value in dispute.” The larger part of the appellate jurisdiction of this court over the decisions of the territorial courts is derived from the first clause of Rev. Stat. § 702. There is nothing in the language of this clause to restrict its operation to civil cases. In this respect it differs from the 22d section of the Judiciary Act of 1789, and its substitute, Rev. Stat. § 691, giving jurisdiction over the decisions of the Circuit Courts. That jurisdiction is expressly confined to civil actions by the terms of those enactments. In the case of Watts v. The Territory of Washington, 91 U. S. 580, this court decided that the first clause of Rev. Stat. § 702, did not confer jurisdiction in criminal cases. The grounds of the opinion are not stated. The eighth section of the act of 1801, giving the court jurisdiction over the decisions of the courts of the District of Columbia is as broad in its language as Rev. Stat. § 702. In United States v. More, 3 Cranch, 159, it was held that the last-mentioned act did not embrace criminal cases. This construction was rested on the ground that the words “ value of the matter in dispute ” (which were contained in the act of 1801) are appropriate to civil cases. FARNSWORTH v. MONTANA. 107 Argument for Plaintiff in Error. The first clause of Rev. Stat. § 702, was considered in Smith v. Whitney, 116 U. S. 167, and was there held to embrace a writ of error to the final judgment of the Supreme Court of the District of Columbia refusing a writ of prohibition to a court-martial. The latter case establishes the principle that a criminal case is within § 702 if the judgment is attended with pecuniary-loss. It seems, in effect, to overrule United ¡States v. ¡More. But the construction of the first clause of Rev. Stat. § 702, is important only as throwing light on the policy of Congress in regard to the appellate jurisdiction over the decisions of the territorial court. The jurisdiction in the present case is derived from the second clause of the act of 1885. The first clause of the act does not confer jurisdiction, but merely narrows that which had been given by Rev. Stat. § 702. The second clause of the act, on the other hand, contains an affirmative grant of jurisdiction in addition to that given by Rev. Stat. § 702. It may be paraphrased thus: “ Appeals or writs of error may be brought without regard to the sum or value in dispute in cases in which the validity of a treaty or statute of, or authority exercised under, the United States is drawn in question.” Does this enactment embrace criminal cases ? The words of the act are plain, and certainly broad enough to include criminal cases. “In all such cases,” etc., is its language. If the act is to be restricted to civil cases, this must be on some principle of construction by which the natural import of the words is to be narrowed. The reasoning in More v. United States, 3 Cranch, 159, on the construction of the act of 1801, does not apply to the act, because the jurisdiction is given without reference to the value of the matter in dispute. The ground of the restrictive construction given to that act is absent from the act of 1885. Words substantially the same as those of the act of 1885 have received from this court the construction here contended for. 108 OCTOBER TERM, 1888. Argument for Plaintiff in Error. The act of 1867, amending the twenty-fifth section of the Judiciary Act provides: “That a final judgment or decree in any suit in the highest court of a State . . . where is drawn in question the validity of a treaty or a statute of, or an authority exercised under, the United States ... or under . . . any State, may be re-examined,” etc. A writ of error was applied for, under this act, to the judgment of a state court in a criminal case. The court said: “ Neither the act of 1789 nor the act of 1867, which, in some particulars supersedes and replaces the act of 1789, makes any distinction between civil and criminal cases, in respect to the revision of the judgments of state courts by this court; nor are we aware that it has ever been contended that any such distinction exists. Certainly none has been recognized here. No objection, therefore, to the allowance of the writ of error asked for by the petition can arise from the circumstance that the judgment which we are asked to review was rendered in a criminal case.” Twitchell v. Pennsylvania, 7 Wall. 321,324. The language of the act of 1867 cannot, in effect, be distinguished from that of the act of 1885. In Spies v. Illinois, 123 U. S. 131, no question was made of the applicability of the act of 1867 to criminal cases. Nor in Brooks v. Missouri, 124 U. S. 394. The last clause of § 702, Revised Statutes, provides that the final judgment or decree of the Supreme Court of the said Territory (Washington) in any cause (when) the Constitution or a statute or treaty of the United States is brought in question may be reviewed in like manner (i.e., by the Supreme Court). This language is similar to that used in the act of 1885. In the case of Watts v. The Territory of Washington, 91 U. S. 580, this court said: “ This court can only review the final judgments of the Supreme Court of the Territory of Washington in criminal cases when the Constitution or a statute or treaty of the United States is drawn in question. Rev. Stat. § 702.” Appellate jurisdiction without regard to the amount in dispute is given in cases involving constitutional questions in the Circuit Courts, Rev. Stat. § 699; in the District of Columbia, FARNSWORTH v. MONTANA. 109 Opinion of the Court. 23 Stat. 442; in the state courts; and in the territorial courts. It is fairly to be inferred that Congress intended to restrict the appellate jurisdiction, where only questions of municipal law were involved, to civil cases, and to give appellate jurisdiction to cases, both civil and criminal, whenever the Constitution or the national authority were in question. It thus appears that this court has, in several instances, construed words similar to those used in the act of 1885 as including criminal cases. It is submitted, therefore, that the terms of the act of 1885 were intended to embrace criminal cases, and that the present case is within the jurisdiction of the court. No appearance for defendant in error. Mr. Justice Blatchford, after stating the case as above reported, delivered the opinion of the court. It is very clear that this is”a criminal case; and the question arises whether there is any authority for the review by this court of the decision of the Supreme Court of the Territory of Montana, in a criminal case. We have been furnished with a brief on this subject by the counsel for the plaintiff in error; but we are unable to find any statutory authority for the jurisdiction of this court in this case. Section 702 of the Revised Statutes provides as follows: “ The final judgments and decrees of the Supreme Court of any Territory, except the Territory of Washington, in cases where the value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars, may be reviewed and reversed or affirmed in the Supreme Court, upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a Circuit Court. In the Territory of Washington, the value of the matter in dispute must exceed two thousand dollars, exclusive of costs. And any final judgment or decree of the Supreme Court of said Territory in any cause [when] the Constitution or a statute or 110 OCTOBER TERM, 1888. Opinion of the Court. treaty of the United States is brought in question may be reviewed in like manner.” Section 1909 of the Revised Statutes provides, that writs of error and appeals from the final decisions of the Supreme Court of any one of eight named Territories, of which Montana is one, “ shall be allowed to the Supreme Court of the United States, in the same manner and under the same regulations as from the Circuit Courts of the United States, where the value of the property or the amount in controversy, to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars, except that a writ of error or appeal shall be allowed’to the Supreme Court of the United States upon writs of habeas corpus involving the question of personal freedom.” Section 1911 of the Revised Statutes relates exclusively to writs of error and appeals from Washington Territory. Section 709 applies only to a writ of error to review a final judgment or decree in a suit in the highest court of a State. In Snow v. United States, 118 tT. S. 346, these sections, 702, ‘709, 1909, and 1911, were considered in reference to their application to a criminal case from the Territory of Utah, other than a capital case or a case of bigamy or polygamy, writs of error in which were provided for by § 3 of the act of June 23, 1874, 18 Stat. 253 ; and the reasons there given why they did not apply to or cover such a criminal case, show that they do not apply to or cover a criminal case from the Territory of Montana. Reference is made by the plaintiff in error to the case of Watts v. Territory of Washington, 91 U. S. 580, which was a criminal case from the Territory of Washington, in which it did not appear that the Constitution or any statute or treaty of the United States had been brought in question. The jurisdiction of this court in the case was questioned, as not being embraced by the last clause of § 702 of the Revised Statutes, , before quoted. This court dismissed the case for want of , jurisdiction, saying that it could only review the final judgments of the Supreme Court of the Territory of Washington in criminal cases, when the Constitution or a statute or treaty FARNSWORTH v. MONTANA. Ill Opinion of the Court. of the United States was drawn in question. The decision in the case did not uphold the jurisdiction of this court in a criminal case where the Constitution or a statute or treaty of the United States was drawn in question, and the language of the court in that respect was obiter dictum. It is sought, however, to uphold the jurisdiction in this case under the provisions of the act of March 3d, 1885, 23 Stat. 443, which reads as follows: “ No appeal or writ of error shall hereafter be allowed from any judgment or decree in any suit at law or in equity in the Supreme Court of the District of Columbia, or in the Supreme Court of any of the Territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars. “ Sec. 2. That the preceding section shall not apply to any case wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States; but in all such cases an appeal or writ of error may be brought without regard to the sum or.value in dispute.” In Snow v. United States, supra, at p. 351, it was held that the first section of that statute applied solely to judgments or decrees in suits at law or in equity measured by a pecuniary value. But it is contended in the present case, that the operation of such first section is not restricted to civil cases. It is, however, restricted to cases where the matter in dispute is measured by a pecuniary value; and it was said by this court, in Kurtz v. iMxffitt, 115 U. S. 487, 498, that “a jurisdiction, conferred by Congress upon any court of the United States, of suits at law or in equity in which the matter in dispute exceeds the sum or value of a certain number of dollars, includes no case in which the right of neither party is capable of being valued in money.” It was further said in Snow v. United States, supra, at p. 354: “ As to the deprivation of liberty, whether as a punishment for crime or otherwise, it is settled by a long course of decisions, cited and commented on in Kurtz v. Moffitt, ubi supra, that no test of money value can be applied to it to confer jurisdiction.” In the present case, the information was for the commission 112 OCTOBER TERM, 1888. Opinion of the Court. of a crime. The punishment inflicted by the Probate Court was a fine of $50 and $17.70 costs, and a judgment that the defendant stand committed until such fine and costs should be paid. The judgment of the District Court was that the defendant pay a fine of $50 and all costs of prosecution. The Supreme Court affirmed, with costs, the judgment of the District Court. The judgment of the Probate Court was imprisonment until the payment of the fine and costs, and, if the fine covered by the judgment of any one of the courts could be called a “ matter in dispute,” within the first section of the act of 1885, the pecuniary value involved did not exceed $5000. So it is plain that the first section of the act of 1885 does not cover the case. It is claimed, however, that jurisdiction in the present case is derived from the second section of the act of 1885, and that, under that section, jurisdiction exists in a criminal case from the Supreme Court of a Territory, wherein is drawn in question the validity of a treaty or statute of, or authority exercised under, the United States. The view urged is, that, in the present case, there is drawn in question the validity of an authority exercised under the United States, on the ground that the statute of Montana, under which the conviction was had, is invalid, and that, as the legislature of Montana, which enacted it, exists under the authority of the United States, the question of the validity of the statute raises the question of the validity of an authority exercised under the United States. But we do not find it necessary to consider this question, for we are of opinion that the second section of the act of 1885 does not apply to any criminal case. That section contains an exception or limitation carved out of the first section. It declares that the first section “ shall not apply to any case wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and then enacts that, “ in all such cases, an appeal or writ of error may be brought without regard to the sum or value in dispute.” This clearly implies that the cases to which the second section is to apply are to be cases where there is a FARNSWORTH v. MONTANA. 113 Opinion of the Court. pecuniary matter in dispute, and where that pecuniary matter is measurable by some sum or value, and where the case is also one of the kind mentioned in the second section. There is another consideration strengthening these views. The act of 1885 relates to appeals and writs of error from the judgments and decrees of the Supreme Court of the District of Columbia and those of the Supreme Court of any of the Territories of the United States. It was not independent legislation, but its main purpose was merely to increase to over $5000 the jurisdictional amount, which, by §§ 702 and 1911 of the Revised Statutes, was required to be over $2000 for the Territory of Washington; and, by §§ 702 and 1909, over $1000 for every other Territory; and, by § 705, as amended by § 4 of the act of February 25th, 1879, 20 Stat. 321, over $2500 for the District of Columbia. In all these prior statutes — §§ 702, 705, 1909, 1911, and the act of 1879 — it was said that this court was to review the judgments and decrees “in the same manner and under the same regulations” provided as to the final judgments and decrees of a Circuit Court. These prior provisions are not repealed; and no jurisdiction ever existed in this court to review by writ of error or appeal the judgment of a Circuit Court in a criminal case. In Smith v. Whitney, 116 U. S. 167, cited for the plaintiff in error, the jurisdiction of this court was maintained, under the first section of the act of 1885, of an appeal from, and a writ of error to, the Supreme Court of the District of Columbia, in a case where that court, by its judgment, had dismissed a petition for a writ of prohibition to a court-martial, convened to try an officer for an offence punishable by dismissal from the service and the deprivation of a salary which, during the term of his office, would exceed the sum of $5000. *A writ of prohibition is a civil remedy, given in a civil action, as much so as a writ of habeas corpus, which this court has held to be a civil and not a criminal proceeding, even when instituted to arrest a criminal prosecution. Ex parte Tom Tonq, 108 U.S. 556. ' It would have been easy for Congress to confer upon this VOL. CXXIX—8 114 OCTOBER TERM, 1888. Syllabus. court jurisdiction in criminal cases from the Territories, by plain and explicit language; and for the reason that no such jurisdiction exists by statute in the present case, The writ of error is dismissed. DENT v. WEST VIRGINIA. ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA. No. 119, Submitted December 11, 1888. — Decided January 14,1889. The statute of West Virginia (§§ 9 and 15, chapter 93, 1882) which requires every practitioner of medicine in the State to obtain a certificate from the State Board of Health that he is a graduate of a reputable medical college in the school of medicine to which he belongs; or that he has practised medicine in the State continuously for ten years prior to March 8, 1881; or that he has been found upon examination to be qualified to practise medicine in all its departments, and which subjects a person practising without such certificate to prosecution and punishment for a misdemeanor, does not, when enforced against a person who had been a practising physician in the State for a period of five years before 1881, without a diploma of a reputable medical college in the school of medicine to which he belonged, deprive him of his estate or interest in the profession without due process of law. The State, in the exercise of its power to provide for the general welfare of its people, may exact from parties before they can practise medicine a degree of skill and learning in that profession upon which the community employing their services may confidently rely; and, to ascertain whether they have such qualifications, require them to obtain a certificate or license from a Board or other authority competent to judge in that respect. If the qualifications required are appropriate to the profession, and attainable by reasonable study or application, their validity is not subject to Objection because of their stringency or difficulty. Legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates, and is enforceable in the usual modes established in the administration of government with respect to kindred matters; that is, by process or proceedings adapted to the nature of the case, and such is the legislation of West Virginia in question. Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333, examined and shown to differ materially from this case. DENT v. WEST VIRGINIA. 115 Statement of the Case. The court stated the case as follows: This case comes from the Supreme Court of Appeals of West Virginia. It involves the validity of the statute of that State which requires every practitioner of medicine in it to obtain a certificate from the State Board of Health that he is a graduate of a reputable medical college in the school of medicine to which he belongs ; or that he has practised medicine in the State continuously for the period of ten years prior to the eighth day of March, 1881; or that he has been found, upon examination by the Board, to be qualified to practise medicine in all its departments; and makes the practice of, or the attempt by any person to practise, medicine, surgery, or obstetrics in the State without such certificate, unless called from another State to treat a particular case, a misdemeanor punishable by fine or imprisonment, or both, in the discretion of the court. The statute in question is found in §§ 9 and 15 of an act of the State, chapter 93, passed March 15, 1882, amending a chapter of its code concerning the public health. Statutes of 1882, 245, 246, 248. These sections are as follows: “ Sec. 9. The following persons, and no others, shall hereafter be permitted to practise medicine in this State, viz.: “ First. All persons who are graduates of a reputable medical college in the school of medicine to which the person desiring to practise belongs. Every such person shall, if he has not already done so and obtained the certificate hereinafter mentioned, present his diploma to the State Board of Health, or to the two members thereof in his Congressional district, and if the same is found to be genuine, and was issued by such medical college, as is hereinafter mentioned, and the person presenting the same be the graduate named therein, the said Board, or said two members thereof, (as the case may be,) shall issue and deliver to him a certificate to that effect, and such diploma and certificate shall entitle the person named in such diploma to practise medicine in all its departments in this State. Second. All persons who have practised medicine in this State continuously for the period of ten years prior to the 116 ■ OCTOBER TERM, 1888. Statement of the Case. eighth day of March, one thousand eight hundred and eighty-one. Every such person shall make and file with the two members of the State Board of Health in the Congressional district in which he resides, or if he resides out of the State in the district nearest his residence, an affidavit of the number of years he has continuously practised in this State, and if the number of years therein stated be ten or more, the said Board or said two members thereof, shall, unless they ascertain such affidavit to be false, give him a certificate to that fact, and authorizing him to practise medicine in all its departments in this State. “ Third. A person who is not such graduate and who has not so practised in this State for a period of ten years, desiring to practise medicine in this State, shall, if he has not already done so, present himself for examination before the State Board of Health or before the said two members thereof in the Congressional district in which he resides, or, if he resides out of the State, to the said two members of the State Board of Health in the Congressional district nearest his place of residence, who, together with a member of the local board of health, who is a physician (if there be such member of the local board) of the county in which the examination is held, shall examine him as herein provided, and if, upon full examination, they find him qualified to practise medicine in all its departments, they, or a majority of them, shall grant him a certificate to that effect, and thereafter he shall have the right to practise medicine in this State to the same extent as if he had the diploma and certificate hereinbefore mentioned. The members of the State Board of Health in each Congressional district shall, by publication in some newspaper, printed in the county in which their meeting is to be held, or if no such paper is printed therein, in some newspaper of general circulation in such district, give at least twenty-one days’ notice of the time and place at which they will meet for the examination of applicants for permission to practise medicine, which notice shall be published at least once in each week for three successive weeks before the day of such meeting; but this section shall not apply to a physician or surgeon who is called DENT v. WEST VIRGINIA. 117 Statement of the Case. from another State to treat a particular case or to perform a particular surgical operation in this State, and who does not otherwise practise in this State.” “ Sec. 15. If any person shall practise, or attempt to practise, medicine, surgery or obstetrics in this State, without having complied with the provisions of § 9 of this chapter, except as therein provided, he shall be guilty of a misdemeanor, and fined for every such offence not less than fifty nor more than five hundred dollars, or imprisoned in the county jail not less than one month nor more than twelve months, or be punished by both such fine and imprisonment, at the discretion of the court. And if any person shall file, or attempt to file, as his own, the diploma or certificate of another, or shall file, or attempt to file, a false or forged affidavit of his identity, or shall wilfully swear falsely to any question which may be propounded to him on his examination, as herein provided for, or to any affidavit herein required to be made or filed by him, he shall, upon conviction thereof, be confined in the penitentiary not less than one nor more than three years, or imprisoned in the county jail not less than six nor more than twelve months, and fined not less than one hundred nor more than five hundred dollars, at the discretion of the court.” Under this statute the plaintiff in error was indicted in the State Circuit Court of Preston County, West Virginia, for unlawfully engaging in the practice of medicine in that State in June, 1882, without a diploma, certificate, or license therefor as there required, not being a physician or surgeon called from another State to treat a particular case or to perform a particular surgical operation. To this indictment the defendant pleaded not guilty, and a jury having been called, the State by its prosecuting attorney and the defendant by his attorney, agreed upon the following statement of facts, namely: That the defendant was engaged in the practice of medicine in the town of Newburg, Preston County, West Virginia, at the time charged in the indictment, and had been so engaged since the year 1876 continuously to the present time, and has during all said time enjoyed a lucrative practice, 118 OCTOBER TERM, 1888. Argument for Plaintiff in Error. publicly professing to be a physician, prescribing for the sick, and appending to his name the letters M. D.; that he was not then and there a physician and surgeon called from another State to treat a particular case or to perform a particular surgical operation, nor was he then and there a commissioned officer of the United States army and navy and hospital service ; that he has no certificate, as required by § 9, chapter 93, acts of the Legislature of West Virginia, passed March 15, 1882, but has a diploma from the ‘American Medical Eclectic College of Cincinnati, Ohio; ’ that he presented said diploma to the members of the Board of Health, who reside in his Congressional district, and asked for the certificate as required by law, but they, after retaining said diploma for some time, returned it to defendant with their refusal to grant him a certificate asked, because, as they claimed, said college did not come under the word reputable as defined by said Board of Health; that if the defendant had been or should be prevented from practising medicine it would be a great injury to him, as it would deprive him of his only means of supporting himself and family; that at the time of the passage of the act of 1882 he had not been practising medicine ten years, but had only been practising six, as aforesaid, from the year 1876.” These were all the facts in the case. Upon them the jury found the defendant guilty and thereupon he moved an arrest of judgment on the ground that the act of the legislature was unconstitutional and void so far as it interfered with his vested right in relation to the practice of medicine, which motion was overruled, and to the ruling an exception was taken. The court thereupon sentenced the defendant to pay a fine of fifty dollars and the costs of the proceedings. The case being taken on writ of error to the Supreme Court of Appeals of the State the judgment was affirmed, and to review this judgment the case is brought here. J/?. J/. H. Dent for plaintiff in error. Plaintiff insists that this statute by forfeiting his right to continue in the practice of his profession: (1) destroys his DENT v. WEST VIRGINIA. 119 Argument for Plaintiff in Error. vested rights and deprives him of the estate he had acquired in his profession by years of study, practice, diligence and attention: (2) deprives him of the benefit of an established reputation as a practitioner : (3) depreciates, destroys, and hence deprives him of the value of his invested capital in books, medicines and instruments. In Cummings v. State of Missouri, 4 Wall. 277, 320, Judge Field in delivering the opinion of the court says : “ The learned counsel does not use these terms — life, liberty and property — as comprehending every right known to the law. He does not include under property those estates which one may acquire in professions, though they are often the source of the highest emoluments and honors.” And in Ex parte Garland, 4 Wall. 333, 379, the same Justice, speaking for the court, says: “The attorney and counsellor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.” Mr. Blackstone in commenting on the terms life, liberty and property says: “ In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen; liberties more generally talked of than thoroughly understood, and yet highly necessary to be perfectly known and considered by every man of rank and property lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness, on the one hand, or a pusillanimous indifference and criminal submission on the other, and we have seen that these rights consist primarily in the free enjoyment of personal security, personal liberty and of private property. So long as these remain inviolate the subject is perfectly free; for every oppression must act in opposition to one or the other of these rights, having no other object on which it can possibly be employed.” Also, further: 120 OCTOBER TERM, 1888. Argument for Plaintiff in Error. “The third absolute right inherent in every Englishman is that of property, which consists in the free use, enjoyment and disposal of all his acquisitions without any control or diminution save only by the law of the land.” From these authorities the conclusion is inevitable that the terms life, liberty and property, as used in the Constitution, were intended to comprehend every right known to the law, which might in any manner become the object of state oppression, and that a man’s estate in his profession and the right to the enjoyment of his acquired reputation are as certainly included in the meaning of these terms as his lands and chattels. For the State to enact a law forbidding a man the enjoyment of his own house without the consent of an arbitrary board of examiners is no more unjust than to provide that a man shall not enjoy the benefits of an established practice without a like consent. In either case he is deprived of his vested rights and property by a process rather ministerial than judicial and wholly different from that which is meant by due process of law, the judgment of his peers, or the law of the land. His land cannot be taken from him except by the intervention of an impartial jury of his countrymen; his hard-earned reputation and professional practice should not be less secure. It was no crime for him to engage in the practice, and having become established in it, the State ought to have no authority to deprive him of the right to continue in it, except for moral or professional delinquency, ascertained by the verdict of an impartial jury of his peers. In this case the State finds the plaintiff in the full enjoyment of a lucrative practice, the fruits of six years of attention to his profession, with his means invested in necessary medical works, instruments and remedies, forfeits his right to continue in the enjoyment thereof and proceeds to enforce the forfeiture by fine and imprisonment. It is true it is further provided that if the injured man will gain the consent of an arbitrary board, armed with authority to end his professional career, he can resume his forfeited rights. This is a presumption of guilt, and a requirement that DENT v. WEST VIRGINIA. 121 Opinion of the Court. he must prove his innocence before a tribunal authorized to disregard the proof. Mr. Alfred Caldwell, Attorney General of West Virginia, for defendant in error. Mr. Justice Field, after stating the case, delivered the opinion of the court. Whether the indictment upon which the plaintiff in error was tried and found guilty is open to objection for want of sufficient certainty in its averments, is a question which does not appear to have been raised either on the trial or before the. Supreme Court of the State. The presiding justice of the latter court in its opinion states that the counsel for the defendant expressly waived all objections to defects in form or substance of the indictment, and based his claim for a review of the judgment on the ground that the statute of West Virginia is unconstitutional and void. The unconstitutionality asserted consists in its alleged conflict with the clause of the Fourteenth Amendment, which declares that no State shall deprive any person of life, liberty, or property without due process of law; the denial to the defendant of the right to practise his profession without the certificate required constituting the deprivation of his vested right and estate in his profession, which he had previously acquired. It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex and condition. This right may m many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors, and cannot be arbitrarily taken from them, any more 122 OCTOBER TERM, 1888. Opinion of the Court. than their real or personal property can be thus taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society. The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end it has been the practice of different States, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely, their possession being generally ascertained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. The nature and extent of the qualifications required must depend primarily upon the judgment of the State as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty. It is only when they have no relation to such calling or profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation. Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assur- DENT v. WEST VIRGINIA. 123 Opinion of the Court. anee given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society may well induce the State to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified. The same reasons which control in imposing conditions, upon compliance with which the physician is allowed to practise in the first instance, may call for further conditions as new modes of treating disease are discovered, or a more thorough acquaintance is obtained-of the remedial properties of vegetable and mineral substances, or a more accurate knowledge is acquired of the human system and of the agencies by which it is affected. It would not be deemed a matter for serious discussion that a knowledge of the new acquisitions of the profession, as it from time to time advances in its attainments for the relief of the sick and suffering, should be required for continuance in its practice, but for the earnestness with which the plaintiff in error insists that, by being compelled to obtain the certificate required, and prevented from continuing in his practice without it, he is deprived of his right and estate in his profession without due process of law. We perceive nothing in the statute which indicates an intention of the legislature to deprive one of any of his rights. No one has a right to practise medicine without having the necessary qualifications of learning and skill; and the statute only requires that whoever assumes, by offering to the community his services as a physician, that he possesses such learning and skill, shall present evidence of it by a certificate or license from a body designated by the State as competent to judge of his qualifications. As we have said on more than one occasion, it may be difficult, if not impossible, to give to the terms “ due process of law ” a definition which will embrace every permissible exertion of power affecting private rights and exclude such as are forbidden. They come to us from the law of England, from which country our jurisprudence is to a great extent derived, and their requirement was there designed to secure the subject against the arbitrary action of the crown and place him under the protection of the law. They were deemed to be 124 OCTOBER TERM, 1888. Opinion of the Court. equivalent to “the law of the land.” In this country, the requirement is intended to have a similar effect against legislative power, that is, to secure the citizen against any arbitrary deprivation of his rights, whether relating to his life, his liberty, or his property. Legislation must necessarily vary with the different objects upon which it is designed to operate. It is sufficient, for the purposes of this case, to say that legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates, and is enforceable in the usual modes established in the administration of government with respect to kindred matters: that is, by process or proceedings adapted to the nature of the case. The great purpose of the requirement is to exclude everything that is arbitrary and capricious in legislation affecting the rights of the citizen. As said by this court in Pick Wo v. Hopkins, speaking by Mr. Justice Matthews: “When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.” 118 U. S. 356, 369: See, also, Pennoyer v. Neff, 95 U. S. 714, 733; Da/cidson v. New Orleans, 96 U. S. 97, 104, 107; Hurtado v. California, 110 U. S. 516 ; Missouri Pacific Railway Co. v. Humes, 115 IT. 8. 512, 519. There is nothing of an arbitrary character in the provisions of the statute in question; it applies to all physicians, except those who may be called for a special case from another State; it imposes no conditions which cannot be readily met; and it is made enforceable in the mode usual in kindred matters, that is, by regular proceedings adapted to the case. It authorizes an examination of the applicant by the Board of Health as to his qualifications when he has no evidence of them in the diploma of a reputable medical college in the school of medicine to which he belongs, or has not practised in the State a designated period before March, 1881. If»111 the proceedings under the statute, there should be any unfair DENT v. WEST VIRGINIA. 125 Opinion of the Court. or unjust action on the part of the Board in refusing him a certificate, we doubt not that a remedy would be found in the courts of the State. But no such imputation can be made, for the plaintiff in error did not submit himself to the examination of the Board after it had decided that the diploma he presented was insufficient. The cases of Cummings v. The State of Missouri, 4 Wall. 277, and of Ex parte Garland, 4 Wall. 333, upon which much reliance is placed, do not, in our judgment support the contention of the plaintiff in error. In the first of these cases it appeared that the constitution of Missouri, adopted in 1865, prescribed an oath to be taken by persons holding certain offices and trusts and following certain pursuits within its limits. They were required to deny that they had done certain things, or had manifested by act or word certain desires or sympathies. The oath which they were to take embraced thirty distinct affirmations respecting their past conduct, extending even to their words, desires and sympathies. Every person unable to take this oath was declared incapable of holding in the State “ any office of honor, trust, or profit under its authority, or of being an officer, councilman, director, trustee, or other manager of any corporation, public or private,” then existing or thereafter established by its authority; or “ of acting as a professor or teacher in any educational institution, or in any common or other school, or of holding any real estate or other property in trust for the use of any church, religious society, or congregation.” And every person holding, at the time the constitution took effect, any of the offices, trusts, or positions mentioned, was required, within sixty days thereafter, to take the oath, and if he failed to comply with this requirement it was declared that his office, trust, or position should, ipso facto, become vacant. No person after the expiration of the sixty days was allowed, without taking the oath, “ to practise as an attorney or counsellor at law,” nor after that period could “any person be competent as a bishop, priest, deacon, minister, elder, or other clergyman of any religious persuasion, sect, or denomination to teach or preach, or solemnize marriages.” Fine and im- 126 OCTOBER TERM, 1888. Opinion of the Court. prisonmen t were prescribed as a punishment for holding or exercising any of the “ offices, positions, trusts, professions, or functions ” specified, without taking the oath, and false swearing or affirmation in taking it was declared to be perjury punishable by imprisonment in the penitentiary. A priest of the Roman Catholic Church was indicted in a Circuit Court of Missouri, and convicted of the crime of teaching and preaching as a priest and minister of that religious denomination, without having first taken the oath, and was sentenced to pay a fine of five hundred dollars, and to be committed to jail until the same was paid. On appeal to the Supreme Court of the State the judgment was affirmed, and the case was brought on error to this court. As many of the acts from which the parties were obliged to purge themselves by the oath had no relation to their fitness for the pursuits and professions designated, the court held that the oath was not required as a means of ascertaining whether the parties were qualified for those pursuits and professions, but was exacted because it was thought that the acts deserved punishment, and that for many of them there was no way of inflicting punishment except by depriving the parties of their offices and trusts. A large portion of the people of Missouri were unable to take the oath, and as to them the court held that the requirements of its constitution amounted to a legislative deprivation of their rights. Many of the acts which parties were bound to deny that they had ever done were innocent at the time they were committed, and the deprivation of a right to continue in their offices if the oath were not taken was held to be a penalty for a past act, which was violative of the constitution. The doctrine of this case was affirmed in Pierce v. Carskadon, 16 Wall. 234. In the second case mentioned, that of Ex parte Garland, it appeared that, on the 2d of July, 1862, Congress had passed an act prescribing an oath to be taken by every person elected or appointed to any office of honor or profit under the United States, either in the civil, military, or naval departments of the government, except the President, before entering upon the duties of his office, and before being entitled to his DENT v. WEST VIRGINIA. 127 Opinion of the Court. salary or other emoluments. On the 24th of January, 1865, Congress, by a supplemental act, extended its provisions so as to embrace attorneys and counsellors of the courts of the United States. This latter act, among other things, provided that after its passage no person should be admitted as an attorney and counsellor to the bar of the Supreme Court, and, after the 4th of March, 1865, to the bar of any Circuit or District Court of the United States, or of the Court of Claims, or be allowed to appear and be heard by virtue of any previous admission, until he had taken and subscribed the oath prescribed by the act of July 2, 1862. The oath related to past acts, and its object was to exclude from practice in the courts parties who were unable to affirm that they had not done the acts specified; and, as it could not be taken by large classes of persons, it was held to operate against them as a legislative decree of perpetual exclusion. Mr. Garland had been admitted to the bar of the Supreme Court of the United States previous to the passage of the act. He was a citizen of Arkansas, and when that State passed an ordinance of secession which purported to withdraw her from the Union, and by another ordinance attached herself to the so-called Confederate States, he followed the State and was one of her Representatives, first in the lower House and afterwards in the Senate of the Congress of the Confederacy, and was a member of that Senate at the time of the surrender of the Confederate forces to the armies of the United States. Subsequently, in 1865, he received from the President of the United States a full pardon for all offences committed by his participation, direct or implied, in the rebellion. He produced this pardon and asked permission to continue as an attorney and counsellor of this court without taking the oath required by the act of January 24, 1865, and the rule of the court which had adopted the clause requiring its administration in conformity with the act of Congress. The court held that the law in exacting the oath as to his past conduct as a condition of his continuing in the practice of his profession, imposed a penalty for a past act, and in that respect was subject to the same objection as that made to the clauses of the constitution of Missouri, and was therefore invalid. 128 OCTOBER TERM, 1888. Syllabus. There is nothing in these decisions which supports the positions for which the plaintiff in error contends. They only determine, that one who is in the enjoyment of a right to preach and teach the Christian religion as a priest of a regular church, and one who has been admitted to practise the profession of the law, cannot be deprived of the right to continue in the exercise of their respective professions by the exaction from them of an oath as to their past conduct, respecting matters which have no connection with such professions. Between this doctrine and that for which the plaintiff in error contends there is no analogy or resemblance. The constitution of Missouri and the act of Congress in question in those cases were designed to deprive parties of their right to continue in their professions for past acts or past expressions of desires and sympathies, many of which had no bearing upon their fitness to continue in their professions. The law of West Virginia was intended to secure such skill and learning in the profession of medicine that the community might trust with confidence those receiving a license under authority of the State. Judgment affirmed. INMAN v. SOUTH CAROLINA RAILWAY COMPANY. ERROR TO THE CIRCUIT COURT OE THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA. No. 86. Argued November 15,16, 1888. — Decided January 14,1889. A railway company received cotton for transportation as a common carrier giving the owner a bill of lading received and accepted by him which contained a “ stipulation and agreement ” that the carrier “ should have the benefit of any insurance which may have been effected upon or on account of said cotton.” While in the carrier’s custody the cotton was destroyed by fire. The owner had open policies against loss by fire which covered this loss. These policies all provided for the transfer of the owner’s claim against the carrier to the insurer on payment of the loss, and some of them contained further provisions forfeiting the insurance in case any agreement was made by the insured whereby the insurer’s right to recover of the carrier was released or lost. In case of loss INMAN v. SOUTH CAROLINA RAILWAY CO. 129 Statement of the Case. • these open policies were to be kept good for their full amount by the insured paying to the insurers four per cent of the insured loss, on receiving the amount of it from the insurer. In the present case, instead of making these mutual payments, the insurers adjusted the loss and reinstated the policies, charging the four per cent premium, and the parties agreed that the owner should proceed against the carrier without prejudicing his claim against the insurers, and that the insurers should allow him interest on the claim until collected. The owner brought suit against the carrier. Negligence on the carrier’s part, although denied in the pleadings, was not contested at the trial, but the defence rested on the failure to give the carrier the benefit of insurance. Held : (1) That as the defendant’s right to the benefit of the insurance depended upon the maintenance of the plaintiff’s cause of action, it could not be set up in denial of the truth of the complaint. (2) That it could not be set up as a counterclaim, because no unconditional payment of insurance had been made to the plaintiff. (3) That as recovery could not be had against the insurers except upon condition of resort over against the carrier, any act to defeat which was to operate to cancel the insurers’ liability, the policies could not be made available for the benefit of the carrier. (4) That the agreement made with the insurers subsequent to the loss did not amount to a payment. (5) That the insurers were entitled under their contract to require the insured to proceed first against the carrier, and to decline to indemnify him until the question and the measure of the carrier’s liability were determined. William H. Inman, John H. Inman, James Swann, Bernard S. Clark and Robert W. Inman, copartners in business under the firm name of Inman, Swann & Company,, brought suit against the South Carolina Railway Company, in the Circuit Court of the United States for the District of South Carolina, on the 18th of July, 1884, to recover damages for the loss of two hundred and forty-eight bales of cotton, (out of 809 bales,) which the defendant, as a common carrier, had received at Columbia, South Carolina, to. be safely carried for certain freight money to Charleston in that State, and there delivered to a connecting carrier to be transported to New York, and which, the plaintiffs averred, the defendant did not safely carry and deliver, but which were, while in the defendant’s possession, custody and control as a common carrier, “ by the carelessness and negligence of the defendant, its officers, agents and servants, destroyed by fire.” VOL. CXXIX—9 130 OCTOBER TERM, 1888. Statement of the Case. In its answer the defendant admitted the shipment, names of shippers, place of shipment and number of bales shipped; and averred “ that at the date of the receipt and shipment of said cotton, bills of lading were given therefor, in which were stated the conditions, stipulations and agreements upon which said cotton should be carried by the railroad company receiving it, and by the connecting roads, which bills of lading and the conditions, stipulations and agreements thereof, were received and accepted by the plaintiffs, and constitute the contract between them and the defendant; ” that the cotton was received “subject to the conditions, stipulations and agreements of said bills of lading,” and that the two hundred and forty-eight bales were destroyed by fire; but denied, as a first defence, the allegations in respect to negligence; and, as a second defence, stated “that among other stipulations and agreements in said bills of lading under which said cotton so destroyed by fire was carried is the following, to wit: ‘ And it is further stipulated and agreed that in case of any loss or damage done to or sustained by any cotton herein receipted for during transportation, whereby any legal liability may be incurred by the terms of this contract, that the company alone shall be held responsible therefor in whose actual custody the cotton may be at the time of the happening of such loss or damage, and the company incurring such liability shall have the benefit of any insurance which may have been effected upon or on account of said cotton; ’ that the plaintiffs had fully insured said cotton so destroyed by fire, in solvent companies, from risks, among which fire was one, and that at the time of the occurrence of said fire said cotton was fully covered by insurance; but that this defendant has not had the benefit of such insurance; nor have the plaintiffs given or offered to give it the benefit of such insurance.” The bill of exceptions states that the plaintiffs, to maintain the issue on their part, examined Bernard S. Clark, (one of the plaintiffs,) who proved the delivery of the cotton to the Greenville and Columbia Railroad, to be carried to the plaintiffs at New York, the receipt of the cotton by the defendant as a connecting carrier, its destruction by fire at Charleston, INMAN v. SOUTH CAROLINA RAILWAY CO. 131 Statement of the Case. on the 29th day of October, a.d. 1883, while in the custody of the defendant, awaiting delivery to the next connecting carrier, and that the value of the cotton, less freight, was $10,717.21; that the form of the bills of lading given to the agent of the plaintiffs by the Greenville and Columbia Railroad Company, the first carrier, was as set out, and contained the clause above quoted. Upon examination by defendant, the witness testified that plaintiffs had open policies of insurance in the Phoenix, Mechanics’ and Traders’ and Greenwich Insurance Companies, but had not received any money for the loss occasioned by the burning of the cotton in question; that the insurance companies had signed certain memoranda which witness produced ; that witness instructed Mr. Gallagher, an insurance adjuster at Charleston, to bring suit if defendant did not pay; that witness did not know that Gallagher represented the above-named insurance companies, but he had said there would be no expense to plaintiffs; that “ by our policies, in case of loss, we have to pay four per cent on that loss, to keep our policy good for twenty thousand dollars all the time. My object is to get this money from the railroad companies and save this four per cent; and $150 average comes in there, and in case I don’t get it from them to fall back on my insurers — the insurance companies — and make them pay it. That is the exact reason, and if I don’t get it from them the idea is that I will fall back on the insurance company.” On re-direct examination the witness testified that the plaintiffs were the owners of the cotton, and did not authorize their agent to take bill of lading with insurance clause, but plaintiffs had received the balance of the cotton and settled for the freight on it under the same bill of lading; that the agent “ had authority to take bills of lading for the cotton, but had to accept what the company would give him or no bill of lading.” The policy issued to plaintiffs by the Mechanics’ and Traders’ Insurance Company on cotton burned bears date 7th September, 1883, and contains the following provisions : “ It is also agreed and understood, that, in case of loss or damage under this policy, the assured, in accepting payment 132 OCTOBER TERM, 1888. Statement of the Case. therefor, hereby and by that act assigns and transfers to the said insurance company all his or their right to claim for loss or damage as against the carrier or other person or persons, to inure to their benefit, however, to the extent only of the amount of the loss or damage and attendant expenses of recovery paid or incurred by the said insurance company ; and any act of the insured waiving or transferring or tending to defeat or decrease any such claim against the carrier or such other person or persons, whether before or after the insurance was made under this policy, shall be a cancellation of the liability of the said insurance company for or on account of the risk insured for which loss is claimed. ... In event of loss the assured agrees to subrogate to the insurers all their claims against the transporters of said cotton, not exceeding the amount paid by said insurers.” Similar provisions are contained in the policy issued by the Greenwich Company to the plaintiffs on cotton destroyed. The policy issued by the Phoenix Insurance Company on said cotton contained the following provision: “ In case of any agreement or act, past or future, by the insured* whereby any right of recovery of the insured against any persons or corporations is released or lost, which would, on acceptance of abandonment or payment of loss by this company, belong to this company but for such agreement or act, or, in case this insurance is made for the benefit of any carrier or bailee of the property insured other than the person named as insured, the company shall not be bound to pay any loss, but its right to retain or recover the premium shall not be affected; ” also tho further provision “ that in event of loss the insured agrees to subrogate to the insurers all their claims against the transporters of said cotton, not exceeding the amount paid by said insurers.” The memoranda referred to as signed by the insurance companies on the dates named are as follows: “New York, Nov. 17, 1883. “ To Inman, Swann & Co.: “ In accordance with the provision of this policy the estimated loss sustained by this company of $3667 in consequence INMAN v. SOUTH CAROLINA RAILWAY CO. 133 Statement of the Case. of fire at Charleston, S. C., abotlt Oct. 29th, ’83, is hereby reinstated and $114.90 additional premium is charged by this company therefor, it being fully understood and agreed that when the above loss is finally adjusted the amount reinstated and the premium charged shall be made correct. “ Attached to this policy, 21,773.” “New York, Dec. lstf, 1883. “ It is hereby understood and agreed by the undersigned companies insuring Messrs. Inman, Swann & Co., that proofs of loss by fire at Charleston, S. C., of Oct. 29th, 1883, presented this day, are to be considered as filed on November 17th, as all papers and vouchers to prove such loss were forwarded by Messrs. Inman, Swann & Co., with their consent, to the South Carolina R. R. Co. to collect loss from them as common carriers, which, however, is not to prejudice Messrs. Inman, Swann & Co.’s claim against the undersigned insurance companies.” “New York, Jan. 18^4, 1884. “ The undersigned companies having been notified by Messrs. Inman, Swann & Co. of loss by fire at Charleston, S. C., on or about Oct. 29th, ’83, and proofs of loss having been presented to the South Carolina R. R. Co. direct, on Nov. 17th, ’83, with consent of said insurance companies, which, however, it was agreed upon should not prejudice the assurer’s claim against them, the claims having been agreed upon as filed with insurance companies on said Nov. 17th, in case the railroad should refuse to pay, and the claim being due on Jan. 17th, 1884, Messrs. Inman, Swann & Co. will still use every effort to collect the claim direct, and the undersigned insurance companies hereby agree to pay them (six) 6 per cent interest from January 17th, ’84, to the time when claim is collected. This agreement, however, is not to prejudice their claim against the undersigned insurance companies.” It was conceded upon the argument that the bills of lading were dated October 18th, October 24th, October 25th and ctober 27th, 1883, and were signed for the Columbia and 134 OCTOBER TERM, 1888. Statement of the Case. Greenville Railroad Company and the companies constituting the through line, of which defendant was one, “separately but not jointly ; ” and that the policies of insurance were dated August 29th, September 6th and September 7th, 1883, and expired August 29th, 1884, and contained these clauses: “The total amount of each and every loss, less $150 to be deducted in lieu of average, shall be paid within thirty days after receipt of proofs of loss; ” and “ that, in the event of loss, the assured agree to pay the insurers additional premium or premiums at the rate of four per cent on the amount of such loss or losses, and this policy is thereby to be reinstated and in force to the full amount of $20,000, unless either party desire the cancel-ment of same.” At the request of the defendant and subject to plaintiffs’ exceptions the court gave to the jury the following instructions : “ First. That the bill or bills of lading under which the cotton of plaintiffs in this case was transported by the defendant constituted the contract of the parties, and the plaintiffs are bound by the stipulation that the defendant company ‘shall have the benefit of any insurance that may have been effected upon or on account of said cotton.’ “Second. That the plaintiffs, before they can recover against defendant here, must show that they have performed their part of this contract by proving that they have given to the South Carolina Railway Company the benefit of the insurance, or that they have been ready to perform their contract by tendering such benefit, and that the same has been refused. Third. That if the jury find that an agreement was made between plaintiffs and their insurers by which the insurers waived proofs of loss and admitted the claim of plaintiffs to be due by them on the 1st of January, 1884, and plaintiffs agreed to give time upon said claim to the insurers and meantime to press the claim for the cotton against the South Carolina Railway Company, defendant, in consideration of the payment to plaintiffs by their insurers of 6 per cent interest per annum on said admitted claim from 1st January, 1884, then plaintiffs cannot recover, and verdict must be for defendant.” INMAN v. SOUTH CAROLINA RAILWAY CO. 135 Statement of the Case. The plaintiffs requested the following instructions, which the court refused, and plaintiffs excepted. “ First. That the stipulations in the bills of lading giving the defendant the benefit of insurance effected by the plaintiffs is unreasonable, contrary to public policy, and the duties and obligations imposed by law upon carriers, and therefore void. “ Second. That if the stipulation in the bills of lading under which the cotton of the plaintiffs was to be transported by the defendant giving to the carrier the benefit of insurance, is valid, then such stipulation only entitles the defendant to such insurance upon payment by it of plaintiffs’ loss, unless the plaintiffs have already been paid by the insurer. “ Third. That if the stipulation in the bills of lading under which plaintiffs’ cotton was to be transported by the defendant giving to the carrier the benefit of plaintiffs’ insurance is valid, then such stipulation only entitles the defendant to such insurance as it is in the hands of the plaintiffs, and if the policy is void or unproductive this is no defence, and the plaintiffs are entitled to recover in this action. “ Fourth. That if the stipulation in the bills of lading under which plaintiffs’ cotton was to be transported by the defendant giving the carrier benefit of insurance effected by plaintiffs is valid, then no legal obligation arose therefrom that the plaintiffs should effect valid insurance, and if such insurance is invalid this is no defence to plaintiffs’ action. “ Fifth. That as the plaintiffs, under the stipulation in the bills of lading giving the carrier benefit of the insurance, may or may not have insured as they please, the defendant takes such insurance, if effected, subject to all infirmities, and the same constitutes no defence to plaintiffs’ action. “ Sixth. That the carrier does not lose his character as carrier by reason of a stipulation giving him the benefit of insurance by the shipper or owner, and that as carrier he is primarily liable for loss or damage, if not arising from causes exempted by law or his contract, and if the defendant desires the benefit of plaintiffs’ insurance it must first pay the loss sustained by them. 136 OCTOBER TERM, 1888. Argument for Defendant in Error. “ Seventh. That the defendants, under the bills of lading in question, are not exempt from loss by fire, as such exemption, under said bills of lading, only applies to the carrier by water.” George A. Black for plaintiffs in error. Mr. William Allen Butler and Mr. Theodore G. Barker for defendant in error. I. In South Carolina, the State, as it happens, in which the contract in this case was made, and where, so far as defendant was concerned, it was to be performed, it has been always held, that the bill of lading, given by a railroad company to a shipper, constitutes the contract between the parties, and recently thus: “ The bill of lading is the contract between the shipper and the company, by which the company agrees to transport and deliver beyond its own lines and the terms and conditions of the contract regulate and determine the duties and obligations of the contracting parties. The signature of the shipper is not necessary to establish his assent to the terms of a bill of lading.” Piedmont Manufacturing Co. v. Columbia and Greenville Railroad Co., 19 So. Car. 353. In New York it is held that, “ On contract for through transportation exemptions inure to connecting carriers although not so expressly provided.” Manhattan Oil Co. v. Camden and Amboy Railroad and Transportation Co., 54 N. Y. 197. “ The acceptance of the carrier’s receipt creates a contract according to its terms between him and the shipper.” Hutchinson on Carriers, 240; Bank of Kentucky v. Adams Express Co., 93 U. S. 174. II. The consideration of the contract, upon which the liability of defendant to pay in case of loss of the cotton by fire depended, was the giving by plaintiffs to the defendant the benefit of the insurance, which had been effected upon, or oi. account of the cotton shipped. It is a case of a “ promise for a promise ” “ or of mutual promises, where the plaintiffs’ promise is executed, but the thing they had agreed to perform was executory.” “ If fl16 INMAN v. SOUTH CAROLINA RAILWAY CO. 137 Argument for Defendant in Error. consideration be executory, the plaintiff cannot bring his action till the consideration be performed.” 1 Tidd Pr. 435. Here the plaintiffs had promised, that “ in case of any loss or damage done to or sustained by any cotton whereby any legal liability may be incurred by the terms of the contract, the company incurring such liability shall have the benefit of any insurance, which may have been effected upon or on ac jount of the said cotton.” By the terms of the contract, then, the defendant company incurred such “legal liability” the moment when the loss occurred to the cotton. According to the plaintiffs’ promise, defendant then became, eo instanti, entitled to have from the plaintiffs the benefit of the insurance, which had been effected. The plaintiffs were, then, under the executed promise to give to defendant the benefit of such insurance, and the thing to be done—the giving the benefit— was executory; and according to the established principle of law above stated, the plaintiffs cannot bring their action till the consideration be performed. See also Pordage v. Cole, 1 Wms. Saunders, 319. This is what the French law calls “ a commutative contract, involving mutual and reciprocal obligations, where the acts to be done on one side form the consideration for those to be done on the other,” and “it would seem to follow,” says Judge Story, “ upon principles of natural justice, that, if they are to be done, at the same time, neither party could claim a fulfilment thereof, unless he had first performed, or was ready to perform, all the acts required on his own part.” Hyde v. Booraem, 16 Pet. 169. III. The stipulations in the bills of lading giving the defendant the benefit of insurance effected by the plaintiffs are “ not unreasonable, contrary to public policy and the duties and obligations imposed by law upon carriers, and therefore void,” as is claimed in plaintiffs’ first exception. These exceptions to the like stipulations, in similar bills of admg to those proven in this case, were met and answered, m the recent decision of this court in Phoenix Insurance Company v. Erie Transportation Company, 117 U. S. 312. IV. The plaintiffs have, by their own proof, shown that 138 OCTOBER TERM, 1888. Opinion of the Court. they have been virtually paid, or have been so absolutely secured to be paid, by the insurance companies as actually to occupy the position of lenders of the insurance money to their insurers, upon an investment, bearing six per cent interest, from the date, when the insurance money was, in an account stated in writing, acknowledged to be due and promised to be paid, unconditionally, by the insurance companies to the plaintiffs. The only condition of the agreement of settlement is, that the plaintiffs shall sue the carrier, and use every effort to collect the claim from the defendant. This, however, it is stipulated between them, is not to prejudice the plaintiffs’ claim against the insurance companies. They are, therefore, estopped from saying that they have not been, in effect, paid by the insurers. The stipulation of the bills of lading that the defendant (carrier) shall have the benefit of that insurance, in the language of the decision of this court, above quoted, “ does prevent either the owner himself ” (the plaintiffs here) “ or the insurer from maintaining an action against the carrier upon any terms inconsistent with the stipulation.” V. Even if the policy could be shown to be void or unproductive the plaintiffs are not entitled to pronounce judgment to that effect upon it. The courts alone, upon an issue legally framed between proper parties, could so declare; until such judgment, it must be presumed to be valid and productive. But, by the proof in this case, these plaintiffs are absolutely estopped from saying, that these policies, which the insurers, since the loss, have recognized as valid, under which they have accepted proofs of loss, and have agreed to pay the loss, are void. So, by the same proof, they are conclusively estopped from saying that they are unproductive. