US' r. ^7 S' UNITED STATES REPORTS VOLUME 131 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1888 J. C. BANCROFT DAVIS REPORTER NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1889 Copyright, 1889, By BANKS & BROTHERS. JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MELVILLE WESTON FULLER, Chief Justice. SAMUEL FREEMAN MILLER, Associate Justice. STEPHEN JOHNSON FIELD, Associate Justice. JOSEPH P. BRADLEY, Associate Justice. JOHN MARSHALL HARLAN, Associate Justice. HORACE GRAY, Associate Justice. SAMUEL BLATCHFORD, Associate Justice. LUCIUS QUINTUS CINCINNATUS LAMAR, Associate Justice. ---------------------, Associate Justice. WILLIAM HENRY HARRISON MILLER, Attorney General. GEORGE AUGUSTUS JENKS, Solicitor General. JAMES HALL McKENNEY, Clerk.. JOHN MONTGOMERY WRIGHT, Marshal. TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE Abendroth v. Van Dolsen...............................66 Allman v. United States...............................31 Arthur, Palmer v......................................60 Atlanta, Menken v. . ... . . . 405 Bacon v. Northwestern Mutual Life Insurance Company 258 Barry, United States Mutual Accident Association v. . 100 Blackburn, Hunt v.............................. . 403 Chicago, Burlington and Quincy Railway Company v. Gray.............................................396 Cleburne, Coler v. . . .........................162 Cohn, Spalding v. . ........................65 Coler v. Cleburne . . . . . . .162 Conger, Williams v...................................390 Comely v. Marckwald..................................159 Crabtree, Segrist v..................................287 Crehore v. Ohio and Mississippi Railway Company . 240 Cuddy, Petitioner . . . ' . . . . 280 Davis, United States v.................................36 Dent v. Ferguson.....................................397 Douglass v. Lewis.....................................75 Drew, United States v. ...... 21 Embrey u Jemison.....................................336 Farwell, Spalding v. . 65 Ferguson, Dent v............................ ... 397 Folsom, Radford v. . . . . . , 392 Fowle v. Park . . . . . . .88 Freeland v. Williams ....... 405 TABLE OF CONTENTS. vi Table of Cases. PAGE Gaines’s Administrator, New Orleans v. . . .191 Gilmer v. Kennon..........................................22 Gilmer, Kennon v. . . . . . . .22 Glenn, Hawkins v. .......................................319 Gray, Chicago, Burlington and Quincy Railway Company v...........................................396 Hall, United States v. ...... 50 Hans Nielsen, Petitioner.................................126 Hawkins v. Glenn.........................................319 Hollon Parker, Petitioner................................221 Hubbard v. Thompson......................................123 Hubbard, Thompson v. ....................................123 Hunt v. Blackburn........................................403 Jemison, Embrey u........................................336 Jones, United States v. ............................. 1 Kennon v. Gilmer .........................................22 Kennon, Gilmer v. . . . . . . 22 Keokuk and Hamilton Bridge Company, Pennsylvania Railroad Company v......................................371 Keokuk and Hamilton Bridge Company, Pittsburgh, Cincinnati and St. Louis Railway Company v. . 371 Lewis, Douglass v. .......................................75 List v. Pennsylvania............................... . 396 Malin, Pacific Express Co. v. ...........................394 Manasse, Spalding v.......................................65 Marekwald, Comely v......................................159 Marsh, Nichols, Shepard and Company v. \ . . 401 Marshall v. United States................................391 Masterson, Stewart v.....................................151 Mellen v. Moline Malleable Iron Works . . . 352 Menken v. Atlanta........................................405 Moline Malleable Iron Works, Mellen v. ... 352 Montgomery, United States v. 1 Morgan v. Struthers .....................................246 TABLE OF CONTENTS. vii Table of Cases. PAGE New Orleans v. Gaines’s Administrator . . . 191 New Orleans v. United States, ex rel. Gaines’s Administrators ...........................................220 Nichols, Shepard and Company v. Marsh . . . 401 Nielsen, Hans, Petitioner . . . . . 176 Northwestern Mutual Life Insurance Company, Bacon v, 258 Ohio and Mississippi Railway Company, Crehore v. . 240 Pacific Express Co. v. Malin 394 Palmer v. Arthur.............................................60 Park, Fowle v. . . . . . . . 88 Parker, Hollon, Petitioner .................................221 Pennsylvania, List v.................................’ 396 Pennsylvania Railroad Company v. Keokuk and Hamilton Bridge Company ...............................371 Perrin, United States v. ...............................55 Pittsburgh, Cincinnati and St. Louis Railway Company v. Keokuk and Hamilton Bridge Company . 371 Radford v. Folsom . . . . . . 392 Reilly, United States v. ....................................58 Rice, Veach v...............................................293 Savin, Petitioner...........................................267 Schofield, United States v...................................36 • Segrist v. Crabtree......................................287 Sharon, Terry v..............................................40 Spalding v. Cohn .......................................... 65 Spalding v. Farwell...............................• . .65 Spalding v. Manasse..........................................65 Spalding v. Vanacker . . . . . . . 65 Spalding v. Yanada . . . . . . . 65 Stewart v. Masterson........................................151 Stickney v. Stickney........................................227 Stickney, Stickney v........................................227 Struthers, Morgan v. . . . . . 246 Taubenheimer, United States v.................................1 Terry v. Sharon............................................ 40 viii TABLE OF CONTENTS. Table of Cases. PAGE Thompson v. Hubbard...............................123 Thompson, Hubbard v.............................. 123 United States, Allman v............................31 United States v. Davis.............................36 United States v. Drew . . . . . .21 United States v. Hall............................50 United States v. Jones............................1 United States, Marshall v.................... . 391 United States v. Montgomery.......................1 United States v. Perrin..........................55 United States v. Reilly ....... 58 United States v. Schofield.......................36 United States v. Taubenheim er....................1 United States, ex rel. Gaines’s Administrators, New Orleans v. ........ 220 United States Mutual Accident Association v. Barry . 100 Vanacker, Spalding v...............................65 Van Dolsen, Abendroth v............................66 Veach v. Rice......................................293 Williams v. Conger.................................390 Williams, Freeland v. . ... . . . 405 Yanada, Spalding v. . .....................65 Cases Adjudged at October Term, 1888, not otherwise reported, including cases dismissed in vacation1 . 427 In Memoriam : Stanley Matthews, LL.D. . . . 453 In Memoriam : John Archibald Campbell, LL.D. . 459 Appendix to the Reports of the Supreme Court from September, 1789, to the end o>f Volume 131 U. S. . . i Index to the Omitted Cases reported in the Appendix . cclxiv General Index to this Volume ..... cclxxxi 1 These cases being arranged in alphabetical order no other list of them is necessary. TABLE OF CASES CITED IN OPINIONS. PAGE Alexander v. Schreiber, 10 Missouri, 460 84, 85 Amory v. Meryweather, 2 B. & C. 573 347 Amy v. City of Watertown (No. 1), 130 U. S. 301 175 Anthony®. County of Jasper, 101 U. S. 693 173, 175 Arkansas Cattle Co. v. Mann, 130 U. S. 69 29 Baltimore & Ohio Bailroad v. Glenn, 28 Maryland, 287; aS. C. 92 Am. Dec. 688 333 Bank of Columbia v. Patterson, 7 Cranch, 299 381 Bank of Kentucky v. Ashley, 2 Pet. 32 29 Bank of United States v. Dan- bridge, 12 Wheat. 64 381, 382 Bank of Virginia v. Adams, 1 Parsons Sei. Cas. 534 332 Banks v. Manchester, 128 U. S. 244 151 Barclay v. Tallman, 4 Edw. Ch. 123 332 Barnes v. Underwood, 54 Georgia, 87 314 Bedford Railroad Co. v. Bowser, 48 Penn. St. 29 254 Bergey’s Appeal, 60 Penn. St. 408; N. C. 100 Am. Dec. 578 239 Bigelow v. Benedict, 70 N. Y. 202 345 Bishop of Winchester v. Paine, 11 Ves. 194 371 Bissell v. Spring Valley Town- ship, 110 U. S. 162 1J4 Bond v. Dustin, 112 U. S. 604 66 Bonner v. United States, 9 Wall. 156 14 Bowie v. The Poor School, 75 ( Virginia, 300 /333 Branch v. Jesup, 106 U. S. 468 385 Bridge Proprietors v. Hoboken Co., 1 Wall. 116 389 Brine v. Insurance Co., 96 U. S. 627 265 Brown, Ex parte, 116 U. S. 401 225 Brown v. Speyers, 20 Grattan, 296 346 Bryan v. Walton, 14 Georgia, 185 314 PAGE Burke v. Smith, 16 Wall. 390 254 Calder v. Bull, 3 Dall. 386 420 Callaghan v. Myers, 128 U. S. 617 150 Cameron v. Hodges, 127 U. S. 322 244 Canada Southern Railway v. Geb- hard, 109 U. S. 527 332 Carson v. Hyatt, 118 U. S. 279 244 Caujolle v. Ferriß, 13 Wall. 465 314 Chamberlain v. Enfield, 43 N. H. 356 25 Chapman v. Douglas County, 107 U. S. 348 389 Chateaugay Ore and Iron Co., Petitioner, 128 U. S. 544 226 Chicago Railway Co. v. United States, 127 U. S. 406 35 Choteau Spring Co. v. Harris, 20 Missouri, 382 253 Collier v. Gamble, 10 Missouri, 467 87 Commonwealth v. Hudson, 14 Gray,11 190 Connecticut Ins. Co. v. Cushman, 108U. S. 51 265' Coppell v. Hall, 7 Wall. 542 349 Comely v. Marckwald, 23 Blatchford, 163. 161 County of Morgan v. Allen, 103 U. S. 498 334, 366 Coy, In re, 127 U. S. 731 183 Cunningham v. Bank of Augusta, 71 Georgia, 400 348 Dair v. United States, 16 Wall. 1 318 Davie v. McDaniel, 47 Georgia, 195 314 Dickson v. Desire’s Adm’r., 23 Missouri, 151 87 Doe v. Challis, 17 Q. B. 166 210 Doe v. Harlow, 12 Ad. & El. 40 210 Donaldson v. Hull, 7 Martin (N. S.) 112 218 Dow v. Johnson, 100 U. S. 158 416, 417, 428» Dublin Township v. Milford Savings Institution, 128 U. S. 510 52, 58 Dundee Mortgage Co. v. Hughes, 124 U. S. 157 66 Dupont v. Mayo, 56 Georgia, 304 316 X TABLE OF CASES CITED. , PAGE Durant v. Abendroth, 69 N. Y. 148 75 Durant v. Abendroth, 97 N. Y. 132 73, 75 Eastern Railroad Co. v. United States, 129 U. S. 391 35 Equator Co. v. Hall, 106 Ü. S. 86 265 Eyster v. Gaff, 91 U. S. 521 371 Eareira v. Gabell, 89 Penn. St. 89 348 Fay v. Guynon, 131 Mass. 31 236 Ficklin’s Executor v. Carrington, 31 Grattan, 219 350 Finley v. Steele, 23 Illinois, 56 84, 86 Fire Insurance Association v. Wickham, 128 U. S. 426 52 Fisher v. Bridges, 3 Ell. & Bl. 642 348 Flagg v. Baldwin, 38 N. J. Eq. 218 348 Ford v. Surget, 97 U. S. 574 421 Foster v. Essex Bank, 16 Mass. 245; S. C. 8 Am. Dec. 135 420 Freeborn v. Smith, 2 Wall. 160 420 Galpin v. Page, 18 Wall. 350 285 Garrison v. City of New York, 21 Wall. 196 414 Gibbs v. Consolidated Gas Co., 130 U. S. 396 96 Gillaspie v. Citizen’s Bank, 35 La. Ann. 779 211 Glen Iron Works, In re, 20 Fed. Rep. 674 334 Glenn v. Williams, 60 Maryland, 93 330 Gold Mining Co. v. National Bank, 96 U. S. 640* 381 Grabill v. Moyer, 45 Penn. St. 530 238 Graham v. Railroad Co., 102 U. S. 148 • 366 Grande v. Herrerra, 15 Texas, 533 315 Gratz v. Ewalt, 2 Binney, 95 83, 84,85 Green Bay & Minnesota Railroad v. Union Steamboat Co., 107 U. S. 98 385 Griffith v. Frazier, 8 Cranch, 9 315 Griffiths v. Stears, 112 Penn. St. 523 348 Hambleton v. Glenn, 13 Virginia Law Journal, 242 330, 332, 333, 335 Harkness v. Russell, 118 U. S. 663 292 Hatch v. Dana, 101 U. S. 205 334 Heard v. Pierce, 8 Cush. 338; S. G. 54 Am. Dec. 757 277 Hollister v. Benedict & Burnham Manf’g Co., 113 U. S. 59 16 Hopkins v. Orr, 124 U. S. 510 29 Howard v. McKenzie, 54 Texas, 171 157 Indianapolis Railroad Co. v. Horst, 93 U. S. 291 120 Indianapolis Rolling Mill v. St. Louis &c. Railroad, 120 U. S. 256 381 PAGE Insurance Co. v. Rechner, 95 U. S. 183 244 Irwin v. Williar, 110 U. S. 499 345, 346 Jacobs v. Pou, 18 Georgia, 346 314 Jewell v. Knight, 123 U. S. 426 58 Johnston v. Johnston’s Admr., 31 Penn. St. 450 239 Jones v. Green, 1 Wall. 330 367 Justices, etc. v. Selman, 6 Georgia, 432 317 Kempe’s Lessee v. Kennedy, 5 Cranch, 173 284 Kennon v. Gilmer, 5 Montana, 257 24, 28 Kerr v. Clampitt, 95 U. S. 188 24 Kimball (The), 3 Wall. 37 290, 347 Kingsbury v. Kirwan, 77 N. Y. 612 346 Lange, Ex parte, 18 Wall. 163 182,184 Layman v. Bank of the United States, 12 How. 225 290 Lee v. Hall, 38 Michigan, 222 265 Lee v. Rook, Mosely, 318 212 Lewis v. Board of Commission- ers, 70 Georgia, 486 318 Lewis’s Administrator v. Glenn, 6 S. E. Rep. 866 333 Louisiana v. Mayor of New Orleans, 109 U. S. 285 413, 422 Louisiana v. Wood, 102 U. S. 294 389 Lowry v. Dillman, 59 Wis. 197; & G. 18 N. W. Rep. 4 348 McCormick v. Sullivan, 10 Wheat. 192 284 McDade r. Burch, 7 Georgia, 559; S. C. 50 Am. Dec. 407 314 McFaul v. Ramsey, 20 How. 523 24 McIntyre v. Giblin, 2 Utah, 384; 131 U. S. Appendix; S. C. 25 L. C. P. Co. Ed. 572 27 McKim v. Glenn, 66 Maryland, 479 335 McMullen v. Hodge, 5 Texas, 34 157 Maggi v. Cutts, 123 Mass. 535 25 Marsh v. People, 15 Ill. 284 316 Marsh v. Pike, 10 Paige, 595 212 Martin v. Travellers’ Insurance «Co., 1 Foster & Fin. 505 121 Mason v. Eldred, 6 Wall. 231 74 Matthis v. Morgan, 72 Georgia, 517 318 Maxwell, Ex parte, 37 Alabama, 362; S. G. 79 Am. Dec. 62 315 Merchants’ Bank v. Bergen County, 115 U. S. 384 174 Merrell v. Tice, 104 U. S. 557 150 Meyer r. Blair, 109 N. Y. 600 256 Moore v. Bank of Commerce, 52 Missouri, 377 253 Morey v. Commonwealth, 108 Mass. 433 187, 188, 190 TABLE OF CASES CITED. xi PAGE Morgan, Exporte, 114 U. S. 174 226 Morgan County v. Allen, 103 U. S. 498 ' 330 Mosley’s Adm’rs. » Martin, 37 Alabama, 219 315 Mumma v. Potomac Co., 8 Pet. 281 366 Murray v. Ballou, 1 Johns. Ch. 566 371 New Orleans v. Gaines, 15 Wall. 624 210 North American Insurance Co. v. Burroughs, 69 Penn. St. 43 122 Northern Bank v. Porter Township, 110 U. £ 608 174 Nudd v. Burrows, 91 U. S. 426 120 Oregon Railway v. Oregonian Railway, 130 Ü. S. 1 385 Parker, Exporte, 120 U. S. 737 226 Parker v. D’Acres, 3 Washington Territ. 