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. The defendant, a corporation of South Carolina, received the cotton in question for safe carriage from the point of connection with the Columbia and Greenville Railroad Company to Charleston, S. C., and delivery to the steamship company at INMAN v. SOUTH CAROLINA RAILWAY CO. 139 Opinion of the Court. that port. The loss occurred by fire, in Charleston, before the obligation was discharged, and this is an action as on the case, based on defendant’s breach of duty, as a common carrier, in failing to safely carry and deliver. To secure care, diligence and fidelity in the discharge of his important public functions, the common law charged the common carrier as an insurer; but the rigor of the rule has been relaxed so as to allow reasonable limitations upon responsibility at all events, to be imposed by contract. We have, however, uniformly held, that this concession to changed conditions of business cannot be extended so far as to permit the carrier to exempt himself, by a contract with the owner of the goods, from liability for his own negligence. And as in case of loss the presumption is against the carrier, and no attempt was made here to rebut that presumption, the defendant’s liability because in fault must be assumed upon the evidence before us. The cause went to judgment, however, in favor of the defendant upon its second defence, which was sustained by the rulings of the Circuit Court brought under review upon this writ of error.. That defence set up the clause in the bills of lading providing that “ the company incurring such liability shall have the benefit of any insurance which may have been effected upon or on account of said cotton; ” and it was averred that the plaintiffs had fully insured the cotton against the risk of fire, but that defendant had not had the benefit of such insurance, nor had the plaintiffs given or offered to give to it such benefit. If this bill of lading had contained a provision that the railroad company would not be liable unless the owners should insure for its benefit, such provision could not be sustained; for that would be to allow the carrier to decline the discharge of its duties and obligations as such, unless furnished with indemnity against the consequences of failure in such discharge. Refusal by the owners to enter into a contract so worded would furnish no defence to an action to compel the company to carry, and submission to such a requisition would be presumed to be the result of duress of circumstances, and not 140 OCTOBER TERM, 1888. Opinion of the Court. binding. But the clause in question bears no such construction, and obviously cannot be relied on as in itself absolving the company from liability, for by its terms the benefit of insurance was only to be had when a legal liability had been incurred, and in favor of “the company incurring such liability.” Since the right to the benefit of insurance at all depended upon the maintenance of plaintiffs’, cause of action, the fact of not receiving such benefit could not be put forward in denial of the truth or validity of their complaint. If, on the other hand, the contention of the defendant may be regarded as in the nature of a counterclaim by way of recoupment or set-off, then the question arises as to the extent of the stipulation, assuming it to be otherwise valid, and what would amount to a breach of it. By its terms the plaintiffs were not compelled to insure for the benefit of the railroad company ; but if they had insurance at the time of the loss, which they -could make available to the carrier, or which, before bringing suit against the company, they had collected, without condition, then, if tney had wrongfully refused to allow the carrier the benefit of the insurance, such a counterclaim might be sustained, but otherwise not. The policies here were all taken out some weeks before the shipments Were made, although, of course, they did not attach until then, and recovery upon neither of them could have been had, except upon condition of resort over against the carrier, any act of the owners to defeat which operated to cancel the liability of the insurers. They could not, therefore, be made available for the benefit of the carrier. Nor have the insurance companies paid the owners. It is true that after the loss had been incurred, the companies signed certain memoranda, by which the face of the insurance was reinstated, proofs of loss waived, and provision made for postponing the question of indemnity until the owners, if the carrier refused to pay, had used effort to collect, without prejudice to the owners’ claims against the insurance companies. But this falls far short of the equivalent of payment, and, indeed, under the terms of these policies, payment itself would have been subject to such conditions as the companies chose to impose. Although in STOUTENBURGH v. HENNICK. 141 Syllabus. the order of ultimate liability, that of the carrier is in legal effect primary and that of the insurer secondary, yet the insured can, in the absence of provisions otherwise controlling the subject, insist upon proceeding, under his contract, first, against the party secondarily liable, and when he does so is bound in conscience to give to the latter the benefit of the remedy against the party principal; but these insurers could, under their contracts, require the owners to pursue the carrier in the first instance and decline to indemnify them until the question and the measure of the latter’s liability were determined. This they did, and to their action in that regard the defendant is not so situated as to be entitled to object. In our judgment the second defence, in any aspect in which it may be considered upon this record, cannot be maintained, and it follows that the action of the Circuit Court was erroneous. The judgment will he reversed, and the cause rema/nded, with directions to the Circuit Court to awa/rd a new t/rial. STOUTENBURGH v. HENNICK. ERROR TO THE SUPREME OOURT OE THE DISTRICT OF COLUMBIA. No. 722. Submitted December 18, 1888. — Decided January 14,1889. Under the authority conferred upon Congress by § 8, Article I, of the Constitution, “ to make all laws which shall be necessary or proper for carrying into execution ” the power “to exercise exclusive legislation in all cases whatsoever over” the District of Columbia, Congress may constitute the District “ a body corporate for municipal purposes,” but can only authorize it to exercise municipal powers. he Act of the Legislative Assembly of the District of Columbia of August 23, 1871, as amended June 20, 1872, relating to license taxes on persons engaging in trade, business or profession within the District, was intended to be a regulation of a purely municipal character; but nevertheless the provision in clause 3, of § 21, which required commercial agents, engaged in offering merchandise for sale by sample, to take out and pay for such a license, is a regulation of interstate commerce, so far as applicable to persons soliciting the sale of goods on behalf of individuals or rms doing business outside of the District, and it was not within the 142 OCTOBER TERM, 1888. Statement of the Case. constitutional power of Congress to delegate to that legislature authority to enact a clause with such a provision, nor did it in fact do so in a grant of power for municipal purposes. Robbins v. Shelby County Taxing District, 120 U. S. 489, and Asher v. Terns, 128 U. S. 129, affirmed. The repeal or modification by Congress of clauses in a legislative act of the District of Columbia, which are separable and separably operative, is no ratification of another clause in it, equally separable and separably operative, which it was beyond the delegated or constitutional power of the Legislature of the District to enact. Hennick, the defendant in error, was convicted in the Police Court of the District of Columbia, upon an information stating that he, in April, 1887, “did engage in the business of a commercial agent, to wit, the business of offering for sale, as agent of Lyons, Conklin & Co., a firm doing business in the city of Baltimore, State of Maryland, certain goods, wares, and merchandise by sample, catalogue, and otherwise, without having first obtained a license to do so, contrary to and in violation of an act of the late Legislative Assembly of the District of Columbia, entitled ‘ An act imposing a license on trades, business, and professions practised or carried on in the District of Columbia,’ and providing for the enforcement and collection of fines and penalties for carrying on business in the said District without license, approved August 23, a.d. 1871, and the amendments to the said act, approved June 20, a.d. 1872,” and sentenced “ to pay a fine of five dollars, in addition to the license tax of two hundred dollars, and in default to be committed to the workhouse for the term of sixty days,” and being in default was so committed. He applied to one of the Justices of the Supreme Court of the District for, and obtained, a writ of habeas corpus, which was certified to be heard in the first instance in the general term of that court, and, upon hearing, it was held “ that the law for the violation of which the petitioner is held is not a valid law,” and his discharge from custody was ordered accordingly; whereupon this writ of error was sued out. The act in question was passed by the then Legislative Assembly of the District, August 23, 1871, and amended June 20, 1872 (Laws District Columbia, Acts First Session, p. 87; STOUTENBURGH v. HENNICK. 143 Statement of the Case. Acts Second Session, p. 60), and by its first section it was provided : “ That no person shall be engaged in any trade, business, or profession hereinafter mentioned, until he shall have obtained a license therefor as hereinafter provided.” Then followed twenty-three sections of which the twenty-first is subdivided into forty-eight clauses. Clause 3 was so amended as to read : “ Commercial agents shall pay two hundred dollars annually. Every person whose business it is, as agent, to offer for sale goods, wares or merchandise by sample, catalogue or otherwise, shall be regarded as a commercial agent.” Section 4 of the act is in these words, “ That every person liable for license tax, who, failing to pay the same within thirty days after the same has become due and payable, for such neglect shall, in addition to the license tax imposed, pay a fine or penalty of not less than five nor more than fifty dollars, and a like fine or penalty for every subsequent offence.” And then follows a proviso not material here. A part of the act was repealed by Congress, February 17, 1873, 17 Stat. 464 ; the 23d section and clauses 20 and 35 of the 21st section, and clause 16 of the 21st section as amended, were repealed and modified July 12, 1876, 19 Stat. 88, as were also, on January 26,1887, parts of clause 38 of § 21 as amended, and of § 15. Sections 1 and 18 of the act of Congress of February 21, 1871, entitled “ An act to provide a government for the District of Columbia,” 16 Stat. 419, are as follows : “Sec. 1. That all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by thé name of the District of Columbia, by which name it is hereby constituted a body corporate for municipal purposes, and may contract and be contracted with, sue and be sued, plead and be impleaded, have a seal, and exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act.” ‘Sec. 18. That the legislative power of the District shall 144 OCTOBER TERM, 1888. Argument for Plaintiff in Error. extend to all rightful subjects of legislation within said District, consistent with the Constitution of the United States and the provisions of this act, subject, nevertheless, to all the restrictions and limitations imposed upon States by the tenth section of the first article of the Constitution of the United States ; but all acts of the legislative assembly shall at all times be subject to repeal or modification by the Congress of the United States, and nothing herein shall be construed to deprive Congress of the power of legislation over said District in as ample manner as if this law had not been enacted.” These sections are carried forward into the act of Congress of June 22, 1874, entitled “An act to revise and consolidate the statutes of the United States, general and permanent in their nature, relating to the District of Columbia, in force on the first day of December, in the year of our Lord one thousand eight hundred and seventy-three,” as sections 2, 49 and 50. J/r. Henry E. Davis for plaintiff in error. I. The power of the Legislative Assembly, which emanated from Congress, extended “to all rightful subjects of legislation within the District consistent with the Constitution of the United States . . . subject to all the restrictions and limitations imposed upon States by the tenth section of the first article of the Constitution of the United States,” and, all acts of the Assembly were “ subject to repeal or modification by the Congress of the United States.” Rev. Stat. Dist. Col. §§ 49, 50. The extent of the power thus conferred upon the Legislative Assembly was considered by the Supreme Court of the District of Columbia in Roach v. Van Riswick, McArthur & Mackay, 171 ; Cooper V. District of Columbia, McArthur & Mackay, 250 ; and District of Columbia v. Waggaman, 4 Mackay, 328 ; and in the last-mentioned case the very license act under consideration was held as within the power; and in District of Columbia v. Oyster, 4 Mackay, 285, the act was administered by the same court without any question or expression of doubt as to its being properly within the STOUTENBURGH v. HENNICK. 145 Argument for Plaintiff in Error. power granted and properly grantable by Congress to the Assembly. The effect of this is that this legislation, being that of a duly authorized agent of Congress, is that of Congress itself. And even if that were not so, Congress has adopted it in the several acts of February 17, 1873, c. 148, 17 Stat. 464; July 12, 1876, c. 180, § 19, 19 Stat. 83; and January 26,1887, c. 48, 24 Stat. 368; in part amending and in part repealing the act of the Assembly, whereby, by the clearest implication, the rest of the act is adopted. II. The question raised by the petition is supposed to find support in Art. 1, § 8, of the Constitution of the United States, clauses 1 and 3, and in § 9 of the same article, clause 6. As to the first of these provisions, it is enough to say that the license tax in question is not a duty, an impost, or an excise, and is not, therefore, within that provision requiring uniformity throughout the United States. As to the last, the license law for the District of Columbia gives no preference to the ports of any State, or even of the District, over those of any other State, and it is not easily conceived how that clause can be thought to have any relevancy to the subject in hand. A question seems, however, to be presented by the remaining of the three clauses above enumerated, viz., whether, as a regulation of commerce, the license law for the District is invalid, as obnoxious to the Constitution of the United States. a. Whether the law regulates -commerce, in the sense of the Constitution, is immaterial. Whether it does so regulate commerce may be determined by the following cases: Robbins v. Shelby Taxing District, 120 U. S. 489; Corson v. Maryland, 120 U. S. 502; Fargo v. Michiga/n, 121 U. S. 230; Ouachita Packet Co. v. Aiken, 121 U. S. 444; Philadelphia dec. Steamship Co. v. P ennsyVca/nia, 122 U. S. 326 ; Western Union Telegraph Co. v. Pendleton, 122 U. S. 347; Bowman v. Chicago dec. Railway Co., 125 U. S. 465; Ratterman v. Western Union Telegraph Co., 127 U. S. 411; Leloup v. Port of Mobile, 127 U. 8. 640. h. In any event it is certain that, as above pointed out, the law is, in effect, an enactment of Congress. VOL. CXXIX—io 146 OCTOBER TERM, 1888. Argument for Plaintiff in Error. c. The question, then, becomes : has Congress power under the Constitution to pass such a law ? As to the extent of its power to legislate over the District of Columbia, it is sufficient to refer to Chief Justice Marshall’s opinion in Loughborough^. Blake, 5 Wheat. 317, 324 ; and, touching the power to regulate commerce, to what is said in Gibbons v. Ogden, 9 Wheat. 1, 196,197. What limitations then exist on the power of Congress in regulating commerce ? Seemingly none, except those distinctly prescribed by the Constitution, none of which apply to this case. And this legislation both emanated from Congress, and has been adopted by it, and has the same validity as if its provisions had been specifically made by it. d. The recent decisions of the Supreme Court of the United States in Bobbins v. Taxing District, etc., ubi supra, in reality do not affect the question under consideration. In those cases it was held only that given laws of the States concerned were invalid, as dealing with the subject of commerce, which, by the Constitution, was committed to Congress. The power of Congress, its extent and its limitations in the premises, were not under consideration. e. The petitioner has no right to complain of the District license law. He is not a member of a foreign nation or an Indian tribe, and the law does not affect commerce “ among the several States.” The District of Columbia is not a State, in the meaning of the Constitution. Hepburn v. Ellzey, 2 Cranch, 445 ; New Orleans v. Winter, 1 Wheat. 91 ; Scott v. Jones, 5 How. 342, 377 ; Barney v. Baltimore, 6 Wall. 280, 287 ; Bailroad Co.v-Harris, 12 Wall. 65, 86. And in respect of regulating commerce there is in the Constitution no prohibition upon either Congress or any State to discriminate for or against the District, as between it and such or any State. “The sole restraints” against abuse in this respect are those mentioned by Chief Justice Marshall in Gibbons v. Ogden • and disregard of those restraints can only be reached by counter-legislation ; they cannot be affected by any action of the judiciary. STOUTENBURGH v. HENNICK. 147 Opinion of the Court. J/r. Francis M. Darby, Mr. Skipwith Wilmer, Mr. John Henry Keene, Jr., Mr. Archibald Stirling, Mr. Henry Wise Garnett, and Mr. Guion Miller for defendant in error. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court: It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities, and general affairs by the central authority, and hence, while the rule is also fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self-government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject of course to the interposition of the superior in cases of necessity. Congress has express power “ to exercise exclusive legislation in all cases whatsoever ” over the District of Columbia, thus possessing the combined powers of a general and of a State government in all cases where legislation is possible. But as the repository of the legislative power of the United States, Congress in creating the District of Columbia “ a body corporate for municipal purposes ” could only authorize it to exercise municipal powers, and this is all that Congress attempted to do. The act of the Legislative Assembly under which Hennick was convicted, imposed, as stated in its title, “a license on trades, business, and professions practiced or carried on in the District of Columbia,” and required by clause three of section twenty-one, among other persons in trade, commercial agents, whose business it was to offer merchandise for sale by sample, to take out and pay for such license. This provision was manifestly regarded as a regulation of a purely municipal character, as is perfectly obvious, upon the principle of noscitnr a sociis, if the clause be taken as it should be, in connection with the other clauses and parts of the act. But 148 OCTOBER TERM, 1888. Opinion of the Court. it is indistinguishable from that held void in Robbins v. Shelby Taxing District, 120 U. S. 489, and Asher v. Texas, 128 U. S. 129, as being a regulation of interstate commerce, so far as applicable to persons soliciting, as Hennick was, the sale of goods on behalf of individuals or firms doing- business outside o o the District. The conclusions announced in the case of Robbins were that the power granted to Congress to regulate commerce is necessarily exclusive whenever the subjects of it are national or admit only of one uniform system or plan of regulation throughout the country, and in such case the failure of Congress to make express regulations is equivalent to indicating its will that the subject shall be left free; that in the matter of interstate commerce the United States are but one country, and are and must be subject to one system of regulations, and not to a multitude of systems; and that a State statute requiring persons soliciting the sale of goods on behalf of individuals or firms doing business in another State to pay license fees for permission to do so, is, in the absence of congressional action, a regulation of commerce in violation of the Constitution. The business referred to is thus definitively assigned to that class of subjects which calls for uniform rules and national legislation, and is excluded from that class which can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively. Cooley v. Board of Wardens, 12 How. 299; Gilman v. Philadelphia,?» Wall. 713. It falls, therefore, within the domain of the great, distinct, substantive power to regulate commerce, the exercise of which cannot be treated as a mere matter of local concern, and committed to those immediately interested in the affairs of a particular locality. It is forcibly argued that it is beyond the power of Congress to pass a law of the character in question solely for the District of Columbia, because whenever Congress acts upon the subject, the regulations it establishes must constitute a system applicable to the whole country; but the disposition of this case calls for no expression of opinion upon that point. STOUTENBURGH v. HENNICK. 149 Dissenting Opinion: Miller, J. In our judgment Congress, for the reasons given, could not have delegated the power to enact the 3d clause of the 21st section of the act of assembly, construed to include business agents such as Hennick, and there is nothing in this record to justify the assumption, that it endeavored to do so, for the powers granted to the District were municipal merely, and although by several acts, Congress repealed or modified parts of this particular by-law, these parts were separably operative and such as were within the scope of municipal action, so that this congressional legislation cannot be resorted to as ratifying the objectionable clause, irrespective of the inability to ratify that which could not originally have been authorized. The judgment of the Supreme Court of the District is Affirmed. Mr. Justice Miller dissenting. I do not find myself able to agree with the court in its judgment in this case. The act of Congress creating a territorial government for the District of Columbia declared that the legislative power of the District should “ extend to all rightful subjects of legislation within said District; ” which undoubtedly was intended to authorize the District to exercise the usual municipal powers. The act of the Legislative Assembly of the District, under which Hennick was convicted, imposed “ a license on trades, business, and professions practised or carried on in the District of Columbia,” and a penalty on all persons engaging in such trades, business, or profession without obtaining that license. As the court says in its opinion, this was “ manifestly regarded as a regulation of a purely municipal character.” The taxing of persons engaged in the business of selling by sample, commonly called drummers, is one of this class, and the only thing urged against the validity of this law is that it is a regulation of interstate commerce, and, therefore, an exercise of a power which rests exclusively in Congress. I pass the question, which is a very important one, whether this act of the Legislature of the District of Columbia, being one exercised under the power conferred on it by Congress, and 150 OCTOBER TERM, 1888. Dissenting Opinion: Miller, J. coming, as I think, strictly within the limit of the power thus conferred, is not so far as this question is concerned, sustained by the authority of Congress itself, and is substantially the action of that body. The cases of Robbins v. Shelby Taxing District, 120 U. S. 489, and Asher v. Texas, 128 U. S. 129, hold the regulations requiring drummers to be licensed to be regulations of commerce, and invasions of the power conferred upon Congress on that subject by the Constitution of the United States. In those cases I concurred in the judgment, because, as applied to commerce between citizens of one State and those of another State, it was a regulation of interstate commerce; or, in the language of the Constitution, of commerce “ among the several States,” being a prosecution of a citizen of a State other than Tennessee, in the first case, for selling goods without a license to citizens of Tennessee, and in the other case to citizens of Texas. But the constitutional provision is not that Congress shall have power to regulate all commerce. It has been repeatedly held that there is a commerce entirely within a State, and among its own citizens, which Congress has no power to regulate. The language of the constitutional provision points out three distinct classes of cases in which Congress may regulate commerce, and no others. The language is that “ Congress shall have power ... to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” Unless the act for which Hennick was prosecuted in this case was commerce with a foreign nation, among the several States, or with an Indian tribe, it is not an act over which the Congress of the United States had any exclusive power of regulation. Commerce among the several States, as was early held by this court in Gibbons v. Ogden, 6 Wheat. 448, means commerce between citizens of the several States, and had no reference to transactions by a State, as such, with another State, in their corporate or public capacities. Indeed, it would be of very little value if that was the limitation or the meaning to be placed upon it. I take it for granted, therefore, BATE REFRIGERATING CO. v. HAMMOND. 151 Syllabus. that its practical utility is in the power to regulate commerce between the citizens of the different States. Commerce between a citizen of Baltimore, which Hennick is alleged to be in the prosecution in this case, and citizens of Washington, or of the District of Columbia, is not commerce “among the several States,” and is not commerce between citizens of different States, in any sense. Commerce by a citizen of one State, in order to come within the constitutional provision, must be commerce with a citizen of another State ; and where one of the parties is a citizen of a Territory, or of the District of Columbia, or of any other place out of a State of the Union, it is not commerce among the citizens of the several States. As the license law under which Hennick was prosecuted made it necessary for him to take out a license to do his business in the city of Washington, or the District of Columbia, which was not a State, nor a foreign nation, nor within the domain of an Indian tribe, the act upon the subject does not infringe the Constitution of the United States. For these reasons I dissent from the judgment of the court. BATE REFRIGERATING COMPANY v. HAMMOND. appeal from the circuit court of the united states foe THE DISTRICT OF MASSACHUSETTS. No. 862. Argued January 2, 3, 4, 1889.—Decided January 21,1889. A United States patent was granted November 20,1877, for seventeen years, on an application filed December 1,1876. A patent for the same invention ad been granted in Canada, January 9, 1877, to the same patentee, for ve years from that day, on an application made December 19, 1876. On a petition filed in Canada by the patentee, December 5, 1881, the Canada patent was, on December 12, 1881, extended for five years from January ’ and, on December 13, 1881, for five years from January 9, 1887, under § 17 of the Canada act assented to June 14, 1872 (35 Victoria, c* 26). Held, under § 4887 of the Rev. Stat., that, as the Canada act was in force when the United States patent was applied for and issued, 152 OCTOBER TERM, 1888. Statement of the Case. and the Canada extension was a matter of right, at the option of the patentee, on his payment of a required fee, and the fifteen years’ term of the Canada patent had been continuous and without interruption, the United States patent did not expire before the end of the fifteen years’ duration of the Canada patent. It was not necessary to the validity of the United States patent that it should have been limited in duration, on its face, to the duration of the Canada patent, but it is to be so limited by the courts, on evidence in pais, as to expire at the same time with the Canada patent, not running more than the seventeen years. This was a suit in equity, brought in the Circuit Court of the United States for the District of Massachusetts, December 16, 1886, by the Bate Refrigerating Company, a New York corporation, against George H. Hammond and Company, a Michigan corporation, founded on the alleged infringement of letters patent No. 197,314, granted to John J. Bate, November 20, 1877, for'the term of seventeen years from that day, on an application filed December 1, 1876, for an “improvement in processes for preserving meats during transportation and storage.” The plaintiff was the assignee of the patent. The bill alleged infringement, within the District of Massachusetts and elsewhere in the United States, by the making, using, and vending of the patented process, and alleged that the defendant had been engaged in the business of shipping fresh meat from the port of Boston to ports in Great Britain, by means of the process claimed in the patent. The claim was as follows: “The herein-described process of preserving meat during transportation and storage, by enveloping the same in a covering of fibrous or woven material, and subjecting it when thus enveloped to the continuous action of a current of air of suitably low and regulated temperature, substantially as and for the purpose set forth.” The defendant filed a plea, setting up, among other things, that, on the 9th of January, 1877, letters patent of the Dominion of Canada, No. 6938, for the same invention as that described and claimed in No. 197,314, were granted to the same John J. Bate, for the term of five years from the 9th of January, 1877; that, after No. 197,314 had expired, BATE REFRIGERATING CO. v. HAMMOND. 153 Statement of the Case. at the end of the term of five years for which such Canadian patent was granted, the Circuit Court of the United States for the District of New Jersey, upon being advised of the grant of such Canadian patent, vacated and set aside an injunction which it had theretofore granted, by an interlocutory decree made in a suit in equity founded on No. 197,314, brought by the Bate Refrigerating Company against Benjamin W. Gillett and others; that thereafter Bate and the Bate Refrigerating Company procured the rendition of a judgment by the Superior Court for Lower Canada, declaring the Canadian patent to have been void ab initio and vacating it and setting it aside; that such judgment of the Superior Court for Lower Canada being brought to the attention of the Circuit Court of the United States for the District of New Jersey, that court reinstated said injunction; and that afterwards the Superior Court for Lower Canada, in a suit brought by Sir Alexander Campbell, minister of justice and attorney general for the Dominion of Canada, against Bate and the Bate Refrigerating Company and others, adjudged that its said prior judgment had been “arrived at through the fraud to the law and collusion” of Bate, the Bate Refrigerating Company, and another person, “ deceiving the attorney general, the advocates, and the court, employing and paying counsel on both sides, as well, seemingly, against themselves as on their apparent behalf,” and revoked and annulled its said prior judgment. The plea concluded by averring that No. 197,314 expired on the 9th of January, 1882, and that the Circuit Court, sitting as a court of equity, had no jurisdiction to hear and determine an action in equity for the infringement of the patent. The bill was then amended by averring that the application for the Canadian patent was not made until December 19, 1876, while the application for No. 197,314 was made December 1,1876; and that the Canadian patent was not actually or legally issued until on or about June 26, 1878, on or about which date a model of the invention, as required by law, was filed in the Canadian Patent Office. The amendment to the bill also set forth the two judgments of the Superior Court for Lower Canada, and averred that, by virtue of an act of the 154 OCTOBER TERM, 1888. Statement of the Case. parliament of the Dominion of Canada, assented to May 25, 1883, 46 Victoria, c. 19, the original term of the Canadian patent was actually fifteen years, instead of five years, and it would not terminate before the 9th of January, 1892. Subsequently the defendant filed an answer to the bill, setting up, among other defences, want of novelty in the patented invention,’ but not denying that it had used the invention subsequently to the granting of the patent; and also setting up the granting of the Canadian patent for five years from January 9, 1877; that No. 197,314 was void, because it was issued for seventeen years, and its term was not limited by the Commissioner of Patents to five years from January 9, 1877; that the Canadian application was not made until after the application for No. 197,314 was filed; that Bate did not file a model in the Canadian Patent Office until after the grant of the Canadian patent; and that the Canadian patent was actually patented to Bate on the 9th of January, 1877, and took effect on that date, although not actually delivered to the patentee until after the filing of the model. It also set forth the two Canadian judgments, and averred that, on the 30th of November, 1881, Bate made a petition to the Commissioner of Patents for Canada, for the extension of No. 6938, in which he averred that on the 9th of January, 1877, he “obtained a patent for the period of five years from the said date, for new and useful improvements on apparatus and process for ventilation, refrigeration, &c.,” and that he was the holder of that patent in trust for the Bate Refrigerating Company, and prayed that it might be extended “ for another period of ten years; ” that, on the filing of that petition, an extension of the patent was granted, on December 12, 1881, “ for a second period of five years” from January 9, 1882; that a further extension of the patent was granted, December 13, 1881, “for a third period of five years” from January 9, 1887; that the plaintiff was thereby estopped from denying the fact that No. 6938 was legally granted, January 9, 1877, for a period of five years; that by virtue of the act of 46 Victoria, c. 19, the original term for which No. 6938 was granted, was not fifteen years instead of five years ; that said act can have no effect on the BATE REFRIGERATING CO. v. HAMMOND. 155 Statement of the Case. duration of No. 197,314 ; that, by reason, of the prior patenting of the invention by Bate in Canada for five years from January 9, 1877, No. 197,314, if valid at all, expired on January 9, 1882; and that, therefore, the court, sitting in equity, had no jurisdiction to hear and determine an action for its infringement. Without the filing of any replication to this answer, the parties entered into a written stipulation, setting forth as follows: “Whereas the answer of the defendant corporation in this cause sets up, in addition to other defences, that the patent on which this suit is brought, being number 197,314, granted to John J. Bate complainant’s assignor and president, on the twentieth day of November, a.d. 1877, expired on the ninth day of January, a.d. 1882, by reason of the prior grant to said John J. Bate of a patent in the Dominion of Canada for the same invention, and prays the same benefit of said defence as if the same had been pleaded to the bill of complaint; and whereas both parties desire to have said matter of defence argued and decided without incurring the great expense of taking testimony necessary to present for final hearing all the defences raisedin said answer: It is, therefore, stipulated and agreed by and between the parties, that the defence above named shall be submitted to the court, as on plea set down for argument, upon the following agreed state of facts.” The facts so agreed to were substantially as follows: 1. The patent in suit, No. 197,314, was granted to John J. Bate on November 20, 1877, and the application therefor was filed in the United States Patent Office, December 1, 1876; and said patent was assigned to complainant before this suit was brought, the said Bate being a citizen of the United States at the time of said application, and the said invention having been made and reduced to practice by him therein. 2. On December 19, 1876, said John J. Bate filed in the Patent Office of the Dominion of Canada an application for a patent for improvements in apparatus and processes for venti-ation, refrigeration, &c., including therein, as one feature, the process described and claimed in said patent, No. 197,314. 3- In pursuance of said application the Commissioner of 156 OCTOBER TERM, 1888. Statement of the Case. Patents for the Dominion of Canada caused letters patent of the Dominion of Canada, No. 6938, for the invention set forth in said application, and granting to said John J. Bate, his executors, administrators, and assigns, the exclusive right, privilege, and liberty of making, constructing, using, and vending to others to be used, the said invention, to be signed and sealed with the seal of the Patent Office on January 9, 1877, and to be registered on January 11, 1877, and that the period of said grant expressed in said patent was five years from and after January 9, 1877. 4. On January 12, 1877, said Commissioner of Patents called upon said John J. Bate to furnish to the Patent Office a model of his said invention, and such model was furnished by said Bate on June 26, 1878, on which day said patent No. 6938 was mailed to said John J. Bate. 5. On December 5, 1881, said John J. Bate filed a petition in the Canada Patent Office, setting forth, “ that on the 9th day of January, a.d. 1877, your petitioner obtained a patent for the period of five years from the said date, for new and useful improvements on apparatus and process for ventilation, refrigeration, &c.; that he is the holder of the said patent in trust for the ‘Bate Refrigerating Company,’ and therefore prays that it may be extended for another period of ten years.” 6. On December 12, 1881, «aid patent No. 6938 was extended for five years from January 9, 1882, under renewal No. 13,812, and, on December 13, 1881, said patent was further extended for five years from January 9, 1887, under renewal No. 13,813, in pursuance of the above-named petition. 7. On or about July 9,1883, and June 30,1886, the Superior Court for Lower Canada rendered two judgments affecting said Canada patent, to the purport set forth in the plea and the answer. The stipulation further provided, that, if the decision of the Circuit Court should be in favor of the plaintiff, it should have a reasonable time thereafter to file a replication to the answer, and the cause should proceed in the ordinary manner; that, if the Circuit Court should decide the cause in favor of BATE REFRIGERATING CO. v. HAMMOND. 157 Argument for Appellee. the defendant, a decree should be entered dismissing the bill, so that the plaintiff might take an appeal therefrom to the Supreme Court of the United States; and that, if the Circuit Court should decide the cause in favor of the defendant, and the Supreme Court of the United States should, on appeal, reverse that decision, the defendant should have a right to proceed in the Circuit Court, under its answer, as to all defences set up therein, except the one mentioned in the stipulation, as it might have proceeded if the stipulation had not been made. The cause was heard on the pleadings and stipulation, and the Circuit Court entered a decree dismissing the bill, from which decree the plaintiff has appealed to this court. The Circuit Court gave no opinion on the merits of the case, but in deciding it followed, as it stated, the decision of the Circuit Court of the United States for the District of New Jersey, held by Mr. Justice Bradley, in August, 1887, made in the case of Bate Refrigerating Go. n. Gillett, 31 Fed. Rep. 809. J/t*. Clarence A. Seward, with whom was Ur. John Lowell and Ur. Richard N. Dyer on the brief, opened for appellant. Ur. Noah Davis, by leave of court, filed a brief on behalf of the Edison Electric Light Company, in support of appellant. Ur. Benjamin F. Thurston and Ur. George H. Lothrop for appellee.' I. The fact that the Bate Canadian Patent was extended prior to its expiration in Canada for two further terms of five years respectively, has no effect to extend the life of the United States Bate Patent. The “foreign patent” referred to in § 4887, the expiration of which is to affect the life of the American patent granted for the same invention, is, in contemplation of law, the then existing foreign patent, and not any subsequent patent to be granted to such holder of a foreign patent for such invention, either by royal favor or by the effect of acts which the 158 OCTOBER TERM, 1888. Argument for Appellee. patentee may elect to do or omit to do under the provisions of the general law. In considering the effect of a foreign patent under § 4887, reference must be had to the statutory authority under which such patent is granted. If the statute be after the form of the British Patent Act, then the patent is a grant db origlne for fourteen years, although its life may be shortened by the non-performance on the part of the patentee of conditions subsequent imposed by the act. In such case the American patent is not limited by the failure on the part of the holder of a foreign patent to perform such conditions, and for the plain reason that the foreign patent in existence at the time when the American patent was granted was in law an existing grant for fourteen years. Under the 17th1 section of the Canadian Patent Act of 1872, it is not provided that patents shall issue in all cases for a term of fifteen years, with a liability to be shortened as to their duration in the event that certain conditions subsequent are not performed, but by express terms they are issued for a period of “ five, ten or fifteen years, at the option of applicant,” with a privilege to the patentee, before the expiration of such period, to obtain an extension for a second period, and before the expiration of such second period, to obtain an extension for a third period. The section requires that “ the instrument delivered by the Patent Office for such extension of time shall be in the form which may be from time to time adopted to be attached, with reference to the patent.” Now the construction that was given to this act by the 117. Patents of invention issued by the patent office shall be valid for a period of five, ten, or fifteen years, at the option of the applicant, but at or before the expiration of the said five or ten years the holder thereof may obtain an extension of the patent for another period of five years, and after those second five years may again obtain a further extension for another period of five years, not in any case to exceed a total period of fifteen years in all; and the instrument delivered by the patent office for such extension of time shall be in the form which may be from time o time adopted, to be attached, with reference to the patent and under the signature of the commissioner or of any other member of the privy council in the case of absence of the commissioner. BATE REFRIGERATING CO. v. HAMMOND. 159 Argument for Appellee. Canadian authorities has always been, up to the passage of the act, 46 Viet. c. 19,1 May 25, 1883, that if the patentee elected to take a patent for five years, a grant should be made to him for that term only. On the other hand, if he elected to take a patent for fifteen years, the grant was for such period. In the present case the Bate patent, No. 6938, was expressly limited for the period of five years from its date, accompanied with the proviso that the patent should cease within that time, and at the end of two years, unless the patentee or his assignee should have commenced and carried on the practice of the invention within the Dominion, and with the further proviso that it should cease at expiration of one year in case the patentee or his representatives should 11. Section 17 of “the Patent Act of 1872” is hereby repealed, and the following is substituted therefor: “ 17. The term limited for the duration of every patent of invention issued by the patent office shall be fifteen years; but at the time of the application therefor it shall be at the option of the applicant to pay the full fee required for the term of fifteen years, or the partial fee required for the term of five years, or the partial fee required for the term of teu years. In case a partial fee only is paid the proportion of the fee paid shall be stated in the patent, and the patent shall, notwithstanding anything therein or in this act contained, cease at the end of the term for which the partial fee has been paid, unless at or before the expiration of the said term the holder of the patent pays the fee required for the further term of five or ten years, and takes out from the patent office a certificate of such payment (in the form which may be from time to time adopted), to be attached to and to refer to the patent, and under the signature of the commissioner, or, in case of his absence, another member of the privy council; and in case such second payment, together with the first payment, makes up only the fee required for ten years, then the patent shall, notwithstanding anything therein or in this act contained, cease at the end of the term of ten years, unless at or before the expiration of such term the holder thereof pays the further fee required for the remaining five years, making up the full term of fifteen years, and takes out a like certificate in respect thereof. Every patent heretofore issued by the patent office in respect of which the fee required for the whole or for ¿my unexpired portion of the term of fifteen years has been duly paid, according to the provisions of the now existing law in that behalf, has been and shall be deemed o have been issued for the term of fifteen years, subject, in case a partial ee only has been paid, to cease on the same conditions on which patents ereafter issued are to cease under the operation of this section.” 160 OCTOBER TERM, 1888. Argument for Appellee. import or cause to be imported into the Dominion the subject for which the patent was granted. The question whether the words “ foreign patent ” occurring in § 4887 could refer to any other patent for the same invention than the foreign patent then existing, was first raised in the case of Henry v. The Providence Tool Co., 3 Ban. & Ard. Pat. Cas. 501. Mr. Justice Clifford held that the patent referred to in § 4887, which would affect the life of a subsequently obtained United States patent, was the then existing grant in Great Britain for a term of fourteen years ; and that no prolongation of the patented protection for a further term would operate to extend the period of duration of the United States patent. The next case which arose wasbthat of Reissner v. Sharp, 16 Blatchford, 383. In that case the previous patent was one granted in Canada for a period of five years, and such Cana-dian patent had been duly extended for two further periods of five years each. Mr. Justice Blatchford held that the patent in this country expired with the expiration of the first term of five years, notwithstanding the fact that the patent was still alive in Canada in virtue of the procurement of two extensions for five years each. The same doctrine has been applied in dealing with the Bate patent by Judge Nixon, in Bate Refrigerating Co. v. Gillett, 13 Fed. Rep. 553, and by Mr. Justice Bradley in his discussion of the question in the same suit, 31 Fed. Rep. 809. We therefore submit that the fact that the Bate patent has been extended in Canada for an entirely new term, beyond the original term for which the letters patent were granted, cannot relieve the Bate patent in this country from the operation of § 4887. II. The Bate United States patent is not relieved from the operation of § 4887 in consequence of the Canadian Statute 46 Viet. c. 19, May 25, 1883. This act on its face purports to be “ An act to amend the Patent Act of 1872,” and it proceeds to execute its purpose by repealing in terms the 17th section of the former act, and substituting a new section in its place. This new law became opera- BATE REFRIGERATING CO. v. HAMMOND. 161 Argument for Appellee. five when it received royal assent May 25,1883, and the necessary implication is that prior to that date the duration of all patents previously issued in the Dominion were limited as to their duration to the periods specifically named in the grants. We submit, however, that, upon its face, the act in question does not profess to be a declaratory act, or one which is intended to make intelligible and clear an existing ambiguous statute. So far as the defendants are advised, this act has never been declared by any Canadian tribunal to be a proper declaratory act. If the act can be so construed as to be intelligible, and furnish a remedy for the future, without the necessity of holding that it is retroactive, even in Canada, to the extent of changing the grant of a patent from five years to fifteen years, this rule of construction should be employed. It is a fundamental rule of construction of statutes wherever the English law prevails. In this case there is no necessity for resorting to any other rule. The statute is intelligible, and it can be made to apply to existing patents without holding that the Canadian Parliament had committed the solecism of declaring that an expired term of five years was in truth an unexpired term of fifteen years. It is unnecessary, however, to pursue the argument upon the character of the legislation as regarded from a Canadian standpoint. The pertinent inquiry is—one which must not be lost sight of — what is the effect of the act, no matter how it may be interpreted in Canada, upon § 4887 of the Revised Statutes of the United States, in the application of that statute in determining the rights of the public under it. The case of Liverpool Insurance Co. v. Massachusetts, 10 Wall. 566, is directly in point; where this court held that the company was a corporation within the meaning of the statute of Massachusetts, notwithstanding that upon the highest possible judicial authority the company in England, where it was created, was declared not to be a corporation. ine contention now made by the appellant is precisely the same contention that was made before Mr. Justice Clifford in enry v. The Providence Tool Co., ubi supra. And further, r- Justice Bradley, in Bate Refrigerating Co. v. Gillett, 31 VOL. CXXIX—11 162 OCTOBER TERM, 1888. Argument for Appellee. Fed. Rep. 813, says: “I may say at once that I attach no importance to the last-mentioned act. The American patent received its operative force and effect on the day it was issued, and no subsequent legislation in Canada or elsewhere could change it, whatever might be the effect of such legislation where made. The force and effect of the American patent could only be affected by the Canadian patent as the latter stood when granted, and not as it was afterwards modified by legislation.” We ask now, what is the effect of the act of 46 Viet. c. 19, upon § 4887, and assume that in the event that the act in question had not been passed, the courts would have held, without question, under the authority of the cases supra, as determined by three independent tribunals, that the American patent to Bate expired January 9, 1882. We are instructed by the late Mr. Justice Clifford in Henry v. Providence Tool Co., that § 4887 contemplates the then existing patent grant of a foreign country. It is too plain for argument that under the statute of Canada, in force at the time when the Bate United States patent was granted, the term of the Canadian patent was expressly limited on its face to five years. The statutes of every civilized people are intended for the guidance of the people of the country under the jurisdiction of its laws. Such lawTs cannot be enlarged, modified, or affected by the legislation of any foreign power. The statutes are intended to be intelligible and certain on their face, for the guidance of the people subject to them, or as the same shall be made certain by the judicial interpretation of the courts within the country enacting them. It may be pertinent to ask, what was the condition of the Bate patent in this country between January 9, 1882, and May 20, 1883, when the act of 46 Viet. c. 19, received royal assent. Beyond doubt it was not in force as a legal instrument in this country. The complainants say: “ True, such was the fact according to the legal lights that existed at that time both in Canada and in this country, but it now turns out that the Canadian patent was contrary to the act of 1872, and contrary to the limitation expressed upon its face — a patent in BATE REFRIGERATING CO. v. HAMMOND. 163 Argument for Appellee. law for fifteen years. The reply is: This fact, or legal intendment, whichever it may be, had no existence until May, 1883, because the supposed fact was made such by a new statute in derogation of a former statute. Otherwise put, there was nothing to support the American patent between January 9, 1882, and May 20, 1883. The condition of things is exactly parallel with that which existed in the case of Henry n. Tool Co. In the last named case there was an actual interval of thirteen days which occurred between the expiration of the patent and the decision of the Queen to prolong it. Now it cannot be said that the Bate patent, within the interval between January, 1882, and May, 1883, was in a state of suspended animation. It was in force in this country, or inoperative, for that period. The legislation under the effect of which it is now claimed it was in force, is ex post facto, so far at least as its effect upon § 4887 is concerned, and nothing can give vitality to the patent, except some special legislation of Congress which shall revivify it from the time when such special legislation is had. III. The fact that the Bate patent was applied for in the United States prior to the application for a patent for the same invention in Canada does not relieve the patent granted in the United States subsequent to the grant of the Canadian patent from the operation of § 4887. As the court expressly declined to pass upon this point, it is only necessary to state it. IV. As to the argument that it is the policy of our Patent System to discriminate in favor of American citizens against foreigners, we submit that it is plain that whatever may have been a former policy, since the act of 1870 there is no distinction whatsoever made between citizens of the United States and foreigners as to their rights in acquiring and holding etters patent for inventions which are to promote the progress of the useful arts in this country. Other points were argued, which, in view of the opinion of the court, it is not necessary to state. J/r. Edmund Wetmore, Mr. Samuel A. Dunca/n and Leonard E. Curtis, on behalf of the United States Electric 164 OCTOBER TERM, 1888. Opinion of the Court. Lighting Company; 3Zr. William Bakewell and Jfr. Thomas B. Kerr, on behalf of the Westinghouse Electric Company; JZ?. Amos Broadnax, on behalf of the Consolidated Electric Light Company; Mr. Chauncey Smith, Mr. Thomas L. Livermore and Mr. Frederick P. Fish, on behalf of the Thomson-Houston Electric Company; and Mr. B. S. Taylor, on behalf of the Fort Wayne Electric Light Company filed a brief by leave of court in support of the contention of the appellees. Mr. John B. Bennett, on behalf of Gillett and Eastman, by leaye of court, filed an argument in support of the position taken by the appellees. Mr. Chauncey Smith also, by leave of court and by consent of appellees, argued on behalf of appellees. Mr. William M. Evarts closed on behalf of appellant. Mr. Justice Blatchford, after stating the case as above reported, delivered the opinion of the court. The questions discussed at the bar arise under § 4887 of the Revised Statutes, which is as follows: “No person shall be debarred from receiving a patent for his invention or discovery, nor shall any patent be declared invalid, by reason of its having been first patented or caused to be patented in a foreign country, unless the same has been introduced into public use in the United States for more than two years prior to the application. But every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term, and in no case, shall it be in force for more than seventeen years.” Two propositions as to the construction of this section are contended for by the appellant: (1) that the words “first1 patented or cause to be patented in a foreign country ” do not mean “first patented or caused to be patented” before the issuing, or granting, or date, of the United States patent, but BATE REFRIGERATING CO. v. HAMMOND. 165 Opinion of the Court. mean “first patented or caused to be patented” before the date of the application for the United States patent; (2) that the declaration of the section, that “ every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term,” does not mean that the patent so granted shall expire at the same time with the term to which the foreign patent was in fact limited at the time the United States patent was granted; but that it means that it shall expire when the foreign patent expires, without reference to the limitation of the term of such foreign patent in actual force at the time the United States patent was granted. We do not find it necessary to consider the first of these questions, because we are of opinion that the proper construction of § 4887, upon the second question, is, that the patent in the present case does not expire before January 9, 1892, the time when the Canadian patent, No. 6938, will expire. The Canadian patent was extended for the two periods of five years each, under the provisions of § 17 of the Canadian act assented to June 14, 1872, 35 Victoria, c. 26, which was in force when the United States patent, No. 197,314, was applied for and granted, and which read as follows: “ 17. Patents of invention issued by the Patent Office shall be valid for a period of five, ten, or fifteen years, at the option of the applicant, but at or before the expiration of the said five or ten years the holder thereof may obtain an extension of the patent for another period of five years, and after those second five years may again obtain a further extension for another period of five years, not in any case to exceed a total period of fifteen years in all; and the instrument delivered by the Patent Office for such extension of time shall be in the form which may be from time to time adopted, to be attached, with reference to f e patent and under the signature of the Commissioner or of any other member of the Privy Council in the case of absence °f the Commissioner.” This statute appears to have been strictly complied with in 166 OCTOBER TERM, 1888. Opinion of the Court. the present case. The Canadian patent, No. 6938, ran, on its face, for five years from January 9, 1877; and, prior to the expiration of that time, and on the 5th of December, 1881, Bate applied for its extension for ten years; and it was, before the five years expired, and on the 12th of December, 1881, extended for five years from January 9, 1882, and, on December 13, 1881, for five years from January 9, 1887. The Canadian patent, therefore, has never ceased to exist, but has been in force continuously from January 9, 1877. It was in force when No. 197,314 was issued; and it has, by virtue of a Canadian statute, in force when the application for No. 197,314 was filed, continued to be in force at all times since the latter patent was granted. This is true, although the Canadian patent, No. 6938, as originally granted, stated on its face that it was granted “for the period of five years” from January 9, 1877; and although the instrument granting the first extension of five years states that it is granted “ for another period of five years, to commence and be computed on and from the ninth day of January, which will be in the year one thousand eight hundred and eighty-two; ” and although the instrument granting the second extension of five years states that it is granted “ for another period of five years, to commence and be computed on and from the ninth day of January, which will be in the year one thousand eight hundred and eightyseven.” By the language of § 17 of the Canadian act of 1872, what was granted under it was “ an extension of the patent ” •—of the same patent — for a further term. Therefore the Canadian patent does not expire, and it never could have been properly said that it would expire, before January 9, 1892; and hence No. 197,314, if so limited as to expire at the same time with the Canadian patent, cannot expire before January 9, 1892. Section 6 of the act of March 3, 1839, 5 Stat. 354, provided that a United States patent for an invention patented m a foreign country more than six months prior to the application of the inventor for the United States patent, should be limited to the term of fourteen years from the date or publication of the foreign patent. Section 25 of the act of July 8, 1870,16 BATE REFRIGERATING CO. v. HAMMOND. 167 Opinion of the Court. Stat. 201, provided that the United States patent for an invention “ first patented or caused to be patented in a foreign country ” should “ expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term ; but in no case shall it be in force more than seventeen years.” Section 4887 of the Revised Statutes provides, that “ every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term, and in no case shall it be in force more than seventeen years.” These provisions of the act of 1870 and of the Revised Statutes mean that the United States patent shall not expire so long as the foreign patent continues to exist, not extending beyond seventeen years from the date of the United States patent, but shall continue in force, though not longer than seventeen years from its date, so long as the foreign patent continues to exist. Under § 4887, although, in the case provided for by it, the United States patent may on its face run for seventeen years from its date, it is to be so limited by the courts, as a matter to be adjudicated on evidence in pais, as to expire at thé same time with the foreign patent, not running in any case more than the seventeen years ; but, subject to the latter limitation, it is to be in force as long as the foreign patent is in force. A contrary view to this has been expressed by several Circuit Courts of the United States. In October, 1878, in the Circuit Court for the District of Rhode Island, in Henry v. Providence Tool Co., 3 Ban. & Ard. Pat. Cas. 501, it was held that the 25th section of the act of July 8,1870, meant that the United States patent should expire at the same time with the original term of a foreign patent for the same invention, without regard to any prolongation of the foreign patent which the patentee might procure from the foreign government. In that case, the United States patent was granted October 10, 1871. A British patent for the same invention had been granted to the patentee on the 15th of 168 OCTOBER TERM, 1888. Opinion of the Court. November, 1860, for fourteen years, and expired November 15, 1874. Thirteen days after the latter date an order was made for the extension of the British patent for four years, the extension bearing date as of the day after the expiration of the original term; but the court held that the United States patent expired on the 15th of November, 1874. That decision was followed by the Circuit Court for the Southern District of New York, in Reissner v. Sharp, 16 Blatchford, 383, in June, 1879, which case arose under § 4887 of the Revised Statutes. In that case, the United States patent, granted October 20, 1874, for 17 years, was held to have expired on the 15th of May, 1878, because a patent was granted in Canada, under the authority of the patentee, for the same invention, on the 15th of May, 1873, for five years from that day, although in March, 1878, the Canada patent was extended for five years from the 15th of May, 1878, and also for five years from the 15th of May, 1883. In Bate Refrigerating Co. v. Gillett, 13 Fed. Rep. 553, in the Circuit Court for the District of New Jersey, in August, 1882, and in the same suit, in the same court, in August, 1887, 31 Fed. Rep. 809, in regard to the patent in question in the present suit, and on the same facts here presented, it was held, on the strength of the two Circuit Court' cases above referred to, that the United States patent expired when the original term of the Canadian patent expired. But we are of opinion that, in the present case, where the Canadian statute under which the extensions of the Canadian patent were granted, was in force when the United States patent was issued, and also when that patent was applied for, and where, by the Canadian statute, the extension of the patent for Canada was a matter entirely of right, at the option of the patentee, on his payment of a required fee, and where the fifteen years term of the Canadian patent has been contin uous and without interruption, the United States patent doeG not expire before the end of the fifteen years’ duration of the Canadian patent. This is true although the United States patent runs, on its face, for seventeen years from its date, and is not, on its face, so limited as to expire at the same time with BATE REFRIGERATING CO. v. HAMMOND. 169 Opinion of the Court. the foreign patent; it not being necessary that the United States patent should, on its face, be limited in duration to the duration of the foreign patent. In O*Reilly v. Morse, 15 How. 62, the patent to Morse was issued June 20, 1840, for fourteen years from that day, while § 6 of the act of March 3, 1839, 5 Stat. 354, was in force, which required that every United States patent for an invention patented in a foreign country should be “ limited to the term of fourteen years from the date or publication of such foreign letters patent.” Morse applied for his United States patent April 7, 1838. He obtained a patent in France for his invention October 30, 1838. The objection was taken in the answer that the United States patent was void on its face because not limited to the term of the French patent. The Circuit Court held that the patent was not void, but that the exclusive right granted by it must be limited to fourteen years from October 30,1838. The same objection was urged in this court, and the same ruling was made. In Smith v. Ely, 15 How. 137, which was a suit on the same patent under the same facts, the same question arose and was decided in the same way. A full and interesting discussion of the question is to be found in Conan v. The Pound Mfg. Co., 23 Blatchford, 173,. in regard to § 4887, which contains the same word “ limited ” found in § 6 of the act of 1839, which word is not found in § 25 of the act of July 8, 1870, from which § 4887 was taken. Under this view, the time of the expiration of the foreign patent may be shown by evidence in pais, either the record of the foreign patent itself, showing its duration, or other proper evidence; and it is no more objectionable to show the time of the expiration of the foreign patent, by giving evidence of extensions such as those in the present case, and thus to show the time when, by virtue of such extensions, the United States patent will expire. We find in the record in this case, among the papers which it states were submitted to the court under the stipulation above referred to, a certificate of the Commissioner of Patents, dated July 3,1883, appended to a certified copy of the United States patent, stating that the term thereof is limited so that 170 OCTOBER TERM, 1888. Syllabus. it shall expire with the patent obtained by the patentee in Canada, No. 6938, dated January 9, 1877, for the same invention ; that the proper entries and corrections have been made in the files and records of the Patent Office; that it had been shown that the original patent had been lost; and that the certificate is made because that patent was issued without limitation, as required by § 4887 of the Revised Statutes. While it may be proper, in a case where the date of a foreign patent issued prior to the granting of a United States patent to the same patentee for the same invention is made known to the Patent Office prior to the granting of the United States patent, to insert in that patent a statement of the limitation of its duration, in accordance with the duration of the foreign patent, it does not affect the validity of the United States patent, if such limitation is not contained on its face. It results from these views, that The decree of the Circuit Court must he reversed, and the case he remanded to that court, with a direction to take such further proceedings as shall he in accordance with law and with the stipulation between the parties, above referred to, and not inconsistent with this opinion. HILL v. CHICAGO AND EVANSTON RAILROAD COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOB THE NORTHERN DISTRICT OF ILLINOIS. No. 866. Submitted December 20,1888. — Decided January 21,1889. This court has no jurisdiction of an appeal unless the transcript of the record is filed here at the next term after the taking of the appeal. It is not proper, on a motion to dismiss an appeal from a decree, to decide whether a prior decree was a final decree, or what orders and decrees made by the court below in the cause prior to the making of the decree appealed from can be reviewed here on the appeal. Where the decree appealed from awarded a money decree against one e fendant, and the plaintiff appealed, and the obligees named in the appea HILL v. CHICAGO &c. RAILROAD CO. 171 Opinion of the Court. bond included that defendant and other defendants, and that defendant and some of the others moved to dismiss the appeal, on the ground that that defendant should be the sole obligee, and that the only matter for review was as to the amount awarded against that defendant: Held, that the bond was in proper form, and that the motion must be denied. Motions to dismiss. The case is stated in the opinion. J£r. E. Walker and JWr. W. C. Goudy for the motions. JTr. Gordon E. Cole opposing. Mr. Justice Blatchford delivered the opinion of the court. In this case, on the 8th of June, 1885, a decree was made by the court below in the following language: “ This cause coming on for final hearing upon the pleadings, depositions, and documentary evidence produced before the court, and the cause having been argued by counsel, and the court being sufficiently advised in the premises, It is ordered and decreed, that the complainant’s bill be dismissed for want of equity as against the defendants William 0. Goudy, Volney C. Turner, George Chandler, Samuel B. Chase, Ebenezer Buckingham, John DeKo ven, John J. Johnson, S. 8. Merrill, The North Chicago City Railway Company, and the Chicago, Milwaukee and St. Paul Railway Company, with their costs to be taxed by the clerk. It is further ordered and decreed, that so much of the complainant’s bill as relates to ¿he certificate of one hundred and ten and two-thirds shares of the capital stock, issued to A. B. Stickney & Company, dated September thirtieth, 1881, be dismissed for want of equity. “ It is further ordered and decreed, that all relief be denied to the complainant upon all matters and things in controversy herein, except as to the amount of money paid by the defendant William C. Goudy for right of way, in execution of the contract between him and A. B. Stickney & Company, of May twenty-eighth, 1880; and, for the purpose of ascertaining said amount of money, it is ordered, that this cause be retained as to the other defendants, and that it be and is hereby referred to Henry W. Bishop, one of the masters in chancery of this 172 OCTOBER TERM, 1888. Opinion of the Court. court, to take additional testimony as to such amount, and that he make report of the amount so paid, and that, on tho making of such report, such further decree will be rendered as may be equitable. “It is further ordered, that, for the better discovery of the matters aforesaid, the parties are to produce before the said master, upon oath, all deeds or books, papers and writings in their custody or power relating thereto, and are to be examined on oath as the said master shall direct. “And thereupon the complainant prays an appeal to the Supreme Court, which is allowed upon his filing a bond in the penal sum of five hundred dollars, with provisions required by law, and with security to be approved by the Court.” The bond thus referred to was not given, nor was the appeal perfected, nor was the record filed in this court at its October term, 1885. On the 14th of July, 1887, the master in chancery having made a report in pursuance of the directions of the decree of June 8, 1885, and exceptions having been taken thereto by both parties, the court made the following decree: “ It is ordered, adjudged, and decreed as follows, viz.: That the exceptions of both the complainant and the defendant the Chicago and Evanston Railroad Company, to the report of the master in chancery filed herein on the thirty-first day of January, 1887, be and the same are hereby overruled, and the said report approved and affirmed; that said Chicago and Evanston Railroad Company do forthwith pay unto said complainant the sum of sixty-five hundred and thirteen dollars, ($6513,) together with interest upon the same from the thirtieth day of January, 1887, at the rate of six per cent per annum, and also costs of said reference to the master, to be taxed by the clerk of this court, and also the costs of this suit, for which plaintiff may have execution. “It is further ordered and decreed, that all other relief prayed in the complainant’s bill be denied as against said defendant the Chicago and Evanston Railroad Company, and that the complainant’s bill be dismissed out of court for want of equity as against the remaining defendants, T. W. Wads- HILL v. CHICAGO &c. RAILROAD CO. 173. Opinion of the Court. worth, Edwin Walker, Elijah K. Hubbard, J. C. Easton, Julius Wadsworth, Hugh T. Dickey, J. Milbank, James Stillman, James T. Woodward, E. L. Frank, William Rockefeller, Selah Chamberlain, and George Smith, with their reasonable costs, to be taxed by the clerk, and that they have execution therefor against the said complaint. “And thereupon the complainant prays an appeal to the Supreme Court of the United States, which is allowed upon his filing a bond in the penal sum of five hundred dollars, with provisions required by law, and with security to be approved by the court.” This appeal was perfected, an appeal bond was given, and the record was filed in this court on the 17th of October, 1887. The obligors in that appeal bond are James J. Hill, W. P. Clough, and E. Sawyer; the obligees are the Chicago and Evanston Railroad Company, the Chicago, Milwaukee and St. Paul Railway Company, the North Chicago City Railway Company, William C. Goudy, Volney C. Turner, John DeKo-ven, George Chandler, T. W. Wadsworth, Edwin Walker, Elijah K. Hubbard, Samuel B. Chase, Ebenezer Buckingham, John J. Johnson, J. C. Easton, S. S. Merrill, Julius Wadsworth, Hugh T. Dickey, J. Millbank, James Stillman, James T. Woodward, E. L. Frank, William Rockefeller, Selah Chamberlain, and George Smith. The condition of the bond is as follows: “Whereas, lately, at the July, 1887, term of the United States Circuit Court for the Northern District of Illinois, in a suit depending in said court, wherein said James J. Hill was complainant and the Chicago and Evanston Railroad Company and the other above-named obligees of this bond were defendants, a decree was rendered from which the said James J. Hill has taken an appeal to the Supreme Court of the United tates; now, the condition of the above obligation is such, that if the said James J. Hill shall prosecute his appeal with e ect, and answer all costs if he fails to make his plea good, en the above obligation to be void, otherwise to remain in full force and virtue.” our motions are now made. One is a motion by the Chi- 174 OCTOBER TERM, 1888. Opinion of the Court. cago and Evanston Railroad Company, T. W. Wadsworth, Edwin Walker, Elijah K. Hubbard, and J. C. Easton, to dismiss, as to each of them, the appeal from the decree of June 8, 1885, on the ground, among others, that the transcript of the record was not filed in this court at October term, 1885. This motion must prevail. It is well settled, by repeated decisions of this court, that it has no jurisdiction of an appeal unless the transcript of the record is filed here at the next term after the taking of the appeal. The appeal in the present case was prayed in open court on the 8th of June, 1885. Credit Co. v. Arkansas Central Railway Company, 128 U. S. 258, and cases there cited. The second motion is by the North Chicago City Railway Company, the Chicago, Milwaukee and St. Paul Railway Company, William C. Goudy, Volney C. Turner, George Chandler, Samuel B. Chase, Ebenezer Buckingham, John DeKoven, John J. Johnson, and S. S. Merrill, to dismiss as to each of them, the appeal from the decree of June 8, 1885, on the ground, among others, that the transcript of the record was not filed here at October term, 1885. This motion is granted, for the reason before stated. The, third motion is by the North Chicago City Railway Company, the Chicago, Milwaukee and St. Paul Railway Company, William C. Goudy, Volney C. Turner, George Chandler, Samuel B. Chase, Ebenezer Buckingham, John DeKoven, John J. Johnson, and S. S. Merrill, to dismiss, as to each of them, the appeal from the decree of July 14, 1887, on the following grounds: (1) that the decree of June 8, 1885, was a final decree as to them; and (2) that the bond filed on the appeal from the decree of July 14, 1887, does not show that it was filed in pursuance of the decree of June 8, 1885, but recites only an appeal from the decree of July 14, 1887. It is not proper, on a motion to dismiss the appeal from the decree of July 14, 1887, to decide whether the decree of June 8, 1885, was a final decree, or what orders and decrees made by the Circuit Court prior to the making of the decree of July 14, 1887, can be reviewed here on the appeal from the latter decree. Those questions can only be considered when that appeal shall come up for hearing on its merits. HILL v. CHICAGO &c. RAILROAD CO. 175 Opinion of the Court. The fourth motion is by the Chicago and Evanston Railroad Company, T. W. Wadsworth, Edwin Walker, Elijah K. Hubbard, and J. C. Easton, to dismiss the appeal as to the decree of July 14, 1887, on the ground that the Chicago and Evanston Railroad Company, being the sole party against whom the decree of July 14, 1887, was rendered, ought to be the sole obligee in the appeal bond, the other persons named in the bond as obligees not being parties to the appeal; that the only matter which can be brought before this court for review is as to the amount fixed by the decree of July 14,1887, and which the Chicago and Evanston Railroad Company was adjudged to pay ; that the decree of June 8, 1885, was final as to the other questions ; and that the appeal from the decree of July 14, 1887, should be limited to that decree, and proper orders, as to bond and otherwise, to that end, should be made. We see no objection to the terms of the appeal bond, in respect of the parties named in it as obligees. It may very well be that the appellant will seek, on the hearing of the appeal from the decree of July 14, 1887, to obtain a decree against the persons making this motion; and it cannot affect the validity of the bond or the integrity of the appeal, either as respects the Chicago and Evanston Railroad Company or the other parties making the motion, that the bond runs to the obligees named in it. The motion must, therefore, be denied in that respect, as it must, also, in regard to the other grounds alleged for the motion, for the reason before stated, that it is not proper, on a motion to dismiss the appeal from the decree of July 14, 1887, to decide what questions may properly be involved on the hearing of that appeal. Ordered accordingly. 176 OCTOBER TERM, 1888. Opinion of the Court. HANOVER FIRE INSURANCE COMPANY v. KIN-NEARD. EBROK TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS. No. 1152. Submitted January 7, 1889.—Decided January 21, 1889. This writ of error is dismissed, the value of the matter in dispute being insufficient to give jurisdiction, and the case not being one brought on account of the deprivation or a 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. Motion to dismiss for want of jurisdiction. The case is stated in the opinion. J/?. A. J. Bentley, Mr. John W. Deford and Mr. W. little-jield for the motion. Mr. G. W. Cotterill, Mr. Samuel Shelldbarger and Mr. J. M. Wilson opposing. Mr. Chief Justice Fuller delivered the opinion of the court. John Kinneard, Lucia M. Laird, W. H. Williams, G. Il-Embry and Susan M. Phillips brought suit in the District Court of Franklin County, Kansas, against the Phoenix Insurance Company of Brooklyn, N. Y., against the Western Insurance Company of Toronto, Canada, and against the Hanover Fire Insurance Company and the Citizens’ Fire Insurance Company of New York, upon three several policies of insurance, for $2500 each, which three cases were transferred, m October, 1886, on the ground of diverse citizenship, to the Circuit Court of the United States for the District of Kansas, where they discontinued as to Lucia M. Laird and G. H. Embry, leaving as plaintiffs the defendants in error here. Upon the 12th of December, 1887, the court ordered, the defendants severally HANOVER INSURANCE CO. v. KINNEARD. 177 Opinion of the Court. objecting and excepting, that the cases be consolidated for trial, and they were accordingly tried together, separate verdicts being returned in favor of the Phoenix Insurance Company; against the Western Insurance Company for $1847.88 ; . and against the Hanover and Citizens’ Companies for $2067.32; and judgments were severally rendered thereon. To reverse the judgment against the latter this writ of error was prosecuted, which defendants in error now move to dismiss. It is contended on behalf of plaintiffs in error that the three cases were independent and different from each other, both as to the grounds of action and as to the defences, the plaintiffs only being the same and the losses occasioned by the same fire; that the Circuit Court, in consolidating them, abused the discretion reposed in it under § 921 of the Revised Statutes, which provides that “ when causes of a like nature or relative to the same question are pending before a court of the United States or of any Territory, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so,” and that thereby the plaintiffs in error were deprived of due process of law, that is, of a trial by jury according to the settled course of judicial proceedings in like cases. But the action of the court in refusing plaintiffs in error a separate trial is not open to review upon this writ of error, since it appears that the value of the matter in dispute is insufficient to give this court jurisdiction; nor can the writ be maintained, as argued, under subdivision 4 of § 699, of the Revised Statutes, because this judgment was not rendered m 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.” Cogswell v. Fordyce, 128 U. S. 391. The, motion must l>e granted and the writ of error dismissed. VOL. CXXIX-—12 178 OCTOBER TERM, 1888. Opinion of the Court. MARROW v. BRINKLEY. ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA. No. 1262. Submitted January 7, 1889.—Decided January 21, 1889. It being plain that the decision in the court below, adverse to the plaintiffs in error, was made upon the principles of laches and estoppel, and that there was no decision against a right, title, privilege or immunity, claimed under the Constitution, or any statute of, or authority exercised under, the United States, no Federal question is involved, and this court is without jurisdiction. If the highest court of a State, proceeding upon the principles of general law only, errs in the rendition of a judgment or decree affecting property, this does not deprive the party to the suit of his property without due process of law. Motion to dismiss. The case is stated in the opinion. Mr. Alfred P. Thom, Mr. Thomas Tabb and Mr. Richard Walke for the motion. Mr. TF. H. Burrows opposing. Mr. Chief Justice Fuller delivered the opinion of the court. In 1870 certain suits were pending in the Circuit Court of the county of Elizabeth City, Virginia, brought by judgment creditors of one Parker West to subject his lands to the satisfaction of their judgments, under the provisions of c. 182 of the code of 1873, authorizing a sale of the judgment debtors lands when it appeared that the rents and profits for five years would be insufficient to discharge the liens against them. These causes were consolidated, and proceeded to decree in September, 187'0, for an account of all the real estate of said West, its annual value, and the liens thereon, under which a report was made by a commissioner showing the judgments against West and the lands belonging to him and their annual and fee-simple MARROW v. BRINKLEY. 179 Opinion of the Court. value, and that the rents and profits would not satisfy the liens in five years, which report was confirmed by decree entered May 4, 1871, which also appointed special commissioners to sell said lands, including “ all the interest of Parker West in that certain tract of land known as ‘ Newport News,’ containing 300 acres,” etc. This land had been sold June 30, 1864, upon proceedings against West under the confiscation act of July 17, 1862, and a deed had been executed and delivered to the purchasers February 15, 1865. No such proceedings had taken place in reference to other lands of West involved in the litigation, and one of the judgments counted on had been recovered as early as 1861. West died in December, 1871, and on the 4th of May, 1872, the following decree was entered in said consolidated cause: “The death of Parker West being suggested, on the motion of William P. Marrow and Mary E. his wife, Elizabeth R. West, George B. West, and M. Smith and Missouri, his wife, the said Mary E. Marrow, Elizabeth R. West, G. B. West and Missouri Smith being the heirs at law of the said Parker West, to be made parties defendant to these causes, the said William P. Marrow and M. E. his wife, E. R. West, G. B. West, and M. Smith and Missouri, his wife, are hereby made parties defendant to these causes, with leave to file their answers. This cause then, this day, again came on to be heard on the papers formerly read and on the report of Special Commissioners 0. K. Mallory, Thomas Tabb and G. M. Peek of the sales made by them under a former decree in these causes, to which report no exceptions have been filed, and was argued by counsel. On consideration whereof the court doth adjudge, order and decree that the said report and the sales reported therein be, and the same are hereby, confirmed.” The sale of a portion of the Newport News land in controversy here was confirmed by that decree, and the sale of the remainder was made thereafter, and reported to the court, and the sale confirmed in October, 1872. In January, 1886, W. P. Marrow and Mary E. his wife, eorge B. West, and Missouri Smith filed their bill of com-P aint in the state Circuit Court, seeking to set aside the 180 OCTOBER TERM, 1888. Opinion of the Court. decrees of May 4, 1871, and May 4, 1872, and the deeds which had been made to purchasers of lands thereunder; insisting that West’s title had been divested by the confiscation proceedings, and alleging that they never appeared in said consolidated causes in person, or employed any attorney at law to represent them, and that no process was ever served upon them, and charging fraud in the entry of their appearance. Upon the final hearing their bill was dismissed, and they prosecuted an appeal to the Supreme Court of Appeals of Virginia, which court affirmed the decree of the court below, holding that, as between the heirs and the purchasers, the former were bound by the recitals of the decree of May 4, 1872; and that upon the evidence aliunde the record, the heirs were estopped by laches and by conduct, to claim title as against the purchasers who were such in good faith for value and without notice. The complainants filed a petition for rehearing in the Court of Appeals, in which they stated “ that on the 17th day of May, 1888, in the above-entitled cause a decree was entered simply affirming the decree of the lower court entered on the 26th day of October, 1886, dismissing the bill of the plaintiffs below for reasons stated in the opinion of the court. The reasons stated are based upon the equitable doctrine of estoppel in pais and innocent purchaser for value, without notice, the language of the opinion upon these points being as follows: (a) ‘ Having kept a sinister silence when they should have spoken with candor and courage, equity now closes her door and leaves them to obtain from a court of law what they can.’ (5) i That as against an innocent purchaser for value, without notice, a court of equity is without jurisdiction, and will refuse to give any assistance whatever, leaving the party to enforce his technical rights at law.’ ” The rehearing was denied, and the writ of error sued out of this court, a motion to dismiss which is now before us. In the petition for the allowance of this writ it is said that the final judgment of the Court of Appeals against plaintiffs in error was rendered in a suit “ wherein was drawn in question a right, title, privilege and immunity to real estate arising upon the construction o the act of Congress of the United States approved July 17, MARROW v. BRINKLEY. 181 Opinion of the Court. 1862, entitled ‘An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,’ and the joint resolution passed concurrently therewith, and the decision is against the right, title, privilege and immunity claimed under the said statute.” We do not so understand this record. Conceding that • West’s title to the particular lands had been divested by the sale under the confiscation proceedings, and that the interest of the heirs remained unaffected thereby, yet, if they were concluded under the circumstances by the decree of May, 1872, or upon the principles of estoppel and laches, that disposed of their case adversely to them; and it was upon these grounds that the Virginia courts proceeded, and not upon any decision against a right, title, privilege and immunity claimed under the Constitution or any statute of, or authority exercised under, the United States. It was only if the decision had been otherwise upon these points that any question could have arisen as to the validity of the confiscation act and resolution and the proceedings thereunder. Unless it appears affirmatively that the decision of a Federal question was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it, this court has no jurisdiction of a writ of error to a state court. In this case the judgment as rendered involved the decision of no such question, and none such was actually decided. Nor can jurisdiction be retained upon the suggestion, made for the first time in this court, that if the Court of Appeals, proceeding upon the principles of general law only, were found to have erred in the rendition of its decree, the State of Virginia had thereby deprived the plaintiffs in error of their property without due process. The writ of error is dismissed. 182 OCTOBER TERM, 1888. Argument for Defendant in Error. PROBST v. TRUSTEES OF THE BOARD OF DOMESTIC MISSIONS OF THE GENERAL ASSEMBLY OF THE PRESBYTERIAN CHURCH. ERROR TO THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO. No. 113. Argued and submitted December 7, 1888. — Decided January 21, 1889. A ruling, in the trial court, that the showing that an original deed of a tract of land to a party in a suit pending in New Mexico is in the office of that party in New York lays a foundation for the admission of a copy, by that party, under § 2768 of the Compiled Laws of that Territory, is not good practice, nor an exercise of the discretion of the court to be commended; though it is possible that if there were no other objection to the proceedings at the trial, the judgment would not be reversed on that account. An entry into land without right or title, followed by continuous uninterrupted possession under claim of right for the period of time named in a statute of limitations, constitutes a statutory bar, in an action of ejectment, against one who otherwise has the better right of possession. Ejectment. Plea, the general issue and the statute of limitations. Verdict for plaintiff and judgment on the verdict. Defendant sued out this writ of error. The case is stated in the opinion. Jir. F. W. Clancy and J/r. 0. D. Barrett for plaintiff in error. J/r. John E. Parsons, for defendant in error, submitted on his brief. Mr. Parsons’ brief on the points considered in the opinion of the court, to which reference has been made for a statement of the case, was as follows: I. It was not error for the court to permit the Board to prove that deeds purporting to convey the locus in quo to its predecessors in title appeared on record in the Recorders Office of Santa Fe County. (1) It having been proved that the Board was in possession that entitled it to judgment, un- PROBST v. PRESBYTERIAN CHURCH. 183 Argument for Defendant in Error. less Probst showed either earlier possession, or title. Ejectment is a possessory action. All that is required of the plaintiff to enable him to recover is, that he shall show possession and a subsequent entry by the defendant. Smith v. Lorillard, 10 Johns. 338, 356; Burt v. Panjaud, 99 U. S. 180; Christy v. Scott, 14 How. 282, 292. The evidence of record title in the Board was unnecessary therefore to enable it to recover. Jackson v. Wheat, 18 Johns. 40; Jackson v. Newton, 18 Johns. 355. It was entitled to recover unless Probst made good his plea of ten years’ adverse possession. If, therefore, there had been error in receiving this evidence, it was immaterial. Greenleaf v. Birth, 5 Pet. 132; First Unitarian Society v. Faulkner, 91 U. S. 415; Decatur Bank v. St. Louis Bank, 21 Wall. 294. (2) The evidence was, however, competent as showing acts by the parties from time to time proved to be in possession, characterizing their possession. Verbal declarations are competent for this purpose — a fortiori acts of the parties. Pillow v. Roberts, 13 How. 472, 477; Jackson v. Van Dusen, 5 Johns. 144; S. C. 4 Am. Dec. 330: Dodge v. Freedman's Ba/nk, 93 U. S. 379. (3) The New Mexico statute is as follows (act of January 12,1852, § 21): “When said writing is certified and registered in the manner hereinbefore prescribed, and it be proven to the court that said writing is lost; or that it is not in the hands of the party wishing to use it, then the record, etc.” («) It was proven that the deeds were not “ in the hands of the party wishing to use” them, viz.: Dr. Eastman, the agent of the Board in New Mexico. (3) It was also shown that, if in existence, they were not within the State, but in New York city. This justified any secondary evidence of their contents. Burton n. Driggs, 20 Wall. 125, 134; Bronson v. TuthiU, 1 Abb. Ct. App. Dec. (N. Y.) 206. And the general rule is, that the sufficiency of preliminary proof “ to authorize the admission of parol evidence of the contents of a written instrument, is very much in the discretion of the trial court, and the case must be quite without proof to authorize an appellate court to find error.” McCulloch v. Hoffman, 73 N. Y. 615. 184 OCTOBER TERM, 1888. Argument for Defendant in Error. (4) So far as concerns all the deeds except that from McFarland to the Board, a sufficient foundation was laid for the introduction of record (secondary) evidence. There is no presumption that these deeds were in the possession of the Board. Eaton v. Campbell, 7 Pick. 10. Very slight foundation is sufficient to justify a trial court, in the exercise of a sound discretion, in receiving records as primary evidence. McCulloch v. Hoffman, 73 N. Y. 615. (5) The old deeds offered to fix the locus in quo and characterize possession were made prior to the statute respecting conveyances, Prince’s General Laws of New Mexico, 234; contained in effect a proper acknowledgment; were recorded under the act of 1859, Id. 426; and were upwards of thirty years old. II. As to the errors alleged to have been made by the trial judge in his instructions to the jury, there was only a general exception. Such an exception will not be entertained by appellate tribunals. This especially ought to be so where, as here, the case for the plaintiff in error is without any show of merit. The New Mexico statute, act of 1880, c. 6, § 28, Gen. Laws, 127, itself provides: “Either party may take and file exceptions to the charge or instructions given; or to the refusal to give any instructions offered, etc.; but in either case the exceptions shall specify the part of the charge or instruction objected to, and the ground of the objection. And the general rule requires almost as much precision.” Cooper v. Schlesinger, 111 U. S. 148; Hoyt v. Long Island R. R. Co., 57 N. Y. 678; Ayrault v. Pacific Bank,, 47 N. Y. 570. But whether the plaintiff in error can or cannot argue these exceptions, there is nothing in them. They all relate to Probst’s plea that for more than ten years before suit brought he had been in adverse possession of the locus in quo. He did not pretend to have title. His defence limited itself to the assertion that he had had ten years’ adverse possession; or, what comes to the same thing, that by ten years’ adverse possession the Board had become barred by the statute of limitations. The testimony of Probst himself showed that PROBST v. PRESBYTERIAN CHURCH. 185 Argument for Defendant in Error. he had no right to require this question to be submitted to the jury. (1) Mere possession does not start the statute; or, if continued, constitute title. There must be some claim of title. Harvey v. Tyler, 2 Wall. 328, 343. A mere trespass not amounting to a disseisin does not set the statute in motion. The entry must be hostile, clearly defined, exclusive, uninterrupted and under claim of title real or pretended. 3 Washburn on Real Property, 146 (5th ed.). (2) Probst himself proved that any claim that he had was under the deeds to Guttmann, and from Guttmann to him and Kirchner of November 24th, 1871. This was less than ten years before the commencement of the suit. Furthermore, these instruments related to other property. A deed of one parcel of land is no foundation for a claim of title upon which to support adverse possession of another. Pope v. Hounmer, 74 N. Y. 240; Woods v. Banks, 14 N. H. 101; Jackson v. Lloyd, cited in Jackson v. Woodruff, 1 Cow. 276, 386; S. C. 13 Am. Dec. 525 ; 3 Washburn on Real Property, 167 (5th ed.). (3) There was not sufficient evidence of possession in Probst at any time. Possession is a conclusion of fact. To prove it the facts must appear. There was no evidence that Probst or any predecessor ever did anything to the land, except, perhaps, raising one or two crops from a part of it. This was before November 24th, 1881, when first Probst, according to his own testimony, was in a position to make a claim of title. It was not continued. Of itself it did not tend to establish adverse possession. For that purpose there must be some contemporary claim of title. It was not sufficient that upon the trial Probst should say that he claimed to own the property. Hodges v. Eddy, 41 Vermont, 485 ; & C. 98 Am. Dec. 612. (4) So far as concerns any attempt by Probst to patch up his case by claiming that he was in possession prior to the instruments of November 24th, 1871, there are in addition to what has been previously said the following answers : (a) On Probst’s own testimony there was no such possession as the law requires. (J) There was no claim of title. Probst says that his claim of title was under the Guttmann purchase and 186 OCTOBER TERM, 1888. Opinion of the Court. the Bell and Edgar mortgage which preceded it. The Gutt-mann purchase was on November 24th, 1871. A mortgage is a mere security, it does not assume to give title to anything. 2 Washburn’s Real Property, 110 (5th ed.). And the mortgage as well as the Guttmann deed was of other property. (c) Probst’s testimony that his claim depended on the mortgage and the Guttmann deed in effect amounted to an assertion that he had never claimed title to the locus in quo. He never did. If his conduct was honest, any use by him of the locus in quo arose from a mistake of boundary. That does not constitute a claim of title. Such a claim to make out adverse possession must be hostile, etc. (<7) And even where there is adverse possession, it must be uninterrupted. 3 Washburn, Real Property, 148 (5th ed.). So far as concerns any earlier claim, the Guttmann deed was an express interruption. Mr. Justice Miller delivered the opinion of the court. This is a writ of error to the Supreme Court of the Territory of New Mexico. The action was in ejectment, brought by the defendants in error, the trustees of the Board of Domestic Missions of the General Assembly of the Presbyterian Church in the United States of America, against Charles Probst, to recover the possession of certain land. The plaintiffs below recovered a judgment against the defendant, which was affirmed in the Supreme Court of the Territory, and this writ of error is brought by the defendant, Probst, to reverse that judgment. The case was tried before a jury. The plaintiff failed to introduce any evidence of transfer of title from the government to any person, but relied upon the possession of the property by certain parties from about the year 1846 up to the bringing of this suit, and upon conveyances by those parties in such a manner that their right is thereby vested in the plaintiffs in the action. The defendant, Probst, relied mainly upon the statute of limitations as his affirmative defence. Two questions are presented in this court for considera- PROBST v. PRESBYTERIAN CHURCH. 187 Opinion of the Court. iion. The first of these arises upon the introduction by the plaintiffs of copies of certain deeds, duly recorded, from the parties under whom they claim title, down to plaintiffs. These copies were objected to, because no sufficient reason was shown why the originals should not have been produced, and none was shown, except that the last deed, which was claimed to vest the title in the plaintiffs, made by one McFarland, was probably in the possession of the officers of the corporation at its offices in the city of New York. The statute of New Mexico on this subject is as follows: “Sec. 2768. When said writing.is certified and registered in the manner hereinbefore prescribed, and it be proven to the court that said writing is lost, or that it is not in the hands of the party wishing to use it, then the record of the same, or a transcript of said record, certified to by the recorder under his seal of office, may be read as evidence without further proof.” Chap. IL Title XL. Compiled Laws [1884]. There was no attempt to prove that any of these deeds were lost, nor that any search had been made for them, nor any effort made to procure them. As regards those which were prior to the deed from McFarland to the Board of Trustees it may be conceded that the presumption was that they were in the control and possession of the parties to whom they belonged, and the introduction of copies from the record might be sustained on this presumption. But as regards the deed from McFarland to the Board, who were the plaintiffs, no such presumption can be made. All that was proved about that deed, its custody, possession or location, was that it was not in the hands of the agent of the Board in New Mexico. Naturally it would be in the possession of the New York office. No attempt was made to show that the trustees had made any search for Jt, or that any effort had been made to have it sent to the p ace of trial in this case, and it seemed to be supposed to be quite sufficient to authorize the introduction of the copy of the record to show that the deed, though in the possession of the P aintiff corporation at its proper place at its office, was not in t e Territory of New Mexico, and not in possession of the agent of the Board there. 188 OCTOBER TERM, 1888. Opinion of the Court. No member of this court sitting on the trial of a case would admit this to be a sufficient showing under the statute of New Mexico that the writing was lost, or was not in the hands of the party offering it in evidence. But it may be conceded that a very large amount of discretion must be reposed in the trial court to whom such copy of a record is presented, in ruling upon the circumstances which shall determine its admission or rejection ; and it is possible that, if there were no other objection to the proceedings at the trial than this one, this court would not reverse the judgment on that account; but it is certainly not good practice, nor an exercise of the discretion of the court to be commended. The other objection, we think, is fatal; and that is, to the instruction of the court in regard to the statute of limitations. An examination of the testimony shows that there was evidence tending to prove that the defendant, Probst, was in the exclusive possession of the land in controversy from a period variously stated to be from 1869,1870 and 1871, onward up to the time of the trial. The action was commenced on the 16th day of July, 1881. The statute of New Mexico on the subject of limitations is found in the following section of the Compiled Laws [1884]: “Sec. 1881. No person or persons, nor their children or heirs, shall have, sue, or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments but within ten years next after his, her or their right to commence, have, or maintain such suit shall have come, fallen or accrued, and that all suits either in law or equity for the recovery of lands, tenements or hereditaments shall be had and sued within ten years next after the title or cause of action or suit accrued or fallen, and at no time after the ten years shall have passed. If, therefore, Probst was in possession on the day this suit was brought, and had been for ten years prior thereto, no reason can be seen why that fact did not constitute a statutory bar to the action. It may be conceded that there is contradictory testimony on this subject, but it is very certain that several witnesses swear that he was in possession of the property prior to the year 1871, and that he had remained in such PROBST v. PRESBYTERIAN CHURCH. 183 Opinion of the Court. possession up to the time of the trial. The court, in its treatment of that subject, seem to have gone upon the ground that Probst’s possession did him no good, and could constitute no defence, unless he had some kind of a title to the land connected with it, and manifestly left upon the jury the impression that this must be a title evidenced bv writing. Among other things, the court instructed the jury as follows: “ The plaintiff claims title by purchase, evidenced by deeds, and not by simple possession, and I instruct you that if you believe from the evidence in this case that plaintiff did purchase this ground from persons who were legally entitled to sell the same and took proper deeds therefor, and recorded said deeds in the proper office in the county where such lands were situated, that such record was notice to all the world of legal ownership, and that such land could not thereafter be taken up as vacant or abandoned lands; that even actual possession of such lands by the defendant for a period of ten years, if taken after such deeds were recorded, would not give him any legal title to them, but he would be as much a trespasser at the end of ten years as he was upon the day of his entry. If his entry was wrong no length of time could make it right, but if you also find that plaintiff, by its agents, demanded possession and asserted its title, and brought its claim to the land distinctly to defendant’s knowledge, it destroys all claims which he sets up to continuous and uninterrupted possession, and if you also find that plaintiff resided upon and actually cultivated and possessed a portion of the land purchased by it you are instructed that such possession extends to the boundaries described in such deeds of purchase. “ The defendant has informed you by his counsel that he claims this land not by purchase, but because he has been in possession of it for over ten years. I instruct you that unless he had a right to the possession of such lands when he took possession of them he has no right now; time never makes a wrong right. If you find from the evidence that this plaintiff, by its agents, was actually residing upon the land purchased by it, and held by recorded deeds when this defendant entered upon 190 OCTOBER TERM, 1888. Opinion of the Court. said lands and wrongfully took possession of a portion of said • lands, you must find for plaintiff, although you also find that defendant has held said lands for more than ten years adversely to plaintiff.” Obviously the proposition here set out by the court is, that if plaintiff had the real title to the land, and the evidence of it was on record, nobody could, by taking possession and holding it adversely for the period allowed by the statute, defeat such a title. The language used by the court is: “ Unless the defendant had a right to the possession of such lands when he took possession of them he has no right now; time never makes a wrong right.” It is the essence of the statute of limitations that whether the party had a right to the possession or not, if he entered under the claim of such right and remained in the possession for the period of ten years, or other period prescribed by the statute, the right of action of the plaintiff who had the better right is barred by that adverse possession. This right given by the statute of limitations does not depend upon, and has no necessary connection with the validity of the claim under which that possession is held. Otherwise there could be no use for adverse possession as a defence to an action, for if the decision is made to depend upon the validity of the respective titles set up by the plaintiff and the defendant, there can be no place for the consideration of the question of possession. It is because the plaintiff has the better title that the defendant is permitted to rely upon such uninterrupted possession adverse vO the plaintiff’s title as the statute prescribes, it being well understood, and an element in such cases, that the plaintiff does have the better title, but though he has it, that he has lost .his right by delay in asserting it. Nor is it necessary that the defendant shall have a paper title under which he claims possession». It is sufficient that ne asserts ownership of the land, and that this assertion is accompanied by an uninterrupted possession. It is this which constitutes adverse possession, claiming himself to be the owner o the land. This is a claim adverse to everybody else, and the possession is adverse when it is held under this claim of owner- PROBST v. PRESBYTERIAN CHURCH. 191 Opinion of the Court. ship, whether that ownership depends upon a written instrument, inheritance, a deed, or even an instrument which may (not convey all the lands in controversy. If defendant asserts his right to own the land in dispute, asserts his right to the possession, and his possession is adverse and uninterrupted, it constitutes a bar which the statute intended to give to the defendant. The instructions of the court are utterly at variance with this doctrine. They do away with the value of adverse possession as a defence to an action of ejectment. They say in effect that unless the defendant was in the right when he took possession, the length of its continuance does not afford him any ground for a defence; whereas it is obviously the nature and purport of the defence established by the statute of limitations that the defendant may not have been in the right, but this long actual possession estops the plaintiff from putting the defendant to the proof of the right. The court not only erred upon this subject in the positive instructions which it gave to the jury, but also in refusing to charge as follows, at the request of the defendant: “ That an uninterrupted occupancy of land by a person who has in fact no title thereto, for the period of ten years adversely to the true owner, operates to extinguish the title of the true owner thereto and vests the right to the premises absolutely in the occupier.” In Ewing v. Burnet, 11 Pet. 41, 52, this court said upon this subject: “ An entry by one man on the land of another is an ouster of the legal possession arising from the title, or not, according to the intention with which it is done; if made under claim and color of right, it is an ouster; otherwise it is a mere trespass; in legal language the intention guides the entry and fixes its character.” We think this is a correct statement of the doctrine of adverse possession. It is implied by the language of the court in Harvey v. Tyler, 2 Wall. 328, 349, that “*any one in possession, with no claim to the land whatever, must in presumption 0 law be in possession in amity with and in subservience to 192 OCTOBER TERM, 1888. Statement of the Case. that title.” And the instruction of the court below in that case was approved, that if “ any of the defendants entered upon and took possession of the land, without title or claim, or color of title, such occupancy was not adverse to the title of plaintiffs, but subservient thereto.” The fair implication in both of these cases is that where possession is taken under claim of title it sufficiently shows the intention of the party to hold adversely within the meaning of the law upon that subject. There is no case to be found which holds that this adverse claim of title must be found in some written instrument. In the case of B radstreet v. Huntington, 5 Pet. 402, 439, this court said: “The whole of this doctrine is summed up in very few words as laid down by Lord Coke (1 Inst. 153) and recognized in terms in the case of Blunden v. Baugh, 3 Cro. [Car.] 302, in which it underwent very great consideration. Lord Coke says: ‘ A disseisin is when one enters intending to usurp the possession, and to oust another of his freehold ; and therefore querendum est a judice quo animo hoc fecerit, why he entered and intruded.’ So the whole enquiry is reduced to the fact of entering, and the intention to usurp possession'’ The judgment is reversed and the cause remanded, with a direction to award a new trial. SEIBERT v. UNITED STATES ex rel. HARSHMAN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THB EASTERN DISTRICT OF MISSOURI. No. 130. Submitted December 18, 1888. — Decided January 21,1889. Seibert v. Lewis, 122 U. S. 284, was very carefully and elaborately considered, and is adhered to. The case is stated in the opinion. GALIGHER v. JONES. 193 Syllabus. Mr. E. John Ellis, Mr. John Johns and Mr. D. A. Mo-Knight for plaintiff in error. Mr. Clinton Rowell for defendant in error. Mr. Justice Field delivered the opinion of the court. The facts of this case are similar to those in Seibert v. Lewis, before the court at its October term, 1886, 122 U. S. 284, and it is admitted by the counsel for the plaintiff in error that the decision there, if adhered to, will control here. He, however, asks us to reconsider our rulings and reverse our former judgment. We see no reason to justify such reconsideration and change of position. The very elaborate argument of counsel is but a re-presentation of the reasons originally offered against the decision in that and analogous cases. Seibert v. Lewis was very carefully and elaborately considered, and to the doctrines there announced we adhere. Upon its authority The judgment of the court below must be affirmed. GALIGHER u JONES. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH. No. 75. Submitted November 14,1888.—Decided January 21, 1889. A stock-broker received orders by telegraph from his principal to sell certain securities belonging to the principal in his hands and invest the proceeds in certain other securities, named in the order, at a fixed limit. When the telegram arrived the order might have been executed that day, and the securities ordered could have been bought within the limit. The principal was in the habit of dealing with the agent in that way, the agent executing the orders, making advances when necessary and charging the principal with commissions and interest. At the time when this order was received the principal was indebted to the agent for advances, commissions and interest about $4000 more than the value of the secur-i ies in his hands: The broker did not execute the order, did not notify t e principal by telegraph that he declined to do so, and made no demand or further advances; but notified him of his refusal by a letter written on the day when the order was received, but received by the principal vol. cxxix—13 194 OCTOBER TERM, 1888. Opinion of the Court. two days later. The securities which had been ordered sold depreciated below the prices at which they could have been sold on that day, and those which had been ordered bought advanced, so that they could have been sold at a large profit. The broker sued the principal for advances on an open account current and interest and commissions. The principal set up as a counterclaim the losses from these sources: Held, (1) That the broker was bound to follow the directions of his principal or give notice that he declined to continue the agency; (2) That this notice should have been given by telegraph, and that the delay caused by using the mail alone was inexcusable under the circumstances; (3) That in the absence of a special agreement to the contrary, it was the principal’s judgment, and not the broker’s, that was to control; (4) That the broker was liable for all the damages which the principal sustained by the refusal to change the stock, both on the stocks ordered sold, and those ordered purchased. The measure of damages in stock transactions between a stock-broker and his principal, in which the principal suffers from the neglect of the broker to execute orders, either for the sale of stock which he holds for the principal, or for the purchase of stock which the principal orders, is — not the highest intermediate value up to the time of trial — but the highest intermediate value between the time of the conversion and a reasonable time after the owner has received notice of it: in this respect disregarding the rule adopted in England and in several of the States in this country, and following the more recent rulings in the Court of Appeals of the State of New York. The case is stated in the opinion. JZr. John R. UcBride for appellant. J/r. C. W. Bennett for appellee. Mr. Justice Bradley delivered the opinion of the court. This is a suit brought by Jones, a stock-broker, against his customer, for the balance of account alleged to be due to the plaintiff arising out of advances of money and purchases and sales made, and commissions. The complaint, or declaration, stages “that between the 15th day of January, 1877, and 15th day of January, 1879, the plaintiff, as a stock-broker, at the special instance and request of the defendant, paid an advanced on an open account current, to and for the use of the defendant, divers sums of money, and also earne GALIGHER v. JONES. 195 Opinion of the Court. at the defendant’s request, and became entitled to, divers commissions as a broker, for all of which monthly accounts were rendered and balances struck, and, by agreement, interest charged monthly on balances; and that on the first day of March, 1879, there was due and unpaid from defendant to plaintiff the sum of $6232.30 no part of which has been paid.” Judgment is demanded for this sum, with interest and costs. Galigher, the defendant below, in his answer, after denying any indebtedness to the plaintiff, states that the plaintiff is a banker at Salt Lake City, and that the defendant has had for two years past an account with him as such, and that “ the plaintiff, at the defendant’s request, and as his agent, bought or caused to be bought at the Mining Stock Exchange Board, in San Francisco, California, certain mining stocks, for and on account of this defendant, and at various times thereafter in the years 1877 and 1878, on the order and at the direction of this defendant, and as his agent aforesaid, bought and sold mining and other stocks up to about the date of the complaint; that at divers times during and between the dates above specified this defendant paid into said plaintiff’s bank sums of money on account of said purchases, and to the credit thereof, and which was so applied by plaintiff on defendant’s order. “ And defendant denies that at the date of the complaint the sum of five thousand dollars, or any sum, was due the plaintiff on said account, or on any account, for loans or advances from plaintiff to defendant. Defendant further alleges that it was distinctly agreed between the plaintiff and this defendant in the business that said purchases of stock by the plaintiff were made on defendant’s credit, and that said stocks were bought and were to be held subject to defendant’s order at all times, this defendant agreeing to pay said plaintiff ommissions for his services as agent and an agreed rate of interest on any advances he might make, and at no time had e plaintiff any authority to either buy or sell stocks on ofendant’s account, except by his order.” The defendant then set up the following counterclaims, to 1. That on the 13th day of November, 1878, being at 196 OCTOBER TERM, 1888. Opinion of the Court. Virginia City, he ordered the plaintiff (at Salt Lake City), by telegraphic despatch, to sell certain mining stocks then in his hands as defendant’s agent, to wit: 320 shares of “Justice” stock, worth $9 per share; 50 shares of “Alta” stock, worth $8 per share; 200 shares of “Tip Top” stock, worth $1.60 per share, and to invest the proceeds in “North Bonanza” stock, another mining stock on the same board which the defendant had been investigating; that the plaintiff received this despatch in ample time to make the transaction, as directed, on that day, but refused and neglected to do so; and that the defendant relied on its being done, and agreed with another party to sell the stock he had ordered purchased; that the plaintiff did not give notice to the defendant of his refusal to comply with said order until several days afterwards, and then by letter; that afterwards, and without any orders so to do, the plaintiff sold the “ Alta ” stock at $7.75 per share; the “ Justice ” at $4.40 per share; and the “ Tip Top ” at $1.25 per share, making a net loss to defendant of $1200; and that the “ North Bonanza ” stock was not worth more than $2 per share on that day, and within five days thereafter it advanced to $5.60 per share, which the defendant would have realized if the plaintiff had complied with his order, — whereby the defendant lost the sum of $6125. 2. The defendant further alleged, that in the same month of November, 1878, the plaintiff, as defendant’s agent, held for him 600 shares of mining stock known as “Challenge” stock; and without his consent, on the 27th and 29th of said November, sold the same for his, the plaintiff’s, own use, to the damage of the defendant of $2850. 3. That on the 22d day of November, 1877, the plaintiff held for the defendant, as his agent, as aforesaid, fifty shares of mining stock known as “Ophir” stock, worth at that date $37.50 per share, and on that day pretended to defendant that he had sold said stock for defendant, and so reported to him, when in fact he had not sold said stock, but continued to hold the same, and afterwards sold it for $100 per share, the advance amounting to $3125, which is justly due from the plaintiff to the defendant. GALIGHER v. JONES. 197 Opinion of the Court. The case being at issue, was tried by a jury and resulted in a verdict of $5412.50 for the defendant. This verdict was set aside, and a new trial awarded, and the case was next tried by a referee appointed by the court. He duly reported his findings of fact and law, upon which the court gave judgment for the plaintiff for the sum of $7028. The substance of the findings of fact was: That the plaintiff was a banker in Salt Lake City; that during the years 1878 and 1879 he bought and sold mining stocks for the defendant upon defendant’s order and request, and made the advances necessary for the purchases,* and was to receive commissions on the purchases and sales, and interest on the advances; and to hold the stocks purchased for defendant in his own name as collateral security for any balance due to him. With regard to the first defence set up by the defendant, the referee found, that on the 13th of November, 1878, the plaintiff held of stocks purchased for defendant, amongst others, 320 shares of “Justice,” then worth $9 per share; 50 of “Alta,” worth $18 per share; and 200 of “Tip Top,” worth $1.60 per share; and that on that day the defendant, being at Virginia City, ordered plaintiff by telegram to turn his said stocks without limit into “North Bonanza” at limit of $2.75; that the plaintiff received said telegram at Salt Lake City on the same day in time to have sold the stocks ordered sold, and to have purchased the “North Bonanza,” which was then selling for $2 and $2.50 per share; that the plaintiff failed and refused to obey the directions given in the telegram, and failed to notify the defendant of his refusal until the 15th of November, when he notified him by letter written on the 13th and received by defendant on the 15th; that within a few days the price of “North Bonanza” advanced to 85 and $5.50 per share, having reached $3.50 on the 16th of November, and before the 23d receded to a point below what it was on the 13th. The defendant at the time of send-lng his telegram to the plaintiff was owing him more than ror advances, commissions and interest, over and above the market value of the stocks then held by him for the defendant. As a conclusion of law, and under the decision of the Supreme Court of the Territory, given upon setting 198 OCTOBER TERM, 1888. Opinion of the Court. aside the verdict rendered on the first trial, the referee disallowed this counterclaim, holding, in conformity with the view of the court, that the plaintiff was not bound to comply with the defendant’s directions about the stock, and not bound to give him any prompter notice than he did give. The court, in its opinion, as quoted by the referee in his report, had said: “ Was the plaintiff under obligation to sell the stock and invest the proceeds of such sale as directed by the defendant? . . . This order in effect directed the plaintiff to dispose of certain “Securities held by him and to take another in place of them. ... I do not, in the examination of the record and testimony, find any contract or understanding between the parties requiring the plaintiff to do it. The order to sell and reinvest being one, the plaintiff was not obliged to comply with it. The difference between the values of the stocks at the time the order was made and at the time they were afterwards sold is immaterial in this action. The right of the plaintiff to sell at the time of sale and the good faith and sound discretion in which it was made are not in issue. I am, therefore, of the opinion that the verdict allowing damages for the failure of plaintiff to sell the Justice, Alta, and Tip-Top mining stocks, as directed by the defendant on November 13th, 1878, is not supported by evidence rightly before the jury, and that there was error in admitting evidence as to the value of the stock of the North Bonanza in support of the item of counterclaim, based upon the failure of the plaintiff to comply with the order to purchase.” In this we think the court was in error. A broker is but an agent, and is bound to follow the directions of his principal, or give notice that he declines to continue the agency. In the absence of a special agreement to the contrary it is the principal’s judgment, and not his, that is to control in the purchase and sale of stocks. The latter did not ask for any further advances by the order in question; he only directed a conversion, or change of one stock into another. The plaintiff should have given prompt notice that he objected and declined to make the change. Telegraphic communication was used by the defendant, and no reason appears why the plaintiff could GALIGHER v. JONES.’ 199 Opinion of the Court. not have used the same. The delay caused by using the mail alone was inexcusable under the circumstances. The plaintiff charged ample compensation for his services, and was bound to act faithfully, fairly and promptly. We think that he was liable for all the damages which the defendant sustained by his refusal to change the stocks, both for the loss on the sales of the “Justice,” “Alta” and “Tip-Top” and the loss occasioned by not purchasing the “ North Bonanza.” The report of the referee, being made in conformity with the decision of the Supreme Court, does not show sufficient facts to determine the amount of loss in these respects. If the answer states the facts truly, the loss on the failure to sell the old stocks was over $2000 ; and it appears from the report that the “ North Bonanza” could have been purchased at $2 to $2.50 per share on the 13th of November, and sold for $5 to $5.50 within a few days, — showing a loss of $3 per share; and as the proceeds of the other stocks, if they had been sold, as directed, would have been sufficient to purchase 1600 to 2000 shares of “ North Bonanza,” the loss on this account must have been more than $5000. But the want of a sufficient finding of facts necessitates a new trial. As to the second item of counterclaim set up in the answer, namely, the alleged wrongful sale by the plaintiff of 600 shares of “ Challenge ” stock, the referee found that the plaintiff held such stock for the defendant, and on the 27th and 29th of November, 1878, of his own motion, and without notice to the defendant, sold it for $1.25 per share; that in December the stock sold as high as $2 per share; in January the highest price was $3.10; in February, the highest price was $5.50. The referee allowed the defendant the highest price in Jan-uary, namely, $3.10 per share, being an advance of $1.85 above what the plaintiff sold the stock for, which, for the whole 600 shares, amounted to $1110. The reason assigned by the referee for not allowing the defendant the highest price in February, (namely, $5.50 per share,) was that before that time the defendant had reasonable time, after receiving notice of the sale °f his stock by the plaintiff, to replace it by the purchase of new stock, if he desired so to do; and he allowed him the 200 OCTOBER TERM, 1888. Opinion of the Court. highest price which the stock reached within that reasonable time. In this conclusion we think the referee was correct, and as to this item we see no error in the result. With respect to the third counterclaim set up in the answer, the referee found that the plaintiff did sell the fifty shares of “ Ophir ” stock mentioned therein, on the 22d day of November, 1877, as reported by him to the defendant. Consequently, the referee correctly found that the defendant was not entitled to any damages on that account, as no dissatisfaction with the sale was expressed by the defendant at the time. We see no error in this conclusion. It has been assumed, in the consideration of the case, that the measure of damages in stock transactions of this kind is the highest intermediate value reached by the stock between the time of the wrongful act complained of and a reasonable time thereafter, to be allowed to the party injured to place himself in the position he would have been in had not his rights been violated. This rule is most frequently exemplified in the wrongful conversion by one person of stocks belonging to another. To allow merely their value at the time of conversion would, in most cases, afford a very inadequate remedy, and, in the case of a broker, holding the stocks of his principal, it would afford no remedy at all. The effect would be to give to the broker the control of the stock, subject only to nominal damages. The real injury sustained by the principal consists not merely in the assumption of control over the stock, but m the sale of it at an unfavorable time, and for an unfavorable price. Other goods wrongfully converted are generally supposed to have a fixed market value at which they can be replaced at any time; and hence, with regard to them, the ordinary measure of damages is their value at the time of conversion, or, in case of sale and purchase, at the time fixed for their delivery. But the application of this rule to stocks would, as before said, be very inadequate and unjust. The rule of highest intermediate value as applied to stock transactions has been adopted in England and in several of the States in this country; whilst in some others it has not obtained. The form and extent of the rule have been the sub- GALIGHEB v. JONES. 