12 224 Parkersburg v. Brown, 106 U. S. 487 389 Parks, Exporte, 93 U. S. 18 184 Patterson v. Lemon, 50 Georgia, 231 314 Patterson v. Lynde, 112 Illinois, 196 332 Pearce v. Madison & Indianapolis Railroad, 21 How. 441 385 Peerce v. Kitzmiller, 19 West Virginia, 564 412, 420 Pennsylvania Railroad v. St. Louis &c. Railroad, 118 ü. S. 290 385, 390 People v. Collins, 19 Wend. 56 227 Peter v. Beverly, 10 Pet. 532 289, 347 Petrie v. Hannay, 3 T. R. 418 347 Pneumatic Gas Co. v. Berry, 113 U. S. 322 381 Pullman v. Upton, 96 U. S. 328 335 Railroad Co. v. Barron, 5 Wall. 90 26', 27 Railroad Co. v. Koontz, 104 U. S. 5 243 Railroad Co. v. Mississippi, 102 U. S. 135 243 Railway Co. v. Heck, 102 U. S. 120 24 Randall v. Brigham, 7 Wall. 523 278 Ranelaugh v. Hayes, 1 Vernon, 189 212 Reading v. Waterman, 46 Michigan, 107 252, 264 Richmond v. Irons, 121 U. S. 27 335 Robinson, Ex parte, 19 Wall. 505 276 Rountree v. Smith, 108 U. S. 269 345 Rude v. Westcott, 130 U. S. 152 161 Rudolf v. Winters, 7 Nebraska, 126 348 Salt Lake City v. Hollister, 118 U. S. 256 390 PAGE Sampeyreac v. United States, 7 Pet. 222 420 Sanger v. Upton, 91 U. S. 56 329 Satterlee v. Matthewson, 2 Pet. 380 415, 420 Savin, Petitioner, 131 U. S. 267 284 Scovill v. Thayer, 105 U. S. 143 333 Sharp v. Hutchinson, 100 N. Y. 533 75 Sheehy v. Mandeville, 6 Cranch, 253 289,347 Siebold, Ex parte, 100 U. S. 371 182, 183, 184 Sloan v. Holcomb, 29 Mich. 153 263 Smith v. Virginia Midland Rail- road, 33 Grattan, 617 333 Snow, In re, 120 U. S. 274 182, 185 Southard v. Railway Passengers’ Insurance Co., 34 Connecticut, 574 122 South Ottawa v. Perkins, 94 U. S. 260 265 Southwick v. Southwick, 2 Sweeny (N. Y.) 234 236 State v. Cooper, 1 Green, N. J. Law, 361; 8. C. 25 Am. Dec. 490 190 State v. Nutt, 28 Vermont, 598 190 State v. Warner, 55 Wisconsin, 571 227 Steamship Co. v. Tugman, 106 U. S. 118 243 Steen v. Bennett, 24 Vermont, 303 315 Steers v. Lashley, 6 T. R. 61 347 Stevens v. Nichols, 130 U. S. 230 243, 245 Stewart v. Anderson, 10 Alabama, 504 84 Stone v. South Carolina, 117 U. S. 430 , 243,244 Story v. Salomon, 71 N. Y. 420 346 Sumner v. Hicks, 2 Black, 532 265 Taylor v. Herriot, 4 Desaussure, 227 212 Taylor v. Root, 4 Keyes, 335 425 Tenney v. Foote, 95 Illinois, 991 348 Terry, Exporte, 128 U. S. 289 274, 276, 277 Thomas ».Railroad Co., 101 U. S. 71 385 Thompson v. United States, 103 U. S. 480 227 Todd v. Rowley, 8 Allen, 51 25 Trustees v. Sheik, 119 111. 579 318 Union Trust Co. v. Inland Navi- gation &c. Co., 130 U. S. 565 371 United States v. Alire, 6 Wall. 573 14, 17 United States v. Behan, 110 U. S. 338 16 United States v. Briggs, 5 How. 208 58 xii TABLE OF CASES CITED. PAGE United States v. Curtis, 107 U. S. 671 53,54 United States v. Gillis, 95 U. S. 407 15 United States v. Great Falls Manufacturing Co., 112 U. S. 645 16 United States v. Hall, 131 U. S. 50 59 United States v. Northway, 120 U. S.327 58 United States v. Schurz, 102 U. S. 378 15 Upton v. Tribilcock, 91 U. S. 45 335 Van Weel v. Winston, 115 U. S. 228 367 Wabash &c. Railway v. Ham, 114 U. S. 587 366 Watson v. Mercer, 8 Pet. 88 420 PAGE Webster v. Reid, 11 How. 437 * 28 Weemo v. McCaughan, 7 Smedes & Marsh. 427 ; S. C. 45 Am. Dec. 314 84 Weyauwega v. Ayling, 99 U. S. 112 174, 175 Wheaton v. Peters, 8 Pet. 591 150,151 White v. Kuntz, 107 N. Y. 518 255 Williams v. Freeland, 2 West Virginia, 306 407 Wilson, Ex parte, 114 U. S. 417 184 Winston v. Vaughan, 22 Arkan- sas, 72; S. C. 76 Am. Dec. 418 84 Wooldridge v. Norri’s, L. R. 6 Eq. 410 212 Zabriskie v. Cleveland &c. Railroad, 23 How. 381 381 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. PAGE 1789, Sept. 24, 1 Stat. 83, e. 20... 244, 274, 275, 276 1790, May 31, 1 Stat. 125, c. 15.. 150 1802, April 29, 2 Stat. 171, c. 36. 150 1823, Feb. 28, 3 Stat. 727.......... 21 1831, Feb. 3, 4 Stat. 437, c. 16... 150 1831, March 2, 4 Stat. 487, c. 99. 274, 275, 276 1855, Feb. 24, 10 Stat. 612, c. 122 14, 15, 16, 17 1858, June 2, 11 Stat. 294.......... 21 1863, March 3, 12 Stat. 765, c. 92, 14, 15, 16, 17 1864, May 26, 13 Stat. 91, c. 95.. 28 1866, Julv 25, 14 Stat. 245........ 386 1867, March 2, 14 Stat. 526, c. 176..................67, 73, 74 1869, April 10, 16 Stat. 45........ 237 1870, July 8, 16 Stat. 214, c. 230 . 150 1872, June 1, 17 Stat. 197......... 120 1874; June 18, 18 Stat. 78, c. 301. 149 1875, Feb. 16, 18 Stat. 315, c. 77. 38 1875, March 3, 18 Stat. 470 ...... 243, 244, 365, 366, 370 1880, April 7, 21 Stat. 72.......... 34 1881, Feb. 26, 21 Stat. 352, c. 82. 53, 54 PAGE 1882, March 22, 22 Stat. 31 . .182, 189 1887, March 3, 24 Stat. 505 ..... 14, 15, 16, 18, 20, 36, 37, 38, 39 Revised Statutes. § 649...................... 259 § 700..................... 259 § 707..........................18, 39 § 708...................... 39 § 725....274, 275, 276, 277, 278, 283, 284, 285, 286 § 738...................... 366 § 754....'................. 283 § 757.................... 283 § 760...................... 283 § 761...................... 283 § 914..................... 120 § 1891........................... 28 § 3960........................ 33, 34 § 3961........................ 33, 34 § 4962...................... 149, 150 § 5106........................ 73, 74 § 5118............................ 74 § 5211..................;........ 53 § 5399.......................... 275 Rev. Stat. District of Columbia. § 876 .........................’. 236 § 877............................ 236 (B.) Statutes of the States and Territories. Georgia. 1812, Dec. 10.............. 317 Code, 1882, § 4............ 315 § 1817......... 316 § 2499......... 315 § 2500......... 315 § 2509......... 316 § 2512......... 315 § 2514......314, 315 § 2610......... 315 Illinois. 1853, Feb. 12...................... 387 1854, Feb. 28...................... 386 1855, Feb. 12...................... 386 1865, Feb. 16...................... 386 1867, Feb. 25...................... 386 1867, March 5...................... 387 1869, March 11......................387 Starr & Curtis Rev. Stat. c. 32, § 25 ................ 367 xiv TABLE OF STATUTES CITED. PAGE Michigan. Comp. Laws, 1871, § 6912... 260 § 6913... 260 § 6914... 260 § 6915... 260 Howell’s Stat. §§ 5674-5677 . 263 § 5683...... 263 Missouri. Gen. Stat. 1865, p. 444, § 8... 84 Montana. 1881, Feb. 23, § 7.............24, 29 Code of Civil Procedure, 1879, § 62................. 24 § 241........................... 29 § 285........................... 29 § 408...-.....................24, 29 § 428........................... 29 New Mexico. Compiled Laws, 1884, § 2750, p. 1306 ................... 81 Prince’s Laws, 68-9, § 5 .... 289 Pennsylvania. 1715, May 28..................... 82 1848, April 11............ 238, 239 1861, April 23.................. 388 1870, Feb. 17.................. 388 PAGE Texas. Rev. Stat. Art. 422.............. 171 Art. 423......... 171 Virginia. Rev. Code (1819), p. 491, § 14 351 Code (1860), c. 56, § 30 .. 331 c. 57, § 21.... 336 § 24 ... 335 § 25 ... 335 Code (1873), te. 56, § 31 . ... 331 C. 57, § 23 ... 336 § 26 ... 334 § 27 ... 335 C. 146, § 8..... 349 § 14.... 349 § 20 ... 350 Washington. 1883, Nov. 23.................223, 224 Code, § 2140..................224, 225 West Virginia. Acts 1872-3, c. 58, § 3.......... 412 Wisconsin. Rev. Stat. 1878, c. 128, tit. 25, § 2858 ................... 119 (C.) Foreign Statutes. France. Code Napoléon, Art. 1166....................'.................... 213 Great Britain. 6 Anne, c. 35, § 30.... t................................. .......... 82 8 & 9 Viet. c. 109, § 18............................................ 344 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1888. -----&--- UNITED ^TATjE^-y^ONES. qV We are unable from the record before us to say that the Circuit Court erred in denying the application for the writ of habeas corpus. The statute requires the application for a writ of habeas corpus to set forth “ the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known.” Rev. Stat., § 754. The return must specify the true cause of detention, and the petitioner, or the party imprisoned, “ may deny any of the facts set forth in the return, or may allege any other facts that may be material in the case.” Such denials or allegations must be under oath, and amendments may be made, with the leave of the court, “ so that thereby the material facts may be ascertained,” and the matter disposed of “as law and justice require.” Rev. Stat., §§ 757, 760, 761. The present application does show in whose custody and by virtue of what authority the appellant is detained; but it sets forth the facts concerning his detention so far only as they are disclosed, as above, by the minutes, files and records of the District Court. It is staffed in the brief of appellants’ counsel, and the statement was repeated at the' bar, that the difference between the Savin case, just determined, ante, 267, and the present case is, that the misbehavior constituting the contempt with which Savin is charged occurred in the court 284 OCTOBER TERM, 1888. Opinion of the Court. building and while the court was in session; whereas, the misbehavior with which Cuddy is charged did not occur in the court building, nor, so far as the record of the District Court shows, while the court was in session. It was assumed in argument that, under no view of the facts, could the misbehavior of Cuddy be deemed to have occurred in the presence of the court or so near thereto as to obstruct the administration of justice, and therefore his offence, if punishable at all, was punishable only by indictment. But both the petition for habeas corpus and the record of the District Court are silent as to the particular locality where the appellant approached McGarvin, with a view of improperly influencing his actions in the event of his being sworn as a juror in the case of United States v. Young. That which, according to the finding and judgment, the appellant did, if done in the presence of the court, that is, in the place set apart for the use of the court, its officers, jurors and witnesses, was clearly a contempt, punishable, as provided in § 725 of the Revised Statutes, by fine or imprisonment, at the discretion of the court, and without indictment. Savin, Petitioner, ante, 267. The District Court possesses superior jurisdiction, within the meaning of the familiar rule that the judgments of courts of that character cannot be assailed collaterally, except upon grounds that impeach their jurisdiction. In Kempes Lessee n. Kennedy, 5 Cranch, 173, 185, Chief Justice Marshall, after observing that the words “ inferior court w apply to courts of special and limited authority, erected on such principles that their proceedings must show jurisdiction, said : “ The courts of the United States are all of limited jurisdiction, and their proceedings are erroneous if the jurisdiction be not shown upon them. Judgments rendered in such cases may certainly be reversed, but this court is not prepared to say that they are absolute nullities, which may be totally disregarded.” In McCormick v. Sullivant, 10 Wheat, 192, 199, where the question was, whether a decree in a suit in the Federal District Court of Ohio, which did not show that the parties were citizens of different States, was coram non judice and void, the court said that the reason assigned for holding that decree void CUDDY, Petitioner. 285 Opinion of the Court. “proceeds upon an incorrect view of the character and jurisdiction of the inferior courts of the United States. They are all of limited jurisdiction ; but they are not, on that account, inferior courts, in the technical sense of those words, whose judgments, taken alone, are to be disregarded. If the jurisdiction be not alleged in the proceedings, their judgments and decrees are erroneous, and may, upon a writ of error or appeal, be reversed for that cause. But they are not absolute nullities.” And in Galpin v. Page, 18 Wall. 350, 365, the court said: “ It is undoubtedly true that a superior court of general jurisdiction, proceeding within the general scope of its powers, is presumed to act rightly. All intendments of law in such cases are in favor of its acts. It is presumed to have jurisdiction to give the judgments it renders until the contrary appears. And this presumption embraces jurisdiction not only of the cause or subject matter of. the action in which the judgment is given, but of the parties also.” The general rule that, unless the contrary appears from the record, a cause is deemed to be without the jurisdiction of a Circuit or District Court of the United States — their jurisdiction being limited by the Constitution and acts of Congress — has no application where the judgments of such courts are attacked collaterally. Unless, therefore, the want of jurisdiction, as to subject matter or parties, appears, in some proper form, every intendment must be made in support of the judgment of a court of that character. The District Courts of the United States, invested with power to punish, without indictment, and by fine or imprisonment, at their discretion, contempts of their authority, are none the less superior courts of general jurisdiction, because the statute declares that such power to punish contempts “shall not be construed” to extend to any cases except misbehavior in the presence of the court, misbehavior so near thereto as to obstruct the administration of justice, and disobedience or resistance to its lawful writ, process, order, rule, decree, or command. Rev. Stat. 725. The only effect °f this limitation is to narrow the field for the exercise of their general power, as courts of superior jurisdiction, to punish contempts of their authority. 286 OCTOBER TERM, 1888. Opinion of the Court. The record in the present case shows that the appellant .was before the court; that testimony was heard in respect to the matter of contempt; and that the appellant testified in his own behalf. The judgment being attacked collaterally, and the record disclosing a case of contempt, and not showing one beyond the jurisdiction of the court, it must be presumed, in this proceeding, that the evidence made a case within its jurisdiction to punish in the mode pursued here. We do not mean to say that this presumption as to jurisdictional facts, about which the record is silent, may not be overcome by evidence. On the contrary, if the appellant had alleged such facts as indicated that the misbehavior with which he was charged was not such as, under § 725 of the Revised Statutes, made him liable to fine or imprisonment, at the discretion of the court, he would have been entitled to the writ, and, upon proving such facts, to have been discharged. Such evidence would not have contradicted the record. But he made no such allegation in his application, and, so far as the record shows, no such proof. The general averment, in the petition, that he was detained in violation of the Constitution and laws of the United States, and that the District Court had no jurisdiction or authority to try and sentence him, in the manner and form above stated, is an averment of a conclusion of law, and not of facts, that would, if found to exist, displace the presumption the law makes in support of the judgment. As it was neither alleged nor proved that the contempt, which the appellant was adjudged, upon notice and hearing, to have committed, was not Committed in the presence of the court, and as his misbehavior, if it occurred in its presence, made him liable to fine or imprisonment, at the discretion of the court, it must be held that the want of jurisdiction is not affirmatively shown; consequently, that it does not appear that error was committed in refusing the writ. Whether the attempt to influence the conduct of the term trial juror McG-arvin was or was not, within the meaning of the statute, misbehavior so near to the court “ as to obstruct the administration of justice,” however distant from the court building may have been the place where the appellant met SEGRIST v. CRABTREE. 287 Opinion of the Court. him, is a question upon which it is not necessary to express an opinion. For the reasons stated, the judgment below is Affirmed. SEGRIST v. CRABTREE. ERROR TO THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO. No. 115. Argued December 7,10, 1888.— Decided May 13, 1889. The instructions of the court below fairly left it to the jury to determine whether the sale of cattle, which is the subject of this controversy, was an absolute sale or a conditional sale. Trover. Plea, the general issue. Verdict for plaintiff and judgment on the verdict. Defendants sued out this writ of error. The case is stated in the opinion. M. 0. D. Barrett, (with whom was Mr. W. I. Thornton on the brief,) for plaintiffs in error. Mr. S. F. Phillips, (with whom were Mr. W. H. Lamar and Mr. J. Gr. Zachry on the brief,) for defendant in error. Mr. Justice Harlan delivered the opinion of the court. This is an action of trover. It was brought in the District Court of the First Judicial District of New Mexico, to recover damages for the conversion by the plaintiffs in error to their own use of certain cattle and horses of which the defendant in error, who was the plaintiff below, claimed to be the owner. The alleged unlawful conversion occurred in that Territory. The defendant Segrist, separately, and the defendants Stapp, Stoops and Holstine, jointly, pleaded not guilty. The record oes not show service of process upon Bell, nor any appear-ance by him. There was a trial before a jury, resulting in a 288 OCTOBER TERM, 1888. Opinion of the Court. verdict for $6033.04 in favor of the plaintiff against the defendants, followed — a motion for a new trial having been made and overruled — by a judgment for the above amount against Segrist, Stapp and Stoops. Upon appeal to the Supreme Court of the Territory the judgment was affirmed. The bill of exceptions taken at the trial contains, though in very confused form, the entire evidence in the case. It is so stated as to render it difficult to understand the precise facts: but upon a careful scrutiny of all the testimony, we think that the general nature of the case is fairly indicated in the following extract from the opinion of the Supreme Court of the Territory, made part of the transcript: “ In 1880 the plaintiff bought of one Babb the remnant, as it is termed in the record, of the latter’s herd of cattle, then to be found on certain ranges in Texas. The plaintiff came after said cattle and secured them. “ At the time of making this agreement plaintiff gave Babb notes for the amount agreed upon as the purchase money, and received from Babb a bill of sale for the cattle. Thereafter plaintiff secured and took possession of the cattle, but how many head there were does not appear from the evidence in the record before us. “The only serious contention in the evidence is, as to whether this transaction was an absolute or merely a conditional sale, the plaintiff insisting and giving evidence tending to show that the sale was absolute, accompanied by a bill of sale absolute on its face, and by delivery of possession of the cattle as fast as they could be secured by him, and that his notes were given in full satisfaction. These notes consist of two promissory notes, each for the sum of eight hundred dollars, one payable in September, 1881, and the other in September, 1882. The defendant, however, insists and introduced evidence tending to show that the sale was conditional upon the payment of the notes at maturity, it being agreed between the plaintiff and Babb that the title to the cattle should remain in the latter until the notes were paid, and that if not paid when due he might assert his title and resume possession of the cattle. After the cattle were secured by the plaintiff he drove them SEGRIST v. CRABTREE. 289 Opinion of the Court. from the range in Texas, upon which they had been found by him, into Lincoln County, New Mexico. “The notes were not paid at maturity, and thereafter, in January or February, 1882, Babb undertook to sell the cattle to the defendants. He sent his son, armed with a power of attorney, to take possession of the cattle. This son, accompanied by the defendants or some of them, went on the range in New Mexico, where the cattle were being herded in connection with other cattle belonging to the plaintiff, in charge of an employé of the plaintiff, and took possession of them and sold them to the defendants. It does not appear that this employé of the plaintiff had any authority to give up the possession of the cattle.” The Supreme Court of the Territory deemed it proper to consider only such questions as were brought to the attention of the trial court. This general rule, it said, was strengthened by this statutory provision, in force in that territory, that : “ No exception shall be taken in an appeal to any proceeding in the District Court except such as shall have been expressly decided in that court.” Prince’s Laws, 68-9, § 5. One of the principal questions arising upon the evidence was whether the two notes, payable respectively in September, 1881, and September, 1882, were received in actual payment, (in which event the remedy is upon the notes,) or only as evidence of the amount to be paid by Crabtree. In Sheehy v. Mandeville, 6 Cranch, 253, 264, Chief Justice Marshall said: “That a note, without a special contract, would not, of itself, discharge the original cause of action, is not denied. But it is insisted that if, by express agreement, the note is received as payment, it satisfies the original contract, and the party receiving it must take his remedy on it. This principle appears to be well settled. ... Since, then, the plaintiff has not taken issue on the averment that the note was given and received in discharge of the account, but has demurred to t e plea, that fact is admitted : and, being admitted, it bars he action for the goods.” In Peter v. Beverley, 10 Pet. 532, 8, it was said that the acceptance of a negotiable note for an antecedent debt will not extinguish such debt, unless the 19 290 OCTOBER TERM, 1888. Opinion of the Court. evidence is at least so clear and satisfactory as to leave no reasonable doubt that such was the intention of the parties. In Layman v. Bank of the United States, 12 How. 225, 243, it was held that the mere acceptance of the note by the creditor does not necessarily operate as satisfaction of the original debt, and whether or not there was an agreement at the time to receive it in satisfaction, or whether the circumstances attending the transaction warranted such an inference, were properly questions for the jury. In The Kimball, 3 Wall. 37, 45, the court said that “by the general commercial law, as well of England as of the United States, a promissory note does not discharge the debt for which it is given unless such be the express agreement of the parties; it only operates to extend until its maturity the period for the payment of the debt. The creditor may return the note when dishonored, and proceed upon the original debt. The acceptance of the note is considered as accompanied with the condition of its payment.” These cases show the course of decision in this court. In some of the States the mere acceptance of a note for the amount of a debt raises a presumption of payment. The contention of the appellants is that the instructions given at the request of the plaintiff, and the charge of the court, were in conflict with or did not conform to, the principles settled in the above cases. There is some slight ground for this contention, arising out of the multiplicity of the instructions given. All the instructions asked, except one on each side, were given, and they were supplemented by a charge covering substantially the same ground. But taking as a whole all the instructions given, and interpreting them in the light of the charge delivered by the court, they are not subject to the criticism of being so inharmonious or misleading as to justify a reversal. The question whether the notes were given and accepted in payment for the cattle was fairly left to the jury. And although they were not told, in words, that an express or special agreement was necessary before the notes could be deemed to have been received in satisfaction of the original debt* they were substantially so instructed. At the instance of the defendants, and in language of which, perhaps, SEGRIST v. CRABTREE. 291 Opinion of the Court. the plaintiff might complain, they were instructed that “a promissory note is never considered as payment, unless it is taken absolutely as payment; if there be any agreement that a note is not to be considered payment if unpaid at maturity, then it is no payment; but the payment of the note only will be the payment of the original claim; and in such case the original contract will remain independent of the notes.” The court, upon its motion, said to the jury that if they “ found from the evidence that Babb sold and delivered the stock on the range and took promissory notes in payment, this would be an absolute, unconditional sale, and Babb could not retake the stock. Babb’s remedy in such case would be by suit to collect what might be due him upon said notes.” The principal instruction given, at the instance of the plaintiff, left it to the jury to determine whether the notes were actually given and accepted in absolute payment for the cattle. That is one form of saying that they were so given and so accepted, pursuant to an understanding, that is, by special agreement between the parties, that the original debt should, in that mode, be extinguished. The instructions and the charge mean that if the sale was an unconditional one, and if the notes were given, and accepted as absolute payment, the original debt was extinguished, and the remedy of the defendant was on the notes. There was in this no error to the prejudice of the defendants; for the facts thus hypothetically stated to the jury imported a special agreement between the parties that the notes were to be taken in payment. Among the instructions given to the jury at the instance of the plaintiff was the following: “If you find from the evidence that the plaintiff or the plaintiff and his brother purchased the cattle from W. M. Babb or y. T. Babb, and that he or they gave their promissory notes m payment therefor, and the same were accepted by the Babbs, although the notes "were taken only as conditional payments, yet they would be prima facie evidence of payment, and the said Babbs, whilst holding said notes, could not proceed to take possession of the said cattle and horses as their own. heir remedy would be upon the notes or to cancel the trade ; 292 OCTOBER TERM, 1888. Opinion of the Court. and if you find from the evidence that said Babbs did, under the circumstances just mentioned, take possession of said cattle without authority of the plaintiff and dispose of them to the defendants, you will find for the plaintiff the value of the cattle and horses at the time of taking the same, with interest.” Taken in connection with other instructions, this was intended only to express the idea that, if the notes were taken as conditional payment only, they would be regarded as prima facie evidence of payment, so long as the Babbs held them, and until by non-payment they ceased to have any force, if the Babbs elected to so treat them. The court below properly held that they could not rightfully retake the cattle, while they retained the notes. Nor, in our judgment, was any error committed by the instructions relating to the question of the title to the property, as affected by the contract of sale. In Harkness n. Russell, 118 U. S. 663, 668, this court, after a full examination of the adjudged cases, recognized the general rule — at least as between the original parties to a conditional sale, and where the subject is not controlled by local statutes — to be as stated by Mr. Benjamin in his treatise on sales of personal property, namely: “ Where the buyer is by contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer. Nothing was said in the instructions or charge in conflict with this doctrine. The jury were told that a bargain and sale of personal property, accompanied by delivery, divests the vendor of any lien for payment, unless such lien is secured by chattel mortgage or by agreement between the parties; that if the bill of sale in evidence was not given to pass the absolute title, but simply to enable plaintiff to use it in gathering the cattle, and that it was agreed that the cattle were to remain the property of Babb until paid for according to the terms of the notes, it must not be considered as transferring the title; and that, in such case, Babb had the right, upon the failure to pay VEACH v. RICE. 293 Syllabus. the notes when due, (if he did not elect to keep the notes,) to retake the cattle and sell them; but if there was no such agreement, and if the notes were given and accepted as absolute payment, without any reservation of a lien, that Babb, in order to enforce payment, would have no right to retake the cattle from the possession of the plaintiff or of his agent. And that there might be no confusion in the mind of the jury as to the right of Babb to resume possession of the cattle, they were instructed to find for the defendants, if they believed from the evidence that Carter, in whose possession they were when retaken, had authority from Crabtree to settle his debts and to sell and dispose of his cattle, and that he delivered them, under authority from Crabtree, in payment of the notes. In all this we do not perceive any error to the prejudice of the substantial rights of the defendants. There are no other questions presented that we deem it necessary to notice, and the judgment must be Affirmed. VEACH v. BICE. appeal from the circuit court of the united states FOR TRE NORTHERN DISTRICT OF GEORGIA. No. 208. Argued March 15, 18, 1889.