201 Opinion of the Court. ject of much discussion and conflict of opinion. The cases will be found collected in Sedgwick on the Measure of Damages, [479,] vol. 2, 7th ed. 379, note (b); Bayne on Damages, 83, (92 Law Lib.); 1 Smith’s Lead. Cas. (7 Amer, ed.) 367. The English cases usually referred to are Cud v. Rutter, 1 P. Wms. 572, 4th ed. [London, 1777] note (3); Owen v. Routh, 14 C. B. 327; Loder v. Eekule, 3 C. B. (N. S.) 128; Fra/nce v. Gaudet, L. R. 6 Q. B. 199. It is laid down in these cases that where there has been a loan of stock and a breach of the agreement to replace it, the measure of damages will be the value of the stock at its highest price on or before the day of trial. The same rule was approved by the Supreme Court of Pennsylvania in Bank of Montgomery v. Reese, 26 Penn. St. (2 Casey,) 143, and Musgrave v. Beckendorff, 53 Penn. St. (3 P. F. Smith) 310. But it has been restricted in that State to cases in which a trust relation exists between the parties, — a relation which would probably be deemed to exist between a stock-broker and his client. See Wilson v. Whitaker, 49 Penn. St. (13 Wright) 114; Huntingdon R. R. Co. v. English, 86 Penn. St. 247. Perhaps more transactions of this kind arise in the State of New York than in all other parts of the country. The rule of highest intermediate value up to the time of trial formerly prevailed in that State, and may be found laid down in Romaine v. Van Allen, 26 N. Y. 309, and Markham v. Jaudon, 41 N. Y. 235, and other cases, — although the rigid application of the rule was deprecated by the New York Superior Court in an able opinion by Judge Duer, in Suydam v. Jen-ki/ns, 3 Sandford (N. Y.) 614. The hardship which arose from estimating the damages by the highest price up to the time of tual, which might be years after the transaction occurred, was often so great, that the Court of Appeals of New York was constrained to introduce a material modification in the orm of the rule, and to hold the true and just measure of amages in these cases to be, the highest intermediate value 0 the stock between the time of its conversion and a reason-a le time after the owner has received notice of it to enable lni replace the stock. This modification of the rule was 202 OCTOBER TERM, 1888. Statement of the Case. very ably enforced in an opinion of the Court of Appeals delivered by Judge Rapallo, in the case of Baker v. Drake, 53 N. Y. 211, which was subsequently followed in the same case in 66 N. Y. 518, and in Gruma/n v. Smith, 81 N. Y. 25; Colt v. Owens, 90 N. Y. 368; and Wright v. Bank of Metropolis, 110 N. Y. 237. • It would be a herculean task to review all the various and conflicting opinions that have been delivered on this subject. On the whole it seems to us that the New York rule, as finally settled by the Court of Appeals, has the most reasons in its favor, and we adopt it as a correct view of the law. The judgment is reversed, and the cause rema/nded to the Supreme Court of Utah, with instructions to enter judgment in conformity with this opinion. WADE v. METCALF. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOK THE DISTRICT OF MASSACHUSETTS. No. 163. Argued January 10, 1889. — Decided January 21, 1889. Under Rev. Stat. § 4899, a specific patentable machine, constructed with the knowledge and consent of the inventor, before his application for a patent, is set free from the monopoly of the patent in the hands of every one; and therefore, if constructed with the inventor’s knowledge and consent, before his application for a patent, by a partnership of which he is a member, may be used by his copartners after the dissolution of the partnership, although the agreement of dissolution provides that nothing therein contained shall operate as an assent to such use, or shall lessen or impair any rights which they may have to such use. This was a bill in equity, filed December 4, 1880, by William W. Wade, a citizen of Massachusetts, against Henry B. Metcalf, a citizen of Rhode Island, and William McCleery, a citizen of Massachusetts, alleging that letters patent, numbered 228,233, granted to the plaintiff June 1, 1880, upon his application filed July 26, 1879, for improvements in machines WADE v. METCALF. 203 Statement of the Case. for making buttons, had been infringed by the defendants’ use of forty-eight machines embodying such improvements. At the hearing upon pleadings and proofs, the case, so far as it is material to be stated, appeared to be.as follows: The parties to this suit, owning earlier patents for improvements in buttons, were in partnership in the business of making and selling buttons, under the name of the Boston Button Company, from «January, 1875, until the dissolution of the partnership in October, 1880. By the copartnership agreement, certain salaries were to be paid to the plaintiff for improving and developing the machinery, to the defendant Metcalf for assistance in financial matters, and to the defendant McCleery for general superintendence; and the profits of the business were to belong one half to Metcalf and one fourth each to the plaintiff and McCleery. The forty-eight machines, with the improvements in question, were constructed by the partnership, with the knowledge and consent of the plaintiff, before the application for the patent sued on, and were used by the partnership during its continuance, and by the defendants after its dissolution. The partnership was dissolved October 30, 1880, by an agreement in writing executed by the three partners, the terms of which were as follows: “ First. It is agreed that the firm composed of said Metcalf, McCleery and Wade, and doing business under the style of the Boston Button Company, shall be this day dissolved. “Second. The said William W. Wade, in consideration of the payment to him of the sum of twelve thousand dollars by the said Metcalf and McCleery, receipt of which is hereby acknowledged, hereby sells and conveys to the said Metcalf and McCleery all his interest in the property and assets of every name and nature of said firm of the Boston Button Company, together with the good will of the same, with authority to use his name if necessary in the premises, saving him harmless from all cost in the same. And whereas certain machines, forty-eight in number, with a certain improvement thereon, manufactured by said firm, ave been and are now in use by said firm, and the same etcalf and McCleery claim the right as members of said 204 OCTOBER TERM, 1888. Opinion of the Court. firm, by virtue of the manufacture and use by said firm of said machines with said improvements, to continue such use, and the said Wade reserves the right to deny such claim: “ Therefore nothing in this sale and conveyance shall operate as an assent on the part of said Wade to the right to use said improvements upon said machines, or as granting any rights for such use, other than said Metcalf and McCleery now have, whatever they may be; and nothing in this reservation shall be construed to lessen or impair any rights which the said Metcalf and McCleery may have to such use. “ It being further understood that each party shall have the right to manufacture and use machines under patents for improvements in buttons, one dated March 23, 1869, and numbered 88,099, and one dated April 27, 1869, and numbered 89,450; but neither party shall vend to others the right to use or manufacture under said patents without mutual consent, except as the same may be necessary in the reorganization or liquidation of their own business. “The said Metcalf and McCleery hereby assume the payment of the debts of said Boston Button Company, and agree to indemnify and save harmless the said Wade therefrom.” The Circuit Court dismissed the bill. 16 Fed. Rep. 130. The plaintiff appealed to this court. J/r. George F. Betts for appellant. Mr. Edward IF Hutchins (with whom was Mr. Henry Wheeler on the brief) for appellees. Mr. Justice Gray, after stating the case as above reported, delivered the opinion of the court. The decision of this case turns upon § 4899 of the Revised Statutes, by which it is enacted that “ every person who purchases of the inventor or discoverer, or with his knowledge and consent constructs any newly invented or discovered machine or other patentable article, prior to the application by the inventor or discoverer for a patent, or who sells or uses one so constructed, shall have the right to use and vend to WADE v. METCALF. 205 Opinion of the Court. others to be used the specific thing so made or purchased, without liability therefor.” This section clearly defines four classes of persons who shall have the right to uso, and to vend to others to be used, a specific patentable machine: First. Every person “ who purchases of the inventor ” the machine before his application for a patent. Second. Every person who “with his knowledge and consent constructs ” the machine before the application. Third. Every person “ who sells ” a machine “ so constructed,” that is to say, which has been constructed with the knowledge and consent of the inventor by another person. Fourth. Every person who “ uses one so constructed,” that is to say, constructed with the inventor’s knowledge and consent by another person. In order to entitle a person of any of these four classes to use and vend the machine, under this section, the machine must originally have been either purchased from the inventor, or else constructed with his knowledge and consent, before his application for a patent; and it may well be that a fraudulent or surreptitious purchase or construction is insufficie’nt. Kendall v. Winsor, 21 How. 322; Andrews v. Hovey, 124 IT. S. 694, 708. But after a machine has been constructed by any person with the inventor’s knowledge and consent before the application for a patent, every other person who either sells or uses that machine is within the protection of the section, and needs no new consent or permission of the inventor. If the first two clauses of the section, taken by themselves, leave the matter in any doubt, the succeeding clause, including every person “ who sells or uses one so constructed,” makes it perfectly clear that the implied license conferred by the section sets the specific machine free from the monopoly of the patent in the hands of any person, just as if that person were the lawful assignee of one holding the machine under a purchase or an express and unrestricted license from the inventor. Me Clurg v. Kingsland, 1 How. 202 ; Bloomer v. McQuewan, 14 How. 39, 549; Bloomer v. Millinger, 1 Wall. 340; Adams v. Awfe, 17 Wall. 453; Birdsell v. Shaliol, 112 IT. S. 485, 487. 206 OCTOBER TERM, 1888. Statement of the Case. In the case at bar, the machines of the plaintiff’s invention were not purchased from him by the defendants. But they were constructed with his knowledge and consent by a partnership of which he and the defendants were the members. It was strongly argued for the defendants, that a sale or a license from the inventor to two or more partners or tenants in common confers upon each a right to use and to sell the subject of the sale or license, and that the defendants, therefore, come within the second class of persons defined in the statute. But it is unnecessary to determine whether that is so or not, because, if it is not, the defendants clearly come within the fourth class, being persons who use machines which have been constructed with the knowledge and consent of the inventor before his application for a patent. The peculiar provisions of the agreement by which the partnership between the plaintiff and the defendants was dissolved did not, in terms or in legal effect, enlarge or diminish the rights of either party, independently of that agreement, in the machines in question. Decree affirmed. THE FARMERS’ LOAN AND TRUST COMPANY, PETITIONER. ORIGINAL. No. 4. Original.' Argued December 17, 18, 1888. — Decided January 21, 1889. An order of a Circuit Court of the United States, in a suit in equity for the foreclosure of a mortgage upon the property of a railroad company, that the receiver of the mortgaged property may borrow money and issue certificates therefor to be a first lien upon it, made after final decree of foreclosure, and after appeal therefrom to this court, and after the filing of a supersedeas bond, establishes, if unreversed, the right of the holders of the certificates to priority of payment over the mortgage bondholders, and is a final decree from which an appeal may be taken to this court. This was a petition for a writ of mandamus. The motion for leave to file the petition was presented October 22, 1888, FARMERS’ LOAN AND TRUST CO. 207 Statement of the Case. and was granted that day and a rule to show cause issued, returnable on the 3d Monday of the next November. The return was filed on the 26th of November, and argument was had on the 17th and 18th December. The case is stated as follows by the court in its opinion. At the request of the Farmers’ Loan and Trust Company, a rule was granted, in the early part of the present term of this court, on the judges of the Circuit Court of the United States for the Northern District of Texas, to show cause why a mandamus should not issue requiring them to allow an appeal, and to approve a bond upon such appeal, from an order of that court made in. the case of that company against the Texas Central Railway Company. The litigation to which this matter relates was commenced in that court by a bill filed by Morgan’s Louisiana and Texas Railroad and Steamship Company, against the Texas Central Railway Company, for the appointment of a receiver and for the sale of the property of the railway company, to enforce an alleged lien. The Farmers’ Loan and Trust Company afterwards became a party also, and set up, by cross-bill and otherwise, a mortgage against the railway company prior to the lien, of the Morgan company. Receivers were appointed in the progress of that suit, and a final decree rendered by the court m 1887, ordering a sale of the property and recognizing the paramount lien of the Trust Company to the extent of four millions of dollars and over, and holding that the claim of the original complainant was subordinate to that. Appeals were taken accompanied by supersedeas, from the decree of foreclosure, both by the original complainant, the Morgan company, and the railway company, which appeals are now pending in this court on the docket. A motion was filed here at the last term to advance the cause, but it was denied. On February 15, 1888, and after said decree of foreclosure and sale was made, and after the appeal in the case from that decree was taken to this court, and a supersedeas bond filed, the receivers of the railway company presented their petition to the Circuit Court for an order 208 OCTOBER TERM, 1888. Argument against Petitioner. authorizing them to borrow the sum of $120,000 on certificates, the same to be a first lien on the property. The making of this order was opposed by the Trust Company. The matter was referred to a master to report, and on the coming in of his report, which was in favor of the petition of the receivers, their request was granted, and an order was made authorizing them to expend that sum on the railway, and to borrow money for this purpose, for which they were to issue certificates that should be a first lien on the entire property of the railway company, except as to $20,000 of certificates which had already been issued under another order. The Trust Company, believing that this order would work a great injustice to the bondholders whom they represented, and who had the first lien on the property of the railway company, applied successively to the circuit judge and the circuit justice for the allowance of an appeal, and the approval of a bond to operate as a supersedeas, which they offered, and the sufficiency of which has not been controverted. After argument on the subject before both of these judges, they declined to either allow the appeal or approve the bond. Application was then made to this court for a rule upon them to show cause why this appeal should not be allowed and the bond approved. The rule was granted, and the return thereto made by the circuit judge is now before us, giving the reasons why he does not think the appeal should be allowed. The question now before us is on the sufficiency of this return. J/r. Herbert B. Turner for the petitioner. Mr. J. Hubley Ashton opposing. I. The burden is upon the petitioner to show that it has a clear right to an appeal which has been refused by the Circuit Court. (1) Power to issue writs of mandamus to the courts appointed under the authority of the United States is conferred upon this court by the 13th section of the Judiciary Act, now § 688 of the Revised Statutes, “ in cases warranted by the FARMERS’ LOAN AND TRUST CO. 209 Argument against Petitioner. principles and usages of law.” Ex parte Cutting, 94 U. S. 14,19. (2) The writ will not be granted in favor of a party, asking the allowance of an appeal, unless he shows that he took the steps necessary to entitle him to an appeal, and that the amount in dispute is sufficient to give this court jurisdiction. Mussina v. Cavazos, 20 How. 280; Ex parte Baltimore <& Ohio Railroad, 106 U. S. 5; In re Burdett, 127 IT. S. 771. II. The petitioner is not entitled to a mandamus, in this case, unless the order of May 26, 1888, standing alone, as it does, is a final decree, in the suit, within the meaning of § 692 of the Revised Statutes, by which the rights of the petitioner are injuriously affected, and it appears that the amount in dispute exceeds the sum or value of five thousand dollars, exclusive of costs. (1) Congress intended that a case should not be divided up into a plurality of appeals. The Palmyra, 10 Wheat. 502; Forgay v. Conrad, 6 How. 201; Beebe v. Russell, 19 How. 283; Hwniston v. Stainthorp, 2 Wall. 106. Interlocutory orders, made in the progress of a suit, can come here only through, and upon, an appeal from a final decree. Rail/road Co. v. Soutter, 2 Wall. 510, 521; Ex parte Jordan, 94 U. S. 248. Where a matter distinct from the general subject of litigation arises in the progress of a suit in equity, the jurisdiction of this court can be invoked only after a final decision and settlement of the right or claim involved, and the proceedings in relation thereto are ended. Thus, a purchaser at a foreclosure sale may appeal from a decree affecting his interest, but only after the proceedings for the sale, under the original decree, are ended, and from the last decree which the court can make m the case, and which dismisses the parties from further attendance upon the court for any purpose connected with the action. Blossom v. Milwaukee &c. Railroad Co., 1 Wall. 655. See also Butterfield v. Esher, 91 U. S. 246; Trustees v. Qreenough, 105 IT. S. 527, 531; Willia/ms v. Morgan, 111 U. S. 684; Ex parte Jordan, 94 U. S. 248, 251; Wallace v, Loomis, U. S. 146; Milteriberger v. Logansport Railway Co., 106 VOL. CXXIX—14 210 OCTOBER TERM, 1888. Argument against Petitioner. IT. S. 286; Union Trust Co. v. Illinois Hidla/nd Railway^ 117 IT. S. 434; Chicago <& Vincennes Railroad v. Fosdick, 106 IT. S. 47, 84. (2) The limitation of the right of appeal to cases where the matter in dispute exceeds the sum or value of $5000, “ draws the boundary line of jurisdiction, and is to be construed with strictness and rigor.” Elgin v. Ma/rshall, 106 IL S. 578; Farmers' Loan and Trust Co. n. Waterman, 106 IT. 8. 265. III. It doth not appear that the order of May 26th, 1888, affects, or will affect, the rights or interests of the petitioner, or those whom, in equity, it represents, to an amount sufficient to give this court jurisdiction, or to any amount, and no appeal therefrom is, therefore, allowable. (1) The order is an administrative order for the preservation of the property as a trust fund for those entitled to it, and the maintenance of the railroad, and its structures, in a safe and proper condition to serve the public. Wallace v. Loomis, 97 IT. S. 146; Union Trust Co. v. Illinois Midland Co., 117 IT. S. 434, 456. (2) If receivers’ certificates had been issued, under the order in controversy, it would be impossible, we suppose, to tell whether the mprtgage creditors would be injuriously affected, and, if so, to what sum or amount, by reason of the order, and the action of the receivers under it, until the fund for distribution should be ascertained, the amount of the claims of the respective holders of such certificates to priority of lien upon the fund determined, and the results of a final decree of distribution known. IV. The order of May 26th, 1888, as it stands is an administrative order, relating to a matter within tfye domain of the discretion of the Circuit Court, with which this court will not interfere, and it is not, therefore, the subject of an appeal to this court. (1 ) The question presented is as to the legal nature and character of the order, standing alone, as it does, and before and without confirmation by any adjudication of the Circuit Court, recognizing loans made under it, and giving them FARMERS’ LOAN AND TRUST CO. 211 Argument against Petitioner. priority of lien in the distribution of the trust funds. That the order, in its present situation and relation, is to be deemed an administrative order, not involving the exercise of what this court has called “"judicial judgment” and not impugnable for what has been termed '‘‘‘judicial error” appears to follow from the juridical character of the protective powers of courts of Chancery in the case of trust funds, the nature and objects of such orders, as well as from what this court has said, on several occasions, touching the power of courts of Equity, by such orders, to preserve such property when in its hands as a trust fund. The protective and administrative functions of courts of Chancery are as old as those courts themselves. 1 Spence’s Equitable Jurisdiction of the Court of Chancery, 377 - 381; additional note to chapter 6. This order relates only to the business which the court is obliged to carry on, through its officers, in the performance of its duty to take care of and manage the property pending the litigation. The property is not broughfinto the Appellate Court by the appeal, and the Circuit Court must still use its powers to preserve it. Bronson v. La Crosse Bailroad, 1 Wall. 405. In a foreclosure suit, until the litigation is ended, it does not appear that there must be a sale. Kountze v. Omaha Hotel Co., 107 U. 8. 378, 393; and meanwhile the court must keep the road in safe condition. Union Trust Co. v. Illinois Midland Co., ubi supra. See also Wallace v. Loomis, ubi supra. (2) But when the order has been executed, and claims arising under the receivers’ certificates are presented for allowance against the property, with priority of lien over the mortgage bonds, the adjudication of the court upon the respective priorities is a judicial decree, and when final, a final decree, the lawful subject of appeal when a sufficient amount is involved. Forgay v. Conrad, 6 How. 200. V. The order of May 26th, 1888, is not final in the sense of that word in its relation to appeals, and is strictly an interlocutory order in the cause, and not a final decree therein, from which an appeal lies to this court. I <3 ■ No decree can amount to a “ final decree upon .which ah 212 OCTOBER TERM, 1888. Argument against Petitioner. appeal lies to this court, unless it is a final judicial determination of the merits of the case, or of the matter embraced by the decree, terminating the litigation between the parties, and leaving nothing to be done but to carry what has been decreed into execution. This is the principle of the earlier, as well as the late, decisions of this court upon the subject. Humiston v.Stainthorp, 2 Wall. 106, and cases there cited; Barnard v. Gibson, 1 How. 650; Railroad Co. v. Swasey, 23 Wall. 405; Butterfield n. Usher, 91 IT. S. 246 ; Blossom v. Milwaukee &e. Railroad Co., 1 Wall. 655 ; /S'. C. 3 Wall. 196; Grant n. Phanix Ins. Co., 106 IT. S. 429; Bostwick v. Brinkerhoff, 106 IT. S. 3; Green v. Fisk, 103 U. S. 518; Parsons n. Robvnson, 122 IT. S. 112; Burlington dec. Railway Co. v. Simmons, 123 IT. S. 52. Where the trustee of the bondholders, in a foreclosure suit, consents to or acquiesces in an order of the court making the receivers’ certificates a first lien on the property, the bondholders may not be able afterwards to deny the power of the court to act in making the order, so far as the interests of third parties acting on the faith of the order might be affected. Wallace v. Loomis, ubi supra; Union Trust Co. v. III. midland Co., ubi supra; Humphreys v. Allen, 101 Illinois, 490, 500. But where the mortgage trustee has not consented to the order, and has formally denied, as in this case, the power of the court to act in making it, we apprehend, the bondholders are not precluded from afterwards contesting the validity and effect of the receivers’ certificates as a charge upon the property, superior to the lien created by the first mortgages, and the court must adjudicate those questions, when presented for determination, before making its final decree of distribution. It is well settled that receivers’ certificates are not negotiable instruments, and that purchasers of such securities are bound to take notice of the orders under which they were issued, and the records of the court with regard to them, which are always accessible to lenders and subsequent holders. Stanton v. Alabama de Chattanooga Railroad Co., 2 Woods, 506, 512; approved, Union Trust Co. v. III. Midland Co., HI U. S. 456, 461; Swa/nn n. Wrights Executor, 110 IT. S. 590, FARMERS’ LOAN AND TRUST CO. 213 Opinion of the Court. 599; Turner v. Peoria c& Springfield Railroad Co., 95 Illinois, 134; Beach on Receivers, § 396 et seq. VI. It would appear to be settled by adjudication and practice that an order, in a foreclosure suit, for the issuing of receivers’ certificates, the same to be a first lien on the property, is an interlocutory order, which can be brought here only by an appeal from a final decree of distribution. Ex parte Jordam, ubi supra ; Union Trust Co. v. Illinois Midland Railway Co., ubi supra. Mr. Justice Miller delivered the opinion of the court. The reasons why the judges declined to allow this appeal may be substantially divided into two. The first and most important of these is, that the order from which the appeal is asked is not a final decree, within the meaning of the act of Congress on that subject, but is a mere ancillary proceeding for the protection of the property pending an appeal from the principal decree now before this court. But the doctrine that, after a decree which disposes of a principal subject of litigation and settles the rights of the parties in regard to that matter, there may subsequently arise important matters requiring the judicial action of the court in relation to the same property and some of the same rights litigated in the main suit, making necessary substantive and important orders and decrees in which the most material rights of the parties may be passed upon by the court, and which, when they partake of the nature of final decisions of those rights, may be appealed from, is well established by the decisions of this court. Blossom v. Milwaukee dee. Railroad Co., 1 Wall. 655; Forgay v. Conrad, 6 How. 201; Fosdick v. Schall, 99 U. S. 235 ; Williams v. Morgan, 111 U. S. 684; Burnham v. Bowen, 111 IT. S. 776. The question in such cases is not whether the order complained of is of a character decisive of questions that the parties are entitled to have reviewed in the appellate court, but whether the order or decree is of that final nature which alone can be brought to this court on appeal. It is upon this ground mainly that the right of appeal is resisted in the pres- 214 OCTOBER TERM, 1888. Opinion of the Court. ent case; but we are of opinion that, within the true principles which establish the finality of a decree of the Circuit Court in reference to the allowance of an appeal, this order is a final decree. If the order is executed, the first thing to be done under it will be to borrow money to the extent authorized therein, and then the receivers will issue the certificates contemplated in it. It is not necessary to hold here what the position of the holders of such certificates would be, if the order contained no provision that they should be the first lien upon the property of the company. It might be, but it is not necessary to decide that question here, that such an order would not be conclusive of the right of the holders of such certificates to priority of payment out of the proceeds of the sale of the railway. It is one of the arguments used before us, that upon a final sale, and an order by the court for the distribution of its proceeds, such certificates would not necessarily be held to have such priority; but that, issued under this order, and containing on their face the provision authorized by it, they would constitute a first lien upon the property of the railway company to be sold under the final decree, is, we think, very clear. Such order standing unrepealed, we do not think that the court in a subsequent stage of the same litigation, in the same case and in regard to the same subject matter, could be permitted to say that the holders of these certificates must establish their right to priority of payment; but we are of opinion that such holders, under the decree of this court that they should have priority standing unreversed, would be entitled to such first lien. These views we do not propose to elaborate, further than to say that if this order does not give the lender of the money such prior lien upon the proceeds of the property of the company it is because the court had no authority to make it, and as it would be a fraud upon such lender justice could only be done by enforcing it. If this view of the subject be correct, of which we entertain no doubt, the order is a final one. It is a decree fixing upon the property, on which the trust company now has a first lien, another lien of $120,000, and making FARMERS’ LOAN AND TRUST CO. 215 Opinion of the Court. it paramount to that. It changes the relation of that company to this property, displaces its rights as settled by a decree now pending in this court, and if that decree is affirmed, it in effect modifies it, although this court may say that it should stand and be enforced. This order comes within all the elements of finality which we can imagine to belong to a decree of the Circuit Court. It establishes certain rights of the parties, to the injury, as petitioners believe, of their interests in the property. We need not refer to cases on the subject of finality, for they are numerous, and the principles on which they have been decided apply to widely varying circumstances. But while we are not aware of any case precisely in point to the one before us, we are satisfied that it is within the purpose of the statute and the principles by which it is to be construed. The other reason given why the appeal should not be granted is that the action of the Circuit Court in the case is one within its discretion. All we have to say upon this subject is, that if it be an authority vested in the judges of the Circuit Court, it must be exercised and governed by the principles of a judicial discretion, and the very point to be decided upon an appeal here is, whether they had such discretion, and whether they exercised it in a manner that cannot be reviewed in this court. The question is one which in its nature must be a subject of appeal. Whether the court below can exercise any such power at all, after the case has been removed from its jurisdiction into this court by an appeal accompanied by a supersedeas, is itself a proper matter of review; and still more, whether, in the exercise of what the1 court asserts to be its discretionary power, it has invaded established rights of the petitioners in this case, contrary to law, in such a manner that they can have no relief except by an appeal to this court. This is a matter eminently proper to be inquired into upon an appeal from such an order. Upon the hearing of that appeal this court may be of opinion that the order was one proper to be made, in which case it will be affirmed. If, however, it believes that it was an improper one, and will seriously prejudice the rights of the petitioners, it will be reversed and set aside, 216 OCTOBER TERM, 1888. Concurring Opinion: Bradley, J. as it should be. In granting the appeal this court, of course, does not undertake to decide whether the order was rightfully made, if the court had the requisite power, but can only do that upon the hearing of the appeal. For the same reasons this court cannot consider, on this motion, the urgent appeals made to it in regard to the necessity of this order for the preservation of the railway from destruction during the pendency of the appeal on the main case. That is a matter only fit to be considered on the hearing of the appeal, which we think should be granted. The writ of mandamus, directing the judges of the Circuit Court to allow the appeal and to approve a sufficient bond, is granted. Me. Justice Bkadley said: I concur in the judgment of the court, but for a different reason from that given in the opinion. I think that after appeal from a final decree in a foreclosure suit, and after the case comes here, a supersedeas bond having been given, the control of the fund in dispute belongs to this court, subject to the management of the property by the court below. In such management that court is the agent of this court, and all its acts in that respect are subject to review and supervision here when properly brought before us. In the present case the order complained of being final in the matter to which it relates, and being made since the final decree in the cause, and not reviewable on the appeal from that decree, it may be as well reviewed here by appeal as in any other way. For that reason I concur in the decision made by the court. KIMMISH v. BALL. 217 Statement of the Case. KIMMISH v. BALL. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF IOWA. No. 1254. Submitted January 2,1889. —Decided January 28, 1889. Section 4059 of the Code of Iowa, which provides that a person having in his possession ‘ ‘ Texas cattle ” shall be liable for any damages which may accrue from allowing them to run at large and thereby spread the disease known as the “ Texas fever,” is not in conflict with the commerceclause of the Constitution of the United States ; nor is it a denial to citizens of other States of any rights and privileges which are accorded to citizens of Iowa, and thus in conflict with Subdivision 1 of Section 2 of Article 4 of the Constitution, relating to the privileges and immunities of the citizens of the several States. The court stated the case as follows : This case comes from the Circuit Court of the United States for the Southern District of Iowa. It involves the validity of a statute of that State, making a person having in his possession within it any Texas cattle, which have not been wintered north of the southern boundary of Missouri and Kansas, liable for any damages that may accrue from allowing them to run at large, and thereby spread the disease known as Texas fever. The statute is found in § 4059 of the Code of Ohio, which refers to the preceding § 4058. The two sections are as follows : “ Sec. 4058. If any person bring into this State any Texas cattle, he shall be fined not exceeding one thousand dollars or imprisoned in the county jail not exceeding thirty days, unless they have been wintered at least one winter north of the southern boundary of the State of Missouri or Kansas : Pro-'oided, That nothing herein contained shall be construed to prevent or make unlawful the transportation of such cattle through this State on railways, or to prohibit the driving 218 OCTOBER TERM, 1888. Statement of the Case. through any part of this State, or having in possession, any Texas cattle, between the first day of November and the first day of April following. “ Sec. 4059. If any person now or hereafter has in his possession, in this State, any such Texas cattle, he shall be liable for any damages that may accrue from allowing said cattle to run at large, and thereby spreading the disease among other cattle known as the Texas fever, and shall be punished as is prescribed in the preceding section.” The action is based upon this latter section. The petition of the plaintiff alleges that in June, 1885, the defendants were the owners of and had in their possession and under their control a herd of Texas cattle, which had not been wintered north of the southern boundary of Missouri or Kansas, and which were purchased at or near Fort Smith, in Arkansas ; that said cattle, while in the possession and under the control of the defendants, were allowed by them to run at large in Union Township, Harrison County, Iowa, contrary to the provisions of § 4059 of its code; and that the said cattle were infected by a disease known as “ Texas cattle fever,” which was spread and disseminated by them among the cattle of the plaintiff, whereby they sickened and died, to his damage of five thousand dollars, for which he prays judgment. To this petition the defendants demurred on the grounds, first, that §§ 4058 and 4059 are in conflict with Section 8, Article 1 of the Constitution of the United States, in that the legislature of Iowa undertakes to regulate and interfere with interstate commerce; and second, that the sections are in conflict with Section 2 of Article 4 of the Constitution of the United States relative to the privileges and immunities of citizens of the several States. The demurrer was heard at March term, 1888, of the Circuit Court, the court being held by two judges who were opposed in opinion upon the constitutionality of § 4059, on the grounds mentioned. The plaintiff electing to stand upon his petition, judgment was entered for the defendants sustaining the demurrer, according to the opinion of the presiding judge. Thereupon, on motion of the plaintiff, it was ordered that the KIMMISH v. BALL. 219 Opinion of the Court. points of disagreement be certified to this court; and upon this certificate1 the case has been heard. J/r. I. N. Flickinger for plaintiff in error. Jfr. W. F. Sapp for defendants in error. Me. Justice Field, after stating the case, delivered the opinion of the court. In order to understand § 4059 of the Code of Iowa, it must be read in connection with the preceding § 4058, to which it refers. It must also be known what is meant by “Texas cattle,” and what influence a winter north has upon the disease called “Texas fever,” with which such cattle are liable to be infected. Section 4058 is levelled against the importation of Texas cattle which have not been wintered north of the southern boundary of Missouri or Kansas. Any person bringing into the State Texas cattle, unless they have been thus wintered, is subject to be fined or imprisoned. When, therefore, § 4059 refers to the possession in the State of any “ such Texas cattle ” it means cattle which have not been wintered North, as mentioned in the preceding section. It is only when they have not been thus wintered that apprehension is felt that they may be infected with the disease and spread it among other cattle. The term “ Texas cattle ” is not defined in the Code of Iowa; and whether used there to designate cattle from the State of Texas alone, or, as averred by the plaintiff in error, a particular breed or variety called Mexican or Spanish cattle, which are also found in Arkansas and the Indian Territory, is 1 The questions certified were as follows: 1st. Is § 4059 of the Code of Iowa repugnant to and in conflict with the provisions of Sec. 8 of Article 1 of the Constitution of the United States relative to the regulation of commerce among the several States and by reason thereof unconstitutional? 2nd. Is § 4059 of the Code of Iowa repugnant to or in conflict with Sec. 2 of Article 4 of the Constitution of the United States relative to the privileges and immunities of citizens in the several States and by reason thereof unconstitutional? 220 OCTOBER TERM, 1888. Opinion of the Court. not material for the disposition of this case. Cattle coming from both of those States and from that Territory during the spring and summer months are often infected with what is known as Texas fever. It is supposed that they become infected with the germs of this distemper while feeding, during those months, on the low and moist grounds of those States and Territory, constituting what are called their malarial districts, which are largely covered with a thick vegetable growth. These germs are communicated to domestic cattle by contact, or by feeding in the same range or pasture. Scientists are not agreed as to the causes of the malady; and it is not important for our decision which of the many theories advanced by them is correct. That cattle coming from those sections of the country during the spring and summer months are often infected with a contagious and dangerous fever is a notorious fact; as is also the fact that cold weather, such as is usual in the winter north of the southern boundary of Missouri and Kansas, destroys the virus of the disease, and thus removes all danger of infection. It is upon these notorious facts that the legislation of Iowa for the exclusion from their limits of these cattle, unless they have passed a winter north, is based. See Missouri Pacific Railway Company v. Finley, 38 Kansas, 550, 556; also, First Annual Report to the Commissioner of Agriculture of the Bureau of Animal Industry for 1884, 426; and Second Annual Report of the same bureau for 1885, 310. Section 4059, with which we are concerned, provides that any person who has in. his possession in the State of Iowa any Texas cattle which have not been wintered north shall be liable for any damages that may accrue from allowing such cattle to run at large and thereby spread the disease. We are unable to appreciate the force of the objection that such legislation is in conflict with the paramount authority of Congress to regulate interstate commerce. We do not see that it has anything to do with that commerce ; it is only levelled against allowing diseased Texas cattle held within the State to run at large. The defendants labor under the impression that the validity of § 4058, which is directed against the importation KIMMISH v. BALL. 221 Opinion of the Court. into the State of such cattle unless they have been wintered North, is before us, and that a consideration of its validity is necessary in passing upon § 4059; but this is a mistake. Section 4058 is before us only that we may ascertain from it the meaning intended by certain terms used in the subsequent section referring to it, and not upon any question of ,its constitutionality. Nor does the case of Railroad Company v. Husen, 95 IT. S. 465, upon which the defendant relies with apparent confidence, have any bearing upon the questions presented. The decision in that case rested upon the ground that no discrimination was made by the law of Missouri in the transportation forbidden between sound cattle and diseased cattle; and this circumstance is prominently put forth in the opinion. “ It is noticeable,” said the court, “ that the statute interposes a direct prohibition against the introduction into the State, of all Texas, Mexican, or Indian cattle during eight months of each year, without any distinction between such as may be diseased and such as are not.” (p. 469.) It interpreted the law of Missouri as saying to all transportation companies, “ You shall not bring into the State any Texas cattle or any Mexican cattle or Indian cattle between March 1st and December 1st in any year, no matter whether they are free from disease or not, no matter whether they may do an injury to the inhabitants of the State or not; and if you do bring them in, even for the purpose of carrying them through the State without unloading them, you shall be subject to extraordinary liabilities.” (p. 473.) Such a statute, the court held, was not a quarantine law, nor an inspection law, but a law which interfered with interstate commerce, and therefore invalid. At the same time the court admitted unhesitatingly that a State may pass laws to prevent animals suffering from contagious or infectious diseases from entering within it. (p. 472.) No attempt was made to show that all Texas, Mexican, or Indian cattle coming from the malarial districts during the months mentioned were infected with the disease, or that such cattle were so generally infected that it would have been impossible to separate the healthy from the diseased. Had such proof been given, a different 222 OCTOBER TERM, 1888. Opinion of the Court. question would have been presented for the consideration of the court. Certainly all animals thus infected may be excluded from the State by its laws until they are cured of the disease, or at least until some mode of transporting them without danger of spreading it is devised. Railroad Company v. Husen gives no support to the contention of the defendant. There is no necessary dependence of the provisions of § 4059, imposing a civil liability, upon those of § 4058, so that the one may not stand without the other. If the criminal liability created by § 4058 is open to doubt, which we do not affirm, the civil liability may remain for the damages caused by the wilful conduct designated in § 4059. Packet Company v. Keokuk, 95 IT. S. 80; Aliens. Louisiana, 103 IT. S. 80. The case is, therefore, reduced to this, whether the State may not provide that whoever permits diseased cattle in his possession to run at large within its limits shall be liable for any damages caused by the spread of the disease occasioned thereby; and upon that we do not entertain the slightest doubt. Our answer, therefore, to the first question upon which the judges below differed is in the negative, that the section in question is not unconstitutional by reason of any conflict with the commercial clause of the Constitution. As to the second question, our answer is also in the negative. There is no denial of any rights and privileges to citizens of other States which are accorded to citizens of Iowa. No one can allow diseased cattle to run at large in Iowa without being held responsible for the damages caused by the spread of disease thereby ; and the clause of the Constitution declaring that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States does not give non-resident citizens of Iowa any greater privileges and immunities in that State than her own citizens there enjoy. So far as liability is concerned for the act mentioned, citizens of other States and citizens of Iowa stand upon the same footing. Paul v. Virginia, 8 Wall. 168. It follows that the judgment below must be Reversed, and the cause remanded for a new trial- NATIONAL SECURITY BANK v. BUTLER. 223 Opinion of the Court. NATIONAL SECURITY BANK v. BUTLER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. No. 166. Argued January 14,1S89. — Decided January 28, 1889. From the facts of this case, it was held, that the intent of a national bank, after it was insolvent, to prefer a creditor, by a transfer of assets, in violation of § 5242 of the Revised Statutes, was a necessary conclusion; that, if any other verdict than one for the plaintiff, in a suit at law by the receiver of the bank to recover the value of the assets from the creditor, had been rendered by the jury, it would have been the duty of the court to set it aside; and that it was proper to direct a verdict for the plaintiff. The meaning of § 5242 is not different from the meaning of § 52 of the act of June 3, 1864, c. 106, 13 Stat. 115. It is sufficient, under § 5242, to invalidate such a transfer, that it is made in contemplation of insolvency, and either with a view on the part of the bank to prevent the application of its assets in the manner prescribed by chapter 4 of title 62 of the Revised Statutes, or with a view on its part to the preference of one creditor to another; and it is not necessary to such invalidity that there should be such view on the part of the creditor in receiving the transfer, or any knowledge or suspicion on his part at the time, that the debtor is insolvent or contemplates insolvency. The case is stated in the opinion. Mr. Russell Gray and JMr. J. C. Coombs for plaintiff ,in error. Mr. A. A. Ranney for defendant in error. Mr. Justice Blatchford delivered the opinion of the court. This is an action at law, brought in the District Court of the United States for the District of Massachusetts, in November, 1882, by the receiver of the Pacific National Bank, a corporation duly organized under the banking laws of the United States, against the National Security Bank, another corporation so organized. The declaration contains three counts. The first count 224 OCTOBER TERM, 1888. Opinion of the Court. alleges that the Pacific National Bank became insolvent and failed ; that the Comptroller of the Currency, on the 22d or May, 1882, appointed the plaintiff, Linus M. Price, receiver of the same; that the bank stopped business and closed its doors on the 20th of May, 1882, being insolvent and unable to pay its debts ; that steps were, on that day, taken to represent it to said comptroller as insolvent, and to have a receiver appointed to close it up ; that it was determined, on the 20th of May, 1882, not to open its doors or carry on business longer ; that, on that day, the Security Bank was owing to the Pacific Bank, in account, as balance on book, $40.25, and the former bank also held against the latter a certificate of deposit for $10,000 ; that, on the 22d of May, 1882, the Pacific Bank, through its cashier, although it was then insolvent and contemplated insolvency, and had then actually failed and stopped business and taken said steps for the appointment of a receiver, transferred and delivered to the Security Bank certain checks, drafts, bills, and other property, amounting on their face to the sum of $10,967.95, which, with the said $40.25, made the sum of $11,008.20 ; that the Security Bank thereupon gave to the cashier of the Pacific Bank a certificate of deposit, as follows : “No. 6216. National Security Bank, “$11,008^-. Boston, May 22, 1882. *“E. C. Whitney, cash., has deposited in this bank eleven thousand and eight dollars, payable to the order of himself on the return of this certificate properly indorsed. “Chas. R. Batt, Cashier;” that the Security Bank collected the money upon the said checks, etc. ; that the said certificate of deposit came to the hands of the plaintiff as receiver, among the other assets of the Pacific Bank ; that, on a demand made by him, the Security Bank refused to deliver or pay the said property, or its avails, claiming a right to set it off or apply it on the said certificate of deposit for $10,000;. that, on the 20th of May, 1882, the Pacific Bank was insolvent ; that it, and its directors and NATIONAL SECURITY BANK v. BUTLER. 225 Opinion of the Court. officers, well knew the same, and contemplated insolvency; that it was in the same condition on the 22d of May, 1882; that the said transfer of property to the Security Bank was in fraud of the creditors of the Pacific Bank, with a view of giving the former bank a preference over other creditors, by having the same operate as a payment of the debt due to the Security Bank by the Pacific Bank, by way of set-off or otherwise; that the said transfer was illegal, and, if allowed to operate as a set-off or payment, would work an unlawful preference ; and that the Pacific Bank, and its officers and cashier, well knew, when the transfer was made’, that the property, or its proceeds, when collected, would or might be availed of for the payment of the debt due the Security Bank, by way of set-off or otherwise, and contemplated the same, or was bound and is presumed by law to have contemplated and intended the same. The second count of the declaration alleges the giving of the certificate of deposit for $11,008.20; that the plaintiff, as receiver, presented to the Security Bank said certificate, duly indorsed, and demanded payment thereof; but that the defendant refused to pay it. The third count alleges that the defendant owes to the plaintiff, as receiver, $11,008.20, as and for money had and received by the defendant to the use of the plaintiff. The declaration demands the recovery of $11,008.20, with interest. The defendant filed an answer and a declaration in set-off. The substance of these papers is, that the defendant has a claim in set-off against the Pacific Bank for the amount of the certificate of deposit of the latter bank for $10,000 which was as follows: “ The Pacific National Bank of Boston, Mass. $10,000. Boston, May 13th, 1882. “ This certifies that there has been deposited in this bank ten thousand dollars, payable to the order -of Nat. Security Bank on return of this certificate properly indorsed. u N°- 2513. E. C. Whitney, Cashier. (Countersigned) G. H. Benyon, Teller? VOL. CXXIX-T-15 226 OCTOBER TERM, 1888. Opinion of the Court. The plaintiff put in an answer to the defendant’s declaration in set-off, making substantially the same averments which are contained in the first count of the plaintiff’s declaration. On these issues there was a trial by a jury, which resulted in a verdict for the plaintiff for $12,232.88, and a judgment for him for that amount, with costs. The case was taken to the Circuit Court by the defendant, by a writ of error, and it affirmed the judgment of the District Court, with costs. The opinion of the Circuit Court is reported in 22 Fed. Rep. 697. The plaintiff brought the case to this court by a writ of error; and afterwards Peter Butler, as successor of Price, as receiver, became plaintiff in error. There was a bill of exceptions taken by the defendant in the District Court. It states that the three counts of the plaintiff’s declaration were all for the same cause of action, and that the right of action contained in the first count was founded upon § 5242 of the Revised Statutes. That section provides as follows: “ All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter,or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void.’ That section is incorporated in the Revised Statutes from § 52 of the act of June 3, 1864, c. 106, 13 Stat. 115. The two sections differ in these respects: the word “transfer becomes “transfers;” the words “and other” become “or other; ” the words “ any association ” become “ any national banking association; ” the words “ with a view to prevent become “ made with a view to prevent; ” and the words “ this act ” become “ this chapter.” No change was made in the meaning of the statute by inserting in § 5242 the word “ made,” not found in § 52 of the act of 1864. NATIONAL SECURITY BANK v. BUTLER. 227 Opinion of the Court. The bill of exceptions states that it was admitted at the trial that the $40.25 was on deposit in the Security Bank before the commission of any act of insolvency by the Pacific Bank, and that as to so much of the plaintiff’s claim the set-off was a good answer. As to the rest of the claim, the following facts were proved or admitted: “On Saturday, May 20, 1882, the Pacific Bank, which had previously failed in November, 1881, and had afterwards reorganized and done business, being deeply insolvent, its directors held a meeting in the afternoon, after the regular close of business for the day, and passed these votes, which votes and the proposed action the directors purposely kept concealed until they were carried out; ‘Voted, To go into liquidation. Voted, That the bank be closed to business. Voted, That Lewis Coleman, president, Micah Dyer, Jr., Andrew F. Reed, directors, and William J. Best, be and hereby are appointed a committee to proceed to Washington to confer with the Hon. John J. Knox, Comptroller of the Currency, as to the measures proper to be taken in the present situation; that, if the comptroller shall deem it necessary to appoint a receiver, the directors unanimously recommend for that position Mr. E. C. Whitney, who, since March 18, has discharged the duties of cashier with great ability, diligence, and energy, and who is perfectly familiar with the assets, liabilities, and affairs of the bank and thoroughly understands the steps necessary to be taken to speedily and profitably realize upon the estate to the fullest extent; that, if Mr. E. C. Whitney shall be appointed receiver of the bank, the directors wiH furnish satisfactory bonds for the faithful discharge of his duties, to any amount which the comptroller may require.’ And the bank never after did any business except so far as appears in this bill. The committee of the directors went to Washington on Saturday night, and on Monday, May 22, saw the comptroller, who appointed the plaintiff receiver about ten o’clock a.m., and the plaintiff left Washington , on onday and on the following day arrived in Boston and took possession of the bank. For some time before this, and ever since the resuscitation 228 OCTOBER TERM, 1888* Opinion of the Court. of the bank after its first failure, the Pacific Bank, not being a member of the Boston clearing house, had been in the habit daily, of depositing with the defendant all checks received by the Pacific Bank, to be collected through the clearing-house by the defendant, with which the Pacific Bank was credited as a depositor and against which it drew. “ On Monday morning, May 22, Whitney, the cashier of the Pacific Bank, received by mail, as usual, many letters enclosing drafts and checks, and sent all these checks and drafts, amounting to $10,967.95, to the defendant bank, where they were received and forthwith sent to the clearing-house, with other checks, to be cleared by defendant. “The messenger who carried the checks to the defendant took at the same time and presented to the defendant a check drawn by Whitney for $11,008.20, being the whole amount of the checks then deposited, and $40.25 already to the credit of the Pacific Bank on its current deposit account with the defendant. “ The defendant’s paying teller, at the messenger’s request, gave him the defendant’s negotiable certificate of deposit, payable on demand, for the said sum of $11,008.20. The defendant at that time held the negotiable certificate of deposit of the Pacific Bank, payable on demand, for $10,000.” The copies of those certificates are hereinbefore set forth. “ These transactions took place as early as half-past nine on the morning of May 22, and no officer of the defendant bank then knew or suspected that the Pacific Bank was insolvent or contemplating insolvency, or was not doing business as usual, or that its directors had voted to close it, or that application was to be made for a receiver, and no application had, in fact, at that time been made to the comptroller, it being made about 10 a.m. of that day.” The parties had duly demanded of each other payment of their respective claims. The bill of exceptions also states as follows: “ There was other evidence given in the case on both sides, and particularly on the question whether any, and, if any, what, agreement was afterwards made between Whitney, the cashier of the Pacific Bank, and Batt, the cashier of the defendant bank, as NATIONAL SECURITY BANK v. BUTLER. 229 Opinion of the Court. to the terms and conditions on which the deposit made on May 22d, as above stated, should be held by the defendant, part of this evidence consisting of a letter from Whitney to Batt.” It then proceeds: “ The defendant requested the judge to submit to the jury the three following questions: First, whether or not there was in fact any view or intent on the part of the Pacific Bank, or any of its officers, to give a preference to the defendant over other creditors, or to prevent the application of the assets of the Pacific Bank in the manner prescribed in the bank act; second, whether or not any subsequent agreement was made varying the relation of the two banks as they existed at the time the checks were deposited ; third, if the jury answer the preceding question in the affirmative, whether or not such agreement was expressed in Whitney’s letter. The defendant at the same time prayed the judge to give several rulings on matters of law applicable to the facts as they might be found by the jury on the above issues. But the judge refused to submit the above or any questions whatever to the jury, or to give any of the rulings prayed for, on the ground that the issues were immaterial, and that there was no question for the jury, and ruled, as matter of law, that, on the undisputed facts in the case, the plaintiff was entitled to recover the amount of the checks and drafts deposited by the Pacific Bank in defendant’s bank on Monday.” The court directed a verdict for the plaintiff for $12,232.88, that being the amount of the checks and drafts, with interest from the date of the writ; and the defendant excepted to such rulings and refusals to rule. The view taken by the Circuit Court was, that, under § 5242, the transfer or payment by a bank, to be void, must be made after the commission of an act of insolvency, or in contemplation thereof, and with a view to prevent the application of its assets as provided by law, or with a view to gwing a preference to one creditor over another; that the undisputed facts of the case showed that the act of the cashier could, under the circumstances, have no other result, if allowed to stand, than to operate as a preference in favor of the Secur- 230 OCTOBER TERM, 1888. Opinion of the Court. ity Bank ; that the Pacific Bank had decided to close its doors and go into liquidation ; that after that the necessary consequence of the transfer was to create a preference; that it could not be said that the transfer was made with the intention of going on in business, nor could it be contended that it was made to save the credit of the bank ; and that, after the vote of the directors to close the bank and go into liquidation, any transfer of its assets to a creditor, whereby that creditor secured a preference, must be presumed to be made with an intent to prefer. We concur in this view of the case. The directors of the Pacific Bank held a meeting on the afternoon of Saturday, May, 20, 1882,’after the regular close of business for that day, and passed three votes: (1) to go into liquidation ; (2) that the bank be closed to business ; (3) that the president, two directors, and another person be a committee to go to Washington and confer with the Comptroller of the Currency as to the measures proper to be taken, and that, if the comptroller should deem it necessary to appoint a receiver, the directors unanimously recommended for that position Mr. Whitney, the cashier, and that, if he should be appointed receiver, the directors would furnish satisfactory bonds for his faithful discharge of the duties, to any amount which the comptroller might require. These votes and the proposed action the directors purposely kept concealed. The bank never afterward did any business, except so far as appeared in the bill of exceptions. The committee of the directors went to Washington on Saturday night, and on Monday, May 22, 1882, saw the comptroller, who appointed Mr. Price to be the receiver, about 10 o’clock a.m. ; and he left Washington on Monday, and on Tuesday arrived in Boston and took possession of the bank. Although the Pacific Bank, not being a member of the Boston clearing-house, had been in the habit of daily depositing the checks received by it with the defendant, to be collected by the latter through the clearing-house, the Pacific Bank being credited as a depositor and drawing on the Security Bank against the checks ; and although it was in accordance with that custom that Mr. Whitney, the cashier of the Pacific NATIONAL SECURITY BANK v. BUTLER. 231 Opinion of the Court. Bank, sent the checks and drafts, amounting to $10,967.95, to the Security Bank on Monday, May 22, 1882, to be cleared by it, drawing for the $11,008.20 at the time, and receiving in return, on its own request, from the Security Bank, a negotiable certificate of deposit of that bank, payable to the order of Mr. Whitney on the return of the certificate properly indorsed ; yet Mr. Whitney knew at the time of these transactions that the certificate of deposit for $10,000, given by him to the Security Bank nine days before, created an indebtedness of the Pacific Bank to the Security Bank for that amount, and was, though negotiable, presumably still held by that bank. It was in fact still held by it. The natural presumption was that, if the certificate were still held by the Security Bank, that bank would, as soon as it should learn that the Pacific Bank was closed to business, seek to retain out of the collections the amount of such certificate, and apply that amount to its payment. It is sufficient, under § 5242 of the Revised Statutes, to invalidate such a transfer, that it is made in contemplation of insolvency, and either with a view to prevent the application of the assets of the bank in the manner prescribed by chapter 4 of title 62 of the Revised Statutes, or with a view to the preference of one creditor to another. Certainly, the transfer in question was made in contemplation of insolvency, made as it was after the directors had voted that the bank should go into liquidation, and should be closed to business, and that a receiver should be appointed ; and it was made with a view, on the part of the Pacific Bank and of its cashier, who represented it and acted for it in this transfer of its assets, to prevent the application of its assets in the manner prescribed by such chapter 4 of title 62, and with a view to prefer the Security Bank to other creditors. The transaction, if allowed to stand, could result in nothing else. The statute made it void, although there was no such view on the part of the Security Bank in receiving the transfer of the assets; and although there was no knowledge or suspicion at that time on the part of the Security Bank that the Pacific Bank was insolvent or contemplated insolvency, or was not doing busi- 232 OCTOBER TERM, 1888. Opinion of the Court. ness, or that its directors had voted to close it, or that application was to be made for a receiver; and although the transfer took place before the application was actually made to the comptroller for the appointment of a receiver. There was no question of fact to be submitted to a jury. From the facts proved, the intent to prefer, on the part of the Pacific Bank, was a necessary conclusion; and it was correct in the District Court to direct a verdict for the plaintiff. If any other verdict, on the facts proved, had been rendered, it would have been the duty of that court to set it aside. Nor was there any error on the part of the District Court in refusing to submit to the jury the second and third questions which the defendant requested the judge to submit to them. The bill of exceptions does not set forth what the “other evidence” given in the case was, in regard to any subsequent agreement between the cashiers of the two banks, as to the holding of the deposit by the Security Bank. The court ruled that the issues involved in such second and third questions were immaterial; and this court cannot hold otherwise, on the facts set forth in the bill of exceptions. “Any subsequent agreement ” must have been made after the receiver had been actually appointed, and could not affect his rights. The defendant objects that the rulings of the District Court were made, and the verdict and judgment were rendered generally, on the plaintiff’s declaration of three counts; and that the first count, which seeks to recover back the money deposited as an unlawful payment, is inconsistent with the second count, which seeks to recover on the certificate of deposit as a valid instrument. It is a sufficient answer to this contention to say, that no objection was made to the declaration by way of demurrer or otherwise, at the trial or before, and no ruling on the subject was asked for at the trial, or was made the subject of an exception. No objection or exception was taken to the verdict, nor did the defendant request at the trial that the plaintiff should elect on which count he would ask a verdict; nor did the defendant request the court to ask the jury to state on which count of the declaration the verdict was rendered. ROBERTSON v. PERKINS. 