—Decided May 13, 1889. The judgments of Courts of Ordinary in Georgia in respect to subject matter within their jurisdiction are no more open to collateral attack than those of any other court. The judgment of the Court of Ordinary allowing the resignation of one of two administrators upon proceedings had pursuant to statute, and discharging him after he had accounted to his co-administrator, and the latter had given a new bond, operated to exonerate the sureties upon the joint bond of both from liability for a devastavit committed after such order of discharge. Cross-bills are necessary where certain defendants seek affirmative relief against their codefendants. here the Ordinary takes an administrator’s bond in good faith, and it appears after liability has been incurred, that the names of some of the supposed sureties were signed thereto without authority, the mere fact 294 OCTOBER TERM, 1888. Statement of the Case. that the Utter cannot be held, will not constitute a defence as to those who executed the bond without being misled or having relied upon the others being bound. The court, in its opinion, stated the case as follows: James L. Rice and his wife, Ada S. Rice, citizens of the State of Tennessee, filed their bill of complaint, July 12th, 1881, in the Circuit Court of the United States for the Northern District of Georgia, against Frank P. Gray and his wife, Cora M., and also against said Gray as administrator of the estate of Lewis Tumlin, deceased, and also as guardian of the said Cora M., Napoleon B. Tumlin, George H. Tumlin, Lula T. Lyon, John S. Leake, John W. Gray, William T. Wofford, A. P. Wofford, Edwin M. Price, John G. B. Erwin, Henry C. Erwin, James M. Veach, Robert L. Rogers, W. I. Benham, John J. Howard, A. W. Mitchell, Mary L. Spencer, Francis M. Ford, Noah King, Thomas W. Leake, Henry C. Ramsauer, administrator, and others, all citizens of the State of Georgia, alleging that on the 2d day of June, 1875, one Lewis Tumlin, of the county of Bartow, Georgia, died intestate, leaving as his heirs-at-law, his wife Mary L. Tumlin, now Mary L. Spencer; his sons, Napoleon B. Tumlin and George H. Tumlin; his daughters, the said Ada S. Rice, formerly Ada S. Tumlin, Lula T. Lyon, formerly Lula T. Tumlin, Cora M. Gray, formerly Cora M. Tumlin; and one Lewis T. Erwin, the son of a deceased daughter, who has sold and conveyed his interest in said estate to John S. Leake, each of whom upon his death was entitled to one seventh part of his estate, his wife having elected to take a child’s part in lieu of dower; that the estate was of the aggregate value of about $300,000; that Frank P. Gray and Napoleon B. Tumlin obtained temporary letters of administration on said estate on the 11th day of June, 1875, giving bond in the sum of $200,000, with Abda Johnson, William T. Wofford, John W. Gray, James M. Veach and Edwin M. Price as sureties; that on the second day of August, 1875, said Frank P. Gray and one John A. Erwin obtained permanent letters of administration on said estate and gave bond as such, in the sum of $600,000 with Abda Johnson, William VEACH v. RICE. 295 Statement of the Case. T. Wofford, John W. Gray, James M. Veach, Edwin M. Price, Noah King, A. C. Trimble, Joel H. Dyer, William W. Rich, James C. Wofford, Nelson Gilreath, J. J. Howard, Robert L. Rogers, William I. Benham, John S. Leake, A. W. Mitchell, J. G. B. Erwin, Henry C. Erwin and Lewis R. Ramsauer, intestate of Henry C. Ramsauer, and one Thomas Stakley and one Thomas Tumlin as sureties; that John A. Erwin had since that time removed from the State of Georgia to the State of Tennessee, and the said Thomas Tumlin had removed to Alabama; that Stakley had died intestate and no letters of administration had been granted on his estate until within less than twelve months before the filing of this bill; that said Abda Johnson died July 10, 1881, and his estate is now unrepresented, and for these reasons said Erwin, Tumlin, Stakley and Johnson are not made parties; that said Lewis R. Ramsauer died intestate, and Henry C. Ramsauer has qualified as his administrator, and as such is made a party, and “that the joint administration of said Frank P. Gray and John A. Erwin continued from the second day of August, 1875, until the second day of May, 1876, when the said John A. Erwin resigned, and his resignation was accepted by the Court of Ordinary of the county of Bartow.” Complainants are informed and believe that Erwin resigned to avoid “ the consequences of said Gray’s waste and mismanagement,” and thereupon “ said Gray became sole administrator, against the consent and at the protest of all the heirs except Cora M. Gray and Mary L. Spencer, and gave bond as sole administrator in the sum of $140,000, with the said Abda Johnson, William T. Wofford, Edwin M. Price, Noah King, William W. Rich, John W. Gray, Nelson Gilreath, James C. Wofford, John S. Leake and Thomas W. Leake as sureties;” that on the 18th day of October, 1877, said William T. Wofford, James C. Wofford and William W. Rich applied to be relieved from their suretyship on the bond aforesaid on account of their want of confidence in the said Gray, and were so relieved, and said Gray gave a new bond as such administrator for the same sum, “ with the said Abda Johnson, Nelson Gilreath, Noah King, John S. Leake, Thomas W. Leake, 296 OCTOBER TERM, 1888. Statement of the Case. Thomas Tumlin, John W. Gray, Absalom P. Wofford and Francis M. Ford as sureties; ” “ that on the sixth day of May, 1878, said Noah King applied to be relieved on his bond last aforesaid, and was so relieved, and the said Frank P. Gray gave another bond as administrator in the sum of $140,000, with the said Abda Johnson, Nelson Gilreath, John W. Gray, Absalom P. Wofford, John S. Leake, Thomas W. Leake $nd Francis M. Ford as sureties; ” and “ that since that time said Gray has continued to act as administrator under the bond last afqresaid and is still in possession of the effects of said estate not heretofore disposed of.” Complainants show that Lewis Tumlin had made some advancements to some of his children, and on the second day of October, 1875, a distribution of property in kind was made, each of the heirs receiving $24,000, including the advancements; that since that time there has been no distribution, but some amounts have been received by some of the heirs; that Tum-lin’s estate was abundantly solvent and his liabilities should have been long since discharged and the estate wound up and the balance distributed, “ which said Gray undertook and promised to do by his several bonds aforesaid,” but he has not done it, and has refused to account or to pay over to complainants their distributive share; that Gray has been guilty of negligence, waste and fraud, which complainants proceed to charge in detail; and that said Lula T. Lyon heretofore filed her bill against said Gray as administrator, in the Superior Court of Bartow County, Georgia, seeking an account of her distributive share in said estate, and praying for an injunction to restrain said Gray from selling the real estate of said Tumlin, which he was, on or about the first day of January last, seeking to do, which injunction “ had been granted by the judge of said court and had duly issued.” After charging further acts of fraud and waste, the bill proceeds: “ Complainants are unable to state in many instances the date at which the waste of said estate was committed by said Gray, but they are informed and believe that most of it occurred after the resignation of said Erwin, and after his present bond was given, to wit, the one bearing date the 6th of May, 1878;” that Gray is insol- VEACH v. RICE. 297 Statement of the Case. vent; that A. P. Wofford, John W. Gray and Nelson Gilreath are insolvent; that Abda Johnson left considerable property, but his affairs are embarrassed; that John S. and Thomas W. Leake and Francis M. Ford are not worth exceeding $20,300 ; that large sums are due Tumlin’s estate, which also owns several thousand dollars’ worth of real estate; that many suits are pending in favor of the estate for the recovery of money and property, and also many suits against the estate, all of which should have been tried and disposed of long since; that the estate is solvent and Gray has ample means in his hands to pay off any recovery against it, but Gray has purposely delayed bringing the suits to trial in order to postpone the final settlement of the estate; that Gray has for several years been absent from Georgia, much of his time in Mississippi, and has declared his purpose to remove to that State; that on the 18th day of June, 1881, he filed in the office of the Ordinary of §aid county his resignation as administrator ; that the heirs will be forced to suggest some other person as his successor, and whoever may be appointed the decision may be appealed from, and pending that, “ a temporary administrator with limited powers would be the Qnly representative of said estate ; ” and “ that unless they can have the immediate aid of a court of equity by such suitable injunction and restraining order, and the early appointment of a receiver, the interests of said estate will suffer great and. immediate loss, and complainants and the other heirs-at-law of Lewis Tumlin will be injured beyond remedy.” They pray for answer but not upon oath, and for an injunction and an account, “and that complainants may have a decree for their distributive share in said estate against the said Frank P. Gray and his sureties on his administration bonds aforesaid, and that the respective liabilities of said several securities may be ascertained and fixed by said decree; ” and for general relief. Copies of the various bonds were filed as exhibits with the bill and also a copy of Gray’s petition to resign as administrator, with citation to the heirs of Tumlin to appear before the Ordinary on the first Monday in July, 1881, to show cause why the resignation should not be allowed and James C. Wof- 298 OCTOBER TERM, 1888. Statement of the Case. ford appointed administrator in Gray’s stead, with return of service on several of the heirs and on Wofford. September 5th, 1881, defendants Napoleon B. Tumlin, George H. Tumlin, Mary L. Spencer, and Lula T. Lyon filed their answer, admitting the allegations of complainants’ bill, and saying that they have a common interest with complainants in Tumlin’s estate, and join in the charges and allegations of the bill against their codefendants, and unite in the prayers in said bill contained, and pray an account and for a decree against Gray and his securities. October 3d, 1881, Gray and “his securities” answered, denying waste or maladministration by Gray; and on the same day, “ the securities upon the alleged administration bond of John A. Erwin and Frank P. Gray” answered, denying any maladministration by Erwin and Gray, or either of them, during the period of their joint administration, and setting up Erwin’s discharge, the giving of a new bond by Gray, and the settlement and accounting by Erwin. A demurrer for want of jurisdiction was also filed, and, having been argued, the circuit judge delivered an opinion assigning grounds for retaining the cause, the demurrer was overruled, a receiver appointed, and an injunction issued. On the 20th of March, 1882, the case was referred to a special master to report upon the questions of law and fact raised by, or included in, the pleadings, and to state an account. May 19th, 1883, complainants filed a petition stating that when the original bill was filed, they were informed and believed “the following state of facts to exist, to wit: That John A. Erwin had, in April, 1876, applied to the ordinary of Bartow County, Georgia, for leave to resign his office as a co-administrator on the estate of Lewis Tumlin, deceased; that orators in connection with N. B. Tumlin, G. H. Tumlin, Mary L. Spencer, and Lula T. Lyon had objected to said resignation, and upon the trial of their caveat to said application for leave to resign the ordinary had allowed said resignation, and a the other caveators heard had appealed from that decision, except orators, who gave the matter no further attention, an VEACH v. RICE. 299 Statement of the Case. were informed and believed that said resignation had been allowed, and they have all the time, until the filing of their bill, thought and believed that said Erwin had resigned his trust and his resignation had been allowed and accepted by the court;” that they believed said resignation could not release the sureties on the bond of Gray and Erwin, and since the reference of the case and during the hearing before the master defendants have put in evidence the record of said Erwin’s resignation and the proceedings on appeal, from which it appears that Erwin’s resignation has never been in fact or in law allowed; that “not being parties to said appeal, they had not given any attention to it, and. did not know what had been done in it, except that the jury had found against the appeal, and they believed that all other legal steps had been taken to give effect to the verdict,” which they now learn was not the case; and they ask to amend: « By an averment that John A. Erwin, though not a party to said bill by reason of the fact that he resided without the jurisdiction of the court, is not only bound as the security of said Frank P. Gray in common with all the other sureties of said Gray and Erwin on the first administration bond, as claimed in the original bill, and is still in law one of the administrators of said estate, and has never legally resigned his trust as a co-administrator with Frank P. Gray on said estate, and that complainants are entitled to relief accordingly against them and all the sureties on all the administration bonds on said estate, and they pray relief accordingly.” Leave to amend was granted on the same day, and the bill as amended referred to the special master. On the 13th of September, 1883, the joint and several answer of H. C. Erwin and J. G. B. Erwin, two of the defendants, was filed, by leave of court, averring that they never had become sureties on the bond of Erwin and Gray, because they had only authorized their names to be signed to the bond of Erwin. On the 4th of October, 1883, Ramsauer, administrator, answered, stating that he is the administrator of L. R. Ramsauer, who signed a power of attorney authorizing respondent 300 OCTOBER TERM, 1888. Statement of the Case. to sign his name as one of the sureties to Erwin’s bond, and he was also authorized by H. C. Erwin and J. G. B. Erwin to sign such bond for them as attorney in fact, and that the power of attorney was changed by interlineation so as to authorize the signing of the bond of Erwin and Gray. October 9th, 1883, the answer of James M. Veach, Robert L. Rogers, A. C. Trimble, W. I. Benham, John J. Howard and A. W. Mitchell was filed, by leave, stating that they had signed the bond made jointly by John A. Erwin and F. P. Gray as the administrators of the estate of Lewis Tumlin; that John A. Erwin resigned his administratorship in May, 1876, and he, as well as his bondsmen, were discharged “by order of the Ordinary of Bartow County,” and these respondents supposed that was the end of their connection with the administration of said estate. They insist that John A. Erwin is a necessary party to this bill as proposed to be amended; that they are informed that three of their co-sureties, namely, H. C. and J. G. B. Erwin and L. R. Ramsauer, are seeking release on the ground that they only authorized their names to be signed to the bond of Erwin, and not of Erwin and Gray, and respondents say “ that they were particular to make inquiry as to whether the Erwins and Ramsauer would go on said bond, and they agreed to sign said bond only upon condition that the others did.” They set up Erwin’s resignation upon notice to the heirs and distributees, and his discharge, which they insist discharged them from further liability; and say they know nothing of the alleged maladministration of Gray. Replication was filed November 24, 1883. September 22, 1883, the special master filed his report stating the death of Tumlin, the names of his heirs-at-law, the election of the widow to take a child’s part, the removal of Erwin to Tennessee, and of Thomas Tumlin to Alabama; the death of Stakley, of L. R. Ramsauer, and of Abda Johnson, the appointment of Gray and Tumlin as temporary administrators and of Gray and Erwin as permanent administrators, on the second day of August, 1875, and the giving of bond y them, in the usual form, in the penal sum of $600,000, whic VEACH v. RICE. 