233 Opinion of the Court. We see no inconsistency between the first and second counts of the declaration. They were in substance for the same cause of action; and the first count is clearly sufficient to support the verdict. Judgment affirmed. ROBERTSON u PERKINS. ERROR TO THE CIRCUIT COURT OK THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 672. Argued January 15, 16, 1889. — Decided January 28, 1889. The crop ends of Bessemer steel rails are liable to a duty of 45 per cent ad valorem, as “ steel ” under Schedule C of § 2502 of the Revised Statutes, as amended by § 6 of the act of March 3, 1883, c. 121, 22 Stat. 500, and are not liable to a duty of only 20 per cent ad valorem, as “metal unwrought,” under the same schedule. Where, at the close of the plaintiffs evidence, on a trial before a jury, the defendant moves the court to direct a verdict for him, on the ground that the plaintiff has not shown sufficient facts to warrant a recovery, and the motion is denied, and the defendant excepts, the exception fails, if the defendant afterwards introduces evidence. Under the practice in New York, allegations in the complaint, that the plaintiff “ duly” protested in writing against the exaction of duty, and “ duly” appealed to the Secretary of the Treasury, and that ninety days had not elapsed, at the commencement of the suit, since the decision of the secretary, if not denied by the answer are to be taken as true, and are sufficient to prevent the defendant from taking the ground, at the trial, that the protest was premature, or that the plaintiff must give proof of an appeal, or of a decision thereon, or of its date. The case is stated in the opinion. dlr. Solicitor General for plaintiff in error. dlr. J. Langdon Ward for defendant in error. Mr. Justice Blatchford delivered the opinion of the court. This is an action originally brought in the Superior Court of the city of New York, and removed by certiorari^ by the defendant, into the Circuit Court of the United States for the 234 OCTOBER TERM, 1888. Opinion of the Court. Southern District of New York. It was brought by Charles L. Perkins against William H. Robertson, collector of the port of New York, to recover $1460 as duties illegally exacted on an importation of Bessemer steel rail crop ends, from England, in August, 1884. The defendant exacted duties on the articles at the rate of 45 per centum ad valorem, amounting to $2628. The plaintiff claimed that the lawful rate of duty was only 20 per centum ad valorem, or $1168. The complaint contained the allegation that the plaintiff “duly made and filed due and timely protest in writing against the said erroneous and illegal assessment and exaction of the said duty; ” that the plaintiff was compelled to pay the $1460 in order to obtain possession of the merchandise; that he duly appealed to the Secretary of the Treasury from the decision of the defendant ascertaining and liquidating the duties; and that ninety days had not elapsed at the commencement of the suit, since the decision of the Secretary of the Treasury on such appeal. The answer of the defendant did not deny the allegations of the complaint as to protest and appeal and the decision of the Secretary of the Treasury. The jury found a verdict for the plaintiff. The parties consented in open court that the amount of the verdict might be adjusted at the custom-house, under the direction of the court. The amount was adjusted as of the date of the verdict, and for that amount, with interest and costs, in all $1742.23, judgment was rendered for the plaintiff. To review that judgment the defendant has brought a writ of error. At the close of the plaintiff’s evidence, the counsel for the defendant moved the court to direct a verdict for the defendant, on the grounds, among others: (1) that the protest which was put in evidence by the plaintiff was served and filed before liquidation, and was, therefore, premature; (2) that no proof was offered or given that there was any appeal to the Secretary of the Treasury, or any decision on such appeal, and no proof of the date of such decision, to show that the suit was brought in time. The motion was denied, and the defendant excepted to the ruling. Under § 914 of the Revised Statutes of the United States, ROBERTSON v. PERKINS. 235 Opinion of the Court. the practice, pleadings and forms and modes of proceeding in this case, in regard to the complaint and the answer, were required to conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the State of New York. By § 481 of the New York Code of Civil Procedure, it is required that the complaint shall contain “a plain and concise statement of the facts constituting each cause of action.” Section 500 requires that the answer shall contain “ a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.” By § 522, “ each material allegation of the complaint, not controverted by the answer,” “must, for the purposes of the action, be taken as true.” The allegation of the complaint in this case is, that the plaintiff “ duly made and filed due and timely protest in writing,” and “ duly appealed to the Secretary of the Treasury,” and “ that ninety days have not elapsed since the decision of the Secretary of the Treasury on the aforesaid appeal.” As none of these allegations were denied in the manner required by § 500 of the code, they were, by § 522, to be taken as true, and no issue was joined upon any one of them. This is the ruling in regard to these provisions by the Court of Appeals of the State of New York. In Lorillard v. Clyde, 86 N. Y. 384, the complaint alleged that, in pursuance of a certain agreement, a corporation “ was duly organized under the laws of this State.” It was contended, on a demurrer to the complaint, that the agreement was illegal, because it provided that the parties thereto, consisting of five persons only, should form a corporation, whereas the statute contemplated that at least seven persons should unite in order to form a corporation. But the court held that the allegation that a corporation was “ duly organized under the laws of this State,” pursuant to the agreement, imported that the requisite number of persons united for that purpose; that it must be assumed that the corporation was regularly organized; and that it was unnecessary for the plaintiff to show in his complaint the precise steps taken to 236 OCTOBER TERM, 1888. Opinion of the Court. accomplish that result. The word “ duly ” means, in a proper way, or regularly, or according to law. See, also, Tuttle v. The People, 36 N. Y. 431, 436, and cases there cited; Fryatt v. Lindo, 3 Edw. Ch. 239; The People v. Walker, 23 Barb. 304; The People v. Mayor, 28 Barb. 240; Burns v. The People, 59 Barb. 531; Gibson v. The People, 5 Hun, 542. The plaintiff claimed, by his protest and at the trial, that the articles in question were liable to a duty of only twenty per centum ad valorem, under the provision of Schedule C of § 2502 of the Revised Statutes, as amended by § 6 of the act of March 3, 1883, c. 121, 22 Stat. 501, which imposes a duty of 20 per centum ad valorem on “ mineral substances in a crude state and metals unwrought, not specially enumerated or provided for in this act.” The collector had imposed a duty of 45 per centum ad valorem on the articles, under the following provision of the same Schedule C, 22 Stat. 500: “ Steel, not specially enumerated or provided for in this act, forty-five per centum ad valorem: Provided, That all metal produced from iron or its ores, which is cast and malleable, of whatever description or form, without regard to the percentage of carbon contained therein, whether produced by cementation, or converted, cast, or made from iron or its ores, by the crucible, Bessemer, pneumatic, Thomas-Gilchrist, basic, Siemens-Marten, or open-hearth process, or by the equivalent of either, or by the combination of two or more of the processes, or their equivalents, or by any fusion or other process which produces from iron or its ores a metal either granular or fibrous in structure, which is cast and malleable, excepting what is known as malleable iron castings, shall be classed and denominated as steel.” At the close of the plaintiff’s evidence, the defendant moved the court to direct a verdict for the defendant, on the further ground that the plaintiff had not shown facts sufficient to entitle him to recover. The motion was denied by the court, and the defendant excepted to the ruling. But, as the defendant did not then rest his case, but afterwards proceeded to introduce evidence, the exception fails. Accident Ins. Go. v. Crandal, 120 U. S. 527. ROBERTSON v. PERKINS. 237 Opinion of the Court. The plaintiff introduced evidence for the purpose of showing that the article in question fell under the denomination of “metal unwrought,” not specially enumerated or provided for in the act; and the defendant introduced evidence to show the contrary. It appeared by the evidence of the plaintiff, that the crop end of a Bessemer steel rail, such as the article in question, was the imperfect end of a rail, which was cut off to bring the remainder down to a solid rail of regular length; that the end thus cut off was of the same texture and fabric with the rail which remained after such end was cut off, and was made in the same manner; and that the crop end so cut off was Bessemer steel. It also appeared that such ends, when imported, were sold as an article of merchandise in this country,, and were sometimes remelted in furnaces; and that they were sometimes used, after importation, for manufacturing other articles by reheating them, without their being remelted, and had a value as a manufactured article, other than for the purpose of remelting. At the close of the testimony on both sides, the defendant moved the court to direct a verdict for him, on the grounds, that the plaintiff had not produced sufficient evidence to make a case; that there was no evidence that the imported articles were unwrought metal; and that they were steel, which was specially provided for in the statute. The motion was denied by the court, and the defendant excepted to the ruling. The court charged the jury that the only question was whether the article was wrought or unwrought metal; that the word “ wrought ” meant wrought into something suitable for use, and not merely wrought in some manner, by being manufactured or treated; that, if the article was a mere excess of material, left after the making of steel rails, it was not wrought metal, within the sense of the statute; that, if it was something left over in excess of the material, the jury were to return a verdict for the plaintiff; but if it was an article fit for use in itself, made at the same time with the making of the rail, they should return a verdict for the defendant. The defendant excepted to that part of the charge which stated that the only question for the jury was whether the article 238 OCTOBER TERM, 1888. Syllabus. was wrought or un wrought metal; and also to that part which stated that if the article was a mere excess of material in making steel rails, it was not wrought metal in the sense of the statute. We are of opinion that the court erred in its disposition of the case, and its charge to the jury. The motion to direct a verdict for the defendant, on the ground that the article was not metal unwrought, not specially enumerated or provided for in the statute, but was steel, specially enumerated and provided for in the same statute, in a clause other than that regarding metals unwrought, ought to have been granted. The article fell within the definition of steel given in the statute. The testimony showed that it was metal produced from iron or its ores, by the Bessemer process, within the definition of the articles which the statute stated should “ be classed and denominated as steel.” It was none the less steel because it was an excess of material, as the result of making steel rails, cut off from the steel rail, and not suitable for use in itself, without being remelted or reheated. The charge of the court on this subject was subject to the exception and objection made to it. It results from these views that The judgment lyelow must lye reversed, and the case be remanded to the Circuit Court with a direction to grant a new trial. BROWN v. SUTTON. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WISCONSIN. No. 97. Argued and submitted November 26, 1888. —Decided January 28, 1889. On the whole proof in this case, some of which is referred to in the opinion of the court: Held, (1) That the appellant’s intestate intended that the property in dispute should belong to the appellee, that he bought it for her, and that he promised her orally that he would make over the title to her BROWN v. SUTTON. 239 Opinion of the Court. upon the consideration that she should take care of him during the remainder of his life, as she had done in the past; (2) That there had been sufficient part performance of this parol contract to take it out of the operation of the Statute of Frauds, in a court of equity, and to render it capable of being enforced by a decree for specific performance. (3) That the appellee had been guilty of no laches by her delay in com-t mencing this suit. Bill in equity, to compel a specific performance of a parol contract to convey a tract of real estate in Wisconsin. Decree in complainant’s favor, from which respondents appealed. The case is stated in the opinion. Mr. Erastus F. Brown (with whom was J/>. Edgar K. Brown on the brief) for appellants. J//'. Edwin Hurlbut and Mr. Winfield Smith, for appellee, submitted on their brief. Mr. Justice Miller delivered the opinion of the court. The bill was brought by Sarah S. Sutton, the appellee, against Erastus F. Brown and Francis A. Kenyon, executors of the last will of John S. Kenyon, and was in the nature of a suit for specific performance of a contract and for the conveyance of the title to a certain house and grounds in the city of Oconomowoc, in Wisconsin. There was no written agreement on the subject, but the suit is based upon the idea of a verbal promise or agreement upon the part of John S. Kenyon in his lifetime that he would convey the property to Mrs. Sutton, the appellee, and that such part performance had been had in its execution as to bring the case within the exception made by that doctrine in the requirement of the Statute of Frauds that the sale of lands must be in writing. The executors and trustees under the will filed their answer, denying the existence of any verbal promise at all, and also denying that it was so far performed as to justify a decree. The court, however, rendered a decree in favor of Mrs. Sutton, that she was entitled to the property, and that the defendants 240 OCTOBER TERM, 1888. ♦ Opinion of the Court. in the action should convey to her. It is from this decree that the present appeal is taken. A history of the relations of the testator, John S. Kenyon, to Mrs. Sutton and her husband, is essential to a correct decision of the case. The following facts regarding them are in the main undisputed by either party. In 1868 Mr. Kenyon lived with his wife in Harlem, in the city of New York; was a man of some wealth, an officer of a bank in Harlem, and at his death left an estate of nearly $200,000. He was without children or close kin in whom he was much interested, as was shown by his will, in which, after having made some slight provisions for some of his sisters, he devised the great bulk of his fortune to fifteen charitable and religious societies or associations. The father of Mrs. Sutton lived in New York and Brooklyn, and she had been intimate with Mr. Kenyon since her birth, being at the time of the trial about forty-four years old. Prior to 1868 she married Charles T. Sutton, and ever since lived with him as his wife, but had no children. The wife of Mr. Kenyon was for a very considerable period, certainly from 1868 to 1872, when she died, an invalid, requiring much care and attention. Mrs. Sutton spent a large part of her time, both before and after the date first mentioned, with her, assisting in the care of her during sickness. In 1868 Mr. Kenyon and his wife visited Oconomowoc, at the house of George F. Westover, whose wife was a sister of Mrs. Sutton. Thereafter the Kenyons removed to Tremont, near New York City, where Mrs. Kenyon died in February, 1872. During a large part of this time, and at her death, Mrs. Sutton was with her. Shortly after her decease, Mr. Kenyon and Mr. and Mrs. Sutton went to Oconomowoc together, lived in the family of Westover, paying therefor a consideration, and so continued until April, 1874, except a few weeks, when Mr. Kenyon was absent. Westover then removed to Chicago, and on the 28th of that month Kenyon bought a cottage in the village of Oconomowoc, and lived in it with the Suttons, who kept the house. On July 1, 1874, Kenyon made a deed of this cottage to Mrs. Sutton, declaring it to be in accordance with the request of his wife during her lifetime, as a tribute BROWN v. SUTTON. 241 Opinion of the Court. from her to Mrs. Sutton. For seven years these three continued living together in that cottage, Kenyon making certain contributions for board, or as his quota towards the expenses of housekeeping. During these years he made frequent trips to New York on business connected with the bank of which he was a shareholder and probably a director, being absent from several weeks to three months at a time. While in New York in 1879 upon one of these visits, he made a will, in which, after disposing of several small items of personal property, giving to Mrs. Sutton all the personal property in her house at Oconomowoc, except his jewels, and the interest during her life on one-third of $10,000, and to his sisters some slight bequests of jewelry and furniture, the body of his estate was bequeathed to his executors as trustees for the associations referred to. In November, 1879, the Suttons closed the cottage and spent the winter in New York, in a house belonging to Mr. Kenyon and furnished by him, the family consisting of the same three persons and one servant. Thereafter they seem to have vibrated for a year or two between the house in New York and the cottage in Oconomowoc, always living together as one family. In September, 1880, Mr. Kenyon bought, for the consideration of $2300, the premises in dispute in this action, known as the “ Oaks,” situated in. Oconomowoc, and in 1881 began the erection thereon of a large dwelling-house. Late in the fall of 1881 he went with the Suttons again to New York, and they all resided together as usual in his house, until he was stricken with apoplexy, and died in January following, o The bill alleges that the property called the Oaks was bought by Mr. Kenyon for Mrs. Sutton; that he had promised to buy it for her as a consideration for the services rendered to him, and to be thereafter performed, in keeping house for him and giving him her care and society, and that he also agreed to build thereon a new house, of sufficient dimensions to accommodate others besides these three who lived together as a family, so that if the necessity should arise, in event of Mr. Kenyon’s death, she might be enabled to make a living by eeping boarders. It is claimed that the land was bought and VOL. CXXIX—16 242 OCTOBER TERM, 1888. Opinion of the Court. thé house built in accordance with this promise, or at least that it was in progress of erection at the time of his death. A definite promise on his part to do this is asserted, the consideration for which was sufficient in what she had already done and had agreed thereafter to do for him. Mr. and Mrs. Sutton were placed in possession of the premises as soon as the purchase was made, and they were living there at the time the present suit was brought. The controversy in the present case is really whether any such promise or agreement was made, because if it was there can be little doubt that the delivery of possession to the Suttons, and the construction of this house under their direction and control, is a sufficient part performance to take the case out of the Statute of Frauds. As Mrs. Sutton was not competent as a witness to establish a promise on the part of Mr. Kenyon to convey the property to her, under § 858 of the Revised Statutes, and as Mr. Sutton, being her husband, was also incompetent, it can be readily seen, in the absence of any written agreement upon the subject or any correspondence between the parties, which could not reasonably be expected to exist as they were nearly always living together, that it is almost impossible to prove a direct verbal promise from Mr. Kenyon to her in regard to that matter. Any such promise must be largely inferred from the situation and circumstances of the parties, and must depend almost wholly on verbal statements made by Mr. Kenyon to others. The depositions in the case contain full and ample evidence of the declarations of Mr. Kenyon on this subject. They are in substance, that he had bought the property for Mrs. Sutton ; that he had given it to her, had placed her in possession of the ground, and was building a house upon it for her at the time of his death ; and that he treated her and her husband as, and frequently called them, his “ children,” or “ the children.’ There can be no question that Mr. Kenyon bought the property in dispute with the intention, clear and well defined in his own mind, that he was buying it for Mrs. Sutton ; and when he came to build the house upon it there can be as little BROWN v. SUTTON. 243 Opinion of the Court. doubt that he erected it for her with the intention that it should be her house, expecting to live with the Suttons as long as he lived, and that it would go to her in the event of his dying before she did. It may be said, and it is true, that this unexecuted purpose of his is not of itself sufficient to constitute a contract to convey to her the house, nor would it alone be a sufficient foundation for a decree; but it leaves the case in such a position that no very strong evidence is required that such a contract did exist, as it would be entirely consistent with all the other uncontradicted testimony in regard to what he had said and done and with the possession of the property by her. There is also quite a sufficient consideration for such a promise in the services, care and attention rendered by her to an old man in his declining years, in connection with the fact that at the time he bought this property he was very sure of receiving these attentions as long as he lived; The evidence shows that this expectation on his part was fully realized. Let us examine briefly the positive evidence of a promise on this subject. We have the testimony of Mr. Westover, whose relation to Mr. Kenyon and the family has already been noted, in whose house they lived for two summers prior to his removal to Chicago, and who seems to have been on intimate terms with Mr. Kenyon, that he had many conversations with him about his private matters, although he was not a man who talked generally about his affairs. He states that Mr. Kenyon was not well, and never was well, since he first went to Oconomowoc ; that he was a pretty old man, at least old enough to be Mrs. Sutton’s father, and probably older than her own father was; that he needed a great deal of nursing, arid wanted more care and attention when near her in the little details of life than any man he ever saw; that he seemed to dread to be alone, and in fact she went everywhere with him, and devoted the most of her life during those years to him as a daughter to a father. He says: “ She filled the place that an exceedingly attentive daughter would to a weak, sickly, old father. I never saw a case in a family of more marked service in that line than was that case. No person but Mrs. 244. OCTOBER TERM, 1888. Opinion of the Court. Sutton was relied upon to look after his personal wants at all.” The witness then went on to state a conversation that he had with Mr. Kenyon about his affairs, in which he said of his relatives: “ All they want of me is my money; some day they will be terribly disappointed; ” and proceeded to say that no one had filled the place of a relative to him as had Mrs. Sutton; that he was under great obligations to her, and how to discharge it, to repay her, or attempt to repay her, was something that he was considering, and that he was going to recompense her for her services to him in some way. After the purchase of the property in dispute here, Westover asked Mr. Kenyon about it, and gives his language as follows: “ He told me then that that was the final result of his determination as to Mrs. Sutton; that he had bought the place for her; that she wanted it, and he had made up his mind that it was the very best that could be done, and he had promised her that he would put a house on the place, such as she wanted, and the place should be hers. He said that it was not perhaps as much as Mrs. Sutton was really entitled to, but he thought that after all it would be better for her than if she should be provided for in some other way that would be even larger. He said that he had made «her home his home, as I knew; and it was understood that he was to continue thereafter making his home with Sortie, that is, Mrs. Sutton.” Mr. Kenyon then went on to say, as the witness states, that by having a fine building on the place she would be able, if anything should happen to him, to take care of herself by keeping boarders; and continued: ■ “ The house will be such as Mrs. Sutton wants. I have agreed that Sortie shall have the house just exactly as she wants it; just to suit her. He said he was to continue to make his home with Mr. and Mrs. Sutton, and that in view of the past and her services to him, and what had been done, and in view of the position which she was occupying as to him, and the services she had performed and was still to perform, he had promised her that place, and he had bought it for her because it pleased her, and he had promised to build such a house thereon as she should want.” BROWN v. SUTTON. 245 Opinion of the Court. If this statement be true, here is at once the promise and the consideration for it, amounting to an agreement stated in Mr. Kenyon’s own language, with all the clearness of detail necessary to a contract. There was no question about the property to be conveyed, the promise to build the house, the parties to the agreement, or the consideration for the promise. The witness then details a conversation which he had in 1881, in which Mr. Kenyon reminded him of what he had said to him before on the same subject, and said that after much thought he had concluded that was the best arrangement, and she had agreed to it; that it was arranged between them that he should continue to live with her in the future; that he was under obligations to her for what she had done for him individually, and that he had made arrangements with her and she would continue to do for him as she had done, and he had promised to buy that place for her and fix it up and deed it to her. The witness then testified as to the board paid by Mr. Kenyon, and said: “ I understood from him, as he said, thaj the services of Mrs. Sutton which she had rendered him, and which he was under obligations to requite, together with those of the same kind which she had agreed to perform in the future, were the basis of his promise to convey her the premises in dispute, and were outside of anything which he had furnished in cash expense of living.” Julia L. White, who was well acquainted with Mr. Kenyon, details various conversations with him, in one of which he said that he wanted to give the property which is now in controversy to Mrs. Sutton, for she had taken care of him and had promised and was to continue to take care of him as long as he lived, and that he then said he had promised to give it to her. She testifies that Mr. Kenyon stated to her that he desired to purchase this property for Mrs. Sutton on account of the services and care she had already given to him, and had promised to give him * and that he said on Wednesday before his death that he had bought the place, that it was for Mrs. Sutton, to make her home there for the care she had given hnn and for the care she promised to take of him until his death. . 246 OCTOBER TERM, 1888. Opinion of the Court. Mr. Small, who lives adjoining the property in dispute, details a long conversation he had with Mr. Kenyon in regard to the building of the house, and states that he said: “ I am not building it for myself; I am building it for Mrs. Sutton.” Mr. Kenyon then went on to say that he did not want to be bothered with the building of it; he had left it all to Mr. and Mrs. Sutton; he had nothing to do with the building except to furnish the money; that the rooms had all been arranged by her, and that he intended she should have it as she wanted it. He states that he asked Mr. Kenyon, in whom the title was, whether it was in Mrs. Sutton at that time, and he replied: “No, when the the property was bought I took the deed, but I intend to have the property all fixed in Mrs. Sutton.” “I said, ‘Haven’t you done anything about it yet?’ He said, ‘Na’ Said I, ‘You may have it in your mind to do something you want to do, but if you do not do it,’ if you should be taken away, it won’t be done. Under our law, unless there is a writing made, or the parties put in possession under the agreement, it won’t amount to anything.’ He said, ‘ I can’t make anything out here for the reason my papers are in New York. I desire to make some alterations in my affairs. Then I shall fix it up, but I shall put them in possession. I have put them in possession. Mrs. Sutton has had possession ever since I went to New York in the summer. I turned it over to them then, and they are now in possession. Mrs. Sutton has the keys to the little house and all the property, and I intend they shall be in possession, and are in possession just as perfect as I can make it. If I had my papers here I should have them altered now. I have my attorney down there. I don’t want to do anything until I get down there.’ He said, ‘ 1 propose to give it to them. Mrs. Sutton has been very kind to me in sickness and disease in my family; took care of my wife until she died. I have a good home myself with them. I propose now to repay them in this way.’ ” The witness also testifies as to other conversations, in which Mr. Kenyon declared that the keys and the possession were in the Suttons ; that the property was theirs to all intent and purposes; that the title was taken in his name when he bought the prop- BROWN v. SUTTON. 247 Opinion of the Court. erty, but that he intended Mrs. Sutton should have it, and that he frequently spoke of them as “ the children.” Mrs. Williams, an insurance agent, while examining the house at the request of Mrs. Sutton, with reference to a policy, met Mr. Kenyon on the premises. He showed her over the house and directed her attention to certain alterations that the Suttons had made in the plan, and said: “ It is as they want it; it is the children’s; it don’t make any difference to me how they flk it.” And again she states that he said in regard to the gables that he would have made every one different, but the children (a phrase which he often used writh reference to Mr. and Mrs. Sutton) wanted it so, and it did not make any difference to him; “ it was their s? To William K. Washburn, who was working about the grounds, Mr. Kenyon said that he was fixing it up for MrT and Mrs. Sutton, that it was their place, and they were in possession. In regard to some of the details, Mr. Eastman, another witness, testified that Mr. Kenyon said he had nothing to do with the building of it; that Mr. Sutton was building it for himself. Mr. Anderson, a resident of Oconomowoc, testifies that he asked Mr. Kenyon, in a conversation that they had about the place now in dispute, if he felt anything like a Granger; and that his reply was that he could not say he did, as he did not buy the place for himself, but had bought it for Mrs. Sutton, who undoubtedly would be a permanent resident, although he should make it his home with them while there, as he had for several years made their place his home. In another conversation, Mr. Kenyon said to him that the building was much larger than they intended in the start, but he was building it entirely for Mrs. Sutton, and it had been enlarged at her suggestion ; that Mr. Sutton had the entire control, and he had authorized him to build and finish it and make the improvements exactly as Mrs. Sutton wished. On his cross-examination he testified that Mr. Kenyon said he had bought it, but not for himself; that .he had bought it for Mrs. Sutton, and they would make it a permanent -residence, and he should make it his home with them whenever he was there. 248 OCTOBER TERM, 1888. Opinion of the Court. Celestia Edwards testifies to a conversation with Mr. Ken yon about the property, in which he remarked that they would have a very beautiful place and home there, to which he replied that he liked it very well, but it did not make any difference to him; “ it was all theirs, it was the children’s; they were fixing it up just to suit themselves.” Clarence I. Peck also testifies to a conversation about this place, in which Mr. Kenyon said that he intended to finish it up in good style for “the children,” as he called them;’meaning- Mr. and Mrs. Sutton: and also that he said on another occasion: “ The place belongs to Charlie and Sortie, anyhow, and I thought I would give the job of superintending it to Charlie.” Some comment is made that the most direct testimony on the subject of a promise comes from the sister and brother-in-law of the plaintiff, but there is nothing to discredit their evidence, no impeachment of their character is attempted, nor is it shown that they are in any way dependent upon her. No reason is given why they should state anything false, and their testimony is wholly uncontradicted. It is also consistent with all the circumstances of the case. It is further made a subject of comment that Mrs. Sutton did not make claim to the title to this property, nor bring this suit for two or three years after the death of Mr. Kenyon; but it is easy to suppose that she really believed that for want of a written promise or agreement she could not enforce her right to the property. While this principle of the necessity for a written agreement in regard to the title to real property is almost universally understood among all classes of people, however unlearned in the law, it is not very well known that there is an exception to it in the case of a promise, not in writing, but so far performed as to take it out of the Statute of Frauds. On the whole, we think that the evidence justifies the infer ence that Mr. Kenyon, having a clear intention that this property should belong to Mrs. Sutton, bought it for her, and also promised her that he would make over the title to her upon consideration that she should take care of him during the remainder of his life as she had done in the past. The decree of the Circuit Court is therefore Affirmed. BARTON v. UNITED STATES. 249 Opinion of the Court. BARTON v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 1184. Submitted January 2, 1889. — Decided January 21, 1889. The act of March 3, 1883, c. 97, 22 Stat. 473, relating to longevity pay, deals with credit for length of service and the additional pay which arises therefrom, and not with the matter of regular salary; and it has no reference to benefits derived from promotions to different grades, but is confined to the lowest grade having graduated pay. The Court of Claims dismissed the claimant’s petition whereupon he took this appeal. The case is stated in the opinion. J/r. George S. Boutwell for appellant. Mr. Attorney General, Mr. Assistant Attorney General Howard, and Mr. F. P. Dewees for appellees. Mr. Chief Justice Fuller delivered the opinion of the court. This is an appeal from a judgment of the Court of Claims finding in favor of the United States, and dismissing the petition of the claimant, Barton. The findings of fact and conclusion of law were as follows: “ I. The claimant was appointed acting assistant paymaster in the volunteer navy of the United States, January 30, 1864; assistant paymaster, March 2,1867; passed assistant paymaster, February 10, 1870; and paymaster in the regular navy, May 29,1882. He has been continuously in the navy from his first appointment to the present time. “ II. He has received the salary and graduated or longevity pay allowed by the act of July 17, 1861, 12 Stat. 258, and the act of March 2, 1867, c. 197, § 3, 14 Stat. 516, now Rev. Stat. 1412, and the benefit of all laws in force during the time oe has held the offices mentioned in the preceding finding, except that he has received no additional benefits under the 250 OCTOBER TERM, 1888. Opinion of the Court. acts of August 5, 1882, c. 391, 22 Stat. 287, and March 3,1883, c. 97, 22 Stat. 473. “III. If he be entitled under said last-mentioned acts of 1882 and 1883 to allowance for the sums which he would have received had he entered the regular navy when he entered the volunteer navy, and had he been promoted from time to time, under the rule of promotion provided by the Revised Statutes, §§ 1380,1458,1496, and the previous statutes embodied therein, the defendant would be indebted to him to an amount which, for reasons which appear in the opinion, we do not compute. “ Conclusion of Law. “ Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant is not entitled to recover, and his petition must be dismissed.” The acts of Congress of 1882 and 1883 read thus: “And 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: 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.” Act of August 5, 1882, c. 391, 22 Stat. 287. “ And 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 herein contained shall be so construed as to give any additional pay w any such officer during the time of his service in the volunteer army or navyT Act of March 3, 1883, c. 97, 22 Stat. 473. BARTON v. UNITED STATES. 251 Opinion of the Court. Under the provisions of the act of July 17, 1861, entitled “ An act to provide for the appointment of assistant paymasters in the navy,” 12 Stat. 258, assistant paymasters were entitled to receive graduated pay. And under the provisions of § 3 of the act of March 2, 1867, 14 Stat. 516, Rev. Stat. § 1412, Barton received a credit as assistant paymaster for three years and thirty-one days’ service in the volunteer navy as acting, assistant paymaster, and his second five years’ service in the regular navy commenced after the expiration of the five years preceding, including therein the volunteer service; and he has consequently received all the benefits, under the longevity pay acts, of his whole service, “ as if all such service had been continuous and in the regular navy.” But he contends that if he had been appointed in the regular navy January 30, 1864, he would have been promoted from time to time earlier than he was, and that he is entitled to pay in the several grades of service as if he had received such earlier promotion. And by his petition he claims that the difference between what he has received and what he would have received if he had been commissioned as assistant paymaster January 30,1864, when he entered the volunteer navy, amounts to $7672.40, made up of the differences of pay in the several grades if he had attained them as early as he believes he would if his service had commenced in the regular navy. The argument is, that under the act of 1883, which amended and superseded that of 1882, officers so situated as Barton, while denied rank and commissions under the statute, have the right to the pay of the several grades they might have reached if their appointments in the regular navy are treated as having been made at the date of their entry into the volunteer service. We cannot concur in this interpretation of the act, which, in our opinion, deals with credit for length of service and the additional pay which arises therefrom, and not with the matter of regular salary, and has no reference to benefits derived from promotion to different grades, but is confined to the lowest grade having graduated pay. It was upon this view that it was held in United States v. 252 OCTOBER TERM, 1888. Syllabus. Rockwell, 120 U. S. 60, that the effect of the act was to lengthen the time of service in the lowest grade, having graduated pay, by crediting all previous services for the purpose only of increasing longevity pay in that grade. It follows that the Court of Claims was right in its conclusion in the premises, and we need not enter upon the consideration of what the learned Chief Justice of that court correctly terms “ the complicated problem of promotion which he [Barton] might have had, involving, as it does, the promotion of many other officers above and below him in rank, who would in like manner be affected by the provisions of the statute, and whose promotion, dependent upon previous service not found in this case, would materially affect his own.” The judgment appealed from is Affirmed. CARR u HAMILTON. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF LOUISIANA. No. 105. Argued December 4, 1888. —Decided January 28,1889. When a life insurance company becomes insolvent and goes into liquidation, the amount due on an endowment policy, payable in any event ata fixed time, and sooner if the party dies before that time, should, in settling the company’s affairs, be set off against the amount due on a mortgage debt from the holder of the policy to the company, by way of compensation or reconvention. When a life insurance company becomes insolvent before the time fixed for the termination of an endowment policy, payable to the holder in case of survival until that time, or to his children in case of his death before it, the contingent interest of each party is fixed by the insolvency, to be determined by the tables ordinarily used for that purpose. Where a holder of a life policy borrows money of his insurer, it will be . presumed prima facie, that he does so on the faith of the insurance and in expectation of possibly meeting his own obligation to the company by that of the company to him. Newcomb n. Almy, 96 N. Y. 308, disapproved. CARR v. HAMILTON. 253 Opinion of the Court. Bill in equity to foreclose a mortgage. The case is stated in the opinion. Jfr. Afred Goldthwaite for appellant. ALr. N. C. Blanchard for appellee. Mr. JR. J. Looney and Air. T. Alexander were with him on the brief. Mr. Justice Bradley delivered the opinion of the court. This case arises out of a policy of life insurance, dated July 14,1869, granted by The Life Association of America, a corporation of the State of Missouri, to William E. Hamilton, the appellee, of Shreveport, Louisiana, upon the life of said Hamilton; and also out of a mortgage given by said Hamilton to the said association, for a loan of money; and the main question is, whether the amount due on the policy ought to be set off by way of compensation or reconvention against the amount due on the mortgage. The policy was not an ordinary one, payable only at the termination of the life insured, but was what is sometimes called an endowment policy, payable at a certain time at all events, or sooner if the party should die sooner; and the premiums were all to be paid within a certain limited time, to wit, ten years. By the terms of the policy, in consideration of $877.80, paid by Hamilton, trustee, and of the annual payment of a like amount on the 14th of July, every year, for nine years thereafter, the association assured his life in the amount of $10,000, payable to him or his assigns, on the 14th of July, 1884; or, if he should die previously, payable to his children, naming them. By the rules of the association, the insured was only required to pay two thirds of the annual premium in cash, and had the option of a credit or loan for the other third, paying the interest thereon at eight per cent per annum. Hamilton availed himself of this privilege of credit, and made all the cash payments required for the whole ten years. His premium loan amounted in 1879, when the association failed, to $2372.90, and the equitable value of his policy, at that time, was 254 OCTOBER TERM, 1888. Opinion of the Court. $7779.95; leaving in his favor the sum of $5407.05. This is the amount which he contends should be allowed to him by way of compensation or reconvention against his mortgage debt due to the association. . The mortgage debt referred to arose as follows: In March, 1870, Hamilton borrowed of the association the sum of $3850, — being, as he contends, entitled to such loan as a policy holder, and which he would not have made but for his being such policy holder. To secure the payment of this loan he gave his promissory note for $3850, dated 11th of March, 1870, and payable twelve months after date with eight per cent interest after maturity; and to secure the note he gave a mortgage of same date on certain lots and buildings in Shreveport, Louisiana. The mortgage contained the usual pact de non atienando, and was recorded 11th March, 1870, and reinscribed 28th May, 1881. By an amended charter of the association, approved October 2d, 1869, it was authorized by its directors to form separate departments and branches in the different States, with separate organizations of directors and officers, but having a general connection with the parent company; and it was provided that each department should have the management and investment of the funds received therein. Under this charter a separate department was made of Louisiana and Texas, and Shreveport was one of the districts of this department. The loan made by Hamilton, who resided in Shreveport, was made, as he testifies, from the funds raised from the business of the association in that district. The Insurance Association became insolvent in 1879, and on the 13th of October, in that year, proceedings were instituted against it by the Superintendent of the Insurance Department of Missouri, under the laws of that State, for the liquidation of its affairs, and such proceedings were had that on the 10th day of November, 1879, a decree was made by the Circuit Court of the city of St. Louis, (having jurisdiction of the matter,) declaring that the association was insolvent and that its condition was such as to render its further proceedings hazardous to the public and to its policy holders, and that the CARR v. HAMILTON. 255 Opinion of the Court. association be dissolved, and its officers and agents enjoined from exercising any control over its property or affairs, and from the further continuance of its business of life insurance. The decree further proceeded to vest the title to all the property and assets of the association in the Superintendent of the Insurance Department of the State, to hold and dispose of the same for the use and benefit of the creditors and policy holders of the institution; and its officers were directed to convey, assign and transfer all its property and assets to the said superintendent. In short, the association was put into a condition of absolute bankruptcy and liquidation. In June, 1883, the Insurance Superintendent of Missouri for the time being, finding Hamilton’s note and mortgage amongst the assets of the Life Association, filed a petition for executory process, in the Circuit Court of the United States for the Western District of Louisiana, for the seizure and sale of the property covered by the defendant’s mortgage before referred to; and afterwards filed a bill of foreclosure against Hamilton, the appellee. The latter, besides an answer, filed a cross-bill, setting up the amount due on the policy of insurance by way of compensation and reconvention. It is conceded that the interest was paid on the mortgage debt up to March, 1879; and there is no question that the equitable value of the policy in November, 1879, was, as before stated, $5407.05 after deducting all deferred premiums. This was more than enough, by over $1300, to pay and satisfy the mortgage. The question is whether the appellee is entitled to such compensation or reconvention. Natural justice and equity would seem to dictate that the demands of parties mutually indebted should be set off against each other, and that the balance only should be considered as due. But the common law, for simplicity of procedure, determined otherwise, and held that each claim must be prosecuted separately. “ The natural sense of mankind,” says Lord Mansfield, “ was first shocked at this in the case of bankrupts; and it was provided for by 4 Ann. c. 17, § 11, and 5 Geo. II. c. 30, § 28.” Green v. Farmer, 4 Burrow, 2214, 2220, cited in 2 Story’s Eq. Jur. § 1433; N. C. 1 W. Bl. 651. In pursuance 256 OCTOBER TERM, 1888. Opinion of the Court. of these old statutes, and of the dictates of equity, the principle of set-off between mutual debts and credits has for nearly two centuries past been adopted in the English bankrupt laws, and has always prevailed in our own whenever we have had such a law in force on our statute book; and it mattered not whether the debt was due at the time of bankruptcy or not. See Babington on Set-off, 118; Ex parte Prescott, 1 Atk. 230, 231; Bacon’s Abridg. tit. Bankrupt (K); Acts of Congress 1800, c. 19, § 42, 2 Stat. 33; 1841, c. 9, § 5, 5 Stat. 445; 1867, c. 176, § 20, 14 Stat. 526 ; Bump on Bankruptcy, 10th ed. 91. It is difficult to see why this principle of justice should not apply to persons holding policies of life insurance in a company which becomes bankrupt and goes into liquidation. By that act the company becomes civiliter mortuus, its business is brought to an absolute end, and the policy holders become creditors to an amount equal to the equitable value of their respective policies, and entitled to participate pro rata in its assets. If any one is indebted to the company, especially if his debt was contracted with reference to, and because of, his holding a policy, there would seem to be strong reason for allowing him a set-off, and no good reason to the contrary. One objection raised against the allowance of set-off, or compensation, in the present case, is that when the Life Association became insolvent, and when the present suit was commenced, the insurance had not become absolute in Hamilton, and did not become so until July 14th, 1884, — previous to which time his children had a contingent interest therein, they being the beneficiaries in case he should die before that date. But this reason cannot be sound; for a settlement of the company’s affairs cannot be postponed to await the determination of every contingency on which its policy engagements are suspended. This would postpone a settlement for at least half a century. Every person’s interest in life insurance is capable of instant and present valuation, almost as certain and determinate as the discount of a note or bill payable in the future. Tables of mortality and of all values dependent thereon are adopted by every company, and furnish an assured basis of computation for this purpose. The table used by the CARR v. HAMILTON. 257 Opinion of the Court. Life Association of America is set out in the record, and other tables based upon it are used to facilitate the calculations desired. Another reason urged against allowing a set-off in this case is, that the defendant, Hamilton, holds the policy as trustee, and cannot set off his claim as trustee against a debt due in his own right. This argument has no better foundation than the other. Hamilton was only trustee so far as his children were interested ; he could not be trustee for himself; and his interest was separate from theirs. The value of each was easy of calculation by any competent actuary. The policy had less than five years to run, and the interest of his children was contingent upon his dying within that time, he being then fifty-one years of age. Calculated according to the American table of mortality annexed to the charter of the association and contained in the record, at five per cent compound interest, (the usual rate assumed,) the value of the children’s interest was less than seven per cent of the total insurance, or less than $700; whilst the value of Hamilton’s interest was more than seventy per cent of the insurance, or more than $7000.1 Or, first deducting from the whole present value of the policy (which at five per cent per annum for five years deferred is $7835.26) the amount due for deferred premiums ($2372.90), the value of the children’s interest was less than $500, and that of Hamilton’s nearly $5000, a sum sufficient to cancel all The process is a simple one, as shown by the elementary books on the subject. The policy at the time the association failed (Nov. 1879) had nearly five years to run; suppose it five. Present value of $10,000, five years deferred, at 5 p. c. compound interest is $7835,26. This sum less the value of his children’s expectancy, was the value of Hamilton’s interest. He was then 51 years old. The mortality table shows that out of 68,842 persons living at that age, 1001 die the first year; 1044, the second year; 1091, the third; 1143, the fourth; and 1199, the fifth; showing that the c ances of the children’s receiving the insurance the first year were only 01 in 68,842, or ; the second year, 1044, etc.; and the present value ° 6 expectancy ^or each year would be the sum expected divided by 1.05, ’ 1.058, etc. The present value of the children’s expectancy for ea<-year, therefore, was as follows, to wit: vol. cxxix—17 258 OCTOBER TERM, 1888. Opinion of the Court. his indebtedness to the company and leave a considerable balance over. The proceedings which took place in the Circuit Court of St. Louis in the course of liquidating the affairs of the association may be referred to in this connection. In the progress of the case an actuary was appointed by the court to value all the policies of the company then in force. Hamilton presented a petition to the court, claiming that the net value which his policy had on November 10, 1879, (the day the association was declared bankrupt and dissolved,) should be an offset to his note of $3850, and the interest thereon. The actuary made a report exhibiting the particulars relating to the policy, and concluded as follows: “ The value of the policy on November 10, 1879, the date of the dissolution of the company by order of the court, was, of the whole $10,000, $7779.95; from which deducting outstanding note of $2372.90 left $5407.05, as the net value, and which amount was allowed by the Commissioner and approved by the Circuit Court.” 1st year, -1291 X W99 =...................................$138.48 J ’ 68,842 1.05 2nd year, JL91£ wop =................................137.53 J 68,842 1.052 3rd year, 1091 X 1O,O99 = . . . . . . 136.90 J 68,842 1.053 . 4th year, X10,000 =....................................... 136.60 J 68,842 1.05* 5th year, -1199. x 19,992 = . . . . . . 136.46 68,842 1.05» -------- Total for the five years = . . . . • • $ 685.97 This deducted from,................................ • 7,835.26 Leaves value of Hamilton’s interest, . . . .$7,149.29 Or, _ ■— If the entire present value, ..... .$7,835.26 Is reduced by the amount of deferred premiums, . 2,372.90 The net equitable value is,.............................$5,462.36 If this be divided in the same proportion as before, the value of the children’s interest was, . • • $478.22 And that of Hamilton’s, ...... 4,984.14 tn November, 1879, his interest would be a little more, and that of the children a little less, than in July. By the subsidiary tables in use by al life insurance companies the above calculation would be greatly shortene and simplified. CARR v. HAMILTON. 259 Opinion of the Court. It does not appear whether the Circuit Court of St. Louis allowed the set-off or not. But the Circuit Court of the United States dismissed the original bill in the present case, and granted a perpetual injunction against the sale of the defendant’s property under his mortgage, but disallowed his demand of reconvention. The form of the decree was as follows: After stating the titles of the bill and cross-bill, the decree was in the words following, to wit: “In the above cases, after trial and due consideration by the court, it is ordered and adjudged by the court that John F. Williams, superintendent, take nothing on his bill of complaint, and said bill is hereby dismissed. “And it is further adjudged and ordered that the bill of complaint of W. E. Hamilton be sustained and the injunction of said Hamilton be, and is hereby, made perpetual. “ And it is further ordered that the demand in reconvention of the said Hamilton in his bill of complaint be, and is hereby, rejected without prejudice and of nonsuit.” Also, decree for costs. We think that this decree attained the substantial justice of the case. If not absolutely correct it erred against the defendant, who has not appealed. The counsel for the appellant, however, strenuously contends that compensation could not properly be allowed in this case. In support of his views he refers to the case of Newcomb v. 96 N. Y. 308, decided by the Court of Appeals of New York. That case was almost parallel with the present one, and the claim of set-off was disallowed. The suit was brought by the receiver of an insolvent life insurance company against the holder of an endowment policy issued by the company, to recover the amount of a promissory note. The defendant, as in this case, sought to set off the value of his policy against the note. The policy "as not yet due, and in case the defendant died before it became due, the amount was payable to his wife. The court assumed that the interests of the assured and his wife were so involved together that they could not be separated; and that id not yet appear who would be entitled to the insurance, “-not adverting to the fact that the interests of all the parties 260 OCTOBER TERM, 1888. Opinion of the Court. became fixed by the insolvency of the company, and must be computed as expectancies reduced to present values. It is true, the court does, in the next sentence, concede that the policy had a reserve value, — but asks, “To whom was that value payable ? ” The plain answer was at hand, that the reserve value of each person’s interest was payable to him or her. We cannot but think that if the true character of the interests in question had been brought to the attention of that learned court, it would have come to a different conclusion from that which was reached. The counsel for the appellant further contends that, by the law of Louisiana, (which must undoubtedly govern the case,) compensation is not allowed against an insolvency in favor of a party whose credit was not due when the insolvency occurred. The Civil Code of Louisiana on the subject of set-off is identical with the Code Napoleon. The article apropos of the point now under consideration is the 1291st of the Code Napoleon, and the 2209th of the Civil Code of Louisiana, and reads as follows: “Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable [exi-gibles, i.e. due].” Now, although upon a bankruptcy declared, all claims against the bankrupt become instantly due (subject, of course, if not matured, to a rebate of interest), and are equally entitled to dividends of the bankrupt assets, yet, in order that a claim may be the cause of* compensation, the commentators hold that it must be due [exigible] at the time when the bankruptcy is declared. Touillier, vol. 7, art. 381; Demolombe, vol. 28, art. 540. There have also been judicial decisions to the same effect, though not uniformly so. See Merlin Rep. vol. 3, p. 262, tit. Compensation. But if there are technical reasons in the law of Louisiana for rejecting the defence when set up by way of compensation, it was nevertheless allowed by the Supreme Court of tha State, by way of reconvention, in a case exactly like the present. Life Association of America v. Levy, 33 La. Ann. 120 • Levy was the holder of an endowment policy in the same CARR v. HAMILTON. 261 Opinion of the Court. company as Hamilton, and in the same district (Shreveport). As in this case the policy had not matured. But the court held that it might be set up by way of reconvention, and that the amount to which the defendant was entitled could be recovered by him and deducted from the amount of his indebtedness to the company. This decision was based on a statute of Louisiana, enacted in 1839, as an amendment to article 375 of the Code of Practice. Article 375 was oriei-nally in the following form, to wit: “ In order to entitle the defendant to institute a demand in reconvention, it is requisite that such demand, though different from the main action, be, nevertheless, necessarily connected with, and incidental to, the same; as, for instance, the demand instituted by the possessor in good faith against him who sues in order to evict him, or for the purpose of obtaining the payment of the improvements made on the premises.”’ The amendment adopted in the act of 1839, and now forming part of the article, provides, “ that when the plaintiff resides out of the State, or in the State, but in a different parish from the defendant, said defendant may institute a demand in reconvention against him for any cause, although such demand be not necessarily connected with, or incidental to, the main cause of action.” The court in Life Association v. Lewy, say: “The right of the defendant to set up and urge his demand in reconvention against the plaintiff, a resident of the State of Missouri, is, under our law, and the jurisdiction of our State, too plain to require argument and reference is made to Spinney v. Hide, 16 La. Ann. 250; Spears’ Liquidator v. Spears, 27 La. Ann. 642. The court add: “ The objections urged by plaintiff to the allowance of the reconventional demand, on the ground that it would be a compensation of plaintiff’s demand, and that t is cannot take place, because plaintiff is insolvent, and ■defendant cannot compensate his own debt, but is entitled only to such dividend as may be declared after a final settlement, and because the policy holders of the association are partners and can only sue for a settlement of the partnership a airs, are fully met, discussed, and overruled by the lower Ju ge, and we think properly.” The court, in its judgment, 262 OCTOBER TERM, 1888. Opinion of the Court. allowed the cash value of the policy, as reported by the actuary, with interest thereon from the time of the adjudication in bankruptcy, November 10, 1879. In our opinion this was a just judgment, and the present case being precisely like, is governed by it. It is true, the court below disallowed the claim in reconven-tion ; but it decreed a perpetual injunction against the enforcement of the defendant’s mortgage, and thereby did substantial justice. The result which the court reached was correct, though it may have been led thereto on an insufficient ground. We are free to say, however, that if the court below went on the ground that the defendant was entitled to the benefit of compensation, we should be disposed to concur with it, notwithstanding the doctrine laid down by the commentators. We are inclined to the view that where a holder of a life policy borrows money of his insurer, it will be presumed, prima facie, that he does so on the faith of the insurance and in expectation of possibly meeting his own obligation to the company by that of the company to him, and that the case is one of mutual credit, and entitled to the privilege of compensation or set-off whenever the mutual liquidation of the demands is judicially decreed on the insolvency of the company. The case of Scammon n. Kimball, Assignee, 92 U. 8. 362, is in concurrence with this view. It was there held, that a banker, having insurance in a company which was rendered utterly insolvent by the great Chicago fire of 1871, by which the banker’s insured property was consumed with the rest, had a right to set up the amount of his insurance against money of the company in his hands on deposit. The insurance was not a debt due at the time of the insolvency; it became due afterwards, when the banker had performed all the conditions required in such cases. As the defendant took no appeal, the case is so clearly decided rightly as regards any, complaint to be made by the plaintiff against the decree, that we have no difficulty in affirming it. Decree affirmed- MORLEY MACHINE CO. v. LANCASTER. 263 Syllabus. MORLEY SEWING MACHINE COMPANY v. LANCASTER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. No. 165. Argued January 11, 1889.—Decided February 4, 1889. Claims T, 2, 8 and 13 of letters patent No. 236,350, granted January 4, 1881, to James H. Morley, E. S. Fay and Henry E. Wilkins, on the invention of said Morley, for an improvement in machines for sewing buttons on fabrics, namely, “ 1. The combination, in a machine for sewing shank-buttons to fabrics, of button-feeding mechanism, appliances for passing a thread through the eye of the buttons and locking the loop to the fabric, and feeding mechanism, substantially as set forth. 2. The combination, in a machine for sewing shank-buttons to fabrics, of a needle and operating mechanism, appliances for bringing the buttons successively to positions to permit the needle to pass through the eye of each button, and means for locking the loop of thread carried by the needle to secure the button to the fabric, substantially as set forth.” “8. The combination, in a machine for sewing buttons to fabrics, of button-feeding and sewing appliances, substantially as set forth, and feeding appliances and operating mechanism whereby the feeding devices are moved alternately different distances to alternate short button stitches with long stitches between the buttons, as specified.” “ 13. The combination, with button-sewing appliances, of a trough, appliances for carrying the buttons successively from the trough to the sewing devices, and mechanism for operating said appliances and sewing devices, as set forth,” are valid. The Morley machine contains and is made up of three main groups of instrumentalities : (1) mechanism for holding the buttons in mass, and delivering them separately, in proper position, over the fabric, so that they may be attached to it by the sewing and stitching mechanism; (2) the stitching mechanism; (3) the mechanism for feeding the fabric along, so as to space the stitches and consequently the buttons when sewed on. A description given of the devices used by Morley, which make up the three mechanisms; and of those used in the alleged infringing machine, (the Lancaster machine,) and making up the same three mechanisms. The Morley machine was the first one which accomplished the result of automatically separating buttons which have a shank from a mass of the same, conveying them in order to a position where they can be selected by the machine, one after another, and, by sewing mechanism, coupled with suitable mechanism for feeding the fabric, be sewed thereto at prescribed suitable distances apart from each other. No machine existing prior to Morley’s is shown to have accomplished the operation of turning a shank button, the head of which is heavier 264 OCTOBER TERM, 1888. Syllabus. than its shank and eye combined, into such a position that a plane passing through its eye shall be perpendicular to a plane passing through the long axis of the sewing needle, so as to insure the passage of the needle through the eye. The Lancaster machine infringes the Morley patent, although there are certain specific differences between the button-feeding mechanisms in the two machines, and also certain specific differences between their sewing mechanisms. Morley, having been the first person who succeeded in producing an automatic machine for sewing buttons of the kind in question upon fabrics, is entitled to a liberal construction of the claims of his patent. Where an invention is one of a primary character, and the mechanical functions performed by the machine are, as a whole, entirely new, all subsequent machines which employ substantially the same means to accomplish the same result are infringements, although the subsequent machine may contain improvements in the separate mechanisms which go to make up the machine. Morley having been the first inventor of an automatic button-sewing machine, by uniting in one organization mechanism for feeding buttons from a mass, and delivering them one by one to sewing mechanism and to the fabric to which they are to be secured, and sewing mechanism for passing a thread through the eye of the button, and securing it to the fabric, and feeding mechanism for moving the fabric the required distances to space the buttons, another machine is an infringement, in which such three sets of mechanism are combined, provided each mechanism, individually considered, is a proper equivalent for the corresponding mechanism in the Morley patent; and it makes no difference that, in the infringing machine, the button-feeding mechanism is more simple, and the sewing mechanism and the mechanism for feeding the fabric are different in mechanical construction, so long as they perform each the same function as the corresponding mechanism in the Morley machine, in substantially the same way, and are combined to produce the same result. The defendant employs, for the purposes of his machine, known devices, which, in mechanics, were recognized as proper substitutes for the devices used by Morley, to effect the same results. In this sense the mechanical devices used by the defendant are known substitutes or equivalents for those employed in the Morley machine to effect the same results; and this is the proper meaning of the term “ known equivalent,” in reference to a pioneer machine such as that of Morley. Otherwise, a difference in the particular devices used to accomplish a particular result in such a machine would always enable a defendant to escape the charge of infringement, provided such devices were new with the defendant in such a machine, because, as no machine for accomplishing the result existed before that of the plaintiff, the particular device alleged to avoid infringement could not have existed or been known in such a machine prior to the plaintiff’s invention. MORLEY MACHINE CO. v. LANCASTER. 265 Opinion of the Court. In equity, for the infringement of letters patent. Decree dismissing the bill, from which the complainants appealed. The case is stated in the opinion. Mr. Benjamin F. Thurston for appellants. Jfr. J. F. Maynadier and J/a George E. Smith for appellee. Mb. Justice Blatchford delivered the opinion of the court. This is a suit in equity, brought November 6, 1882, in the Circuit Court of the United States for the District of Massachusetts, by the Morley Sewing Machine Company and the Morley Button Sewing Machine Company against Charles B. Lancaster, for the alleged infringement of letters patent No. 236,350, granted January 4, 1881, to James H. Morley, E. S. Fay and Henry E. Wilkins, on the invention of said Morley, on an application filed June 23, 1880, for an improvement in machines for sewing buttons on fabrics. The machine of the defendant is constructed in accordance with the description contained in letters patent No. 268,369, granted November 28. 1882, to Joseph Mathison, William D. Allen, and C. B. Lancaster, on the invention of said Mathison, for improvements in machines for securing buttons to material, on an application filed August 1, 1882. The specification of the Morley patent says: “ My invention consists in mechanism for automatically sewing shank-buttons on to fabrics, shoes, etc., and the objects of my invention are to form a double-threaded stitch on the top side of the material being sewed upon, transversely to the direction of feed, and on the reverse side of the material two parallel lines of stitches at right angles to the first named ones, to make alternately long and short stitches, and to so feed buttons to be sewed by said machines as to present them at the proper time and in the proper place to be operated upon.” The specification then escribes, by reference to twenty-four figures of drawings, the mechanical means used by the patentee to perform the mechan-njal operations described. The specification then proceeds: 266 OCTOBER TERM, 1888. Opinion of the Court. “Having thus described the machine and constructions set forth in the drawings, I wish it to be understood that the same is only one of different mechanisms which I have contemplated, and which may be effectually employed for carry-ino- out the main feature of mv invention, to wit, the automatic mechanical sewing of buttons to a fabric. Thus, different means may be adopted for carrying the thread through the eye of the button into the fabric, as, for instance, passing the hooked needle through said eye to a position to seize the thread from the straight needle, or form [from] a suitable carrier, and then draw the loop down through the fabric to be secured beneath by a shuttle or needle thread, or the eye pointed needle may be used in connection with a loop-spreader and shuttle for carrying a thread through the loop, a single thread or two threads being used. It will further be understood that wires may be sometimes substituted for threads, and that other feed mechanisms may be employed, the needles moving with, but not controlling, the fabric, as in the construction described.” There are eighteen claims in the patent, only four of which are relied upon by the plaintiffs, namely, claims 1, 2, 8, and 13, which are as follows: “ 1. The combination, in a machine for sewing shank-buttons to fabrics, of button-feeding mechanism, appliances for passing a thread through the eye of the buttons and locking the loop to the fabric, and feeding mechanism, substantially as set forth. 2. The combination, in a machine for sewing shank-buttons to fabrics, of a needle and operating mechanism, appliances for bringing the buttons successively to positions to permit the needle to pass through the eye of each button, and means for locking the loop of thread carried by the needle to secure the button to the fabric, substantially as set forth.” “8. The combination, in a machine for sewing buttons to fabrics, of button-feeding and sewing appliances, substantially as set forth, and feeding appliances and operating mechanism whereby the feeding devices are moved alternately different distances to alternate short button stitches with long stitches between the buttons, as specified.” “13. The combination, with button-sewing appliances, of a trough, appliances for carrying the buttons successively from the trough MORLEY MACHINE CO. v. LANCASTER. 267 Opinion of the Court. to the sewing devices, and mechanism, for operating said appliances and sewing devices, as set forth.” The defendant’s machine is known as the Lancaster machine. The Morley machine contains and is made up of three main groups of instrumentalities: (1) mechanism for holding the buttons in mass, and delivering them separately, in proper position, over the fabric, so that they may be attached to it by the sewing and stitching mechanism; (2) the stitching mechanism ; (3) the mechanism for feeding the fabric along, so as to space the stitches and consequently the buttons when sewed on. In the button-feeding mechanism, there is a hopper containing the buttons in mass. The principal use of the machine is to sew buttons on to the uppers of buttoned boots, and the button designed to be used is one having a round ball affixed to a shank, which terminates in an eye. On the bottom of the hopper is a hopper-valve, which picks out the buttons one by one and delivers them into an inclined trough. This trough has a V-shaped groove along its bottom, midway between its sides, and the buttons enter the upper part of the trough with their shanks in all directions, and it becomes necessary to turn them over, so that the eyes will lie in the groove while the bodies of the buttons occupy the trough. The contrivance for accomplishing this consists of a flexible, corrugated strip of metal, lying over the top of the trough, and oscillated by proper machinery, which, by contact with the bodies of the buttons, will roll them over so that their eyes will lie in the groove. After the buttons are thus arranged, they slide down the trough, being aided to do so by a jarring motion imparted to the latter. When they arrive at its lower end, which is bent so as to be nearly vertical, they lie with their heads towards the front of the machine, that is, the side farthest from the driving pulley. In one modification of the machine, the buttons are held in the trough by a button-wheel, which is mounted on a vertical axis, and is provided with pockets, each capable of receiving a button, and admits of being intermittently revolved at proper times. This button-wheel is used (1) to close the bottom of the trough; (2) to receive buttons into its pockets; and (3) by its own revolution, to turn 268 OCTOBER TERM, 1888. Opinion of the Court. the buttons around, so that their eyes will lie towards the front of the machine. In order to prevent the buttons from falling out of the pockets, the button-wheel rests upon a stationary table, which closes the bottoms of all of the pockets but one. When a button arrives over the notch in the table, it has been turned around, on a vertical axis, 180°; but, as a plane passing through its eye is then vertical, it must be turned on a horizontal axis, through 90°, so that its eye may lie flat, in order that the needle, which ascends from beneath, may pass through the eye. Therefore, when a button arrives over the notch in the table, a plunger or punch descends into the pocket and drives the button into a button-carrier, which lies at that time immediately under the notch, and under the pocket into which the punch enters. When the button enters the carrier, a plane passing through its eye is still vertical, and the carrier therefore turns around, on a horizontal axis, 90°, to bring the eye of the button into such a position that it can be entered by the needle; and, as the carrier turns, it retracts, so as to bring the eye into such a position that a plane passing through it will be horizontal, and the needle will readily enter it. The patent describes a modified form of the contrivances for bringing the button into a position for the needle to enter its eye, in which modification the button-wheel is dispensed with, and a light spring is applied to the bottom of the trough, to hold up the column of buttons, such spring operating as a spring-gate, opened at proper intervals by mechanism, and shutting itself automatically. This mechanism, which also receives the button and turns it around 90° on a horizontal axis, and transfers it to the place where it is to be sewed, is a sort of spring nippers, one .of the jaws of which is split so as to receive the shank of the button. The above contrivances constitute what is called in claim 1, “ button-feeding mechanism ; ” in claim 2, “ appliances for bringing the buttons successively to positions to permit the needle to pass through the eye of each button; ” in claim 8, “button-feeding appliances;” and, in claim 13, “a trough, appliances for carrying the buttons successively from the trough to the sewing devices, and mechanism for operating said appliances.” MORLEY MACHINE CO. v. LANCASTER. 269 Opinion of the Court. In the Morley patent, there is a contrivance for feeding the fabric so as to space the stitches, and consequently to space the buttons. The needles, while inserted in the fabric, move in the direction of the feed, carrying the fabric with them. The motion of the needles or feed is derived from revolving cams, and the two needles swing like an inverted pendulum. This kind of feed was well known in machines for sewing leather, prior to the date of the Morley patent. This feeding contrivance is what is called in claim 1, “ feeding mechanism,” and in claim 8, “ feeding devices.” The Morley patent describes its stitch as being made by means of two needles, one eye-pointed, like the Howe needle, and the other a hooked or crochet needle,, such as is used in machines for sewing leather. These needles are set at an inclination to each other, across the line of the seam, and enter the fabric from beneath, and, when they get above it, cross each other. The eye-pointed needle pierces the fabric and carries a bight of thread up above it, and then retreats a little to form a loop by causing the thread to expand away from the needle. During this time, the hooked needle has also penetrated the fabric from beneath, and, when the loop is formed, passes between the eye-pointed needle and the thread, and, as both needles descend, the hook catches the thread supplied by the eye-pointed needle, and carries a bight of thread across the fabric and down through it to the under side, thus forming the transverse stitches on the button side of the fabric, the eye-pointed needle being described as passing through the eye of the button, although it is stated that instead the hooked needle may pass through such eye. The passage of the needle through the eye, after it has passed through the fabric, holds the button upon the fabric. When the eye-pointed needle retracts and forms a loop above the eye of the button, a loopspreader is employed to spread the loop, and a shuttle, carrying either one thread or two threads, is passed through the loop, the eye-pointed needle, in its retraction, carrying, by means of the loop, the thread or threads furnished by the shuttle, and the stitch being the ordinary lock-stitch. The stitch described in the Morley patent as made by eye-pointed and hooked 270 OCTOBER TERM, 1888. Opinion of the Court. needles, both operating from the lower side of the fabric, and making transverse stitches on its upper side and longitudinal stitches on its lower side, is a stitch known prior to the date of the Morley patent. In the Lancaster machine there are found combined together the same three main groups of instrumentalities above set forth as being found in the Morley patent. There is in the Lancaster machine a hopper containing the buttons in mass, and an inclined surface which supports a column of the buttons, the buttons lying with their shanks up and their bodies down. This hopper is provided with a reciprocating brush, which sweeps over the buttons and rolls them over so that their shanks, pointing upward, will fall into one or another of slits in a metal plate which covers the inclined flat surface. These slits all converge into a single slit, so that the buttons slide down the various slits and ultimately lie in a single column in the single slit, with their shanks upward, upon an inclined plane surface. This single slit, and the plane surface which it covers, are twisted at the end, in such a manner that a plane passing through the slit is nearly horizontal, and the surface which is in contact with the head of the button is nearly vertical. Consequently, when the buttons reach the bottom, they lie in such a position that a plane passing through the eye of the lowermost button is horizontal, or nearly so. The column of buttons is held up by a light spring, and this springgate is opened by the button itself, because the so-called trough holding the column of buttons vibrates sidewise, and a thread which passes through the eye of the lowermost button prevents that button from vibrating with the contrivance, and the button is pulled out by the thread, and, in being pulled out, overcomes the resistance of the spring. The eye of the lowermost button in the column lies directly under the needle, so that the needle enters it while it is still in the column. The contrivance containing the column then vibrates sidewise, so as to get out of the way of the needle in a subsequent feeding operation. The spring in the Lancaster machine, which holds up the column of buttons, was a common device in screw blank and eyelet machinery, to hold up a column of blanks and permit them to be removed one by one. MORLEY MACHINE CO. v. LANCASTER. 271 Opinion of the Court. In the Lancaster machine, there is a contrivance for feeding the fabric so as to space the stitches, and consequently to space the buttons, and the machine feeds by means of a single needle which reciprocates in a straight line, and, while it is inserted in the fabric, moves in the direction of the feed, carrying the fabric with it, the motion of the needle or feed being derived from revolving cams. The expert for the defendant says that he finds no substantial difference between the mechanisms which feed the fabric in the two machines. As to the stitching mechanism of the Lancaster machine, the needle is on the upper side of the fabric, and descends through it. It is an ordinary crochet needle, provided with a cast-off, both the needle and cast-off being like those described in the Morley patent, and the same which had been used for many years in sewing leather. The machine is also provided with a thread-carrier beneath the fabric, like that used in machines for sewing leather. The eye of the button in the Lancaster machine makes a part of the stitch, and the stitch cannot be made unless a button is supplied at every alternate perforation of the needle. It is therefore necessary that the machine should have some contrivance for carrying some of the loops of the thread over the bodies of the buttons, so that the loop may be locked by the eye of the button. In making the stitch, the needle first passes down through the eye of the button, carrying its hook below the fabric. The thread-carrier beneath the fabric then puts a loop of thread into the hook, and the hook rises, pulling a loop of thread through the fabric and through the eye of the button. The needle then descends again, sliding through such loop and piercing the fabric, and leaving the loop on top of the fabric. The thread-carrier then again puts the thread into the hook of the needle, and the needle rises again, carrying another bight of the thread through the fabric and through the loop on top of the fabric, thus locking that loop. As the needle rises, a contrivance seizes both parts of the loop carried up through the second hole made by the needle, opens it wide and passes it over the body of the button, and the part of the loop which is over the button is then pulled down through the fabric, and consequently around 272 OCTOBER TERM, 1888. Opinion of the Court. the shank of the button, thus locking the stitch. A succession of these operations forms the stitch, and sews a row of buttons on the fabric, each alternate loop of the stitch being locked by the button itself. If the buttons were removed from the stitch, there would remain a succession of loops, and consequently no seam. In the operation of the Lancaster machine, after the needle has passed through the eye of the button, the end of the so-called trough and the needle move together, while the needle is making its feeding motion. The so-called trough then stands still until the needle has ascended and pulled a loop of thread through the eye, and has again pierced the fabric. When the needle has got into the fabric the second time the button is pulled out of the end of the trough by the retreat of the trough towards the rear of the machine, and is so pulled out because at that time the fabric is standing still and the button is held to it by the loop of thread which is passed through the eye of the button. After the button is thus pulled out of the end of the trough, the trough stands still for a while, while a loop is passed over the body of the button, as above described, and the trough then returns again, so as to hold the eye of a second button in the path of the descending needle, the button being thus released, not by the motion of the fabric, but by the motion of the trough which carries the column of buttons. It satisfactorily appears, that the Morley machine was the first one which accomplished the result of automatically separating buttons which have a shank from a mass of the same, conveying them in order to a position where they can be selected by the machine, one after another, and, by sewing mechanism, coupled with suitable mechanism for feeding the fabric, be sewed thereto at prescribed suitable distances apart from each other. The machine performs automatically these three functions of selecting, sewing, and spacing. The problem to be performed was to select from a mass of buttons, furnished with heads and with wire eyes projecting therefrom, single buttons, and to present them in succession to the needle of a sewing mechanism, so that the needle could pass through MORLEY MACHINE CO. v. LANCASTER. 273 Opinion of the Court. the eye and secure it to the fabric. Machinery existed before for selecting from a mass wood-screw blanks, horse nails and pins, and delivering them to other machinery; but, in such constructions, the shank of the article being heavier than its head, the tendency was for the articles to arrange themselves in the way with the shanks downward, the heads being supported on the top surface of the way. With such buttons as are used in the two machines in controversy, as the heads are much heavier than the shanks and the eyes combined, the buttons will not naturally arrange themselves with their shanks downward. It is therefore necessary to have some means for turning each button into such a position that a plane passing through its eye shall be perpendicular to a plane passing through the long axis of the sewing needle, so as to insure the passage of the needle through the eye. Ko machine existing prior to Morley’s is shown to have accomplished that operation. The substance of the defence in the case is, that there are certain specific differences between the button-feeding mechanisms in the two machines, and also certain specific differences between their sewing mechanisms; and hence that there is no infringement. This was the view taken by the Circuit Court in its opinion, 23 Fed. Rep. 344. Morley, having been the first person who succeeded in producing an automatic machine for sewing buttons of the kind in question upon fabrics, is entitled to a liberal construction of the claims of his patent. He was not a mere improver upon a prior machine which was capable of accomplishing the same general result; in which case, his claims would properly receive a narrower interpretation. This principle is well settled in the patent law, both in this country and in England. Where an invention is one of a primary character, and the mechanical functions performed by the machine are, as a whole, entirely new, all subsequent machines which employ substantially the same means to accomplish the same result are infringements, although the subsequent machine may contain improvements in the separate mechanisms wThich go to make up the machine. In McCormick v. Talcott, 20 How. 402, 405, the inquiry VOL. CXXIX—18 274 OCTOBER TERM, 1888. Opinion of the Court. was, whether McCormick was the first person who invented, in a reaping machine, the apparatus called a divider, performing the required functions, or whether he had merely improved an existing apparatus, by a combination of mechanical devices which performed the same functions in a better manner. This court, speaking by Mr. Justice Grier, said: “ If he ” (the patentee) “ be the original inventor of the device or machine called the divider, he will have a right to treat as infringers all who make dividers operating on the same principle, and performing the same functions by analogous means or equivalent combinations, even though the infringing machine maybe an improvement of the original, and patentable as such. But if the invention claimed be itself but an improvement on a known machine by a mere change of form or combination of parts, the patentee cannot treat another as an infringer who has improved the original machine by use of a different form or combination, performing the same functions. The inventor of the first improvement cannot invoke the doctrine of equivalents to suppress all other improvements which are not mere colorable invasions of the first.” So, also, in Railway Co. v. Sayles, 97 U. S. 554, 556, this court, speaking by Mr. Justice Bradley, said, in regard to brakes foV eight-wheeled railroad cars : “ Like almost all other inventions, that of double brakes came when, in the progress of mechanical improvement, it was needed ; and being sought by many minds, it is not wonderful that it was developed in different and independent forms, all original, and yet all bearing a somewhat general resemblance to each other. In such cases, if one inventor precedes all the rest, and strikes out something which includes and underlies all that they produce, he acquires a monopoly, and subjects them to tribute. But if the advance towards the thing desired is gradual, and proceeds step by step, so that no one can claim the complete whole, then each is entitled only to the specific form of device which he produces, and every other inventor is entitled to his own specific form, so long'as it differs from those of his competitors, and does not include theirs. These general principles are so obvious, that they need no argument or illustration to suppor them.” MORLEY MACHINE CO. v. LANCASTER. 275 Opinion of the Court. The same view was directly applied in Clough n. Barker, 106 U. S. 166, 177, to the Clough patent for an improvement in gas-burners. The first claim of that patent was for “ the bat-wing burner, perforated at the base, in combination with the surrounding tube, substantially as described.” The second claim read thus: “ In combination with the bat-wing burner, perforated at the base, and surrounding-tube, the tubular valve for regulating the supply of external gas to the burner, substantially as described.” It appeared that in no prior structure had a valve arrangement been applied to regulate the flow of gas in such a combination as that covered by the first claim of the patent. It was, therefore, held, that the patentee was entitled to the benefit of the doctrine of equivalents, as applied to the combination covered by the second claim. In the defendant’s burner, the regulation was made by a tubular valve on the outside of the perforations, instead of on the inside, as in the patent, but performing its work by being screwed up or down, as in the patent. This court said : “ Although in the Clough structure the burner and surrounding-tube revolve together in adjusting their position in reference to that of the tubular valve, so as to let in or turn off the supply of gas through the perforations, and although in the Clough structure the flame revolves by the revolution of the burner, and although in the defendant’s burners the revolution of the surrounding-tube regulated the supply of gas through such perforations, and neither the burner nor the flame revolved, the defendant’s valve arrangement must be held to have been an equivalent for that of Clough to the full extent to which that of Clough goes, involving, perhaps, patentable improvements, but still tributary or subject to the patent of Clough. It is true that that patent describes the • tubular valve as being inside of the burner-tube. But Clough was the first person who applied a valve regulation of any kind to the combination to which he applied it, and the first person who made such combination; and he is entitled, under decisions heretofore made by this court, to hold as infringements all valve regulations, applied to such a combination, which perform the same office in substantially the same way as, and were known 276 OCTOBER TERM, 1888. Opinion of the Court. equivalents for, his form of valve regulation.” See, also, Duff v. Sterling Pump Co., 107 IT. S. 636, 639. The same doctrine was applied by this court in Consolidated Valve Co. v. Crosby Valve Co., 113 IT. S. 157, to the Richardson patent, the claim of which was, “ A safety valve with the circular or annular flange or lip co, constructed in the manner, or substantially in the manner, shown, so as to operate as and for the purpose herein described.” It appeared that Richardson was the first person who made a safety valve which, while it automatically relieved the pressure of steam in the boiler, did not, in effecting that result, reduce the pressure to such an extent as to make the use of the relieving apparatus practically impossible, because of the expenditure of time and fuel necessary to bring up the steam again to the proper working standard; and that his valve was the first which had a strict-ured orifice leading from the huddling chamber to the open air, to retard the escape of the steam, and to enable the valve to open with increasing power against the action of the spring, and to close suddenly, with small loss of pressure in the boiler. It was held, that that claim covered a valve in which were combined an initial area, an additional area, a huddling chamber beneath the additional area, and a strictured orifice such as that above mentioned, the orifice being proportioned to the strength of the spring. It was also held, that, under the claim of a second patent, namely, “ The combination of the surface beyond the seat of the safety-valve, with the means herein described for regulating or adjusting the area of the passage for the escape of steam, substantially as and for the purpose described,” the patentee was entitled to cover the combination, with the surface of the huddling chamber and the strictured orifice, of a screw-ring to be moved -up or down to obstruct such orifice more or less, in the manner described. It was further held, that both of the patents .were infringed by a valve which produced the same effects in operation by the means described in Richardson’s claims, although the valve proper was an annulus, and the extended surface was a disc, inside of the annulus, the Richardson valve proper being a disc, and the extended surface an annulus surrounding the disc; and although the valve MORLEY MACHINE CO. v. LANCASTER. 277 Opinion of the Court. proper of the defendant had two ground joints, and only the steam which passed through one of them passed through the stricture, while, in the Richardson valve, all the steam which passed into the air passed through the stricture; and although in the defendant’s valve the huddling chamber was at the centre, instead of at the circumference, and was in the seat of the valve, under the head, instead of in the head, and the stricture was at the circumference of the seat of the valve, instead of being at the circumference of the head. These conclusions were based on the fact, stated in the opinion of the court, that no prior structure was known or recognized as producing any such result as that produced by Richardson’s apparatus; that the prior structures never effected the kind of result attained by his apparatus, because they lacked the thing which gave success; and that, taught by Richardson, and by the use of his apparatus, it was not difficult for skilled mechanics to take the prior structures and so arrange and use them as to produce more or less of the beneficial results first made known by him. The doctrine thus applicable to a machine patent is of a kindred character with that applied, in this country and in Eng-land, to a patent for a process. In Tilghman v. Proctor, 102 U. S. 707, the claim of Tilghman’s patent was for “ the manufacturing of fat-acids and glycerine from fatty bodies by the action of water at a high temperature and pressure.” In the opinion of this court delivered by Mr. Justice Bradley, the claim was sustained as a claim for a process, irrespective of the particular mode or form of apparatus for carrying it into effect, inasmuch as the patent described a practical and useful mode of carrying it into effect. It was said in the opinion, (p. 721:) “Had the process been known and used before, and not been Tilghman’s invention, he could not then have claimed anything more than the particular apparatus described in his patent; but being the inventor of the process, as we are satisfied was the fact, he was entitled to claim it in the manner he did.” It was also held that, m such a case, a person who subsequently discovers a new mode of carrying out the patented process is not entitled to use the process without the consent of the patentee. 27$ OCTOBER TERM, 1888. Opinion of the Court. Reference was made in the opinion in that case to the decision in Neilson v. Harford, 1 Webster Pat. Cas. 295, which related to Neilson’s patent for the process of applying a blast of heated air to anthracite coal in a smelting furnace, by forcing such blast through a vessel situated between the blowing apparatus and the furnace, and heated to a red heat, the form of the heated vessel being stated by the patent to be immaterial. On this question this court said: “ That a hot blast is better than a cold blast for smelting iron in a furnace, was the principle or scientific fact discovered by Neilson; and yet, being nothing but a principle, he could not have a patent for that. But having invented and practically exemplified a process for utilizing this principle, namely, that of heating the blast in a receptacle between the blowing apparatus and the furnace, he was entitled to a patent for that process, although he did not distinctly point out all the forms of apparatus by which the process might be applied, having, nevertheless, pointed out a particular apparatus for that purpose, and having thus shown that the process could be practically and usefully applied. Another person might invent a better apparatus for applying this process than that pointed out by Neilson, and might obtain a patent for such improved apparatus; but he could not use the process without a license from Neilson. His improved apparatus would, in this respect, stand in a relation to the process analogous to that which an improvement on a patented machine bears to the machine itself.” In regard to the case of Neilson n. Harford, this court, speaking by Chief Justice Taney, in O'*Reilly n. Norse, 15 How. 62, 115, 116, said, in reference to the opinion of the Court of Exchequer in that case, delivered by Baron Parke: “We see nothing in this opinion differing in any degree from the familiar principles of law applicable to patent cases. Neilson claimed no particular mode of constructing the receptacle, or of heating it. He pointed out the manner in which it might be done; but admitted that it might also be done in a variety of ways, and at a higher or lower temperature, and that all of them would produce the effect in a greater or less degree, provided the air was heated by passing through a MORLEY MACHINE CO. v. LANCASTER. 279 Opinion of the Court. heated receptacle. And hence it seems that the court at first doubted whether it was a patent for anything more than the discovery that hot air would promote the ignition of fuel better than cold. And if this had been the construction, the court, it appears, would have held his patent to be void, because the discovery of a principle in natural philosophy or physical science is not patentable. But after much consideration, it was finally decided that this principle must be regarded as well known, and that the plaintiff had invented a mechanical mode of applying it to furnaces; and .that his invention consisted in interposing a heated receptacle between the blower and the furnace, and by this means heating the air after it left the blower and before it was thrown into the fire. Whoever, therefore, used this method of throwing hot air into the furnace used the process he had invented, and thereby infringed his patent; although the form of the receptacle or the mechanical arrangements for heating it might be different from those described by the patentee. For, whatever form was adopted for the receptacle, or whatever mechanical arrangements were made for heating it, the effect would be produced in a greater or less degree, if the heated receptacle was placed between the blower and the furnace, and the current of air passed through it. Undoubtedly, the principle that hot air will promote the ignition of fuel better than cold, was embodied in this machine. But the patent was not supported because this principle was embodied in it. He would have been equally entitled to a patent if he had invented an improvement in the mechanical arrangements of the blowing apparatus, or in the furnace, while a cold current of air was stiff used. But his patent was supported because he had invented a mechanical apparatus by which a current of hot air, instead of cold, could be thrown in. And this new method was protected by his patent. The interposition of a heated receptacle, in any form, was the novelty he invented.” This court also said, in Tilghman v. Proctor, (p. 728:) “ If the mode of applying the process is not obvious, then a description of a particular mode by which it may be applied is sufficient. There is, then, a description of the process and of 280 OCTOBER TERM, 1888. Opinion of the Court. one practical mode in which, it may be applied. Perhaps the process is susceptible of being applied in many modes and by the use of many forms of apparatus. The inventor is not bound to describe them all, in order to secure to himself the exclusive right to the process, if he is really its inventor or discoverer. But he must describe some particular mode, or some apparatus, by which the process can be applied with at least some beneficial result, in order to show that it is capable of being exhibited and performed in actual experience.” The English doctrine is to the same effect. In the case of Curtis v. Platt, before Vice-Chancellor Wood, in 1863, reported in a note to Adie v. Clark, 3 Ch. Div. 134, the Vice-Chancellor said, (p. 136,) in regard to a patent for an improvement in spinning-mules: “When the thing is wholly novel, and one which has never been achieved before, the machine itself which is invented necessarily contains a great amount of novelty in all its parts ; and one looks very narrowly and very jealously upon any other machines for effecting the same object, to see whether or not they are merely colorable contrivances for evading that which has been before done. When the object itself is one which is not new, but the means only are new, one is not inclined to say that a person who invents a particular means of doing something that has been known to all the world long before has a right to extend very largely the interpretation of those means which he has adopted for carrying it into effect.” In the same case, on appeal before the Lord Chancellor, (Lord Westbury,) (p. 138,) the views of Vice-Chancellor Wood were concurred in. In Badische Anilin und Soda Fabrik v. Levinstein, 24 Ch. Div. 156, 171, in regard to a patent for improvements in the production of coloring matters for dyeing and printing, Mr. Justice Pearson said: “ Where a patent is taken out for a process for arriving at a known result, (I mean, a result known before the patent is taken out for the process simpliciter^ any other person may take out a patent for another process, or may use another process without taking out a patent, without any infringement of the process first taken out. But when a patent is taken out for a new result not known before, and there is one MORLEY MACHINE CO. v. LANCASTER. 281 Opinion of the Court. process described in the patent which is effectual for the purpose of arriving at that new result at the time when the patent is taken out, the patentee is entitled to protection against all other processes for the same result; and no person can, without infringing upon his patent, adopt simply a different process for arriving at the same result.” As authority for this view, he cites the cases of Jupe v. Pratt, 1 Webster Pat. Cas. 146; Househill Co. v. Neilson, 1 Webster Pat. Cas. 685; and Curtis v. Platt, ubi supra, and Goodeve Pat Cas. 102. He decided in favor of the plaintiff. On appeal to the Court of Appeal, 29 Ch. Div. 366, the decree was reversed, Lords Justices Bowen and Fry being in favor of a reversal, and Lord Justice Baggallay against it. On further appeal to the House of Lords, 12 App. Cas. 710, the decision of the Court of Appeal was reversed, and the decision of Mr. Justice Pearson was restored, Lord Halsbury, (Lord Chancellor,) Lord Herschell, and Lord Macnaghten sitting in the case and concurring. In the judgment given by Lord Herschell it is stated that all the judges of all the courts were agreed on the question of infringement. A recent and’ instructive case is that of Proctor v. Bennis, 36 Ch. Div. 740, in regard to a patent for self-acting mechanism for supplying fuel at intervals to, and distributing it over the surface of, a fire. The court of first instance held the patent to be valid and to have been infringed. In the Court of Appeal, Lords Justices Cotton, Bowen, and Fry unanimously affirmed the decision, and held that a patent for a combination of known mechanical contrivances, producing a new result, was infringed by a machine producing the same result by a combination of mechanical equivalents of such contrivances, with some alterations and omissions, which did not prevent the new machine from being one which took the substance and essence of the patented invention; but that, where the result was old, and the novelty consisted only of improvements in a known machine for producing a known result, the patentee must be tied down strictly to the mode which he had described of effecting the improvements. Lord Justice Cotton, after referring to the case of Curtis v. 282 OCTOBER TERM, 1888. Opinion of the Court. Platt, 3 Ch. Div. 135, note, said, (p. 757:) “Where there is no novelty in the result, and where the machine is not a new one, but the claim is only for improvements in a known machine for producing a known result, the patentee must be tied down strictly to the invention which he claims, and the mode which he points out of effecting the improvement. But here the throwing coal on to the furnace by the intermittent radial action of a flap or door was new. Nothing of the kind had been done before. It is true, there had previously been imperfect machines for feeding furnaces automatically, but that had not, previously to this machine, been done by any intermittent radial action of a flap or door, as is done by the plaintiff. In my opinion, therefore, the opinions expressed by the judges with reference to mere improvements in an old machine for an old purpose cannot apply to a case like this, where there was not only novelty in the machine, but novelty in the result to be produced by that machine.” Lord Justice Bowen said, (p. 764:) “Now, I think it goes to the root of this case to remember that this is, as was described by one of the counsel, really a pioneer invention; and it is by the light of that, as it seems to me, that we ought to consider whether there have been variations or omissions, and additions, which prevent the machine which is complained of from being an infringement of the plaintiff’s. With regard to the variations, I take precisely the same view that the Lord Justice Cotton has taken; and I will not travel over the ground again. With regard to the additions and omissions, it is obvious that additions may be an improvement, and that omissions may be an improvement; but the mere fact that there is an addition, or the mere fact that there is an omission, does not enable you to take the substance of the plaintiff’s patent. The question is not whether the addition is material, or whether the omission is material, but whether what has been taken is the substance and essence of the invention. That seems to me to be the true test, as propounded,by the House of Lords in Clark v. Adie, 2 App. Cas. 315, 320. Lord Justice Fry said, (p. 766 :) “ The pith and substance o the plaintiff’s invention is, in my judgment, putting coals upon MORLEY MACHINE CO. v. LANCASTER. 283 Opinion of the Court. a fire by an intermittent radial action, an invention which, it may be remarked, reproduces with great exactitude the action of the human arm in placing coals upon a fire.” Also, (p. 768:) “ In the present case, we have these broad features of likeness, that in both machines the motion is a radial motion, in both machines it is an intermittent motion, in both machines it is of course produced by means of a radius, in both machines that radius is moved in one direetion by tappets, and the same radius is moved in the opposite direction by a spring. All those broad features of the machines are in common; but there is this difference, that in the plaintiff’s machine a shaft is impelled by the tappets and by the spring, whereas in the defendant’s machine the radius itself is impelled by the tappets and the spring. It follows that the radius in the plaintiff’s is attached to the shaft, whereas the radius in the defendant’s works on a pin. That is the broad distinction between them. The result, however, appears to me to be substantially the same; by substituting the pin for the shaft as the centre on which the radius acts, and by impelling the radius itself instead of impelling the shaft fixed to the radius, you have produced in substance precisely the same radial action by the same means. You drive your radius in one direction by tappets, and you drive it in the other direction by the spring, and you produce the same result, namely, the feeding of coal by a radial motion made intermittent in one direction by the operation of the tappets, and in the other direction by the spring. I think, therefore, that we have a new combination for a new object, and that the gist of that combination has been taken by the defendant, and that, consequently, there is an infringement.” Applying these views to the case in hand, Morley having been the first inventor of an automatic button-sewing machine, by uniting in one organization mechanism for feeding buttons from a mass, and delivering them one by one to sewing mechanism and to the fabric to which they are to be secured, and sewing mechanism for passing a thread through the eye of the button, and securing it to the fabric, and feeding mechanism or moving the fabric the required distances to space the 284 OCTOBER TERM, 1888. Opinion of the Court. buttons, another machine is an infringement, in which such three sets of mechanism are combined, provided each mechanism, individually considered, is a proper equivalent for the corresponding mechanism in the Morley patent; and it makes no difference that, in the infringing machine, the button-feeding mechanism is more simple, and the sewing mechanism and the mechanism for feeding the fabric are different in mechanical construction*, so long as they perform each the same function as the corresponding mechanism in the Morley machine, in substantially the same way, and are combined to produce the same result. The view taken on the part of the defendant, in regard to the question of infringement, is that, inasmuch as the Lancaster machine uses different devices in its mechanisms which correspond to those referred to in the first, second, eighth and thirteenth claims of the patent, those claims are to be limited to the special devices described in the patent, which make up such combinations, although both machines contain the same main group of instrumentalities which, when combined, make up the machine. But, in a pioneer patent, such as that of Morley, with the four claims in question such as they are, the special devices set forth by Morley are not necessary constituents of the claims. The main operative features of both machines are the same. In each there is a receptacle for shank-buttons in a mass; in each the mass of buttons passes in order into a conveyer-way; and in each the buttons conveyed to the sewing mechanism are presented successively with their shanks in a horizontal position, so as to allow of the passage of the needle through the eye. In the Morley machine, the buttons are carried along the raceway with their shanks downward, and are turned over by proper devices, so that the needle can enter the eye. In the Lancaster machine, the buttons travel along the raceway with their shanks upward, and the twisted shape of the raceway causes the buttons to be presented properly in succession to the needle. The only difference is, that in the Morley machine there is an active operating device for turning tne buttons, in the shape of a button-wheel which receives them, MORLEY MACHINE CO. v. LANCASTER. 285 Opinion of the Court, and shuts off the column, and takes one at a time out of the raceway; while in the Lancaster machine there is a passive device for accomplishing the same result of turning the buttons, and there is no button-wheel, but there is a spring-gate at the end of the raceway, which shuts off the column and, with the addition of other devices, allows one button at a time to be withdrawn from the raceway. But in the Morley patent a modification is described, "whereby the button-wheel is dispensed with, and a spring-gate, as in the Lancaster machine, is employed, and an active device is used to open the spring-gate and discharge the button, while in the Lancaster machine an active instrumentality is used to effect the same result, in combination with the sidewise movement of the raceway and in connection with the fact that the needle enters the eye of the button and passes a thread through it. As to the mechanism for feeding the fabric, it is substantially the same in the two machines, for in each the needle operates to feed the fabric, while inserted in it, and it makes no difference that in the Morley machine the two needles swing like an inverted pendulum, while in the Lancaster machine the single needle swings in a straight line. The principal difference relied on by the defendant is in regard to the sewing or stitching mechanism, based upon the difference in the kind of stitch used in the two machines for fastening the button to the fabric. The two stitches are, indeed, different, specifically considered. Morley uses the chain stitch. In the Lancaster machine, the stitch is made by looping the thread upon itself, and putting the bight of the loop around the shank of the button, so as to prevent the loop from pulling out, as it would otherwise do. The Morley patent, however, is not for any particular kind of stitch, or for any particular kind of mechanism for making such stitch. When the form of the stitch is changed, the instrumentalities for making it must change. Morley says, in his specification, that different means for making a stitch may be employed, as well as other feed mechanisms. The contention of the defendant, in regard to the sewing mechanism, rests upon the proposition, that the convolution 286 OCTOBER TERM, 1888. Opinion of the Court. or concatenation of thread which makes up the stitch in the Lancaster machine is different from that which is found in the Morley machine. In each machine, however, the buttons are spaced at the proper distances apart by the feeding mechanism which moves the fabric along, and the feeding device is moved alternately different distances, to alternate short stitches with long stitches between the buttons. In each machine, the button is taken possession of by the sewing mechanism, and the needle in each enters the eye of the button. In the Lancaster machine, however, the thread is so looped as to embrace also the shank of the button, and thus, if the button were not present in the Lancaster machine, the lock-stitch would not be formed, but merely a succession of loops, which could be pulled out of the fabric. But this convolution or concatenation of the thread to form the fastening of the stitch, and the particular device which forms such convolution or concatenation, are not made, by the Morley patent, elements which enter into the claims in question. Those claims are not for a result or effect, irrespective of the means by which the effect is accomplished. It is open to a subsequent inventor to accomplish the same result, if he can, by substantially different means. The effect of the rule before laid down is merely to require that, in determining whether the means employed in the Lancaster machine are substantially the same means as those employed in the Morley machine, the Morley patent is to receive a liberal construction, in view of the fact that he was a pioneer in the construction of an automatic button-sewing machine, and that his patent, especially in view of the character and terms of the four claims in question, is not to be limited to the particular devices or instrumentalities described by him, used in the three main elements of his machine, which, combined together, make it up. This is the principle applied by this court in Consolidated Valve Co. v. Crosby Valve Co., 113 U. S. 157. In all three of the main mechanisms used in the Lancaster machine, the means employed in it are substantially equivalents of those employed in the Morley machine. There is in each a hopper containing the mass of buttons, and an inclined con- MORLEY MACHINE CO. v. LANCASTER. 287 Opinion of the Court. veyer-way leading from the hopper to the sewing mechanism. The only question in regard to the button-feeding mechanism is, whether the means employed in the Lancaster machine for turning the buttons so that the eyes will come into the path of the needle, are within the means employed for the same purpose in the Morley machine. In the Morley machine there is a flexible, corrugated strip of metal, which is oscillated to and fro, and operates to roll the buttons over, so that their shanks will occupy a groove at the bottom of the trough. In the Lancaster machine, the reciprocating brush which sweeps over the bottom of the hopper in which the buttons lie in a mass, operates in an equivalent way with the corrugated strip of the Morley machine, and causes the shanks, which stand upward, of the buttons which have been rolled over by its action, to enter slits in a metal plate, which converge in the single conveyer-way. The only difference is that, in the Morley machine, the shanks are caused to lie in one direction at one time in their path, and in the Lancaster machine the same result is accomplished by equivalent devices at another time. As to the instrumentalities employed in the two machines for bringing the buttons one by one so that their eyes will stand in a horizontal position, ready to receive the needle, the buttons in the Morley machine pass down the conveyer-way with their eyes pointing downward, and occupying the groove, and from the conveyer-way they enter one by one into a button-wheel, which, by revolving, turns them 180°, and they are then received into a carrier which further turns them 90°, so as to get the eye into a horizontal plane. In the Lancaster machine it is not necessary to turn the buttons more than 90°, because they have been so rolled over by the brush in the hopper that their eyes point upward and enter the slits, and the conveyer-way is twisted and so turns the button that its eye will occupy a horizontal plane, ready to receive the needle. Then the needle, entering the eye of the button, pulls the button out of the conveyer, and the latter moves out of the way, leaving the button in the possession of the sewing mechanism. These instrumentalities are the equivalents of each other, the differences being merely formal, active instrumentalities 288 OCTOBER TERM, 1888. ’ Opinion of the Court. being employed in one case to turn the buttons, and in the other that end being accomplished by the twisting of the conveyer-way. To employ a curved path to change the plane occupied by a body passing along that path was well known in mechanics, and is a device shown in the Morley patent for turning the buttons from a nearly vertical position to a horizontal position, by a corresponding variation in the inclination of the conveyer-way. The only difference in the particular devices in the two machines in this respect results from the fact that in the Morley machine the buttons pass from the hopper with their shanks downward, while in the Lancaster machine they pass with their shanks upward. From this it results that, while the means employed in the two machines are substantially the same, to effect the same result, active agents can be used in the one case, while passive agents are used in the other, to effect the same turning of the button. Indeed, in the modified form of construction suggested in the Morley specification, there is a spring-gate for holding the buttons up, while in the Lancaster machine there is a similar spring, the only difference being that in the Morley machine the spring-gate is opened by a special device, while in the Lancaster machine the button itself opens the spring when the button-holding contrivance moves out of the way. In that modification of the Morley arrangement, as the specification states, the button-wheel and the plunger are dispensed with, and it is not necessary to turn the button 180° on a vertical axis. So, in this respect, the only difference between the two machines is, that in the Morley machine the spring-gate is opened by an active device, while in the Lancaster machine the conveyerway is moved sidewise by an active device, leaving the button behind, which opens the spring-gate because the needle has entered the eye of the button. In regard to the sewing mechanism in the two machines, a sewing needle with thread is employed in each to fasten the buttons to the fabric. In each, the thread is continuous, and follows the fabric as that is moved along by the mechanism which feeds it. The Morley machine employs the common stitch. In the Lancaster machine there is a peculiar stitch, m MORLEY MACHINE CO. v. LANCASTER. 289 Opinion of the Court. which a loop is drawn around the shank of the button and thus the stitch is locked against being drawn out; but notwithstanding the new convolution or concatenation of thread used in the Lancaster machine to secure the shank of the button to the fabric, the sewing mechanism of that machine is a substantial equivalent for the corresponding mechanism of the Morley patent. The invention of Morley in that respect did not consist in the peculiarity of the stitch, but in the combination of the needle, and the mechanism for operating it, with a button having a shank and an eye, the eye being held in a horizontal plane in the path of the needle, so that the thread carried by the needle could secure the button to the fabric. It is immaterial, in so securing the button, whether or not a loop is passed over the head of the button. The defendant’s device and arrangement may be an improvement, and the subject of a patent, but nevertheless the use of it involves the plaintiff’s invention. It may be true that the defendant’s peculiar form of stitch was unknown before; and it may also be true that his arrangement for carrying the buttons with their eyes upward, and turning the eyes into a horizontal plane by the twisting of the conveyer-way, was not before known. Of course, they were not before known in a machine for automatically sewing buttons to a fabric, because Morley’s machine was the first to do that. But still, the defendant employs for the above purposes known devices, which, in mechanics, were recognized as proper substitutes for the devices used by Morley to effect the same results. Thus, in the Lancaster machine, the brush for rolling over the buttons is the obvious equivalent of the corrugated plate in the Morley machine. The mode of operation used in the Lancaster machine for rolling over the buttons so that their shanks shall point in a particular direction before enter-lng the main conveyer-way is the same mode of operation found in the Morley machine, where the corrugated plate rolls the buttons over during their passage to the grooved conveyerway, so that their shanks shall all point in the same direction. In the Lancaster machine the action resulting from the twisted way is a mechanical equivalent for the button-wheel, the VOL. CXXIX—19 290 OCTOBER TERM, 1888. Opinion of the Court. punch, and the carrier used in the Morley machine to turn the eye into the proper plane for the needle to enter it; and the specific difference in the devices in this respect becomes less when the modification described in the Morley patent is used, so that in each of the two machines the button is turned only 90° on a horizontal axis, and in each of them a springgate is employed, opened in the one case by an active device, while in the other case an active device moves the conveyer away from the particular button which is being held by the needle. In this sense the mechanical devices used by the defendant are known substitutes or equivalents for those employed in the Morley machine to effect the same result; and this is the proper meaning of the term “known equivalent,” in reference to a pioneer machine such as that of Morley. Otherwise, a difference in the particular devices used to accomplish a particular result in such a machine would always enable a defendant to escape the charge of infringement, provided such devices were new with the defendant in such a machine, because, as no machine for accomplishing the result existed before that of the plaintiff, the particular device alleged to avoid infringement could not have existed or been known in such a machine prior to the plaintiff’s invention. It results from these views that the decree of the Circuit Court must be Reversed, and the case be remanded to that court with a direction to enter a decree in favor of the plaintiffs, sustaining the validity of claims 1, 2, 8, and 13 of the plaintiffs patent, and adjudging that those claims have been infringed by the defendant, and ordering a reference to a master to take an account of profits and damages in respect to such infringement, and awarding to the plaintiffs a perpetual injunction in respect to the four claims above mentioned ; and to take such f urther proceedings as shall be according to law and not inconsistent with this opinion. ELY v. NEW* MEXICO &c. RAILROAD CO. 291 Statement of the Case. ELY v. NEW MEXICO AND ARIZONA RAILROAD COMPANY. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA. No. 1133. Submitted January 14,1889. —Decided January 28,1889. Under the statutes of the Territory of Arizona, a complaint in a civil action, alleging that the plaintiff is the owner in fee of a parcel of land, particularly described, and that the defendant claims an adverse estate dr interest therein, and praying for a determination of the defendants’ claim and of the plaintiff’s title, and for an injunction and other equitable relief, is good on demurrer. This was a complaint, filed in a district court of the Territory of Arizona and county of Pima, by Frank Ely against the New Mexico and Arizona Railroad Company and several individuals, alleging that the “ plaintiff is the owner in fee of all that piece or parcel of land granted by the Mexican authorities to Leon Herreros on May 15,1825,” called the Rancho San José de Sonoita, situated in the Sonoita Valley in the county aforesaid, and more particularly described and bounded in the complaint, according to the calls of a survey made by the government of Spain in June, 1821; and that the “defendants, and each of them, claim an estate or interest in and to the above described land and premises adverse to this plaintiff ; that the said claim of the said defendants and each of them is without any right whatsoever ; and the said defendants have not, nor have any or either of them, any estate, right, title or interest whatever in said lands and premises or any part thereof. Wherefore the plaintiff prays : 1st. That the defendants, and each of them, be required to set forth the nature of his claim, and that all adverse claims of the defendants, and each of them, may be determined by decree of this court. 2d. That by said decree it be declared and adjudged that the defendants have no estate or interest whatever in or to said land or premises, or in or to any part thereof, and that the title of the plaintiff is good and valid. 292 OCTOBER TERM, 1888. Opinion of the Court. “ 3d. That the defendants, and each of them, be forever enjoined and debarred from asserting any claim whatever in or to said land or premises, or to any part thereof, adverse to the plaintiff, add for such other and further relief as- to this honorable court shall seem meet and agreeable to equity, and for his cQsts of suit.” The defendants demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment given for the defendants, dismissing the action. The judgment was affirmed in the Supreme Court of the Territory. 19 Pacific Reporter, 6. The plaintiff appealed to this court. Mr. Rochester Ford for appellant. Mr. B. H. Hereford and Mr. Thomas Mitchell for appellees. Mb. Justice Gray, after stating the case as above reported, delivered the opinion of the court. The judgment of the Supreme Court of the Territory of Arizona in favor of the defendants, upon their demurrer to the complaint, proceeded upon the ground that the action must be treated as a suit in equity only, and that the complaint made out no case for equitable relief, and therefore could not be maintained under the opinions of this court in Holland v. Challen, 110 U. S. 15, 25, and Frost v. Spitley, 121 U. S. 552, 557. See also More v. Steinbach, 127 U. S. 70. But each of those cases came from a Circuit Court of the United States, in which the distinction between actions at law and suits in equity is preserved. The present action, arising under territorial statutes, is governed by different considerations. The statutes of Arizona provide that “ there shall be in this territory but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs,” to be commenced by complaint, containing “ a statement of the facts constituting the cause of action, in ordinary and concise language,” and “a demand of the relie ELY v. NEW MEXICO &c. RAILROAD CO. 293 Opinion of the Court. which the plaintiff claims.” Compiled Laws of 1877, c. 48, §§ 1, 22, 39. Under precisely similar statutes of the Territory of Montana, it has been adjudged by this court that both legal and equitable relief may be granted in the same action, and may be administered through the intervention of a jury or by the court itself, according to the nature of the remedy sought. Hornbuckle v. Toombs, 18 Wall. 648; Hershjield v. Griffith, 18 Wall. 657; Domis v. Bilsland, 18 Wall. 659 ; Basey v. Gallagher, 20 Wall. 670. By the Com piled. Laws of Arizona, c. 48, § 256, “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 adverse to him, for the purpose of determining such adverse claim, estate or interest.” By the act of the Territory of 1881, c. 59, that statute is amended by striking out the requirement of the plaintiff’s possession, so as to read as follows: “ An action may be brought by any person against another who claims an estate or interest in said real property adverse to him, for the purpose of determining such adverse claim.” The manifest intent of the statute, as thus amended, is, that any person owning real property, whether in possession or not, in which any other person claims an adverse title or interest, may bring an action against him to determine the adverse claim and to quiet the plaintiff’s title. It extends to cases in which the plaintiff is out of possession and the defendant is in possession, and in which, at common law, the plaintiff might have maintained ejectment. An allegation, in ordinary anti concise terms, of the ultimate fact that the plaintiff is the owner in fee is sufficient, without setting out matters of evidence, or what have been sometimes called probative facts, which go to establish that ultimate fact; and an allegation that the defendant claims an adverse estate or interest is sufficient, without further defining it, to put him to a disclaimer, or to allegation and proof of the estate or interest which he claims, the nature of which must be known to him, and may not be known to the plaintiff. These conclusions accord with the decisions of the courts of 294 OCTOBER TERM, 1888. Statement of the Case. California and Indiana under similar statutes, from one of which the present statute of Arizona would seem to have been taken. Payne v. Treadwell, 16 California, 220, 242-247; Statham v. Dusy, 11 Pacific Reporter, 606 ; Heeser v. Miller, 19 Pacific Reporter, 375; Jefferson &c. Pailroad v. Oyler, 60 Indiana, 383, 392; Trittipo v. Morgan, 99 Indiana, 269. The result is, that the complaint in this case is sufficient to authorize the court to determine the claim of the defendants and the title of the plaintiff, and also, if the facts proved at the hearing shall justify it, to grant an injunction or other equitable relief. Judgment reversed, and case rema/nded to the Supreme Court of Arizona, with directions to overrule the demurrer to the complaint, and to take such further proceedings as may be consistent with this opinion. PATTEE PLOW COMPANY v. KINGMAN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOB THE EASTERN DISTRICT OF MISSOURI. No. 88. Argued November 16, 19, 1888.