301 Statement of the Case. « bond was joint and several and payable to the Ordinary of Bartow County, Georgia, for the time being, and his successors in office.” The report sets forth the return of the inventory, which alleged that “ there were some wild lands and evidences of debt left out to be appraised as soon as they could be definitely ascertained ; ” the sale of personal property ; the award of support for widow and minor; the appointment of commissioners to divide land and their return ; the application by the administrators for a commission of 3 per cent on $114,456, as compensation for services in and about the division of the real estate; the allowance of the 3 per cent; the first annual return of Gray and Erwin and its approval ; the application of Erwin for discharge ; the order requiring the distributees to show cause ; the order of discharge ; the giving by Gray of a new bond ; the final receipt of Gray to Erwin and the final discharge ; and the appeal from the decision of the Ordinary permitting Erwin to resign and Gray to become sole administrator, to the Superior Court of Bartow County, where it was affirmed by verdict, August 4, 1876. The report says there is no record evidence that a judgment was entered upon said verdict. It further states that on June 16, 1876, Gray gave bond to Erwin reciting that Erwin transfers to Gray all commission and compensation which might be allowed Erwin for his services as administrator, and in consideration thereof Gray bound himself to pay any judgment against Erwin for any waste or loss occasioned by any act or failure of duty in any way by Erwin as administrator ; sundry sales by Gray returned to the Ordinary ; the discharge of W. T. Wofford, Rich, and James C. Wofford, sureties on Gray’s administration bond; the new bond given by Gray, October 13,1877; the new bond given by Gray, May 6, 1878 ; the second return by Gray, administrator, August 6, 1877, further time having been granted to him to make it ; the return of 1878, in accordance with time given to make it; the return for 1879, 1880, and 1881; and t e appointment of the receiver in this case, November 14, 1881. Various charges for commissions on interest are con-si ered, and the subject of the inventory of wild lands, the ai tire to make and perfect return thereof being held to be 302 OCTOBER TERM, 1888. Statement of the Case. excusable and not to have damaged the estate. The master holds there was a valid resignation and discharge of Erwin from the office of administrator, dating from June 12,1876, but that the sureties on the bond of Gray and Erwin were not discharged. He disallows the 3 per cent commissions on division of land, amounting to $3433.68, as excessive, and reduces it to five hundred dollars, which was subsequently disallowed by the court. He considers the state of the accounts elaborately, and holds the sureties on Gray and Erwin’s bond liable “ for the waste or default of the joint administration of Gray and Erwin, and since of the sole administration of Gray and he refers to the claim, September 20,1883, of two of the sureties on the bond of Gray and Erwin, to wit, Henry C. and J. G. B. Erwin, that they never signed nor authorized any one to sign their names to a joint bond of Gray and Erwin, but he refused to hear evidence because the issue was not involved in the pleadings as they then stood. To this report defendants Veach, Rogers, Trimble, Benham, Howard, Mitchell, H. C., and J. G. B. Erwin, and Ramsauer filed their exceptions, and tney subsequently petitioned the court to be allowed to file amended answers, which was allowed, and which amendments have heretofore been given. November 26, 1883, the report was recommitted with directions, and sundry other reports made, and among them one, October 4, 1884, that H. C. Erwin, J. G. B. Erwin, and H. C. Ramsauer were not bound as sureties on the Gray and Erwin bond because they had not authorized their names to be signed to it, and holding that Benham, Rogers, Trimble, Mitchell, Veach and Howard were not thereby discharged. The master also reported that a judgment in the Bartow Superior Court had been entered February 16,1884, nunc pro tunc, as of the July term, 1876, upon the verdict upon appeal from the discharge of Erwin by the Ordinary, but that his opinion remained unchanged that the release or discharge of Erwin as co-administrator with Gray did not discharge the sureties on said joint bond. The complainants excepted to the report o the master in favor of H. C. and J. G. B. Erwin, and Bam-sauer. Defendants Veach, Howard, Trimble, Rogers, Benham VEACH v. EICE. 303 Statement of the Case. and Mitchell excepted to the master’s report in discharging the two Erwins and Ramsauer and not discharging them, as well as to the forfeiture of certain commissions reported by him. ’ December 13, 1884, the defendant Cora M. Gray filed a supplemental answer, praying for a decree as a distributee, as did defendant John S. Leake, January 21, 1885. Among the proofs in the case accompanying the master’s reports were the petition of John A. Erwin for permission to resign his office of administrator, and the proceedings thereon. This petition was dated April 11, 1876, and set forth the issuing of letters of administration to Gray and Erwin ; that Tumlin left as his heirs-at-law and distributees of his estate his widow, Mrs. Mary L. Tumlin, Napoleon Tumlin, Mrs. Lula T. Lyon, Mrs. Cora Gray, George Henry Tumlin, a minor, and Lewis T. Erwin ; that Mrs. Gray is a minor, and Frank P. Gray her guardian; that Erwin is guardian of George Henry Tumlin and Lewis T. Erwin ; that Mrs. Ada S. Rice, of Tennessee, is also one of the heirs-at-law of said Lewis Tumlin, and a distributee of his estate ; that “ your petitioner is in bad health, and from his physical infirmity is unable to give that attention to the management of said estate that he otherwise would, and that he ought to give as administrator ; that most of the real estate belonging to said estate and a great portion of the personalty has been divided and delivered to the distributees of said estate ; that Frank P. Gray, the co-administrator of your petitioner, is willing to give new bond and carry on said administration of said estate alone. Your petitioner, therefore, prays that he be permitted to resign his office as administrator on the estate of said Lewis Tumlin, upon a full and complete compliance with the law in such case made and provided, and your petitioner prays that each of said heirs-at-law of said Lewis Tumlin hereinbefore named may be cited by your honor to be and appear before your honor on the first Monday in May next, then and there to show cause, if any ey have, why your petitioner should not resign his office of a ministrator as aforesaid, on his complying with the law in such case made and provided.” 304 OCTOBER TERM, 1888. Statement of the Case. On the 12th of April, 1876, citation in due form was issued upon said petition by the Ordinary to the heirs-at-law and distributees of the estate of Lewis Tumlin, deceased, and to the guardians of the minor heirs named in said petition, and it was “ further ordered that each of said heirs-at-law who are of full age, and the guardians of the'minor heirs, be served with a copy of the foregoing petition and this citation (unless they should acknowledge service) ten days before the time appointed for hearing said petition and passing on same.” Service was acknowledged of the petition and citation and further service waived, April 13, 1876, by John A. Erwin as guardian for Gf H. Tumlin and as guardian for L. T. Erwin, and by Frank P. Gray as administrator and as guardian for Cora Gray; service of petition and citation was also acknowledged by Mary L. Tumlin and N. Tumlin, April 17, 1876, and the petition and citation was served on Mrs. Lula T. Lyon, April 20, 1876; affidavit was also made that on the 7th [17th] day of April, 1876, a copy of the petition of Erwin and a copy of the citation signed by the Ordinary were handed to Mrs. Ada S. Rice in person, and that at the same time Mrs. Ada S. Rice wrote the following on the original, to wit: “ I acknowledge service of the within petition this April 17, 1876.” On the 1st of May, 1876, Gray filed before the Ordinary a written expression of his willingness for Erwin to resign, Gray retaining the sole administration in his own name, and propos-inar to file “ such bond in furtherance of the same as the Ordi-o nary may deem proper in the premises.” May 1, 1876, the Ordinary entered the following order in open court: Court of Ordinary, Bartow County. Regular Term, May 1,1876. John A. Erwin, one of the adm’rs of Lewis Tumlin, deceased, 1 . I Frank P. Gray, adm’r; Frank P. Gray, guardian; Mary L. Tumlin, Napoleon Tumlin, ci al., heirs-at-law, etc. J Upon considering the above and foregoing application John A. Erwin, one of the administrators on the estate o VEACH v. BICE. 305 Statement of the Case. Lewis Tumlin, late of Bartow County, deceased, for leave to resign his said office of administrator, and all the heirs-at-law of Lewis Tumlin having been duly served with citation to show cause why John A. Erwin should not be allowed to resign the office of administrator on the estate of Lewis Tumlin, deceased, and all of said heirs being represented now before the court, and no sufficient cause being shown why said Erwin should not be allowed to resign his trust, as administrator as aforesaid, and it appearing to the court that the bodily health, physical infirmities, and the health of his wife are such that he is unable to give his attention to the management of the business of said estate, and Frank P. Gray being cited to appear before the court, and having been served with said citation, and now coming before the court and expressing a willingness to accept the office of administrator of the estate of Lewis Tumlin, deceased, and it appearing to the court that the allowing of said Erwin to resign his office of administrator will not injure the interest of said estate in any way: Therefore, ordered and adjudged by the court, that the resignation of the said John A. Erwin of the office of administrator on the estate of Lewis Tumlin, deceased, be, and the same is hereby, allowed, and it is hereby further ordered and adjudged by the court that Frank P. Gray, the co-administrator of the said John A. Erwin upon the estate of the said Lewis Tumlin, deceased, be, and he is hereby, declared and appointed the sole administrator of the estate of the said Lewis Tumlin, deceased, and the said Frank P. Gray is hereby required to give a new bond and security, for the faithful administration of said estate, in the sum of one hundred and forty thousand dollars, and upon said bond and security being given, and the said ohn A. Erwin, upon his settling and accounting with said rank P. Gray, the sole and remaining administrator of the estate of Lewis Tumlin, deceased, his successor, of his accounts as administrator, and the filing of the receipt of his successor in the Ordinary’s office, as provided bylaw, and upon so doing at the said John A. Erwin, as administrator and his securi- J56» a^d they are hereby, discharged from any and all la i ity for any mismanagement of said estate in the future, VOL. CXXXI—20 306 OCTOBER TERM, 1888. Statement of the Case. but not from any past liability of the said John A. Erwin, as administrator as aforesaid. Granted in open court, May term, 1876. J. A. Howard, Ordinary. On the same day the petition of Gray and Erwin was filed, showing that they had distributed in kind real estate among the heirs-at-law of the deceased amounting to $114,456, specifying the parcels and amounts, and setting up that “ the responsibility and the trouble in effecting the transfer has been considerable. Your petitioners allege that they have received no compensation at all for this service thus rendered said estate, and pray your honor to pass an order allowing them 3 per cent on said sum of $114,456 as commission on the same;” whereupon the court entered an order allowing the administrators “for extra compensation for delivering and dividing to the heirs-at-law the real estate in kind belonging to said deceased,” 3 per cent on the above sum. On the 6th of May a list and schedule of all the property which had come to the possession of Gray and Erwin as administrators, and which remained unadministered and in their possession May 6, 1876, not embracing the wild lands, which “have not yet been fully located,” was filed, and a receipt from Gray, to Erwin for all of said property, which was acknowledged before the Ordinary and filed in his office May 22, 1876. On the* 2d of May, Gray gave a new bond, as required by the order of May 1, reciting the resignation of Erwin and its allowance, and the order for the new bond, the condition being: “Now, if the above bound Frank P. Gray shall well and truly administer the goods and chattels, rights and credits, lands and tenements of the said Lewis Tumlin, deceased, which remain to be administered, and which have come to the hands, possession or knowledge of the said Frank P. Gray, or in the hands or possession of any other person or persons for him, etc., etc., in the usual form; which bond was duly attested an approved by the Ordinary, and “ filed in office May 2d, 187 • On the 12th of June, 1876, the following order was entered in open court by the Ordinary: VEACH v. RICE. 307 Statement of the Case. Court of Ordinary, Bartow County. Adjourned Term. June 12, 1876. John A. Erwin, Adm’r est. Lewis Tumlin, dec’d. Upon considering the above application of John A. Erwin, one of the joint administrators of the estate of Lewis Tumlin, late of Bartow County, deceased, for a discharge, and the said John A. Erwin, as administrator, having by order of this court been permitted to resign said trust, and which resignation has been accepted by the court, and Frank P. Gray, his co-admin-istrator, having consented to accept the entire administration of said estate, and having given new bond and security, as ordered by the court, and the said John A. Erwin having filed a return showing the property that has been administered be7 longing to said estate, and having filed the said Frank P. Gray’s receipt for all the un administered property belonging to said estate, and being satisfied that said return and receipt contain all the property administered and not administered belonging to said estate which has come into the hands of John A. Erwin, as administrator, it is therefore ordered that said John A. Erwin be, and he is hereby, fully discharged from the office of administrator on the estate of Lewis Tumlin, deceased, and that letters of dismission do issue to him. Granted in open court June adj’d term, 1876. J. A. Howard, Ordinary. From this order Mrs. Mary L. Tumlin, Mrs. Lula T. Lyon and Napoleon Tumlin appealed to the Superior Court of Bartow County, where the appeal was dismissed as to Mrs. Mary L Tumlin at her request, and upon trial the jury returned the following verdict, August 4,1876: “ That the jury find in favor of John A. Erwin, and that his resignation be allowed.” An order appears of record in the