—Decided February 4,1889. The second claim of reissued letters patent No. 6080, granted to James H. Pattee, October 6,1874, for improvements in cultivators, changes the first claim of the original patent, (1), by omitting the plates B, and (2) by the addition of the direct draft; and thus substantially enlarges the invention, and consequently is invalid. The machines manufactured by the defendants do not infringe letters patent No. 174,684, granted to Thomas W. Kendall, March 14, 1876, for improvements in cultivators. Letters patent No. 187,899, granted to Henry H. Pattee, February 27, 1877, for improvements in cultivators, embrace nothing that is not old, an nothing that is patentable, — that is, which involves invention rather than mechanical skill. In equity for the infringement of letters patent. Decree dismissing the bill, from which complainant appealed. PATTEE PLOW CO. v. KINGMAN. 295 Opinion of the Court. Mr. John R. Bennett for appellant. J/r. L. L. Bond for appellees. J/r. E. A. West was with him on the brief. Mr. Chief Justice. Fuller delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the Eastern District of Missouri, dismissing appellant’s bill of complaint. The bill charges appellees with infringement of the second claim of reissued letters patent No. 6080, dated October 6,1874, which is a reissue of original patent No. 124,218, to J. H. Pat-tee, dated March 5, 1872; of the first and second claims of original patent No. 174,684, granted Thomas W. Kendall, March 14, 1876; and of original patent No. 187,899, granted Henry H. Pattee, February 27, 1877; all for improvements in cultivators. Appellee is an Illinois corporation, having a branch house in St. Louis, selling, among other things, cultivators manufactured by B. D. Buford &. Co., at Rock Island, Illinois, which are the alleged infringing machines. The opinion of the Circuit Court was as follows: “Reissued patent 6080, of 1874, second claim of which is under consideration, has, as to that claim, expanded the original beyond legal limits. Therefore, said reissued patent is void, to the extent claimed, wherein the defendant is alleged to have infringed. Second, as to the Kendall patent No. 174,684, there is no infringement. Third, as to the Pattee patent of 1877, No. 187,899, said patent is void, there being no novelty of invention therein that is patentable.” The second specification of the original Pattee patent No. 124,218, states that the invention consists “in pivoting the wheels to the axle in such manner that the wheels may either one be advanced forward of the other, throwing the axle diagonal with the line of progression, while the wheels preserve the same relative position to the said line of progression.” 296 OCTOBER TERM, 1888. Opinion of the Court. The second specification of the reissue reads as follows : “ It consists in hinging the ends of the axle to plates, to which the draft animals are attached, and which are supported on wheels in such manner that the wheels are retained in the line of progression of the machine by the draft of the animals, and may either one be advanced forward of the other, throwing the axle diagonal with the line of progression, while the wheels preserve the same relative position to the said line of progression.” The fourth specification of the original is : “ It consists in the peculiar construction of the hitching device, allowing the draft animals to advance or recede, the one ahead or in the rear of the other, without influencing the plow-beams to the extent of the variation made by the said animals, all as hereinafter fully described.” The sixth specification of the reissue is : “ It consists in the arrangement of a hitching device with the draft-plates, which allow the draft animals to advance or recede, the one ahead or in rear of the other, without influencing the plow-beams to the extent of the variation made by the said animals, all as hereinafter fully described.” The description of the accompanying drawings is given in the original and in the reissue, thus : Origi/nal. “A is the axle, bowed or elevated at its central part. B B are plates secured to the ends of the axle A. The ends of the plates B B are turned outward, forming snugs bbbb. bl b1 are snugs projecting inward from the plates B B. C C are triangular-shaped draftplates, from which project snugs c c c c, corresponding with the snugs b b b b. D D are pins or bolts, passing Reissue. “ A represents the axle, formed as shown in the drawings, of an elevated central part A, vertical side portions A1 A1, and horizontal projections a a, from each of the vertical side portions A1. B B are draft-plates, with projecting forward ends b, to which the draft animals may be attached direct or by any suitable device, and with an enlarged rear end, from which PATTEE PLOW CO. v. KINGMAN. 297 Opinion of the Court. through holes in the snugs c c and 5 b, and thereby pivoting the plates C C to the axle A. E E are the wheels. F F are the wheel-spindles, their inner ends shouldered, threaded, and secured in slots e e in the lower ends of the plates C C by nuts ff. G G are eveners, pivoted near their centres in the forward ends of the plates C C. H H are bars, their forward ends pivoted to the inner ends of the eveners G G, and their rearward ends pivoted to the snugs b1 b1. 11 are hooks on. the outer ends of the eveners G G, to which the draft animals are attached.” project lugs b1 b1, corresponding with the projections a a of the axle A, to which they are hinged by vertical bolts C, as plainly shown in the drawings. D D are the supporting wheels. E E are the wheel-spindles, their inner ends shouldered, threaded, and secured in slots e in the lower ends of the plates B by nuts G G are eveners, pivoted near their centres in the forward ends of the plates B. H H are bars, their forward ends pivoted to the inner ends of the eveners G G, and their rearward ends pivoted to lugs a1 a1, which project inwardly from the vertical parts A1 of the axle. 11 are hooks on the outer ends of the eveners G G, to which the draft animals are attached.” From this on, the original and reissue specifications are substantially alike, the description of figure 1 of the reissue closing with the words, “ It will be evident that the draft-plates B support and give direction to the course of the wheels, while the wheels in turn serve to support them.” The first claim of the original is for: “ The axle A, having plates B hinged to the wheel-spindle plates 0, so that the wheels are retained in the line of progression when one is in advance of the other, as set forth.” The second claim of the reissue is for : “ The axle A, hinged to the wheel-spindle or draft-plates B B, so that the wheels are retained in the line of progression by the draft of the-animals, when one is in advance of the other, substantially as described, and for the purpose specified.” 298 OCTOBER TERM, 1888. Opinion of the Court. The third claim of the original is: “ The evener-bars G G and bars H H, when combined and arranged to operate with the hinged axle A, plates C, and wheels E E, substantially as and for the purpose specified.” And the sixth claim of the reissue: “ The evener-bars G and bars H, combined and arranged to operate with the hinged axle A, plates B, and wheels D, substantially as and for the purpose specified.” That purpose is stated in the second claim to be the retaining of the wheels “ in the line of progression by the draft of the animals, when one is in advance of the other,” and as this purpose can only be accomplished by the aid of the evener-bars G G and bars H H, that is, not by the combination of the second claim alone, but only by carrying into it the eveners and bars of the sixth claim, it follows that the latter must be brought into the former by intendment. In the original patent the mode of attachment of the team to the cultivator is stated to be by the hooks 11 “ on the outer ends of the eveners G G, to which the draft animals are attached,” while the reissue patent contains these words: “ B B are draft-plates, with projecting forward ends b, to which the draft animals may be attached direct, or by any suitable device.” An examination of the machine discloses that the wheels are kept in the line of progression by the eveners G G and their connection, and when they are dispensed with, and the hitch made direct, the wheels follow the animals and may get out of the line of progression. As it is admitted that if the eveners are elements of the second claim, the effect of their omission and of hitching directly to the draft-plates instead of to the eveners would be to enlarge the claim, and as in our judgment this is precisely what was done, the reissue must be held to have been illegally expanded. It may also be observed that the connecting bow in the original patent, called an axle, consists of a central curved portion with a plate attached to each end, and two spindleplates, a combination of five parts. In the reissue the axle PATTEE PLOW CO. v. KINGMAN. 299 Opinion of the Court. and side-plates are treated as one part, making with the two spindle draft-plates three parts. There is, therefore, an omission in the latter combination, which tends, by reducing the number of elements, to render its scope less narrow than that of the original. As we have seen, the original first claim was for “ the axle A, having plates B, hinged to the wheel-spindle plates C, so that the wheels are retained in the line of progression when, one is in advance of the other, as set forth.” The second claim of the reissue is for “ the axle A hinged to the wheel-spindle or draft-plates B B, so that the wheels are retained in the line of progression by the draft of the animals when one is in advance of the other, substantially as described, and for the purpose specified.” The axle, having plates as described hinged to wheel-spindle plates, is not identical with an axle omitting the first-named plates, or having them so affixed as to become a constituent part thereof. The omission of the plates B and the addition of the direct draft are significant and material changes, and it is well settled that a reissueacan only be granted for the same invention intended to be embraced by the original patent, and the specification cannot be substantially changed, either by the addition of new matter or the omission of important particulars, so as to enlarge the invention as intended to be originally claimed. Passing to the question of infringement, it will be found that when the extent of the invention is determined, as it must be, by reference to the state of the art, the appellee’s machine does not infringe in respect to those parts of the claim which can be held to have been unanticipated. It is alleged in the bill that in Pattee v. Moline Plow Company, in the United States Circuit Court for the Northern District of Illinois, the court sustained the validity of said reissued letters patent No. 6080. Upon referring to that case (10 Bissell, 377 and 9 Fed. Rep. 821) we find that Judge Blodgett held: “ From the proof in this case it is quite clear to me that Pattee was not the first to conceive and embody in a working machine the idea of a tongueless straddle-row cultivator. The first 300 OCTOBER TERM, 1888. Opinion of the Court. machine shown in the proof which embodies this idea is that patented by Isaac Constant, in November, 1851. It is a tongueless straddle-row cultivator, with all the elements for a working machine of that description, and so arranged as to be what may be called in this art self-sustaining, that is, it will stand upon its own supports. This was also done by Arnton Smith in January, 1855 ; by Whitely in 1860 to 1865; by E. W Vangundy in February, 1864; by Pratt in October, 1864; and by Adam Young in November, 1866. All these show cultivators constructed without a tongue, with two plow-beams held together by a yoke, each plow drawn by its own draft animal and operating independently of the other.” The Constant patent here referred to is in this record and shows a tongueless cultivator, in which the inside beams move vertically and laterally, independent of each other, and each draft animal is hitched to its own side, while the side supports are beams to which two cultivator shovels are applied. The Smith machine is a tongueless cultivator, in which two mold-board plows are connected together by a bar in front, not arched up in the centre. A horse is to be attached to each plow, and the coupling so made as to allow an independent motion. Of the Pratt patent Judge Blodgett says that Pattee’s arched and jointed axle is fully anticipated by it in form of construction, function and mode of operation. This Pratt patent shows a flexible, parallel, tongueless cultivator, in which each horse pulls his own side of the machine. The patent to William Tasker of 1859 has an axle hinged to draft or spindle arms, having projecting bars so coupled that the wheels are retained in the line of progression by the draft of the animals. Tasker’s fifth claim is: “ The connecting of the wheel stumps to a vertical spindle or spindles, capable of turning freely in vertical collar bearings or sockets, as hereinbefore described.” The description as to this part of his machine is thus: “ J J are adjustable stumps for carrying the running wheels K K. These stumps pass through the overhanging lugs L L, formed at the top and bottom of each of the round spindles M M, which are contained in the vertical PATTEE PLOW CO. v. KINGMAN. 301 Opinion of the Court. sockets N N (one of which is shown in section in figure 3) of the cast-iron frame C, and are free to turn therein, thereby enabling the stump of each wheel to swivel or lock round when turning the plow, as shown by the dotted lines in figure 2.” If Pattee’s claim were merely for a combination of an axle, having an elevated central portion, with the wheel-spindles, so that the draft of the team controls the direction of the wheels, the Tasker patent anticipates it, but the combination differs from that in the arrangement by which the evener-bars are carried inwardly so as to connect with the arch or central part of the axle, making the axle a part of the evener so combined, and thus maintaining the parallelism of the wheels. Appellee’s machine does not have “ the wheel-spindles or draft-plates ” of the patent, nor the axle A with side-plates B, but it uses the Pratt axle of 1864. Nor in appellee’s machine is the parallelism of the wheels maintained by the draft devices, nor are they retained in the line of progression by the draft of the animals, but turn as the animals may pull. The beam-frames of appellee’s machine have nothing to do with the wheel-spindle. The snugs of Pattee’s have nothing to do with the plow-beams. The differences are so great that interchangeability of the parts of the two machines would be utterly out of the, question. In our judgment the reissue if valid, when limited to what alone could be claimed as new, is not infringed by appellee. The first and second claims of the Kendall patent No. 174,684 are as follows; ‘ 1. The runners E, arranged to support the axle of a tongueless cultivator, with the plows D suspended therefrom, in manner substantially as described. “ 2. The combination of the runners E, plows D, hook-rods F, and axle A of a tongueless cultivator, substantially as and for the purpose specified.” As stated on behalf of appellant, “ the second claim in said patent is a claim for substantially the same combination as recited in the first claim, but differently worded from the first Caim, and as the hang-up devices are necessary for the suspension of the plows, the two claims may be treated as one. 302 OCTOBER TERM, 1888. Opinion of the Court. The invention is said in the specifications to consist of the use of 'runners attached to the truck-frame or axle in such manner that they will not interfere with the operations of the machine when in use, and will act as supporting runners for the axle when the rear ends of the plows are elevated and suspended thereon; and, second, in the combination of hooks or rods for suspending the plows on the axle, with said axle and plows. The drawings show the axle, the wheels, the draft-plates, and the plows of an ordinary cultivator of the tongueless class. The runners, constituting as alleged the “main feature ” of the improvement, are journaled on the outer ends of the spindles of the wheels, midway their lengths, and their forward ends curved inward, and secured to the draft-plates by a threaded end and nut, while their rear ends are extended backward and downward and curved in such position that when the plows are in operation in the field and the axle upright, the rear ends of the runners will be above and free from the surface of the ground, and when the rear ends of the plows are elevated and suspended by any means from the axle, the rear ends of the runners will rest upon the ground and support the axle from being pulled backward and downward. In short, as in the machines with a tongue, the plows are raised up and suspended from the tongue to keep them off the ground, so in the tongueless machine the plows are raised up and hooked on to the axle, and, to prevent their falling backward with the axle, runners are provided, connected with the axle and the hitching-arm of the machine, which sustain the axle when the plows are hooked on, but are themselves raised from contact with the ground by the draft when the plows are in use. The runners are described as “ journaled on the outer ends of the spindles,” but it is also stated that they “ may be attached rigidly to any suitable part of the axle at one or more points of attachment, and extend backward in the same manner as described. These runners having the wheel-spindle or axle for their fixed point of support, are necessarily rigid and unyielding, and work PATTEE PLOW CO. v. KINGMAN. 303 Opinion of the Court. automatically, their rear ends being raised by the pulling of the team and lowered by the weight of the plow-beams when placed on the hooks.. The rigidity of the runners and the resulting automatic action are the essential characteristics of the patent, for tongueless wheel cultivators with runners to keep the plows off the ground were common and well known in the art when it was issued. It is contended by appellant that the true state of the art is contained in the prior patents of Poling of 1872 and Robertson of 1875, and while many others are exhibited, an examination of these will, we think, sufficiently establish the conclusion just expressed. Poling’s patent is for a tongueless cultivator, provided with runners, which are placed under the beams by hand, when the plows are being transported, and which are taken out and carried on the beams when the plows are in operation. Robertson’s patent is for a tongueless cultivator, with draftplates, wheels and beams, and runners pivoted to the beams near the axle, and arranged with set-screws to lock the plows up and let them down. It is immaterial to the operation of the runners whether they act directly on the plow-beams or through the axle. In appellee’s machine the runner is arranged upon the end of an arm which projects backward from the axle. When the plows are in use the runner is turned up out of the way. ' When the runners are used the plows are raised and the runners prevented from turning up by a catch on the arm. This machine does not contain runners constructed as the Kendall runners are, in the rigid form, and operated by the draft of the team to keep them off, or by the weight of the plows to keep them on the ground, and so lacks the distinctive features of the Kendall patent. It is not automatic, but requires manipulation every time the use is changed. When the runner is put in use its rear extension is turned down by hand, and a locking-dog, hung within a slot in the arm, turned into position. When the runner is not to be used, 304 OCTOBER TERM, 1888. Opinion of the Court. it must be moved so as to release the dog and permit it to be thrown up, and the arm is then thrown upward and forward, the dog being allowed to drop so as to afford a support for the runner. This jointed runner with a lock cannot be held to be the Kendall rigid bar. We agree with the Circuit Court that there is no infringement. Patent No. 187,899 is described as being for a new and improved mode of constructing the arch or central and main part of straddle-row cultivator beam-yokes or axles, and of connecting the side parts thereto, and the invention as consisting “ in constructing said arch of curved adjacent bars of iron or steel, to the ends of which may be attached, by riveting, the cast-iron parts for securing thereto the plows and wheels, and which may be strengthened by the use of stiffening bolts.” The use of parallel bars is exceedingly common, and so far as the attachment of the bars to the end plates is concerned there is nothing new in that method. The Burnham and Lathrop patent of 1866 shows a yoke connecting the plow-beams together, made with two parallel bars with end castings, put together with one bolt near the rear ends of the beams instead of with two bolts at the front ends, as in appellant’s machine. The specification says: “ The two frames G G are connected by an arched or semi-circular yoke Hx, the ends of which are pivoted to bars 11, which are secured on the tops of the plow frames G G by pivots e, the bars being allowed to turn freely on the pivots e.” The Louden patent of 1876 has an arched axle of tubular wrought iron, gas-pipe being stated to be very suitable, having end castings attached rigidly or cast thereon. The Barr patent of 1872, and the Miller patent of the same year, show arched axles or beam-yokes of two or more parts. The Perkins patent of the same year shows the beams themselves made of parallel curved bars. What is sought in all these patents is strength and lightness, together with cheapness and durability, but they are simply modes of construction. And that described in this patent UNION PACIFIC RAILWAY CO. v. McALPINE. 305 Syllabus. embraces nothing that is not old and really nothing that is patentable, that is, which involves invention rather than mechanical skill. Upon the whole case we are satisfied with the conclusions reached by the Circuit Court, and its decree is, therefore, Affirmed. UNION PACIFIC RAILWAY COMPANY v. McALPINE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS. No. 128. Argued December 14, 15, 1888. — Decided January 28, 1889. In October, 1874, Mrs. M. owned a tract of land consisting of four acres on Kansas River in the town of Wyandotte, Kansas, called Ferry tract, and the Kansas Pacific Railway Company owned a tract of 25} acres lying north of Wyandotte. In that , year negotiations were opened between her and the company for an exchange of 2}^ acres of the Ferry tract, valued at $2000, for the 25}-acre tract, valued at $1500, Mrs. M. offering to take for the difference in value a quarter section of land estimated at $3 an acre. Negotiations for the exchange were had between Mrs. M. and officers of that company. On February 26,1878, the president of the company informed its general superintendent, in substance, that the exchange would be made, and directed him to proceed with the matter, ihe superintendent turned the matter over to the attorney of the company, who acquainted Mrs. M. with the conclusion. She, considering the proposition for an exchange of lands accepted, took possession of the 25 f acre tract with her husband, and made valuable improvements upon it, and has remained in possession ever since. The railway company, who had previously been permitted to lay a track across the land for temporary use, took possession of the 2r75°a acres and made improvements thereon. In June, 1878, at a meeting of the directors of the company, the president presented a form of deed to Mrs. M. of 25} acres in exchange for the 2^ acres at the landing, and asked for instructions. It was then resolved that an exchange of said lands be made and the deed executed to Mrs. M. whenever the land to be conveyed by her was released from a tax claim thereon. A deed from her and her husband of the ['sty acres, had previously been executed to the company and sent to its o cers. After this resolution of the board, proceedings were taken by er for the release of the tax claim mentioned in it, which was accom-P ished, under the advice of the attorney of the company, by purchasing VOL. cxxix—20 306 OCTOBER TERM, 1888. Opinion of the Court. in the property upon the sale made for such alleged tax. A deed was then demanded of the company for the 25 £-acre tract, and being refused, the present suit was brought for the enforcement of the contract. On the 24th of January, 1880, the Kansas Pacific Railway Company had become consolidated with the Denver Pacific Railway and Telegraph Company, and the Union Pacific Railway Company, under the name of the latter. By the articles of consolidation all the property of the constituent companies was conveyed to the new company, with a declaration that the assignment and transfer were made “subject to all liens, charges and equities pertaining thereto.” Previous to this transfer and consolidation, and in May, 1879, a mortgage was made by the Kansas Pacific Company of its property, including the 25|-acre tract, to Gould and Sage as trustees; Held, (1) That the resolution of the Board of Directors of June 28, 1878, was a ratification in part of the negotiations for the exchange of the two tracts, and Mrs. M. having accepted this action, it is not valid ground of objection by the Kansas Pacific Company to the enforcement of the contract that it called for less than was originally agreed upon. (2) That the taking possession of the tracts by the parties pursuant to the contract and continuing in possession and making improvements thereon constitute part performance of such contract sufficient to take it out of the Statute of Frauds and authorize a decree for full performance. (3) That the obligation of the Kansas Pacific Company to execute a conveyance to Mrs. M. passed to the defendant company upon the consolidation mentioned and the transfer to it of the property of the Kansas Pacific Company. (4) That the trustees under the mortgage of 1879 took the property with notice of the rights of Mrs. M., and subject to their enforcement. In equity. For the specific performance of a contract to convey real estate. Decree for complainants. Respondent appealed. The case is stated in the opinion. J/r. J. M. Wilson for appellant. Mr. J. P. Usher, Mr-John F. Dillon and Mr. A. L. Williams filed briefs for same. I Mr. William M. Springer and Mr. James M. Mason (with whom was Mr. John W. Day on the brief) for appellees. Mr. Justice Field delivered the opinion of the court. This case comes from the Circuit Court of the United States for the District of Kansas. It is a suit for the specific per- UNION PACIFIC RAILWAY CO. v. McALPINE. 307 Opinion of the Court. formance of a contract for the exchange of lands in the State of Kansas between Maria W. McAlpine, one of the complainants below and appellees here, and the Kansas Pacific Railway Company, alleged to have been made in 1878, her contention being that the defendant, the Union Pacific Railway Company, has succeeded not only to the property but to the obligations of that company. The decree of the Circuit Court was in favor of the complainants, and the case is brought here on the appeal of the defendants. McAlpine n. Union Pacific Railway Co., 23 Fed. Rep. 168. Nearly every fact essential to the maintenance of the suit is controverted, and in relation to many of the facts there is a perplexing conflict of evidence. It would serve no useful purpose to detail and discuss the mass of testimony contained in the record -and show, out of the varying statements of witnesses, the attendant circumstances and the accompanying documents, where the preponderance of evidence rests with respect to any essential. matter. We shall briefly state the facts which seem to us to be sufficiently established. It appears that the town of Wyandotte, in Kansas, is situated at the junction of the Kansas and Missouri rivers, and that on the 16th of September, 1861, the title to a small tract of land bordering on the north side of the Kansas River, within the town, being four acres in extent, and known as the “ Ferry Tract,” was vested in one Isaiah Walker under a patent of the United States. This tract afforded an available and convenient landing from steamboats. On the 21st of October, 1874, the title to it passed to Maria W. McAlpine by conveyance of the sheriff of Wyandotte County, under a decree of the District Court of the Tenth Judicial District of Kansas, rendered in a partition suit between her and parties claiming interest therein. The other complainant and appellee, Nicholas McAlpine, is the husband of Maria. In the early part of 1878, negotiations were had between the McAlpines and officers of the Kansas Pacific Railway Company, for the exchange of two acres and seventy one-hundredths of an acre of this Ferry tract for a parcel of land consisting of twenty-five acres and a quarter, lying north of Wyandotte, then owned by that 308 OCTOBER TERM, 1888. Opinion of the Court. company. The two acres and seventy one-hundredths of an acre were valued by the McAlpines at $2000. The 25{-acre tract held by the railway company was valued at $1500. For the difference in value the McAlpines offered to take a quarter section of land in Pottawatomie County, Kansas, which was estimated to be worth three dollars an acre. The negotiations were had with the company through its president, its general superintendent, and its attorney at law. It does not appear that any of these officers, except its president, Robert E. Carr, acted upon any previous authority conferred by the Board of Directors. All its members, however, were aware of the negotiations, and no one expressed any doubt that what was done in the matter would be finally approved by the Board. Mr. Carr testified that whatever he did in regard to the exchange as an officer of the railway company was done after consultation and advice with the Board of Directors; and that in this case he also consulted with the receiver. The railway company was then and for some period ’sdbsequently, in the hands of a receiver appointed in a foreclosure suit apparently of a friendly character, resulting in a decree extending the time for paying the amount due. The rights of the receiver were merely temporary, the title of the property remaining in the railway company, and on the termination of the receivership possession was restored to the company. Mr. Carr, after becoming acquainted with the terms of the proposed exchange, and acting upon the advice of the Board, on the 26th of February, 1878, sent to the general superintendent of the company the following communication : “Kansas Pacific Railway, “ Office of General Manager for the Receivers. “ St. Louis, Feb. 26, 1878. “T. F. Oakes, Gen. Supt. “ Dear Sir : Respecting the settlement for right of way with McAlpine, I beg to say you can settle with him on the basis of exchanging the lot of land belonging to company above Wyandotte, about 25 acres, for his Walker Ferry tract. UNION PACIFIC RAILWAY CO. v. McALPINE. 309 Opinion of the Court. That we will also, in addition, give him one hundred and sixty acres of land, to be selected by him out of the lands of the company, the appraised price of which does not exceed five hundred dollars; back taxes and claims on all to be satisfactorily cleared up. “Respectfully, Robert E. Carr.” This communication was turned over by the general superintendent to the attorney of the company, with an indorsement over his initials, “ Go ahead with this.” The McAlpines, considering the proposition for an exchange of lands as accepted, and the terms of the contract as settled, on the 25th of March following executed to the Kansas Pacific Railway Company a deed in due form of the two acres and seventy one-hundredths of an acre. In this deed Isaiah Walker and wife united, and it was then transmitted to the officers of the railway company for delivery. Soon afterwards, the McAlpines went into possession of the 25^-acre tract, and have remained in its possession ever since. They put valuable improvements upon the land, and there are now many buildings upon it. The railway company had been permitted by the McAlpines and their predecessors, to lay a railroad across the Ferry tract for temporary use in transporting railroad material from steamboats to its main line. After the acceptance of the terms of the proposed exchange, the railway company took possession of the entire tract, that is, of the two acres and seventy one-hundredths of an acre, and kept and used it until the consolidation of the company with the defendant, when its possession and use passed to the latter, which has ever since held it. But it was not until the 28th of June, 1818, that the Board formally acted upon the subject. What was then done appears from the following extract from the minutes of its meeting: “ Pursuant to call of the president, the Board of Directors of the Kansas Pacific Railway Co. met at the office of the company, in St. Louis, on Friday, June 28th, instant, at 2 p.m. “ Present: Messrs. Perry, Meier, Edgell, Treadway, Edgerton and President Carr. 310 OCTOBER TERM, 1888. Opinion of the Court. “The president presented a form of deed to Maria W. McAlpine to 25^ acres of land in Wyandotte County in exchange for two and seventy hundredths acres of land at the tie landing in Wyandotte County, and asked for instructions in regard to signing the same. “ On motion of Mr. Meier, and seconded by Mr. Perry, it was resolved that the exchange of said lands be made, reserving the right of way therein, and the deed of the company be properly executed and delivered to Maria W. McAlpine whenever the land to be conveyed by her has been released from the tax claim thereon and a proper deed made for the same is delivered.” It appears that, pending the negotiations and before this action of the Board, it was discovered that a small part of the Ferry tract was clouded by a tax claim of some kind, and it is to the release of that claim that reference is made in the proceedings of the Board. The McAlpines were informed by the attorney of the company of its resolution. In accordance with its condition they proceeded to take measures to remove the tax claim, and they did so, upon the advice of the attorney, by bidding in the property at the sale made for such tax, which subjected them to an expenditure of several hundred dollars. They then notified the attorney of the. removal of the claim, and called upon the company to execute its deed to them of the 25 ¿-acre tract in accordance with the contract. This the company postponed doing from time to time, under various pretences and pretexts, apparently in the expectation of securing by delay some undue advantage over the McAlpines. In the meantime, the Kansas Pacific Company became united and consolidated with the Denver Pacific Railway and Telegraph Company, and the Union Pacific Railway Company, under the name of the latter, which sets up against the claim of the McAlpines that the alleged contract for an exchange of lands was never made with the Kansas Pacific Company, or, if made, that nothing was ever done under it to take it out of the Statute of Frauds; and that even if such were the case, the contract was not enforceable against the defendant, the Union Pacific Company. We do not state the several objec- UNION PACIFIC RAILWAY CO. v. McALPINE. 311 Opinion of the Court. tions urged against the demand of the complainants in the language of the appellants, but we give the substance of them, or at least of such of them as we deem of sufficient importance to notice. Some criticism is made by the appellants upon the form of the allegations respecting the contract with the Kansas Pacific Company. It is alleged that such contract was with the defendant in 1878, acting under the name and style of the Kansas Pacific Railway Company, when the defendant company was not organized until 1880. It is true, the form of the allegation is not apt or even accurate, but it does not appear to have misled the defendant in any respect, and the case was heard on its merits, as though the allegations had followed the order in which the proceedings were taken by the original company, afterwards merged and consolidated into the defendant company. We do not, therefore, allow the criticism to affect our decision. It was not made in the court below, where objections to the form of averments should be presented, if they are-to be considered here. We agree with the Circuit Court that the record of the Board of Directors of the Kansas Pacific Railway Company of the 28th of June, 1878, measures and fixes the limits of the liabilities and obligations of that company. It shows a ratification of the past negotiations between the McAlpines and the company for the exchange of the two acres and seventy one-hundredths of an acre of the Ferry tract for the 25^-acre tract. It does not, it is true, make any mention of the 160 acres in Pottawatomie County, but of that land we need not concern ourselves, for as to it the bill was dismissed and no appeal was taken by the complainants. If they were willing to accept a deed of the 25^-acre tract in exchange for the two acres and seventy one-hundredths of an acre of the Ferry tract, it did not lie with the railway company to complain that they did not make a claim for the other land. It certainly was no ground tor the company to repudiate the contract as ratified, that it called for less than was originally agreed upon. That land being left out of consideration, we have the respective parcels to be exchanged sufficiently identified, and from other docu- 312 OCTOBER TERM, 1888. Opinion of the Court. ments they can be described by metes and bounds. That is certain, as the maxim obtains, which can be rendered certain. And if the contract, for want of the signature of the corporation or of its lawfully authorized agents, is not strictly within the Statute of Frauds, yet the possession taken of the several parcels—of the 25^-acre tract by the McAlpines, and of the 2^^-acre tract by the railway company — in pursuance of such contract, and continued ever since, and their expenditures for buildings and other improvements upon the respective parcels constitute a part performance sufficient to take the contract out of the operation of the statute, and authorize a decree for its full performance. The fact that possession was taken before the ratification of the Board in June, 1878, did not impair the effect of that possession as an act of part performance. The taking possession of, that is, exercising control and dominion over the property, was referable entirely to the contract. It was an act done with respect to the property by the consent of the vendor, which would not have been done if there had been no contract. This consent gave to the act, which would otherwise have been tortious, its character as one of part performance. It is not perceived how the effect of this possession, taken in behalf of Mrs. McAlpine — for it was in her interest alone that the exchange was made, the title to the Ferry tract being in her and not in her husband—is destroyed or weakened as an act of part performance by the fact that, in June of the previous year, Mr. McAlpine and «one Arthur had taken a lease of the 25^-acre tract until January 1, 1878. It does not appear that Mr. McAlpine remained upon the land after the termination of the lease, which was before negotiations were opened for its acquisition, by exchanging for it the property of Mrs. McAlpine. If Arthur remained upon the premises after such termination, he surrendered and left them when informed that the contract for the exchange had been made. It is plain, in our judgment, that the subsequent possession of Mrs. McAlpine, to whom the deed of the company was to be executed, was taken under that contract, and that the improvements were made on the faith that in pursuance of it the title would be conveyed to her. UNION PACIFIC RAILWAY CO. v. McALPINE. 313 Opinion of the Court. Nor do we perceive that the obligation of the contract was released or impaired by the fact that when in April, 1880, the superintendent notified Mr. McAlpine that the company would not make the exchange, Mrs. McAlpine wnote to him asking when the company would be ready to remove its track from her land and come to a settlement for its use. That inquiry drew from the superintendent a request that she would “ delay conclusions” until he could confer 'with New York parties.' Her letter referred to the contract made two years before, and stated that then an exchange of lands was considered desirable by the railway people, as they had been using her land for several years, for a steamboat landing and wharf, and were still using it, without making any compensation for its use. The inquiry which followed was intended as an intimation of what would be expected if the contract were abandoned, not as a consent to such abandonment; but it is seized hold of and put forth by the defendant as an admission that no contract was ever concluded. It does not, in our judgment, justify any such inference. Nothing was ever heard from the New York parties, nor does it appear that any communication was ever made to them on the subject. And Mrs. McAlpine afterwards called upon the company to execute its deed pursuant to its contract. It was not until some time in December, 1880, that the general superintendent informed her that the contract for the exchange of the 25^-acre tract would not be carried out under any circumstances, but that he would take the responsibility of paying her 81500 for her land as an amicable settlement. In January, 1881, the present suit was commenced; and if, under the pretexts put forth by the company, the performance of the contract could be defeated, a great wrong would be done to the complainants. Their possession, instead of being lawful, might be treated as a continuing trespass upon the property of the railway company; and the improvements placed upon the land, and the consequent increase in its value, would be lost to them. It is the wrong and hardship which would be done to a purchaser under these circumstances, by allowing the vendor to escape from the obligations of his contract for the want of some formality in its execution, that con- 314 OCTOBER TERM, 1888. Opinion of the Court. stitute the ground of the jurisdiction of courts of equity in such cases to compel performance. A principle of common justice forbids that one shall be permitted to lead another to act upon a contract of purchase with him, and incur expenses by .reason of it, and then, upon some pretext of a defect in a matter of form, refuse compliance with its provisions, and thus deprive the purchaser of the benefit of his labor and expenditures. -Courts of equity in such cases interfere and compel the vendor to keep his engagements. Lester v. Foxcroft, 1 Colles Pari. Cas. 108; Wills v. Stradling, 3 Ves. 378, 381; Gregory v. Mig hell, 18 Ves. 328 ; Parkhurst v. Yan Cortland, 14 Johns. 15. The obligation of the Kansas Pacific Railway Company to execute the contract by a conveyance of the 25^-acre tract to the McAlpines passed with the property to the defendant, the Union Pacific Railway Company, upon the consolidation of the two companies under the latter name. Whenever property charged with a trust is conveyed to a third party with notice, he will hold it subject to that trust, which he may be compelled to perform equally with the former owner. The vendee in that case stands in the place of such owner. Taylor v. Stibbert, 2 Ves. Jr. 437, 439; Dunbar v. Tredinnick, 2 Ball & Beatty, 304, 319. Without reference, therefore, to the articles of union and consolidation, the Union Pacific Railway Company would, on general principles, be held to complete the contract made with the Kansas Pacific Company; and the articles in specific terms recognize this obligation. The union and consolidation embraced three companies, the Denver Pacific Railway and Telegraph Company, as well as the Kansas Pacific Company and the Union Pacific Company. By the 8th article, the three companies transferred to the consolidated company all their rights, privileges, exemptions and franchises, and all their property, real, personal and mixed, with the appurtenances; with a declaration that the assignment and transfer were made “subject to all liens, charges and equities pertaining thereto.” The tenth article exempted the new company from any separate or individual liability for the outstanding debts, obligations or liabilities of the respective constituent companies; but it also provided that nothing there- MORRIS V. GILMER. 315 Syllabus. in contained should “prevent any valid debt, obligation or liability of either constituent company from being enforced against the property of the proper constituent company,” which by force of the articles became the property of the consolidated company. The property transferred, which included the 25^-acre tract, thus passed to the new company, subject to all charges, liens and equities to which it was before subject, and the obligation of the Kansas Pacific Company to make a conveyance of that tract devolved upon the defendant. The same principle applies also to the mortgage executed in 1879 by the Kansas Pacific Company to Gould and Sage, as trustees covering the 25|-acre tract. At that time the order of June 28, 1878, was a matter of record in the books of the Kansas Pacific Company, and the McAlpines were in possession of the tract. Under these circumstances, it may be claimed that the property was taken by the trustees with notice of the rights of the complainants, and, therefore, subject to their enforcement. It is sufficient that the Union Pacific Company cannot set up that mortgage as a release from its obligation to make a conveyance in execution of the contract with the McAlpines. Decree affirmed. MORRIS v. GILMER. appeal from the circuit court of the united states for THE MIDDLE DISTRICT OF ALABAMA. No. 1150. Submitted January 2, 1889. — Decided January 28, 1889. When the record discloses a controversy of which a Circuit Court cannot properly take cognizance, its duty is to proceed no further, and to dismiss the suit; and its failure or refusal to do so is an error which this court will correct of its own motion, when the case is brought before it for review. It appearing from the evidence in this record that the sole object of the plaintiff in removing to the State of Tennessee was to place himself in a situation to invoke the jurisdiction of the Circuit Court of the United States, and that he had no purpose to acquire a domicil or settled home there, and no question of a Federal nature being presented to give juris- 316 OCTOBER TERM, 1888. Statement of the Case. diction independently of the citizenship of the parties, the court below should have dismissed the case. Hartog v. Memory, 116 U. S. 588, explained and qualified. The court stated the case as follows: The first assignment of error relates to the action of the Circuit Court in overruling a motion to dismiss this suit, as one not really and substantially involving a dispute or controversy properly within its jurisdiction. On the 7th of July, 1884, the present appellee, James N. Gilmer, who was then, and during all his previous life had been, a citizen of Alabama, instituted a suit in equity, in one of the Chancery Courts of that State, against Josiah Morris, individually, and against Josiah Morris and F. M. Billing as composing the firm of Josiah Morris & Co., citizens of Alabama. Its object was to obtain a decree declaring that the transfer, by the plaintiff to Morris, of sixty shares of the capital stock of the Elyton Land Company, an Alabama corporation, was made in trust and as collateral security for the payment of a debt due from the plaintiff to Josiah Morris & Co.; ordering an accounting in respect to the amount of that debt, the value of the stock, and the dividends thereon received by Morris; and directing him upon the payment of the debt and interest, or so much thereof as appeared to be unpaid, to transfer sixty shares of the stock to the plaintiff, and pay over any dividends received in excess of the debt due from the latter. Besides putting in issue all the material averments of the bill, the answer relied upon laches and the Statute of Limitations in bar of the suit. The cause went to a hearing, upon pleadings and proofs, and, on the 29th of April, 1885, a final decree was rendered dismissing the suit; the Chancery Court holding that the claim was barred by the Statute of Limitations. Upon appeal, the decree was affirmed by the Supreme Court of Alabama, on the 27th of January, 1886. That court, as appears from the opinion of its Chief Justice, refused to modify the decree, so as to make it a dismissal without prejudice to another suit. Gilmer v. Morris, 80 Alabama, 78. The present suit was instituted, September 20, 1886, in the MORRIS V, GILMER. 317 Statement of the Case. Circuit Court of the United States by Gilmer, claiming to be a citizen of Tennessee, against Morris and Billing. It relates to the same shares of stock, and the relief asked is that Morris be decreed to account for and pay over to the plaintiff all dividends paid after it came to the defendant’s hands, (after deducting Gilmer’s indebtedness to Morris or to Morris & Co.,) and to transfer the sixty shares of stock to the plaintiff. Tlie defendants filed a plea setting up the final decree in the state court in bar of the present suit. That plea having been overruled, Gilmer v. JZorris, 30 Fed. Rep. 476, they separately answered; Billing disclaiming any interest in the stock, or in the dividends thereon. The plaintiff filed a replication. Subsequently, December 16, 1887, the defendant Morris filed in the cause the affidavit of A. S. Gerald to the effect that, in a conversation held by him with the plaintiff on or about November 14,1887, the latter informed him “ that he had returned to the city of Montgomery to reside permanently, and had been living here with that intent some time previous to said conversation ; ” and also his own affidavit to the effect that he had been informed and believed that the plaintiff returned to the city of Montgomery “ some time in the latter part of May or early part of June, 1887, with the purpose and intent of permanently residing in the State of Alabama, and has continuously resided in said State of Alabama ever since said time.” On the 17th of November, 1887, before the final hearing of the cause, the defendants, with leave of court, filed a written motion for the dismissal of the suit upon the ground that it did not really and substantially involve a controversy within the jurisdiction of the Circuit Court; basing his motion upon the above affidavits of Gerald and Morris, and upon the depositions of the plaintiff, and of his father, F. M. Gilmer, taken in this cause in behalf of the plaintiff. The father, in his deposition taken de bene esse, October 27,1886, makes the following statements on cross-examination: “ Q. Where does your son, J. N. Gilmer, now reside ? A. He resides in Memphis, Tennessee. “ Q. When did he remove there ? A. I think he removed in April or May. 318 OCTOBER TERM, 1888. Statement of the Case. “ Q. Of this year ? A. Yes, sir, of this year. “ Q. Did he take his family with him ? A. He did. “ Q. Did he take his furniture with him ? A. He did. “ Q. Is not his home at present furnished with the same furniture and pictures that were in it when he was there? A. No, sir. “ Q. Does any one occupy his house? A. Yes, sir. “ Q. Who ? A. Mr. Mitchell. “ Q. How long has he occupied it ? A. I think he occupied it on the first of the month ; it was rented to him the month before. “Q. You think he occupied it from the first of October? A. Yes, sir. “ Q. I ask you if up to the first of October his furniture and effects were not in the house ? A. No, sir, his effects went with him. “ Q. Did he remove all his furniture ? A. Yes, sir. “ Q. Were not pictures left hanging on the wall.of the house ? A. No, sir. “ Q. Did he not move to the State of Tennessee for the purpose of bringing this suit in the United States court, and did he not so view it before he left ? A. That is a question that he only can answer. I cannot answer for him. “ Q. I ask you if he did not tell you that his purpose in moving to Tennessee was for the purpose of bringing this suit in the United States court ? A. He did not tell me that. “ Q. I ask you if you do not know that it was his purpose, and if it was not done under advice ? A. I can tell you what I believe, but I cannot tell you what I know about it. I do not know it. “Q. You say that you do not know whether that was his purpose or whether he was ever so advised ? A. Well, I can say I advised him to do that. “Q. Well, before his removal? A. Yes, sir. “ Q. How long before he removed was it that you advised him? A. Well, it was some months. “Q. When did you advise him? Was it after the decision of the Supreme Court of Alabama in the chancery suit that you have spoken of? A. Yes, sir, it was after that. MORRIS v. GILMER. 319 Statement of the Case. “Q. I ask you if you didn’t advise him to move for the purpose of bringing this suit in the United States court? A. I did. “ Q. And he changed his residence after that advice ? A. I can say, further, that it was not the only thing that induced me to advise him. I wanted him relieved from his military occupation. I did not think that he would ever succeed in business as long as he was hanging on to a military organization, and I thought that his wife’s mother lived in Memphis, and the family there were very desirous that they should go there. That was really the primary cause of my advising him, and I then suggested to him, ‘ If you go there you will have an opportunity of instituting suit ’ (in U. S. court). The prime object was to get him rid of all military organizations. “Q. But part of the purpose was to get him so that he could institute suit in the United States court ? A. Well, it was incidental. The primary purpose with me was to get him square out of the military organization. “ Q. Don’t you know that he said his purpose in moving to Tennessee was to bring this suit in the United States court ? A. I do not know that he said that. I may have heard him, but I cannot now bring it to mind. “ Q. Don’t you know that it was his purpose to return here at the termination of this suit ; don’t you know this ? A. I do not: “ Q. Do you know that he has moved to Tennessee, permanently, or with a view of remaining there ? A. I do not. “ Q. Has he gone into any business in Tennessee ? A. He has. “ Q. What is his business ? A. Cotton-ginning business. “Q- On his own account? A. No, sir; in connection with others. “ Q. Is he proprietor or employé ? A. I really do not know. “ Q. Do you know whether he has made any investment in Tennessee? A. I do not. ‘ Q. Have his business connections here been severed ? A. Yes, sir. “ Q. Entirely ? A. Yes, sir ; entirely. £ Q. How long before this present suit begun did he move 320 OCTOBER TERM, 1888. Statement of the Case. to Tennessee? A. I do not know when this suit was instituted, exactly; but I suppose about four or five months. “ Q. What month did he move away in; do you know? A. I do not bear in mind the exact date; I think it was in April. “ Q. Of this year ? A. Yes, sir. “ Q. When did you say that your intimacy with Mr. Morris ceased ? A. At the institution of this suit of J. N. Gilmer in the Chancery Court. . . . • “ Q. That suit was commenced in the Chancery Court of Alabama by Gilmer, the same plaintiff, with Morris, the same defendant, and prosecuted through the Chancery Court, and then went to the Supreme Court on appeal, did it not ? A. It did. . . . “ Q. And you were examined as a witness ? A. I was. “Q. Is not this a continuation of that same controversy — that suit ? A. It is a continuation of the merits of the same transaction, but it is a new controversy. “ Q. How old are you, Mr. Gilmer? A. I am 76 years old.” Redirect examination: “ Q. Do you know whether J. N. Gilmer sold his residence before he left ? A. He did. “Q. Did he sell any other property — did he sell his cows •and horses ? A. He sold everything, sir, that he didn’t carry with him. “Q. Before he went to Memphis? A. Yes, sir.” The plaintiff, in his deposition, taken April 26, 1887, made these statements on cross-examination: “ Q. Where do you reside now ? A. In Memphis. “ Q. What State ? A. The State of Tennessee. “ Q. How long have you resided there ? A. One year. “ Q. Did you not go there, Mr. Gilmer, for the purpose of getting jurisdiction to the Federal court of this State ? A. I did, sir. “ Q. Is it your purpose to return to Montgomery if you gain this suit ? A. That depends altogether upon circumstances. “ Q. What circumstances ? A. If inducements be offered to make it to my interest, I may. MORRIS V. GILMER. 321 Argument for Appellee. “Q. Well, is there not expectation that such inducements will be offered? A. I have had inducements offered, but I have not accepted. “ Q. I repeat the question: Is it not your expectation that, in the event you gain this suit, such inducements will be offered you to return here that you will accept them? A. Yes, sir. “ Q. So that you think, if you gain this suit, you will come back to Montgomery to live ? A. Yes, sir. “Q. Were you born and raised here in Montgomery? A. 1 was. “ Q. And lived here until May, 1885, or June, was it ? A. I left here on the first day of May, 1886. “ Q. That was after the suit in the State Chancery Court had been decided against you in the Supreme Court of Alabama ? A. Yes, sir.” Upon consideration of said affidavits and depositions, and after argument by counsel for the respective parties, the motion to dismiss was denied. The cause subsequently went to a final decree giving the plaintiff the relief asked. Gilmer n. Morris, 35 Fed. Rep. 682. Mr. Henry C. Tompkins, Mr. Alexander T. London, Mr. Samuel F. Rice and Mr. Daniel 8. Troy for appellant. Mr. Henry C. Semple and Mr. W. A. Gunter for appellee. It is insisted, by the appellant, that the lower court should have dismissed this case for the want of jurisdiction, and there is an assignment of error, to that effect, in the argument of counsel. So far as this matter is concerned, there is nothing in the record on which to predicate any assignment of error. The averment of citizenship to give jurisdiction in the bill is full. Before the passage of the act of March 3,1875,18 Stat. 470, it was well settled “ that the citizenship of the parties could not be put in issue on the merits, but that it must be brought forward at an earlier stage in the proceedings by plea in abatement, in the nature of a plea to the jurisdiction.” Farmington v. VOL. CXXIX—21 322 OCTOBER TERM, 1888. Argument for Appellee. Pillsbury, 114 U. S. 138, 143. “ Such was the condition of the law when the act of 1875 was passed; ” but by that law “ the old rule established by the decisions, which required all objections to the citizenship of the parties, unless shown on the face of the record, to be taken by plea in abatement, before pleading to the merits, was changed, and the courts were given full authority to protect themselves against the false pretences of apparent parties.” lb. The terms of that act are: “ If in any such suit . . . it shall appear to the satisfaction of the Circuit Court, at any time after such suit has been brought . . . that such suit does not really and substantially involve a suit or controversy properly within the jurisdiction of said Circuit Court . . . the said Circuit Court shall proceed no further therein, but shall dismiss the suit, . . . but the order dismissing . . . said cause shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be.” In Williams n. NOttawa, 104 IT. S. 209, 212, in speaking of cases under this law it is said: “ Whether, if a defendant allows a case to go on until judgment has been rendered against him, he can take advantage of the objection on appeal, or writ of error, we need not decide. That would be a different case from this.” In Hartog v. Memory, 116 IT. S. 588, construing this statute, and reviewing all the prior decisions,' the following propositions may be said to be definitely settled. 1. That the general rule, well settled before the act of 1875, that when the citizenship necessary to give jurisdiction appeared on the face of the record, evidence to contradict the record was not admissible, except under a plea in abatement, and that a plea to the merits was an admission of the citizenship and waiver of a plea to the jurisdiction — was not altered by the act of 1875. 2. That the act of 1875 was enacted to enable the court, of its own motion, at any stage of the cause, to investigate the question of jurisdiction; and upon doing so, to protect itsei from fraud, by a proper judgment. 3. That neither party under that act, has the right, with- MORRIS v. GILMER. 323 Argument for Appellee. out pleading at the proper time, and in the proper way, to introduce evidence, the only purpose of which is to make out a case for dismissal; and that they cannot call on the court to go behind the averments of citizenship in the record, except by plea to the jurisdiction. 4. That the case is not to be tried by the parties as if there was a plea to the jurisdiction, when no such plea has been filed; and that the evidence must be directed to the issues, and that it is only when facts material to the issues show there is no jurisdiction, that the court can dismiss the case. This authority disposes of the question at issue. The appellant did not plead to the jurisdiction ; he pleaded in bar, and, after judgment against him on that, he filed his answer setting up other issues to the merits, on which the testimony was taken. When the case came on for trial on these issues, to which, of course, the evidence could only be directed, the appellant, putting, as we affirm, an unwarranted construction on some immaterial, illegal and irrelevant evidence, asked the court to adopt his views, and, without more, to dismiss the cause in which he had already been defeated on the only debatable matter on the merits. We do not deny that it was in the power of the court, if it suspected that its jurisdiction had been imposed upon, to have caused the proper inquiry to be made, or issue to be framed for that purpose. But this was a matter entirely for the court. We insist that the law still is, as heretofore declared, that a citizen of the United States can instantly transfer his citizenship from one State to another by commensurate acts and purposes. And the right to sue in the courts of the United States attaches and adheres as an incident to the citizenship. Rice v. Houston, 13 Wall. 66, 68. And it makes not the slightest difference that the purpose of the change of domicil was to seek the independent judgment of a Federal court. v. French, 2 Sumner, 251; Manhattan Ins. Co. v. Boughton, 109 U. S. 121, 125, 126; Jones v. League, 18 How. <6; Cooper v. Galbraith, 3 Wash. C. C. 546 ; Castor v. Mitchell, 324 OCTOBER TERM, 1888. Opinion of the Court. 4 Wash. C. 0; 191; Case v. Clark, 5 Mason, 70; Gardner v. Sharp, 4 Wash. C. C. 609; Read v. Bertra/nd, 4 Wash. C. C. 514 ;. Shelton v. Tiffin, 6 How. 163. The motive of a party in changing his domicil is not inquirable into. If the removal is real and is only for a day, the citizenship is acquired necessary for bringing suit. The motive can only be looked at as an element of evidence, to determine the reality of the removal. “ Where a person lives is taken prima facie to be his domicil, until the facts establish the contrary.” Ennis v. Smith, 14 How. 400, 423. A party who resides in a State with his family, and carries on business there is deemed a citizen of that State. Knox v. Greenleaf, 4 Dall. 360; Byrne v. Holt, 2 Wash. C. C. 282; Shelton v. Tiffin, 6 How. 163. “For the purposes of jurisdiction of the courts of the United States, domicil is the test of citizenship. A person cannot be a citizen of the State when he has abandoned his domicil there.” Poppenha/usen v. India Rubber Co., 14 Fed. Rep. 707; Case v. Clark, 5 Mason, 70; Cooper v. Galbraith, 3 Wash. C. C. 546; Lo/uzn. Randall, 4 Dillon, 425; Sheppard v. Grumes, 14 How. 505; Kemna v. Brockhaus, 5 Fed. Rep. 762. All persons born or naturalized in the United States are, by the 14th amendment of the Constitution, “ citizens of the United States and of the State where they reside” The appellee being in business in Alabama, with a family, and furniture, and property, including a residence, sells everything, and severing entirely his business connections, establishes his home arid residence in Tennessee, and goes into business there. This is sufficient to satisfy any court that Tennessee had become his domicil. Me. Justice Harlan, after stating the case, delivered the opinion of the court. It is unnecessary to decide whether the Circuit Court erred in overruling the plea of former adjudication, or in rendering the decree appealed from; for we are of opinion that t e motion to dismiss the suit, as one not really involving a con MORRIS V. GILMER. 325 Opinion of the Court. troversy within its jurisdiction, should have been sustained. It is provided by the fifth section of the act of March 3, 1875, (18 Stat. 472,) determining the jurisdiction of the Circuit Courts of the United States, that if in any suit commenced in one of such courts “ it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just.” The case presents no question of a Federal nature, and the jurisdiction of the Circuit Court was invoked solely upon the ground that the plaintiff was a citizen of Tennessee, and the defendants citizens of Alabama. But if the plaintiff, who was a citizen of Alabama when the suit in the state court was determined, had not become, in fact, a citizen of Tennessee when the present suit was instituted, then, clearly, the controversy between him and the defendants was not one of which the Circuit Court could properly take cognizance; in which case, it became the duty of that court to dismiss it. It is true that, by the words of the statute, this duty arose only when it appeared to the satisfaction of the court that the suit was not one within its jurisdiction. But if the record discloses a controversy of which the court cannot properly take cognizance, its duty is to proceed no further and to dismiss the suit; and its failure or refusal to do what, under the law applicable to the facts proved, it ought to do, is an error which this court, upon its own motion, will correct, when the case is brought here for review. The rule is inflexible and without exception, Us was said, upon full consideration, in Mansfield,, Coldwater due. Railways. Swan, 111 U. S. 379, 382, “which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of 326 OCTOBER TERM, 1888. Opinion of the Court. the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relations of the parties to it.” To the same effect are King Bridge Co. v. Otoe County, 120 U. S. 225; Grace v. American Central Insurance Co., 109 U. S. 278, 283; Blacklock, v. Knoll, 127 U. S. 96, 105, and other cases. These were cases in which the record did not affirmatively show the citizenship of the parties, the Circuit Court being without jurisdiction in either of them unless the parties were citizens of different States. But the above rule is equally applicable in a case in which the averment as to citizenship is sufficient, and such averment is shown, in some appropriate mode, to be untrue. While under the judiciary act of 1789, an issue as to the fact of citizenship could only be made by a plea in abatement, when the pleadings properly averred the citizenship of the parties, the act of 1875 imposes upon the Circuit Court the duty of dismissing a suit, if it appears at any time after it is brought and before it is finally disposed of, that it does not really and substantially involve a controversy of which it may properly take cognizance. Williams v. Nottawa, 104 U. S. 209, 211; Farmington n. Pillsbury, 114 U. S. 138, 143; Pittie v. Giles, 118 U. S. 596, 602. And the statute does not prescribe any particular mode in which such fact may be brought to the attention of the court. It may be done by affidavits, or the depositions taken in the cause may be used for that purpose. However done, it should be upon due notice to the parties to be affected by the dismissal. It is contended that the defendant precluded himself from raising the question of jurisdiction, by inviting the action of the court unon his plea of former adjudication, and by waiting until the court had ruled that plea to be insufficient in law. Io support of this position Ha/rtog v. Memory, 116 U. S. 588, is cited. We have already seen that this court must, upon its MORRIS V. GILMER. 