Superior Court, headed as follows: “Appeal to the Superior Court of Bartow Co., Ga., from the order in the Ordinary’s court of said county permitting o n A. Erwin to resign and F. P. Gray to become sole adm’r 0 said estate, and required to give new bond, and Gray to become sole adm’r of said estate, and refusing to allow Theodore 308 OCTOBER TERM, 1888. Statement of the Case. Smith to be co-adm’r of said estate. Appeal from the above decision of the Ordinary made May 1st, 1876, and carried to the Superior Court of said Co., by whom the decision of said Ordinary was affirmed at the July term, 1876.” This order granted thirty days to the appellants to perfect their motion for a new trial and agree upon the evidence, the motion to be heard in vacation, so that if the motion for a new trial be refused the appellants can take the case to the Supreme Court of Georgia at the next January term. Nothing further appears to have been done in the premises, but at the January term, 1884, of the Bartow Superior Court, due notice having been given to the heirs and distributees and to the receiver in this case, the Superior Court entered judgment nunc pro tunc upon the verdict rendered in 1876, affirming the allowance of Erwin’s resignation. On the 22d day of January, 1885, a final decree was rendered, by which, after overruling the various exceptions to the reports of the special master, it was among other things adjudged and decreed that Gray was liable on his several administration bonds for the sum of $47,122.44, the sureties on the bond of Erwin and Gray being held liable for the whole amount, and the sureties on the other bonds for different parts of said gross sum, and from that decree appeal was prosecuted to this court by James M. Veach, J. J. Howard, W. I. Benham, R. L. Rogers, A. C. Trimble and" A. W. Mitchell, a special order being entered allowing the appeal to the above named, as being those only of the sureties on the joint bond of Gray and Erwin, who excepted to the reports of the special master upon the grounds taken by them, and they alone of the defendants being interested in the questions made by their exceptions, and it being made to appear to the court that they had notified all the other defendants of their purpose to appeal. The folloyving sections from the Code of Georgia, third edition, 1882, were in force at the time of the transactions in question: § 331. Courts of Ordinary have authority to exercise original, exclusive and general jurisdiction of the following subjects matter: VEACH v. RICE. 309 Statement of the Case. 1. P robate of wills. 2. The granting of letters testamentary, of administration, and the repeal or revocation of the same. 3. Of all controversies in relation to the right of executorship or administration. 4. The sale and disposition of the real property belonging to, and the distribution of, deceased persons’ estates. 5. The appointment and removal of guardians and minors and persons of unsound mind. 6. All controversies as to the right of guardianship. T. The auditing and passing returns of all executors, administrators and guardians. 8. The discharge of former, and the requiring of new surety from administrators and guardians. 9. The issuing commissions of lunacy in conformity to law. 10. Of all such other matters and things as appertain or relate to estates of deceased persons, and to idiots, lunatics and insane persons. 11. Of all such matters as may be conferred on them by the constitution and laws. 12. [And concurrent jurisdiction with the county judge in the binding out of orphans and apprentices, and all controversies between master and apprentice.] § 2150. The contract of suretyship is one of strict law, and his liability will not be extended by implication or interpretation. § 2490. Administration de honis non is granted upon an estate already partially administered, and from any cause unrepresented. § 2499. If administration has been granted to more than one, upon the death of either the right of administration survives to the other. § 2500. Administration may be granted to other persons than him in whose name the citation issues, and without a new citation being published. §2505. Every administrator, upon his qualification, shall give bond, with good and sufficient security, to be judged of by the Ordinary, in a sum equal to double the amount of the estate to be administered ; such bond shall be payable to the rdinary for the benefit of all concerned, and shall be attested y him or his deputy, and shall be conditioned for the faithful ischarge of his duty as such administrator, as required by law. substantial compliance with these requisitions for the bond 310 OCTOBER TERM, 1888. Argument for Appellees. shall be deemed sufficient, and no administrator’s bond shall be declared invalid by reason of any variation therefrom, as to payee, amount, or condition, where the manifest intention was to give bond as administrator, and a breach of his duty as such has been proved. § 2510. If two or more administrators unite in a common bond, all the sureties are bound for the acts of each administrator, and the administrators themselves are mutual sureties for each other’s conduct. § 2512. In all cases of removal of an administrator for any cause, the sureties on his bond are liable for his acts in connection with his trust, up to the time of his settlement with an administrator de bonis non, or the distributees of the estate. § 2514. If there are more administrators than one, and complaint is made against one only, and his letters are revoked, the entire trust remains in the hands of the other; and with him as to an administrator de bonis non the removed co-administrator must account. § 2610. Any administrator who, from age or infirmity, removal from the county, or for any other cause, desires to resign his trust, may petition the Ordinary, stating the reasons, and the name of a suitable person qualified and entitled to and willing to accept the trust; whereupon the Ordinary shall cite such person, and the next of kin of the intestate, to appear and show cause why the order should not be granted. If no good cause be shown, and the Ordinary is satisfied that the interest of the * estate will not suffer, the resignation shall be allowed, and the administrator shall be discharged from his trust whenever he has fairly settled his accounts with his successor and filed with the Ordinary the receipt in full of such successor. Minors in interest shall be allowed five years from the time of their arrival at majority to examine into and open such settlement. Mr. P. L. Mynatt and Mr. N. J. Hammond for appellants. Mr. IF. K. Moore, for appellees, contended as follows as to the points passed upon by the court in its opinion: VEACH v. RICE. 311 Argument for Appellees. I. The minors were not parties to the proceedings upon Erwin’s resignation, and not being parties, it was not effectual as against them. John A. Erwin, in seeking to resign his trust, and F. P. Gray, who wanted the sole administration, both had interest adverse to the three minor heirs. In such case the acknowledgment of service of John A. Erwin, as guardian for the minors, G. H. Tumlin and L. T. Erwin, was insufficient and ineffectual, as well as the acknowledgment of F. P. Gray, as guardian of Cora Gray, minor.. This is the only service shown in the record and is the only service directed to be made in the citation itself. Code of ’Georgia, § 1821; Act of February 25, 1876, Session Acts of Georgia of 1876, 103. II. Erwin’s resignation, if valid, did not accomplish his release as security, nor the release of the appellants who were sureties on the joint and several bond of Frank P. Gray and John A. Erwin. Section 2510 of the Code of Georgia, which was the law at that time, provides that if two or more administrators unite in a common bond, all the sureties are bound for the acts of each administrator, and the administrators themselves are mutual sureties for each other’s conduct. This provision of law is part of the bond, and should be read as if inserted in it. Von Hoffman v. Quincy, 4 Wall. 535, 550. The act of February 10, 1854, incorporated into the Code of Georgia as § 2610, first made provision for the resignation of an executor. It seems to contemplate the resignation of a sole administrator, but is doubtless broad enough, under § 4 of the Code, paragraph 4, to include one of two or more joint administrators. That paragraph reads: “The singular or plural number shall each include the other, unless expressly excluded.” Nevertheless it has no application to that case, because the whole trust remained in the survivor by operation of law. The common law is in force in Georgia, (Cobb’s Digest, 721,) and by it the power of an executor survives on the death of his co-executor. And so, if administration is granted to two, and one dies, the other becomes sole administrator, and all the power of the office survives to him. 2 Williams on 312 OCTOBER TERM, 1888. Argument for Appellees. Executors, citing JoGomb v. Harwood, 2 Ves. Sen. 267, 268; Flanders v. Clark, 1 Ves. Sen.; see also, Hudson v. Hudson, 1 Atk. 460, A. C., cas. temp. Talb. 127; 2d Com. Dig. B. 7; Bac. Abr. 56, tit. Executors (G.). In case of death the entire interest vests in the survivor. . The Ordinary could not make a new appointment to the office of administrator while it was not vacant. Griffith, v. Frazier, 8 Cranch, 9; Kane v. Paul, 14 Bet. 33; Braxton v. State, 25 .Indiana, 82; Pritchard v. State, 34 Indiana, 137; Brandt on Suretyship and Guarantee, § 498, and cases cited; Clarke v‘ State. 6 G. & J. 288; S. C. 26 Am. Dec. 576; Kirby v. Turner, Hopk. Ch. 309; Green v. Hanberry, 2 Brock. 403. And in fact he did not attempt to exercise such a power. The order granted at May term declares that the resignation of Erwin be allowed, and that Frank P. Gray, the co-admin-istrator.of said John A. Erwin, be, and he is hereby, declared and appointed the sole administrator of the estate, and required to give new bond, etc. The Ordinary by this order declared just what the law declared in such cases. If he had regarded the office vacant and the appointment a new one it would have been his duty to administer to him the oath provided for every administrator in § 2504 of the Code, and it would also have been his duty to appoint and grant to him letters of administration de bonis non under § 2490 of Code. “ Administration de bonis non is granted upon an estate already partially administered and from any cause unrepresented.” As to the discharge of the sureties, we admit that, as there was a law in force in Georgia at the date thereof authorizing the discharge of sureties, these sureties could have been discharged in the manner pointed out by that law without impairing the obligation of this contract, and that is so because such law then existing became part of the contract, as hereinbefore contended. We maintain, however, that the terms and conditions of that law must be strictly complied with; it is not only law but also contract. Section 2509, Code of Georgia, makes the provisions of the code in reference to relief of sureties on guardians’ bonds applicable to sureties on administrators’ bonds, and said provis- VEACH v. RICE. 313 Opinion of the Court. ions are found in the Code, § 1817. This section of the Code has been so fully construed and passed upon by the Supreme Court of Georgia that I refer to their decision to show that there was not and could not be any valid discharge of the sureties in this case. See Dupont v. Mayo, 56 Georgia, 304. III. The second report of the special master was in error in holding that the discharge of J. G. B. Erwin, H. C. Erwin and L. S. Ramsauer because their names had been improperly signed to the joint bond of Gray and Erwin, administrators, by their attorney-in-fact, did not discharge all the sureties. Lewis v. Gordon County, 70 Georgia, 486; Mathis v. Morgan, 72 Georgia, 517; Dair v. United States, 16 Wall. 1; State v. Lewis, 73 North Carolina, 138; Cutler v. Roberts, 7 Nebraska, 4; Nash v. Tugate, 32 Grattan, 595; Trustees of Schools N. Sheik, 119 Illinois, 579; Carroll County v. Ruggles, 69 Iowa, 269. Mr. Chief J ustice Fuller, after stating the case, delivered the opinion of the court. By the order of the Ordinary of May 1,1876, the resignation of John A. Erwin as administrator of the estate of Lewis Tum-lin, deceased, was allowed, and Frank P. Gray was appointed sole administrator and required to give a new bond and security, which being given, and Erwin having settled and accounted with Gray, his successor in administration, and filed his receipt as provided by law, it was ordered that John A. Erwin as administrator and his securities be discharged from “ any and all liability for any mismanagement of said estate in the future, but not from any past liability; ” and this settlement having been made and receipt filed and new bond given by Gray, and these successive acts approved, by order of June 12, 1876, the discharge of Erwin as administrator was made absolute. From the judgment of the Ordinary an appeal was prosecuted to the Superior Court of Bartow County by three of the heirs, one of whom dismissed her appeal, and, upon trial had, the decision of the Court of Ordinary was affirmed by 314 OCTOBER TERM, 1888. Opinion of the Court. the verdict of a jury, and time taken to perfect a bill of exceptions with the view of carrying the case to the Supreme Court, which was not done. Judgment appears not to have been entered upon the verdict until pending this cause, when it was so entered nunc pro tunc as of July term, 1876. The Superior Court thus determined the order of the Ordinary to have been a proper one, and passed upon the question of jurisdiction. Mrs. Ada S. Rice was duly served with Erwin’s petition to be discharged, and citation to appear, but acquiesced in said orders, and did not participate in the appeal therefrom, and paid no further attention thereto, as. shef says in her petition to amend of May 19, 1883. Something over five years afterwards she filed the bill in this case, and by amendment, some two years after that, sought to hold the sureties on the bond of Erwin and Gray for alleged maladministration of the latter after the discharge of the former. The Courts of Ordinary in Georgia are courts of original, exclusive and general jurisdiction over decedents’ estates and the subject matter of these orders, and its judgments are no more open to collateral attack than the judgments, decrees or orders of any other court. Davie v. McDaniel, 47 Georgia, 195; Barnes v. Underwood, 54 Georgia, 87; Patterson v. Lemon, 50 Georgia, 231, 236 ; Candolle v. Ferrie, 13 Wall. 465. In Jacobs n. Pou, 18 Georgia, 346, it was held that “ the judgment of dismissal, by the Court of Ordinary, in such cases, must operate as a discharge from all liability on the part of the administrator, unless the same be impeached in that court, for irregularity, or in the Superior Court, for fraud; ” and in Bryan v. Walton, 14 Georgia, 185, that the order appointing an administrator, and in Davie v. McDaniel, 47 Georgia, 195, and McDade v. Burch, 7 Georgia, 559, that an order for sale of lands, could not be collaterally attacked. It is argued, however, that upon Erwin’s resignation the whole trust remained in Gray as survivor, and that the Ordinary could not make a new appointment while the office was not vacant, and § 2514 of the code is referred to, providing that, upon the revocation of the letters of one administrator, the trust remains in the hands of the other. The well-known VEACH v. RICE. 315 Opinion of the Court. case of Griffith v. Frazier, 8 Cranch, 9, is also cited as in point, where letters of administration were held invalid, there being-a qualified executor capable of exercising the authority with which, he had been invested by the testator. But we think the position taken is untenable. Under the code, upon the death of an administrator, where there are more than one, the right of administration survives, (§ 2499,) but the Ordinary may apparently grant letters to others, (§ 2500 ;) and upon the revocation of the letters of one administrator, where there are more than one, the trust remains in the hands of the other, “and with him, as to an administrator de bonis non, the removed administrator must account,” (§ 2514,) and his sureties are “ liable for his acts in connection with his trust up to the time of his settlement with an administrator de bonis non or the distributees of the estate ” (§ 2512). When an administrator resigns, and the resignation is allowed, he “ shall be discharged from his trust whenever he has fairly settled his accounts with his successor and filed with the Ordinary the receipt in full of such successor ” (§ 2610). This section uses the singular number, but Undoubtedly covers the case of more than one administrator. Paragraph 4 of § 4 of the code reads: “The singular or plural number shall each include the other, unless expressly excluded.” Code, 1882, p. 3. Every administrator after the first is an administrator de bonis non in fact, and it is not important it should so appear of record. Steen v. Bennett, 24 Vermont, 303; Grande v. Herr err a, 15 Texas, 533 ; Moseley's Administrators v. Martin, 37 Alabama, 219; Ex parte Maxwell, Alabama, 362. The Ordinary in accepting the resignation of Erwin treated the case as he would have done if Erwin’s letters had been revoked by removal, and entered the orders in respect to Gray, as successor of Erwin and Gray, and so administrator de bonis non, and the new bond was accordingly conditioned to secure the administration of the property which remained to be administered. It is said by counsel that prior to 1854 there was no provision in the laws of Georgia for the resignation of an administrator, but it would seem that if an administrator had resigned, and his resignation had been accepted, such action 316 OCTOBER TERM, 1888. Opinion of the Court. on the part of the Ordinary would have been held equivalent to a revocation of his letters in the exercise of the power of removal. Marsh v. The People, 15 Illinois, 284. As already stated, under the provisions of the Georgia code, where there are more than one administrator, and the letters of one are revoked, he must account to his co-administrator “ as to an administrator de bonis non” and as, in the instance of the resignation of a sole administrator he must account to his sue-cessor, so where there are more than one, he who resigns must account to his co-administrator, as such successor, who would in effect in such case be an administrator de bonis non. Irrespectively of statutory regulation, an administrator de bonis non could only administer upon the assets remaining unadministered, in specie; but under these provisions the retiring administrator must account to his successor, and such accounting is required before discharge. It is urged that, as Erwin applied only for his own discharge as administrator and not as surety for Gray, and as the sureties made no application in their own behalf, the effect of Erwin’s discharge was not to release the sureties. By § 2509 of the code, the provisions where a surety on a guardian’s bonds desires to be relieved as surety are made applicable to sureties on administrators’ bonds; and by § 1817 a mode is provided for obtaining such relief on complaint made by the surety to the Ordinary, citation to the guardian, hearing, and order of discharge. And in Dupont n. Mayo, 56 Georgia, 304, 306, it was held that where there was no petition, citation, or hearing, an order accepting a new bond already executed by the guardian and declaring a former surety discharged, could not be sustained. But those sections apply to a different state of case, namely, where the sureties are asking to be relieved from liability, and not where the administrator himself is requesting leave to retire. Erwin proceeded in conformity with the statute in such case made and provided, and under the orders of May 1 and June 12,1876, ceased to be administrator, and was discharged from further liability as such, as were the sureties who had signed the bond of Erwin and Gray. VEACH v. RICE. 317 Opinion of the Court. In Justices, etc. n. Selman, 6 Georgia, 432, the’second section of an act of 1812 came under consideration, which read as follows : “ Any executor, executrix, administrator, administratrix, or guardian, whose residence may be changed from one county to another, either by the creation of a new county, removal or otherwise, shall have the privilege of making the annual returns required of them by this act, to the Court of Ordinary of the county in which they reside, by having previously obtained a copy of all the records concerning the estates for which they are bound as executors, executrix, administrators, administratrix, or guardian, and having had the same recorded in the proper office in the county in which they then reside, and having given new bond and security, as the law directs, for the performance of their duty.” The court held, Lumpkin, J. delivering the opinion, “that the mere taking of a new bond does not, necessarily, release the old sureties, and especially when the new bond is taken by authority of law, for the purpose of strengthening the existing security,” but that when the second or subsequent bond is given for a new and different undertaking, it operates, ipso facto, as a discharge of the prior parties and hence that when the provisions of the act are fully complied with the sureties on the first bond are discharged from all further liability on account of their principal. We are of opinion that the court erred in rendering a decree against the sureties on the joint bond of Erwin and Gray for a devastavit committed after June 12, 1876. Counsel for appellees contend that the sureties on this bond were not discharged because the service of the petition and citation on the three minor heirs, on Erwin’s petition to resign, was insufficient, and guardians ad litem should have been appointed; that the resignation, was not effectual as to them, and therefore not as to any of the others. This point wras not passed upon by the special master or the Circuit Court, nor was a cross-bill filed on behalf of either of these defendants. They asked no relief as against complainants but affirmative relief against their co-defendants, these sureties, and under such circumstances cross-bills are necessary. 318 OCTOBER TERM, 1888. Opinion of the Court. If, however,‘cross-bills were filed, as all the defendants are citizens of Georgia, and the complainants are citizens of Tennessee it is questionable whether the relief which the complainants could not obtain on their own case could be properly awarded by the Circuit Court, even though it could be successfully contended that these particular defendants were entitled to relief upon the ground suggested, and that their co-distribu-tees could avail themselves of such conclusion, in respect to which we express no opinion, as these questions are not before us for decision in the present condition of the record. It is assigned as error that the court decreed in accordance with the special master’s report that the discharge of J. G. B. Erwin, H, C. Erwin and L. R. Ramsauer, because their names had been improperly signed to the joint bond of Erwin and Gray, did not discharge their co-sureties; but this was not urged on the argument. The master proceeded upon the ground that it was appellants’ duty to see for themselves that the signatures of their co-sureties were binding upon them, if they intended to rely upon their being bound; and that it was the Ordinary’s duty to see that, valid signatures were made to the bond, but not to protect any one as surety, and that no fraud, concealment, or want of good faith could be charged on the Ordinary. We do not regard the overruling of the exception, based as it is on the assumption of knowledge on the part of the Ordinary, and concealment misleading the other sureties, as erroneous. Dair v. United States, 16 Wall. 1 ; Lewis v. Board of Commissioners, 70 Georgia, 486; Matthis v. Morgan, Georgia, 517; Trustees v. Sheik, 119 Illinois, 579. It is further objected by appellants that the court erred in disallowing any commissions to Erwin and Gray, and particularly, the commissions of $3433.68 for distribution in kind. Upon a careful consideration of the proofs in the printed record and the various reports of the special master bearing upon this subject, we do not find such evidence of mismanagement on the part of Erwin and Gray as requires the forfeiture of all commissions, and, without entering upon any discussion of the details, we approve of the conclusions reached by the HAWKINS v. GLENN. 319 Statement of the Case. master in his first report, and direct a modification of the decree accordingly, if, upon the return of the case to the Circuit Court, it is found, in view of our decision in respect to the discharge of Erwin and the sureties on the bond of Erwin and Gray, that Mrs. Rice is not concluded by the accounting at the time of such discharge. Decree reversed^ and cause remanded with directions to proceed in conformity with this opinion. HAWKINS v. GLENN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NORTH CAROLINA. No. 266. Argued April 22, 23, 1889.— Decided May 13, 1889. In the absence of fraud, stockholders are bound by a decree against their corporation in respect to corporate matters, and such a decree is not open to collateral attack. Statutes of limitation do not commence to run as against subscriptions to stock, payable as called for, until a call or its equivalent has been had, and subscribers cannot object when an assessment to pay debts has been made, that the corporate duty in this regard had not been earlier discharged. Rules applicable to a going corporation, remain applicable notwithstanding it may have become insolvent and ceased to carry on its operations, where, as in this case, it continues in the possession and exercise of all corporate powers essential to the collection of debts, the enforcement of liabilities and the application of assets to the payment of creditors. Stockholders of record are liable for unpaid instalments, although they may have in fact parted with their stock, or may have held it for others. The objection that too large an amount of interest has been included in a judgment cannot be raised for the first time in this court. The court stated the case in its opinion as follows: John Glenn, trustee of the National Express and Transportation Company, brought an action at law, November 5, 1883, against William J. Hawkins, in the Circuit Court of the United States for the Eastern District of North Carolina, alleging 320 OCTOBER TERM, 1888. Statement of the Case. that Hawkins, on or about November 1, 1865, subscribed for two hundred and fifty shares of the capital stock of that company, a body corporate of the State of Virginia, and thereby undertook and promised to pay for each and every share so subscribed for by said defendant the sum of one hundred dollars, in such instalments and at such times as he might be lawfully called upon and required to pay the same, according to the law under which the company was incorporated; that on the 20th day of September, 1866, the express company, by its deed of that date, assigned and transferred to Hoge, O’Donnell, and Kelly, for the benefit of its creditors,, all its property, rights, credits and effects of every kind, in trust for the payment of the debts of said company; that afterwards, in a certain cause instituted in the Chancery Court of the city of Richmond, in the State of Virginia, in which the official administrator of W. W. Glenn, deceased, and other persons, claiming to be creditors of the express company, were complainants, and said company, Kelly and Hoge, surviving trustees, and other persons, officers of said .company, were defendants, it was, on the 14th day of December, 1880, decreed that plaintiff be, and he thereby was, appointed trustee to execute the trusts of the deed of trust in the room and stead of the trustees originally created by said deed ; and it was further decreed that a large amount of the debts of the express company remained unpaid, and that, of the sum of one hundred dollars for each and every share of the stock of the company undertaken and promised to be paid for by the subscribers for said stock and their assigns, the sum of eighty dollars per share had never been called for or required to be paid by the president and directors of said company, and remained liable to be called for and required to be paid by the subscribers for said stock and their assigns ; and it was further decreed that it was necessary and proper for a call of thirty per cent to be made, which call and assessment was accordingly ordered; and that, by force of his subscription and said call, the defendant was liable to pay the sum of $7500 on his shares of stock, with interest. Hawkins filed his answer January 28,1884, in which he said that he subscribed for two hundred of the two hundred and HAWKINS v. GLENN. 