327 Opinion of the Court. own motion, guard against any invasion of the jurisdiction of the Circuit Court of the United States as defined by law, where the want of jurisdiction appears from the record brought here on appeal or writ of error. At the present term it was held that whether the Circuit Court has or has not jurisdiction is a question which this court must examine and determine, even if the parties forbear to make it or consent that the case be considered upon its merits. Metcalf v. Watertown, 128 U. S. 586. Nor does the case of Hartog v. Memory sustain the position taken by the defendant; for it was there said that “ if, from any source, the court is led to suspect that its jurisdiction has been imposed upon by the collusion of the parties or in any other way, it may at once, of its own motion, cause the necessary inquiry to be made, either by having the proper issue joined and tried, or by some other appropriate form of proceeding, and act as justice may require for its own protection against fraud or imposition.” In that case, the citizenship of the parties was properly set out in the pleadings, and the case was submitted to the jury without any question being raised as to want of jurisdiction, and without the attention of the court being drawn to certain statements incidentally made in the deposition of the defendant against whom the verdict was rendered. After verdict, the latter moved for a new trial, raising upon that motion, for the first time, the question of jurisdiction. The court summarily dismissed the action, upon the ground, solely, of want of jurisdiction, without affording the plaintiff any opportunity whatever to rebut or control the evidence upon the question of jurisdiction. The failure, under the peculiar circumstances disclosed in that case, to give such opportunity, was, itself, sufficient to justify a reversal of the order dismissing the action, and what was said that was irrelevant to the determination of that question was unnecessary to the decision, and cannot be regarded as authoritative. The court certainly did not intend in that case to modify or relax the rule announced in previous well-considered cases. In the case before us the question was formally raised, during the progress of the cause, by written motion, of which the plaintiff 328 OCTOBER TERM, 1888. Opinion of the Court. had due notice, and to which he appeared and objected. So that there can be no question as to any want of opportunity for him to be heard, and to produce evidence in opposition to the motion to dismiss. We are thus brought to the question whether the plaintiff was entitled to sue in the Circuit Court. Was he, at the commencement of this suit, a citizen of Tennessee ? It is true, as contended by the defendant, that a citizen of the United States can instantly transfer his citizenship from one State to another, Cooper v. Galbraith, 3 Wash. C. C. 546, 554, and that his right to sue in the courts of the United States is none the less because his change of domicil was induced by the purpose, whether avowed or not, of invoking, for the protection of his rights, the jurisdiction of a Federal court. As said by Mr. Justice Story, in Briggs v. French, 2 Sumner, 251, 256, “if the new citizenship is really and truly acquired, his right to sue is a legitimate, constitutional and legal consequence, not to be impeached by the motive of his removal.” Manhattan Ins. Co. v. Broughton, 109 U. S. 121,125 ; Jones v. League, 18 How. 76, 81. There must be an actual, not pretended, change of domicil; in other words, the removal must be “ a real one, a/nimo manendi, and not merely ostensible.” Case n. Clarke. 5 Mason, 70. The intention and the act must concur in order to effect such a change of domicil as constitutes a change of citizenship. In Ennis v. Smith, 14 How. 400, 423, it was said that “ a removal which does not contemplate an absence from the former domicil for an indefinite and uncertain time is not a change of it,” and that while it was difficult to lay down any rule under which every instance of residence could be brought which may make a domicil of choice, “ there must be. to constitute it, actual residence in the place, with the intention that it is to be a principal and permanent residence.” Upon the evidence in this record, we cannot resist the conviction that the plaintiff had no purpose to acquire a domicil or settled home in Tennessee, and that his sole object in removing to that State was to place himself in a situation to invoke the jurisdiction of the Circuit Court of the United States. He went to Tennessee without any present intention WHITE v. COTZHAUSEN. 329 Syllabus. to remain there permanently or for an indefinite time, but with a present intention to return to Alabama as soon as he could do so without defeating the jurisdiction of the Federal court to determine his new suit. He was, therefore, a mere sojourner in the former State when this suit was brought. He returned to Alabama almost immediately after giving his deposition. The case comes within the principle announced in Butler v. Farnsworth, 4 Wash. C. C. 101, 103, where Mr. Justice Washington said: “ If the removal be for the purpose of committing a fraud upon the law, and to enable the party to avail himself of the jurisdiction of the Federal courts, and that fact be made out by his acts, the court must pronounce that his removal was not with a bona fide intention of changing his domicil, however frequent and public his declarations to the contrary may have been.” The decree is reversed, with costs to the appellant in this court, and the cause remanded, with a direction to dismiss the suit without costs in the court below. WHITE v. COTZHAUSEN. appeal from the circuit court of the united states for the NORTHERN DISTRICT OF ILLINOIS. No. 129. Argued December 13,14, 1888. — Decided January 28, 1889. The Voluntary Assignment Act of the State of Illinois of 1877, which went into effect July 1, 1877, was intended to secure equality of right among all the creditors of the debtor making the assignment, and was a remedial act, to be liberally construed. In Illinois the surrender by an insolvent debtor of the dominion over his entire estate, with an intent to evade the operation of the Voluntary Assignment Act of that State, and the transfer of the whole or substantially the whole of his property to a part of his creditors in order to give them a preference over other creditors, whether made by one instrument or more and whatever their form may be, operates as an assignment under that act; the benefit of which may be claimed by any unpreferred creditor who will take appropriate steps in a court of equity to enforce the equality contemplated by it. 330 OCTOBER TERM, 1888. A creditor in Illinois who attempts to secure to himself an illegal preference of his debt by means of a conveyance to him of the property of his debtor when insolvent, to the exclusion of other creditors, is not thereby debarred, under the operation of the Voluntary Assignment Act, from participating in a distribution under that act of all the debtor’s property, including that thus illegally conveyed to him. The case was stated by the court in its opinion as follows: This is an appeal from a decree declaring two conveyances of real property in Illinois, a bill of sale of numerous pictures, a judgment by confession in one of the courts of that State pursuant to a warrant of attorney given for that purpose, and certain transfers of property accompanying that warrant, to be void as against the appellee, Cotzhausen, a judgment creditor of Alexander White, Jr. It is assigned for error that the decree is not supported by the evidence. Besides controverting this position, the appellee contends that the conveyances, judgment by confession and transfers were illegal and void under the provisions of the act of the General Assembly of Illinois, in force July 1, 1877, concerning voluntary assignments for the benefit of creditors. Ill. Sess. Laws of 1877, 116; 1 Starr. & Curtis Annotated Stats. Ill. 1303. The record contains a large amount of testimony, oral and written ; but the principal facts are as follows: Alexander White, Sr., died, intestate, in the year 1872; his wife, Ann White, four daughters, Margaret, Elsie, Mary S. and Annie, and two sons, Alexander and James B., surviving him. Each of the children, except James, was of full age when the father died. At the request of the mother, and with the assent of his sisters, Alexander White, Jr., qualified as administrator and in that capacity received personal assets of considerable value. With their approval, if not by their express direction, he undertook the management of the real estate of which his father died possessed; making improvements, collecting rents, paying taxes and causing repairs to be made. He received realty in exchange for stock in a manufacturing company and in part exchange for the homestead, taking the title in his own name. WHITE v. COTZHAUSEN. 331 Statement of the Case. After the death of the father, the widow and children remained together as one household, the expenses of the family and of each member of it being met with money furnished by Alexander White, Jr., out of funds he received from time to time and deposited in bank to his credit as administrator. But no regular account was kept, showing the amount paid to or for individual members of the family. In 1878 it was determined by the widow and children to have an assignment of dower and a partition of the real property ; and proceedings to that end were instituted in the Circuit Court of Cook County, Illinois. Before the close of that year, or in the spring or summer of 1879, having failed to obtain from the administrator a satisfactory account of the condition of the estate, they consulted an attorney, who, upon investigation, ascertained (using here the words of the appellants’ counsel) that Alexander White, Jr., “had lost the entire personal estate, and had nothing except his interest as an heir in certain of the real estate with which to make good his losses.” It appeared, as is further stated, that he had mortgaged some of the real property the title to which had been taken in his name; had anticipated rents on other property; had exchanged lands for stock in a heating and ventilating company; had allowed taxes to accumulate; and had, besides, induced some members of the family to guarantee his notes to a large amount. Upon these disclosures being made, the property was put under the immediate charge of the younger son, and the attorney with whom the mother and sisters had advised was directed to collect the amount due from Alexander White, Jr. Thereupon, a friendly accounting was had, which resulted in a report by him to the Probate Court, on the 18th of July, 1879, of his acts and doings as administrator during the whole period from the date of his appointment, April 9, 1872, to July 21, 1879. The report admits a balance due from him as administrator of $89,646.05, and charges him, “ by virtue of the statute,” (Rev. Stat. Ill. 1874, c. 3, § 113,) with $40,123.80, being interest on that sum from January 21, 1875, to July 21, 1879, at the rate of ten per cent per annum; in all, the sum of $129,769.85. He does not seem to have asserted any claim 332 OCTOBER TERM, 1888. Statement of the Case. whatever for his services as administrator or for managing the real property. That report was approved by the Probate Court, which made an order, July 22, 1879, directing the said sum of $129,769.85 to be distributed and paid by the administrator as follows: To the widow, $43,256.61, and to each of the other children, $14,418.87. It should be stated, in this connection, that, on the 16th of July, 1879, two days before the report to the Probate Court, the proceedings in the partition suit were brought to a conclusion by a decree assigning dower to the widow, and setting off specific parcels of land to Margaret and Alexander respectively, and other parcels to the remaining heirs jointly. On the same day, Alexander White, Jr., executed two conveyances, one to his sisters (except Margaret) and his brother James, jointly, for part of the lands assigned to him by the decree of partition, and the other to his sister Margaret for the remaining part; the former deed reciting a consideration of $56,859.20, which is about the aggregate of the several amounts subsequently directed to be paid by the administrator to his brother and sisters (except Margaret), while the latter deed recited a consideration of $14,214.80, which is about the sum directed to be paid to his sister Margaret. Two days later, July 18, 1879, Alexander White, Jr., executed to his mother, brother and sisters (except Margaret) a bill of sale of his interest in certain pictures which had come to his hands as administrator. And, three days thereafter, July 21, 1879, he executed to his mother a note, accompanied by a warrant of attorney to confess judgment, and by a conveyance and transfer of certain real and personal property as collateral security for the note. Subsequently, September 4, 1879, pursuant to that warrant of attorney, judgment was entered against Alexander White, Jr., for $43,807.50, in the Circuit Court of Cook County. It is not claimed that any money was paid to him in these transactions; and it is admitted that the sole consideration for his transfers of property to the members of his family was his alleged indebtedness to them respectively. By the final decree in these consolidated causes, it was ad- WHITE v. COTZHAUSEN. 333 Argument for Appellants. judged that the two conveyances of July 16, 1879, the bill of sale of July 18, 1879, and the judgment by confession of September 4, 1879, and the transfers accompanying the warrant of attorney of July 21, 1879, were made without adequate consideration and with intent to hinder, delay and defraud the appellee Cotzhausen, who was found by the decree to be a creditor of Alexander White, Jr., in the sum of $27,842.22, the aggregate principal and interest of four several judgments obtained by him against White, in 1881 and 1882. The debts for which these judgments were rendered originated in the early part of 1878, in a purchase from Cotzhausen of nearly all the stock of the American Oleograph Company, whose principal place of business was Milwaukee, Wisconsin. In this purchase Alexander White, Jr., was interested. It is to be inferred from the evidence that the principal object he had in making it was to transfer the office of the company to one of the buildings owned by the family in Chicago, and to start or establish his younger brother in business. His mother and sisters were evidently aware of his purchase and approved the object for which it was made. It may be here stated that Margaret White died unmarried and intestate before the decree in this cause was entered, but the fact of her death was not previously entered of record. The parties to the present appeal, however, have, by written stipulation filed in this cause, waived all objections they might otherwise make by reason of that fact. It is further stipulated that the appellants are the only heirs at law of Margaret White. The appellee waives all objections to the present appeal on the ground that Alexander White, Jr., did not join in it. d/r. Charles M. Osborn and Mr. Ira W. Buell for appellants. The case developed by the evidence shows a preference given by Alexander to his family in the payment of the debts due to them, and we understand the law to be well settled that a debtor resident of Illinois, although insolvent or in failing cir- 334 OCTOBER TERM, 1888. Argument for Appellee. cumstances, may prefer one creditor to the exclusion of others, when done in good faith and for a valuable consideration. That this is the law of the State of Illinois, we cite: Tomlinson v. Matthews, 98 Illinois, 178; Payne v. Miller, 103 Illinois, 442; Eads n. Thompson, 109 Illinois, 87. See also Bean v. Patterson, 122 IT. S. 496. Upon the questions of fact, we contend that all that the evidence in this case shows is, that Alexander White did give to his mother, brother and sisters a preference in the payment of debts justly due from him to them. That not only is there no evidence to prove either of the hypotheses upon which the bill was based, or that upon which the decree was rendered, but that the evidence adduced by the appellee himself expressly contradicts the allegations of the bill, and also the findings on which the decree is based. Mr. Enoch Totten (with whom was Mr. John C. Spooner on the brief) for appellee. No question of law is presented by the assignment of error. The contest turns on the weight of evidence. We invoke the familiar doctrine that every presumption on appeals is in favor of the funding and decree below, and that the burden is on the appellants to show error. Mann v. Roch Island Bank, 11 Wall. 650. The rule on reviewing the conclusion of a master in chancery is equally applicable here. Medsker v. Bone-brake, 108 U. S. 66, 71; Tilghman n. Proctor, 125 U. 8.136, 149. Without reference to the violated provisions of the state statute, the question in this case is not merely one of inadequacy or want of consideration, but it is also as to the good faith of the transaction. “ A sale may be void for bad faith though the buyer pays the full value of the property bought. This is the consequence, where his purpose is to aid the seller in perpetrating a fraud upon his creditors, and where he buys recklessly, and with guilty knowledge.” Clements v. Moore, 6 Wall. 299, 312. A sale by one insolvent of all his property, is presumptively fraudulent, because the necessary effect o WHITE v. COTZHAUSEN. 335 Argument for Appellee. such a sale must be to hinder and delay creditors. Walcott n. Almy, 6 McLean, 23; Power v. Allston, 93 Illinois, 587; Singer v. Jacobs, 3 McCrary, 638; Burdick v. Gill, 2 McCrary, 486. And this presumption is strengthened where the sale has been made to one in confidential relations with him. 1 Smith’s Leading Cases, 50. Where all the debtor’s estate was conveyed to his wife or near relatives or children, for an inadequate consideration, it was held to be a badge of fraud. Pickett v. Pipkin, 64 Alabama, 520; Thomas v. Beck, 39 Connecticut, 241. And where the consideration was inadequate, coupled with an agreement for his future support. Egery v. Johnson, 70 Maine, 258; Church v. Chapin, 35 Vermont, 223. The application of the above principles of law to this case readily appears. The appellants contend that a debtor in failing circumstances may prefer one creditor to the exclusion of others, when he does so in good faith and for valuable consideration. Such was the drift of judicial decisions generally, but the Voluntary Assignment Act of the State of Illinois, of 1877, (which went into effect July 1st, 1877,) radically changed the law on this subject in that State. Section 13 of that act is as follows: “ Every provision in any assignment hereafter made in this State, providing for the payment of one debt or liability in preference to another, shall be void, and all debts and liabilities within the provisions of the assignment shall be paid pro rata from the assets thereof.” Laws of Illinois, 1877, page 120. In view of this legislation the appellee contends that — ignoring the question of consideration and good faith altogether— the several conveyances and confession of judgment by Alexander White, were, in effect, a general assignment, giving preferences, and consequently void, because in contravention of that statute. The evidence shows that these several conveyances of real and personal property, were made about the same time, and after the debtor had resolved to voluntarily dispose of the whole of his estate, and that thereby he substantially stripped .336 OCTOBER TERM, 1888. Opinion of the Court. himself of all his assets without reservation or exception. Late decisions of the highest court of the State of Illinois leave no doubt that the above statute forbids preferences in such cases. Preston v. Spaulding, 120 Illinois, 208; Strong v. Chenay, Chicago Legal News, Dec. 1, 1888. See also Freund v. Yeagerman, 26 Fed. Rep. 819; Winner v. Hoyt, 66 Wisconsin, 229. Me. Justice Harlan delivered the opinion of the court. After stating the case, he continued : Too much stress is laid by the appellee upon the fact that Alexander White, Jr., after qualifying as administrator, was authorized by his mother and sisters to control, in his discretion, both the real and personal estate of which his father died possessed. The granting of such authority cannot be held to have created any lien in favor of his creditors, upon their respective interests. Nor can it be said that they surrendered their right to demand from him an accounting in respect to his management of the property. Upon such accounting, he might become indebted to them; and, to the extent that he was justly so indebted, they would be his creditors, with the same right that other unsecured creditors had to obtain satisfaction of their claims. The mode adopted by them to that end, with full knowledge as well of his financial condition as of the fact that he was being pressed by Cotz-hausen, was to take property on account of their respective claims. After he had executed the conveyances, bill of sale, warrant of attorney and transfers, to which reference has been made, he was left without anything that could be reached by Cotzhausen. So completely was he stripped by these transactions of all property that, subsequently, when his deposition was taken, he admitted that he owned nothing except the clothing he wore. He recognized his hopelessly insolvent condition, and formed the purpose of yielding to creditors the dominion of his entire estate. And it is too plain to admit of dispute that in executing to his mother, sisters and brother the conveyances, bill of sale, warrant of attorney and trans- WHITE v. COTZHAUSEN. 337 Opinion of the Court. fers in question his intention was to give them, and their intention was to obtain a preference over all other creditors. What was done was in execution of a scheme for the appropriation of his entire estate by his family to the exclusion of other creditors, thereby avoiding the effect of a formal assignment. The first question, therefore, to be considered is, whether the several writings executed by Alexander White, Jr., for the purpose of effecting that result, may be regarded as, in legal effect, one instrument, designed to evade or defeat the provisions of the statute of Illinois, known as the Voluntary Assignment Act, in force July 1, 1877. The first section of that statute provides: “ That in all cases of voluntary assignments hereafter made for the benefit of creditor or creditors, the debtor or debtors, shall annex to such assignment an inventory, under oath or affirmation of his, her, or their estate, real and personal, according to the best of his, her, or their knowledge; and also a list of his, her, or their creditors, their residence and place of business, if known, and the amount of their respective demands; but such inventory shall not be conclusive as to the amount of the debtor’s estate, but such assignment shall vest in the assignee or assignees the title to any other property, not exempt by law, belonging to the debtor or debtors at the time of making the assignment, and comprehended within the general terras of the same. Every assignment shall be duly acknowledged and recorded in the county where the person or persons making the same reside, or where the business in respect of which the same is made has been carried on; and in case said assignment shall embrace lands, or any interest therein, then the same shall also be recorded in the county or counties in which said land may be situated.” Other sections provide for publication of notices to creditors ; for the execution by the assignee of a bond and the filing of an inventory in the County Court; for the report of a list of all creditors of the assignor; and for exception by any person interested to the claim or demand of any other creditor. The sixth section provides “ that at the first term of the said VOL. CXXIX—22 338 OCTOBER TERM, 1888. Opinion of the Court. County Court, after the expiration of three months, as aforesaid, should no exception be made to the claim of any creditor, or if exceptions have been made, and the same have been adjudicated and settled by the court, the said court shall order the assignee or assignees to make, from time to time, fair and equal dividends (among the creditors) of the assets in his or their hands, in proportion to their claims,” etc. The eighth section declares that “no assignment shall be' declared fraudulent or void for want of any list or inventory as provided in the first section.” The thirteenth section is in these words: “ Every provision in any assignment hereafter made in this State providing for the payment of one debt or liability in preference to another shall be void, and all debts and liabilities within the provisions of the assignment shall be paid pro rata from the assets thereof.” The main object of this legislation is manifest. It is to secure equality of right among the creditors of a debtor who makes a voluntary assignment of his property. It annuls every provision in any assignment giving a preference of one creditor over another. No creditor is to be excluded from participation in the proceeds of the assigned property because of the failure of the debtor to make and file the required inventory of his estate and the list of his creditors. Nor, if such a list is filed, is any creditor to be denied his pro rata part of such proceeds because his name is omitted, either by design or mistake upon the part of the debtor. The difficulty with the courts has not been in recognizing the beneficent objects of this legislation, but in determining whether, in view of the special circumstances attending their execution, particular instruments are to be treated as part of an assignment, within the meaning of the statute. The leading case upon this subject in the Supreme Court of Illinois is Preston n. Spaulding, 120 Illinois, 208. In that case the members of an insolvent firm, in anticipation of bankruptcy, made, within a period of less than thirty days, four conveyances of their individual estate to near relatives, an various payments of money to her relatives, on alleged debts. WHITE v. COTZHAUSEN. 339 Opinion of the Court. After these conveyances and payments, and with full knowledge of impending failure, the members of the firm held a conference with their legal advisers before the expiration of said thirty days, respecting the measures to be adopted by them and the shape their failure was to assume. It was determined that they should make a voluntary assignment, but that preference be given to certain creditors by executing to them what are called judgment notes. The assignment in form was made, but on the same day and before it was executed, the creditors to whom the notes were given caused judgment by confession to be entered thereon, and immediately, and before the deed of assignment was or could be filed,* caused execution to be issued and levied, whereby they took to themselves the great bulk of the debtor’s estate. The trustee, named in the assignment, having refused to attack the preferences thus secured, a creditor brought suit in equity upon the theory that the giving of the judgment notes and the making of the deed of assignment were parts of one transaction, and, consequently, the preferences attempted were illegal and void under the statute. The Supreme Court of Illinois, considering the question whether the preferential judgments obtained in that case were within the prohibitions of the act of 1877, said: “ The statute is silent as to the form of the instrument or instruments by which an insolvent debtor may effect an assignment. . . . If, then, these preferences are to be held to be within the ‘ provisions ’ of the assignment or ‘ comprehended within its general terms,’ it must be because they fall within the intent and spirit of the act. It will be observed, this act does not assume to interfere, in the slightest degree with the action of a debtor, while he retains the dominion of his property. Notwithstanding this act, he may now, as heretofore, in good faith sell his property, mortgage or pledge it to secure a bona fide debt, or create a lien upon it by operation of law, as, by confessing a judgment in favor of a bona fide creditor. But when he reaches the point where he is ready, and determines, to yield the dominion of his property, and makes an assignment for the benefit of his creditors, under the statute, this act declares that the effect of such assignment shall be the surrender and 340 OCTOBER TERM, 1888. Opinion of the Court. conveyance of all his estate, not exempt by law, to his assignee — rendering void all preferences and bringing about the distribution of his whole estate equally among his creditors; and we hold that it is within the spirit and intent of the statute, that when the debtor has formed a determination to voluntarily dispose of his whole estate, and has entered upon that determination, it is immaterial into how many parts the perform ance or execution of his determination may be broken, — the law will regard all his acts having for their object and effect the disposition of his estate, as parts of a single transaction; and, on the execution of the formal assignment, it will, under the statute, draw to it, and the law will regard as embraced within its provisions, all prior acts of the debtor having for their object and purpose the voluntary transfer or disposition of his estate to or for creditors; and if any preferences are shown to have been made or given by the debtor to one creditor over another in such disposition of his estate, full effect will be given the assignment, and such preferences will, in a court of equity, be declared void, and set aside as in fraud of the statute.” After setting out the details of the plan devised to secure certain creditors a preference in advance of the filing of the deed of assignment, the court further said: “ It will be observed that all this was strictly in accordance with the forms of law, but will any one deny that a most palpable fraud was, in fact, perpetrated upon appellee, Spaulding, by the debtors, or that the acts of the debtors were in fraud of the statute? , . . This voluntary assignment act is in its character remedial, and must, therefore, be liberally construed, and no insolvent debtor having in view the disposition of his estate, can be permitted to defeat its operation by effecting unequal distribution of his estate by means of an assignment, and any other shift or artifice under the forms of law; and whatever obstacles might be encountered in other courts of this State, . . a court of- equity, when properly invoked, was bound to look through and beyond the form, and have regard to the substance, and having done so, to find and declare these preferential judgments void, under the statute, and to set them WHITE v. COTZHAUSEN. 341 Opinion of the Court. aside.” See also Miner’s National Rank's Appeal, 57 Penn. St. 193, 199; Winner v. Hoyt, 66 Wisconsin, 227, 239; Wilks v. Walker, 22 So. Car. 108, 111. We agree with the Supreme Court of Illinois that this statute, being remedial in its character, must be liberally construed ; that is, construed “ largely and beneficially, so as to suppress the mischief and advance the remedy.” That court said in Chicago, &c. Railroad v. Dunn, 52 Illinois, 260, 263: “ The rule in construing remedial statutes, though it may be in derogation of the common law is, that everything is to be done in advancement of the remedy that can be done consistently with any fair construction that can be put upon it.” See also Johnes v. Johnes, 3 Dow, 1, 15. If, then, we avoid over-strict construction, and regard substance rather than form; if effect be given to this legislation, as against mere devices that will defeat the object of its enactment, the several writings executed by Alexander White, Jr., all about the same time, to his mother, sisters and brother, whereby, in contemplation of his bankruptcy, and according to a plan previously formed, he surrendered his entire estate for their benefit, to the exclusion of all other creditors, must be deemed a single instrument, expressing the purposes of the parties in consummating one transaction, and operating as an assignment or transfer under which the appellee, Cotzhausen, may claim equality of right with the creditors so preferred. It is true there was not here, as in Preston v. Spaulding, a formal deed of assignment by the debtor under the statute. But of what avail will the statute be in securing equality among the creditors of a debtor who, being insolvent, has determined to yield the dominion of his entire estate, and surrender it for the benefit of creditors, if some of them can be preferred by the simple device of not making a formal assignment, and permitting them, under the cover or by means of conveyances, bills of sale or written transfers, to take his whole estate on account of their respective debts, to the exclusion of other creditors ? If Alexander. White, Jr., intending to surrender all his property for the benefit of his creditors, and to stop business, had excepted from the conveyances, bill of sale and transfers executed to 342 OCTOBER TERM, 1888. Opinion of the Court. his mother, sisters and brother, a relatively small amount of property, and had shortly thereafter made a general assignment under the statute, it could not be doubted, under the decision in Preston v. Spaulding, and in view of the facts here disclosed, that such conveyances, bill of sale and transfers would have been held void as giving forbidden preferences to particular creditors; and his assignment would have been held, at the suit of other creditors, to embrace not simply the property owned by him when it was made, but all that he previously conveyed, sold and transferred to his mother, sisters and brother. But can he, having the intention to quit business and surrender his entire estate to creditors, be permitted to defeat any such result by simply omitting to make a formal assignment, and by including the whole of his property in conveyances, bills of sale, and transfers to the particular creditors whom he desires to prefer? Shall a failing debtor be allowed to employ indirect means to accomplish that which the law prohibits to be done directly ? These questions must be answered in the negative. They could not be answered otherwise without suggesting an easy mode by which the entire object of this legislation may be defeated. We would not be understood as contravening the general principle, so distinctly announced by the Supreme Court of Illinois, that a debtor, even when financially embarrassed, may in good faith compromise his liabilities, sell or transfer property in payment of debts, or mortgage or pledge it as security for debts, or create a lien upon it by means even of a judgment confessed in favor of his creditor. Preston v. Spaulding, ubi supra ; Field v. Geoghegan, 125 Illinois, 70. Such transactions often take place in the ordinary course of business, when the debtor has no purpose, in the near future, of discontinuing business or of going into bankruptcy and surrendering control of all his property. A debtor is not bound to succumb under temporary reverses in his affairs, and has the right, acting in good faith, to use his property in any mode he chooses, in order to avoid a general assignment for the benefit of his creditors. We only mean, by what has been said, that when an insolvent debtor recognizes the fact that he can no longer go on in busi- WHITE v. COTZHAUSEN. 343 Opinion of the Court. ness, and determines to yield the dominion of his entire estate, and in execution of that purpose, or with an intent to evade the statute, transfers all, or substantially all, his property to. a part of his creditors, in order to provide for them in preference to other creditors, the instrument or instruments by which such transfers are made and that result is reached, whatever their form, will be held to operate as an assignment, the benefits of which may be claimed by any creditor not so preferred, who will take appropriate steps in a court of equity to enforce the equality contemplated by the statute. Such we think is the necessary result of the decisions in the highest court of the State. The views we have expressed find some support in adjudged cases in the Eighth Circuit, where the courts have construed the statute of Missouri providing that “ every assignment of lands, tenements, goods, chattels, effects and credits made by a debtor to any person in trust for his creditors, shall be for the benefit of all the creditors of the assignor in proportion to their respective claims.” Referring to that statute, Krekel, J., said, in Kellog v. Richardson, 19 Fed. Rep. 70, 72 — following the previous case of Martin v. IRiusntan, 14 Fed. Rep. 160___ “a merchant may give a mortgage ora deed of trust in part or all of his property, to secure one or more of his creditors, thus preferring them, but he cannot convey the whole of his property to one or more creditors and stop doing business. Such turning over and virtually declaring insolvency brings the instrument or act by which it is done within the assignment law of Missouri, which requires a distribution of the property of the failing debtor for the benefit of all the creditors in proportion to their respective claims. Such is the declared policv of the law; it places all creditors upon an equal footing.” So in Kerbs v. Ewing, 22 Fed. Rep. 693, where Judge McCrary, referring to the Missouri statute, said: “No matter what the form of the instrument, where a debtor, being insolvent, conveys all his property to a third party, to pay one or more creditors, to the exclusion of others, such a conveyance will be construed to be an assignment for the benefit of all the creditors; the preference being in contravention of the assignment 344 OCTOBER TERM, 1888. Opinion of the Court. laws of this State.” Again, in Freund v. Yaegerma/n, 26 Fed. Rep. 812, 814, it was said by Treat, J., that the conclusion reached by Mr. Justice Miller and Judges McCrary, Krekel, and himself, was, “that under the statute of the State of Missouri concerning voluntary assignments, when property was disposed of in entirety or substantially — that is, the entire property of the debtor, he being insolvent — it fell within the provisions of the assignment law. The very purpose of the law was that no preference should be given. No matter by what name the end is sought to be effected, it is in violation of that statute. You may call it a mortgage, or you may make a confession of judgment, or use any other contrivance, by whatever name known, if the purpose is to dispose of an insolvent debtor’s estate, whereby a preference is to be effected, it is in violation of the statute.” See also Perry v. Corby, 21 Fed. Rep. 737; Clapp v. Dittman, 21 Fed. Rep. 15; Clapp v. Nordmeyer, 25 Fed. Rep. 71. If Alexander White, Jr., had made a formal assignment of his entire property in trust for the benefit, primarily or exclusively, of his mother, sisters and brother, as creditors, its illegality would have been so apparent that other creditors would have been allowed to participate in the proceeds of sale. By the conveyances, bill of sale, confession of judgment and transfers, all made about the same time, and pursuant to an understanding previously reached, he has effected precisely the same result as would have been reached by a formal assignment to a trustee for the exclusive benefit of his mother, brother and sisters. The latter is forbidden by the letter of the statute, and the former is equally forbidden by its spirit. Surely, the mere name of the particular instruments by which the illegal result is reached, ought not to be permitted to stand in the way of giving the relief contemplated by the statute. Courts of equity are not to be misled by mere devices, nor baffled by mere forms. It remains only to consider the effect of these views upon the decree below. We have already seen that the Circuit Court proceeded upon the ground that the conveyances, bill of sale, confession of judgment and transfers by Alexander WHITE v. COTZHAUSEN. 345 Opinion of the Court. White, Jr., were made without adequate consideration, and with intent to hinder, delay and defraud the appellee. Upon these grounds it gave him a prior right in the distribution of the property. We are not able to assent to this determination of the rights of the parties; for the mother, sisters and brother of Alexander White, Jr., were his creditors, and, so far as the record discloses, they only sought to obtain a preference over other creditors. But their attempt to obtain such illegal preference ought not to have the effect of depriving them of their interest, under the statute, in the proceeds of the property in question, or justify a decree giving a prior right to the appellee. It was not intended, by the statute, to give priority of right to the creditors who are not preferred. All that the appellee can claim is to participate in such proceeds upon terms of equality with other creditors. It results that the decree below is erroneous, so far as it directs the property, rights and interests therein described to be sold in satisfaction primarily of the sums found by the decree to be due from Alexander White, Jr., to the appellee. The case should go to a master to ascertain the amount of all the debts owing by Alexander White, Jr., at the date of said conveyances, bill of sale and transfers. In respect to the amounts due from him to his mother, sisters and brother, respectively, it is not necessary, at this time, to express any opinion, further than that the accounting in the Probate Court between them is not conclusive against the appellee. It will be for the court below to determine, under all evidence, what amounts are justly due from Alexander White, Jr., to his mother, sisters and brother, taking into consideration all the circumstances attending his management of the property, formerly owned by his father, whether Teal or personal. To the extent we have indicated, the decree is reversed, each side paying one-half the costs in this court; and the cause is remanded, with a direction for further proceedings not inconsistent with this opinion. The Chief Justice did not sit in this case or participate in its decision. 346 OCTOBER TERM, 1888. Opinion of the Court. PINKERTON v. LEDOUX. ERROR TO THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO. No. 114. Argued December 7, 1888. — Decided February 4, 1889. The report upon a Spanish or Mexican grant by the surveyor general of New Mexico under the act of July 22, 1854, § 8, 10 Stat. 308, which required such report to be “laid before Congress for such action thereon as may be deemed just and proper, with a view to confirm bond, fide grants,” is no evidence of title or right to possession. In ejectment, the question whether the tract in dispute is within the boundaries of a grant of public land, is to be determined by the jury on the evidence, as explained by the court. When the description in the petition and grant of a Mexican grant differs from the description in the act of possession the former must prevail. If, from the description and words in the petition and writ of possession of a Mexican grant the jury cannot definitely locate the boundaries of the grant, they must find for the defendant. Whether the Nolan title has any validity without confirmation by Congress, quaere. Whether the proviso in the act of July 1, 1870, 16 Stat. 646, that when the grants to Nolan to which it related “ are so confirmed, surveyed and patented, they shall be held and taken to be in full satisfaction of all further claims or demands against the United States,” was not intended to affect the entire claim of Nolan for any grant of lands in New Mexico, quaere. Ejectment. Judgment for defendant. Plaintiff sued out this writ of error. The case is stated in the opinion. JZr. F. W. Clancy for plaintiff in error. J/r. Henry E. Da/ois for defendant in error. Mr. Justice Bradley delivered the opinion of the court. This is an action of ejectment brought by Pinkerton, the plaintiff in error, to recover from the defendants, Julian Ledoux and Epifanio Ledoux, the possession of a quarter section of land claimed to be within the tract known as the Nolan grant in Colfax and Mora counties in New Mexico, under PINKERTON v. LEDOUX. 347 Opinion of the Court. which grant the plaintiff claims title; and the main question in the case is, whether the Nolan grant extends far enough westerly and northerly to embrace the lot in question. The action was commenced in July, 1881, in Colfax County, and was afterwards removed to Mora County. The property claimed is described in the declaration as follows, to wit: “that certain tract and parcel of land lying and being situated in the county of Colfax, in the Territory of New Mexico, and being a portion of that larger tract of land commonly known as and called the ‘ Nolan grant,’ (and which said grant was, on or about the eighteenth day of November, a.d. 1845, made by Manuel Armijo, then Governor of the Territory of New Mexico, to Gervacio Nolan and two others,) being the same one hundred and sixty acres of land upon which the said defendants now reside and occupy, and upon which they have a dwelling-house wherein the said defendants or one of them reside, situated on the northwest third of the above-mentioned grant and bounded upon all sides by lands of the plaintiff.” The defendants pleaded not guilty and three special pleas. First, title in themselves by virtue of an entry and a grant from the United States, under which they have erected and placed upon the premises certain valuable improvements, consisting of dwelling-houses, barns, fences, ditches, etc., of tho value of $5000, which value they give notice that they will prove at the trial, if the plaintiff shall maintain his title. Secondly, that they built the valuable improvements on the land before the commencement of the action, and that the plaintiff cannot deprive them of possession until such improvements are paid for. Third, not guilty within ten years. The plaintiff took issue on those pleas, and entered a nolle prosequi as to Julian Ledoux. On the trial of the cause the plaintiff gave in evidence, 1st, the original Nolan grant, consisting of the petition for a concession, dated November 15, 1845; t e grant upon the same, indorsed thereon and dated Santa Fe, November 18, 1845; and the act of juridical possession, ated November 30, 1845. The petition was made by Gervacio Nolan, Juan Antonio Aragon, and Antonio Maria Lucero, soliciting a grant for a piece of land in the little canon of Red 348 OCTOBER TERM, 1888. Opinion of the Court. river, bounded “ on the north by the possession of Messrs. Miranda and Beaubien ; on the south one league in a direct line, including the Sapello river, according to its current ; on the west another league from Red river and its current ; and on the southeast the little hills of Santa Clara with their range to the little canon of the Ocate.” The grant was made as desired, with the boundaries and limits asked for. The act of juridical possession describes the boundaries as follows : “ They are, on the north, the lands of Don Gaudalupe Miranda and Don Carlos Beaubien ; on the south, one league south of the Sapello river, following the same range ; on the east, one league east of the Red river, with the same range of the river; and on the west, the little cañón of Ocate and five hundred varas west of the little hills of Santa Clara in a direct line.” No plat or desiño was shown to have been annexed to the act of juridical possession. If there had been one, it was not given in evidence. It must be acknowledged that these descriptions are somewhat vague. It would seem that, from the northern boundary, adjoining Miranda and Beaubien, (or the Maxwell grant,) to the southern boundary along the Sapello river, the distance is about forty miles ; and if the grant extends westerly from the Red river far enough to embrace the land in question, as claimed by the plaintiff, thé general width is from twenty-one to twenty-five miles ; the whole tract thus embracing an area of nearly one thousand square miles ; whilst, if it is confined to one league west of the Red river, as would seem to be the meaning of the original petition and grant, the quantity would still be over one hundred square miles. The plaintiff then gave in evidence, without objection on the part of the defendant, the opinion of the Surveyor General, dated July 10, 1860, reporting on the grant in question, and stating that he believed the documents of title to be genuine, and the grant to be good and valid, and that the land embraced within the boundaries set forth in the petition and juridical possession were severed from the public domain, and .that the title therefor was vested in the heirs and legal representatives of Gervacio Nolan; he therefore approved said title, PINKERTON v. LEDOUX. 349 Opinion of the Court. and transmitted it for the action of Congress, in accordance with the 8th section of. the act of July 22, 1854, entitled “An act to establish the offices of Surveyor General of New Mexico, etc.” 10 Stat. 308, c. 103. The act says, “ which report shall be laid before Congress for such action thereon as nray be deemed just and proper, with a view to confirm Iona fide grants, and give full effect to the treaty of 1848, between the United States and Mexico.” It does not appear that this title was ever approved or confirmed by Congress. The plaintiff then offered in evidence (but the court rejected) the petition of the claimants of the grant, addressed to the Surveyor General, in order to show what boundaries they claimed on that occasion. It is unnecessary to recite the contents of this petition, as we think the court rightly rejected it. The Surveyor General, when referring in his report to the boundaries set forth in the petition and juridical possession, evidently referred to the boundaries contained in the original petition of Nolan and his associates for the grant, and not to the petition addressed to himself. The plaintiff then introduced in evidence a map from the Surveyor General’s office, which was not admitted as evidence of the boundaries of the grant in question, nor to show anv survey thereof, but only to inform the jury as to the location and position of natural objects and course of streams referred to in other documents. The material part of the map was as follows, to wit: 350 OCTOBER TERM, 1888. Opinion of the Court. It shows the Nolan grant to be about 40 miles in length, north and south, and 25 miles in width, extending across the the whole of Mora County, and five or six miles into Colfax County on the north and San Miguel County on the south. In the northwestern part of the Nolan grant, as marked on the map, on Ocate creek, some 16 miles west of the Red river, is shown a ranch. On the west side of the grant, about mid-[way between the north and south bounds, are situated the i little hills of Santa Clara. No proof was offered with regard [to the authenticity or accuracy of this map, except that it [was brought from the Surveyor General’s office. Very little । testimony was offered. Mary McKellar testified that she lived in Colfax County in the ranch noted on the map; that Ledoux’s place (the land in question) was about a mile and a half to the northeast of her ranch, two or three miles south of Beaubien and Miranda’s grant; that she knew where the stones were put by Mr. Shaw, as the western boundary of the Nolan grant. He was the surveyor sent up from Santa F6 to survey the land. Mr. Ledoux’s house is to the east of that line, as surveyed by Mr. Shaw. She also testified about the little hills PINKERTON v. LEDOUX. 351 Opinion of the Court. of Santa Clara, and the location of the canonci to of the Ocate. Ledoux was examined to show that he was in possession of the lot claimed in the suit. The plaintiff was examined to identify the locality of the little hills of Santa Clara, and the canoncito of the Ocate, and where a line would run, beginning 500 varas west of the hills and running a straight line through the canoncito, and that the defendant lives to the east of that line. He did not know how many canoncitos were on the Ocate. There might be one near Red river; he never was there. He also located the county line between Mora and Colfax Counties. He had only known the country since 1875. The defendant’s counsel admitted that the plaintiff had acquired all the title of the original grantees, in and to the western half of the grant to the north, of the Santa Clara hills. The defendant also introduced in evidence a map to show the various localities, position of natural objects, streams, etc., which showed substantially the same state of facts as the map introduced by the plaintiff. This was all the evidence in the cause. The plaintiff then requested the court to instruct the jury as follows: “That when a claim to a Spanish or Mexican grant has been favorably reported by the Surveyor General of New Mexico, as the one here in question has been, the grantees, or their heirs or assigns, are entitled to the absolute and exclusive possession of the land embraced within the limits of such grant, and in this case it is admitted that the plaintiff has all the right, title and interest of the original grantees to all that portion of said grant north of an east-and-west line running through the Serritos de Santa Clara and west of a northwest and southeast line half way between the east and west boundaries of said grant.” And the court refused to give said instruction, and the plaintiff excepted. We think the refusal was right. The Surveyor General’s report is no evidence of title or right to possession. His duties were prescribed by the act of July 22d, 1854, before referred to, and consisted merely in making inquiries and reporting to 352 OCTOBER TERM, 1888. Opinion of the Court. Congress for its action. If Congress confirmed a title reported favorably by him it became a valid title ; if not, not. So with regard to the boundaries of a grant ; until his report was confirmed by Congress, it had no effect to establish such boundaries, or anything else subservient to the title. The judge charged the jury that they must be satisfied from a preponderance of evidence that the defendant was within the boundaries petitioned for by Nolan, and into which he was inducted by the writ of possession, and if not so satisfied, they must find the defendant not guilty ; that they must determine what the boundaries are from the words used in the petition and in the writ of possession ; that if, from the description thus given, and from the extraneous evidence furnished by plaintiff, they were not convinced that the defendant was upon the land petitioned for and given by writ of possession to the said Nolan, they must find defendant not guilty. If, upon the other hand, they were satisfied from all the evidence that the defendant was upon said land, they must find him guilty. The judge then compared the words of boundary and description contained in the petition with those contained in the writ or act of possession, and added : “If, upon comparing these descriptions, you cannot make them agree, you must give the greater weight to the words and descriptions of the petition, for the petition must control the writ. In other words, the writ of possession must conform to the petition, for the grant was made according to the boundaries prayed for in the petition. You would not be justified in going 500 varas west of Los Serritos de Santa Clara for the western boundary of the grant, unless you find some authority for doing so in the words and descriptions of the petition. If, from the descriptions and words in the petition and writ of possession, you find yourselves unable definitely to locate the boundaries of the grant, you must find defendant not guilty.” Then, at the request of the plaintiff, the judge charged: “ 2. That if they believe from the evidence that the land of which the defendant is in possession is within the limits of the PINKERTON v. LEDOUX. 353 Opinion of the Court. grant, which has been favorably reported by the Surveyor General, they must find the defendant guilty.” He then charged as follows: “3. The plaintiff can only; recover, if at all, on the strength of his own title or right of ' possession, and not on the defects of any title or right of possession of defendant. “ 4. The plaintiff must establish his right to the possession of the land described in the-petition or declaration by competent evidence in order for him to recover. “5. In order to find the defendant guilty, you must find that the defendant did enter upon the land described in the petition or declaration; that the same is within the boundaries of the portion of the grant claimed by plaintiff, and that the defendant was, at the time this suit was instituted, in possession of the same wrongfully, withholding and detaining the same from the plaintiff.” The plaintiff excepted to the giving of each of said instructions, with the exception of the one numbered 2. The jury, under this charge, rendered a verdict for the defendant, and judgment was entered accordingly ; whereupon the plaintiff brought this writ of error. The assignment of errors corresponds to the exceptions. The plaintiff in error, in his brief, discusses two points upon which he insists upon a reversal of the judgment : 1. That there is nothing in the evidence to support the verdict ; 2. That the instructions of the court did not properly submit to the jury the only point to be determined, to wit : Was the defendant within the boundaries of the portion of the grant claimed by the plaintiff? We do not see how the judge who tried the cause could have more clearly stated, than he did in his charge, the real question to be determined by the jury, namely, the question whether the land in dispute was included within the boundaries of the grant, as applied to and sought for, in the actual condition of the country, its surface and mountains and streams. In order to locate a grant of land upon the surface °f the earth there must be evidence to show that the place of location agrees with the description in the grant, and that VOL. CXXIX—23 354 OCTOBER TERM, 1888. Opinion of the Court. evidence is for the jury. The plaintiff alleges that it was error in the judge to leave this question to the jury. We think not. The judge may properly explain to the jury the effect of different portions of the evidence, and, of course, if the jury find a verdict against plain evidence, their verdict will be set aside. The plaintiff complains, however, that the judge laid down an erroneous rule in charging that if the description contained in the petition and grant differed from that contained in the act of possession, the former must prevail, because it was the grant which conferred title. We think there was no error in this charge. If the officer assigned to deliver possession does not follow the grant his acts are not valid. Where the original grant does not locate the subject of the grant, as where a certain number of square leagues is granted to be located within a certain district, the delivery of possession within the district renders the title complete, and defines the location of the grant/ The cases referred to by the plaintiff were grants of specific ranches, plantations or places, having well known names, and the boundaries designated in the acts of possession ascertained their actual extent and limits; and hence were controlling when the question of title arose. “ The judicial possession was conclusive as to the boundaries and extent of the land granted.” United States y. Pico, 5 Wall. 536, 540. The instruction given, that if from the descriptions and words in the petition and writ of possession the jury could not definitely locate the boundaries of the grant, they must find for the defendant, is supported by several explicit authorities. In Carpentier n. Montgomery\ 13 Wall. 480, it was held that where one of the boundaries was so uncertain that it could not be defined or designated, the grant was void. The same rule was followed in Scull v. United States, 98 U. S. 410, where the description was so vague that, as sought to be interpreted by the claimant, it would embrace over seven millions of acres, and it was evident to the court that the surveyor was never actually on the ground, and was mistaken as to the locality of the natural objects on which he relied for description. T e claim was rejected for uncertainty of description. WALWORTH v. HARRIS. 355 Syllabus. We see nothing in the charge of which the plaintiff can properly complain. This case seems to have been very perfunctorily tried and discussed. There is a question which may be entitled to much consideration, whether the Nolan title has any validity at all without confirmation by Congress. The act of July 22, 1854, before referred to, seems to imply that this was necessary. There is also another act of Congress which may have a bearing on the case. We refer to the act of July 1, 1870, 16 Stat. 646, c. 202, by which another grant to Nolan was confirmed to the extent of eleven leagues. After various provisions with regard to the exterior lines of those eleven leagues, the 4th section declares “ that upon the adjustment of said claim of the heirs of Gervacio Nolan, according to the provisions of this act, it shall be the duty of the Surveyor General of the district to furnish properly approved plats to said claimants, etc.: Provided., that when said lands are so confirmed, surveyed and patented, they shall be held and taken to be in full satisfaction of all further claims or demands against the United States.” Whether this provision was not intended to affect the entire claim of Nolan for any grant of lands in New Mexico may be a serious question. Without expressing any opinion on the subject, it suffices to say that we see no error in the judgment of the Supreme Court of New Mexico, and it is therefore Affirmed. WALWORTH v. HARRIS. appeal from the circuit court of the united states for THE EASTERN DISTRICT OF ARKANSAS. No. 148. Submitted January 7,1889. — Decided February 4, 1889. The lien upon a crop of cotton, created by a statute of Arkansas which gives a lien to a landlord upon the crop grown on demised premises to secure accruing rent, is, when the cotton comes into the hands of a broker in New Orleans, under consignment from the lessee, and without knowledge of the lien on the consignee’s part, subordinated to the consignee’s lien for advances, arising under the laws of Louisiana. 356 OCTOBER TERM, 1888. Statement of the Case. The court stated the case in its opinion as follows: Sarah Walworth, the appellant in the present case, and John B. Walworth, who died pending the suit, said Sarah being now his executrix, with many other persons, are complainants in a bill in chancery, brought in the Circuit Court of the United States for the Eastern District of Arkansas, against Joseph L. Harris, John M. Parker, Z. T. Carlton, Sarah E. Bryan, and others. The object of the bill was to enjoin Carlton from proceeding to sell property conveyed to him by a deed of trust to secure certain debts due by the Bryans to J. L. Harris & Co. Lemuel C. Bryan and Joel E. Bryan were in business at Point Chicot, in Chicot County, Arkansas, under the partnership designation of L. C. Bryan & Bro. The main occupation was selling goods and buying cotton, but they also had several cotton plantations under their control. Among others they had leased from the heirs of Horace F. Walworth a farm at Point Chicot, for five years, at a rent of $5500 a year, running from January 1, 1879, to January 1, 1884. Although the lease was executed in the name of Lemuel C. Bryan alone, it was for the benefit of the firm of Bryan & Bro., and it went into the general partnership business. Joseph L. Harris and John M. Parker, trading as partners under the firm name of J. L. Harris & Co., cotton brokers in the city of New Orleans, were the correspondents of Bryan & Bro., and to them the latter firm transmitted the cotton raised and purchased by them in Arkansas. During the pendency of this lease, to wit, on December 9, 1881, Bryan & Bro. being indebted to Harris & Co., and desiring further accommodations and advancements from them, made a deed of trust to Z. T. Carlton, of the county of Chicot, in Arkansas, in which they conveyed to him as trustee substantially all their property in the State of Arkansas, and all the cotton or other products raised or gathered during the year 1881 on the plantations and tracts of land described, with about 250 bales of cotton, in seed lint and bales, on the Point Chicot plantation, leased from the heirs of Walworth. The WALWORTH v. HARRIS. 357 Statement of the Case. purpose of this conveyance was declared to be to secure the payment of a debt of $35,000, evidenced by notes of Bryan & Bro., dated at New Orleans, La., December 9, 1881, drawn to the order of J. L. Harris & Co., and payable at their office^in that city; also any advance in addition to said notes which Harris & Co. might make to Bryan & Bro., with various other agreements not material to be mentioned here. The bill of the complainants, except the heirs of Walworth, consists of allegations that Harris & Co. had undertaken that out of the proceeds of the property conveyed by this deed of trust to Carlton these creditors should be paid various sums due to them. The heirs of Walworth in addition to this set up that, by virtue of the lease made between them and Bryan & Bro., they had a lien on the cotton raised each year on the Point Chicot plantation for the amount of the rent, $5500 per annum; and further, that by virtue of the laws of Arkansas they had the landlord’s lien for rent for the same sum on the cotton raised on the plantation. They also alleged that this cotton, the rent being unpaid, came to the hands of J. L. Harris & Co., who disposed of it, but that they were aware of the existence of such lien and were bound by it. The Circuit Court, after a hearing on the bill, answer, replication, and evidence, dismissed it, and from that decree only the heirs of Walworth take this appeal, and they only as to the question of their right to recover the rent for one year by virtue of a lien on the cotton which came to the hands of Harris & Co. from the Bryans. All the other questions, therefore, which were raised in the case, as it was originally heard and tried, are eliminated from its consideration in this court. The lien here asserted seems to be founded upon expressions contained in the contract of lease, and upon the statute of Arkansas concerning the lien of a landlord. The only clause in the lease referring to a lien is the following: “ And it is further understood that the lessor shall have his lien on the crop for the security and payment of his rent, as set forth in this lease.” This reference to what is set forth in the lease means the amount of the rent and the time of its payment, and the language, that “ the lessor shall have his lien on the 358 OCTOBER TERM, 1888. Argument for Appellants. crop,” evidently refers to the lien which the statute gives. So that, after all, it is the lien given by the statute of Arkansas which is the one sought to be enforced here.