321 Statement of the Case. fifty shares for other persons than himself, and that he was not liable thereon. He denied that he owed anything on account of any of said shares, and averred that the plaintiff was not the proper plaintiff, and “ that the plaintiff’s cause of action did not accrue within three years before the commencement of this action.” Upon the trial of the cause the plaintiff adduced evidence tending to show that in March, 1861, a corporation had been chartered by the legislature of the State of Virginia, to be known as the Southern Express Company, but that no organization was had thereunder; that in 1865 it was proposed to adopt the said charter as the basis of action for the formation of a new and larger enterprise of the same kind; that, accordingly, in November of that year, subscriptions having been made to the capital stock in many States, a provisional organization was effected in which the defendant Hawkins was named as one of the directors, and the business of the company was commenced and actively prosecuted; that on the 12th day of December, 1865, a new and amended charter was granted by the legislature of Virginia for a company to be known as the “ National Express and Transportation Company,” the defendant being named therein as one of the corporators; that the capital ¿tock was authorized to be five million dollars, divided into shares of one hundred dollars each, of which a part was payable at the time of subscribing and the balance as called for by the president and directors; that in January, 1866, the provisions of the charter having been complied with, the corporation was duly organized, the defendant being one of the directors; that in September, 1866, having contracted many debts, and finding itself much embarrassed, it executed a deed of assignment, conveying and assigning in trust to trustees, for the benefit of all its creditors, all of its property, including the unpaid subscriptions to the capital stock, of which only twenty per cent had been called for by the president and directors; and that the trustees took possession of the assets November 1, 1866, and the business of the company ceased. Plaintiff further put in evidence the transcript of the record of the proceedings in the Chancery Court of the city of Rich- VOL. CXXXI—21 322 OCTOBER TERM, 1888. Statement of the Case mond, referred to in plaintiff’s declaration, in which, upon a general creditor’s bill brought in 1871, against the said company, and its president and directors, and the surviving trustees in said deed of assignment, the court had, by a decree entered on the 14th day of December, 1880, adjudicated the indebtedness of the said company to require an assessment of thirty per cent of the unpaid subscriptions for the payment of the same, and the necessity and propriety of an assessment of thirty per cent upon the unpaid subscriptions for the payment of the said indebtedness, and the substitution of the plaintiff as trustee to receive and collect the said assessment; and then the plaintiff introduced in evidence the stock books of said company showing the following entries as • io the defendant Hawkins: I I 3 . O QQ **U. O CO Cm O * £ B B’S. & g s To whom transferred. ^52-2 5 t ® ¿ ° Ä § I ’S J " « g S O -g a' E ° S. 2 o ô 2 2 «¿3 H I Q ê Ph ° £i # 1886. 1865. Feb. 5 M. Bowes .... 436 302 10 50 Nov. 1 Company 299 to 303 250 $1250 “ “ Geo. B. Waterhouse 437 302 10 50 “ “ B. P. Williamson . 438 302 10 50 “ “ R. H. Battle, Jr . . 439 302 10 50 “ “ Wm. E. Anderson . 440 302 10 50 The defendant testified that he subscribed for two hundred and fifty shares under the following circumstances: That at the instance of three other citizens of North Carolina, viz., K. P. Battle, J. M. Hoge and B. P. Williamson, he went to Richmond in the fall of 1865, and proposed to the parties superintending the reception of subscriptions, to take fifty shares each for the above named persons, and one hundred shares for himself, having in contemplation other parties who might wish to take fifty shares of this one hundred; that the superintendent suggested that it would be more convenient to place his name only upon the books as subscriber for the who e two hundred and fifty shares, and this was done, the initials of the three persons being at the same time indorsed as a HAWKINS v. GLENN. 323 Statement of the Case. • memorandum on the subscription paper; that in January, 1866, when the company was organized, he, being one of the directors, informed the board of directors of the terms of his subscription as above, and no objection was made thereto; that he instructed the officer of the company whose business it was to issue certificates of stock to issue five for fifty shares each, three of them in the names of the above parties and two to himself, and at the same time paid two hundred and fifty dollars which had been assessed upon the two hundred and fifty shares, one hundred and fifty dollars of which he had received from his principals, but that he had receipted for such certificates upon the books of the company; that shortly afterwards the five certificates were transmitted to him in North Carolina, all five being made out in his name only; that he did not return either of them to the company, but immediately transferred each of the three in question to the party for whom it was intended; and that only one of the certificates was ever transferred upon the books of the company. The court instructed the jury to find for the plaintiff, and the defendant excepted. The jury returned a verdict in favor of plaintiff for $9508.75, “of which $7500 is principal, and bears interest from June 1, 1885,” upon which judgment was rendered and a writ of error prosecuted to this court. The record of the Chancery Court of the city of Richmond shows that W. W. Glenn recovered judgment in the Superior Court of Baltimore City, against the express company, by default, June 8, 1869, which was entered up for $42,501.31, on assessment of damages, June 24, 1870, and that, on the 4th day of December, 1871, Glenn filed his bill on his own behalf and that of such other creditors of the express company as might become parties to the suit, against the express company, its president and directors, and the trustees named in the deed of trust, subpoenas having issued on the 28th of November, 1871, which were served on two directors of the company. The bill sets forth the recovery of the judgment; that the trustees had collected little or nothing; that the visible property of the company had been seized by creditors in various States; that only twenty per cent had been called for from 324 OCTOBER TERM, 1888. • Statement of the Case. the stockholders, of which the trustees had collected but little; that the validity and legal effect of the deed had been drawn in question in the courts of various States, and the operations of the trustees hindered; that it would be necessary to resort to the remainder of the subscription to pay the company’s debts, and stockholders could not be sued until a call had been made by the company; that doubts had been expressed whether the subscriptions passed by the deed ’; that, if they did, the trustees could not sue without a call; and that equity demanded that money should be collected by a call and assessment upon all the stockholders. The bill prayed for a construction of the deed, the appointment of a receiver, an account, and the ascertainment of the amount necessary to be assessed for the purpose of paying the debts, etc., and for general relief. Nothing further was done until August 4, 1879, when an amended and supplemental bill was filed asking that the trustees be removed and a new trustee be appointed, and that if the company should make no assessment upon the stockholders the court might make one. This amended bill charged that nothing had been done by the company or the trustees in execution of the trust, or to pay creditors; that the books of the company had been retained by one of the two surviving trustees, who were non-residents, the third trustee being dead, etc. It does not appear that process was issued against the company upon the original bill, but upon the amended and supplemental bill a subpoena was issued against it, its officers, directors, and trustees, and this was served upon two directors and a cashier of the company, ana published for four weeks in a newspaper in the city of Richmond. The surviving trustees, Hoge and Kelly, filed answers setting forth in detail a variety of causes which had operated to delay and impede their proceedings, and furnished excuses for their apparent laches, particularly litigation in Maryland and New York, in which injunctions were granted, and, in one of the suits, a receiver was appointed, to whom the books and papers of the company wTere Consigned, and when returned, on the disposition of that case, after the lapse of some years, they were carried to New York. HAWKINS v. GLENN. 325 Argument for Plaintiff in Error. A decree pro confesso was taken against the company in September, 1879, and an interlocutory order entered on the 6th of October following, referring the case to one of the commissioners of the court to take an account of the debts due by the company and the priorities thereof, and an account of its assets, etc., upon giving due notice by publication, which he did. The commissioner made report ascertaining the total of indebtedness, and the whole amount of unpaid stock; and he recommended an assessment of twenty per cent. By a supplemental report an increase of the assessment was recommended, and a decree was finally rendered, December 14,1880, sustaining the deed of trust, substituting John Glenn as trustee, holding that the power to make assessment remained with the company after the deed was executed, finding the amount of the indebtedness and that there was no property to pay the debts except the eighty per cent unpaid of the capital stock, and ordering an assessment of thirty per cent, payable to Glenn, trustee, who was thereby authorized to collect and receive the same. Mr. Samuel F. Phillips (with whom were JZ?. IF. H. Lamar and Mr. J. G. Zachry on the brief) for plaintiff in error. I. Interest upon the call accrued only from actual demand upon the defendant. The decree for a call was made nearly thirteen years after the company.stopped business. The defendant was not a party to the suit. Under these circumstances he is not chargeable with neglect for non-compliance with the order, until actually notified of it. The language of this court in Sanger v. Upton, 91 U. S. 56, is to be taken in connection with the contention made in that case that a stockholder is not bound at all by a call made in a cause to which he is not a party. We do not deny that he is bound by it. We only maintain that he is not chargeable with laches for not obeying it until he is notified of its requirements. Hunt n. Fevers, 15 Pick. 500, 505; & C. 26 Am. Dec. 616. A call by the court is not a decree for the money included in the call. Glenn v. Saxton, 68 California, 353. II. The defendant is not responsible for the subscription to 326 OCTOBER TERM, 1888. Argument for Plaintiff in Error. the 150 shares taken by him for solvent and named principals and for which it was, at the time of the subscription, agreed between the parties that he should not be liable. As between him and the company he could not have been held liable. Scovill v. Thayer, 105 U. S. 143, 153. This action is brought by a substitute for the trustees who were created by the voluntary act of the company. That substitute is bound to all to which the company itself would have been bound, if it had been plaintiff. Wisner v. Brown, 122 U. S. 214. The rule that if an agent bind himself upon the face of a written contract he cannot discharge himself therefrom by showing that he did so merely as agent, does not apply to cases like this, in which courts of law are authorized by statute to admit equitable pleas. Wake v. Harrop, 6 H. & N. 768; B a 1 H. & C. 202. III. The cause of action did not accrue within three years. To consider the circumstances of the present case more closely: (1) It is essentially unlike the case of a call made by the authorities of a corporation still doing business. For in that case the subscriber has contracted that such authorities may call as and when in their judgment the affairs of the company may require it; and the state of things contemplated at the time of subscription is still going on. Therefore in that case it may very well be that, although no call has been made upon unpaid subscriptions within ten years or more, the statute of limitations has no application. Modus et conventio vincunt legem. The case may be the same where a promise has been made to pay money so many days after demand and there is no context showing that such demand was to be made within a limited time; for there, if the holder makes no demand [i.e., call] for ten years or more, he is authorized by the contract so to delay, and the statute is inapplicable for the reason just stated. (2) . The period of time in the present case whose lapse is supposed to have given effect to the statute of limitations was a period during the whole of which the provision in the subscription as affected by the Virginia statute, which submits the subscriber to the discretion of “the president and HAWKINS v. GLENN. 327 Argument for Defendant in Error. directors ” as to the time at which calls might be made, had become null, and the latter had, in respect of calls, become subject to the general principles of courts of justice. It is not because a debtor has contracted to be subject to the judgment of a court, whether for a call or otherwise, that such judgment is given. Judicial action, in that case only, supervenes upon the state of things which the contract had created, in the same way that it does upon like states created by torts. In re Welsh Ilannel and Tweed Co., L. R. 20 Eq. 360; In re Glen Iron Works, 20 Fed. Rep. 674. If the suit for a call is to be considered as a mere incident to the suit to recover the amount called, it follows that inasmuch as after the stoppage of business the time of making a call was no longer matter of discretion, but was subject to the notice and direction of the law, the lapse of time before making application for such call (the bringing suit therefor) is to be counted in reckoning, under the statute of• limitations, whether the suit subsequently brought under such call has been brought in good time. Diefenthaler v. New York City, 111 N. Y. 331; Borst v. Corey, 15 N. Y. 505; Glenn v. Dor-sheimer, 23 Fed. Rep. 695; Atchison & Topeka Railroad v. Burlingame, 36 Kansas, 628; Chalfin v. Moore, 9 B. Mon. 496; 8. C. 50 Am. Dec. 525; Pittsburg de Connellsville Railroad v. Byers, 32 Penn. St. 22; & C. 72 Am. Dec. 770 ; Morrison v. Mullin, 34 Penn. St. 12; Keithler v. Foster, 22 Ohio St. 27; Palmer v. 'Palmer, 36 Mich. 487. Mr. Wilbur F. Boyle, by special permission of court, also addressed the court for plaintiff in error. Mr. John W. Dryden was with him on his brief. Mr. Charles Marshall and Mr. John Howard for defendant in error. Their brief contained the following list of reported cases in which one or more of the questions involved, in the present case had been tried and adjudicated. In the Court of Appeals of Virginia. Yanderwechen v. Glenn, -S. E. Rep. 806; Lewis’s Adm'r. v. Glenn, 6 S. E. Rep. 866; Hambleton v. Glenn, 13 Virginia Law Journal, 242. 328 OCTOBER TERM, 1888. Opinion of the Court. In. the Supreme Court of Alabama. Glenn v. Semple, 80 Alabama, 159; Lehman, &c. v. Glenn, 13 Virginia Law Journal, 302; Semple v. Glenn, 13 Virginia Law Journal, 305; Sayre n. Glenn, 13 Virginia Law Journal, 307; Morrie v. Glenn, 13 Virginia Law Journal, 224. In the Court of Appeals of Maryland. Glenn v. Williams, 60 Maryland, 93 ; Glenn v. Claloaugh, 65 Maryland, 65; Glenn x. Howard, 65 Maryland, 40; Glenn v. Savage, 65 Maryland, 40; McKim v. Glenn, 66 Maryland, 479. In North Carolina. Glenn v. Orr, 96 North Carolina, 413. In Georgia. Glenn v. Howard, 8 S. E. Rep. 636. In California. Glenn v. Saxton, 68 California, 353. In the Federal Courts. Glenn v. Ca/mden, Glenn v. Bennett, Glenn v. Bland, in the Circuit Court of the United States for the District of West Virginia, reported in Parkersburg State Journal of June 25th and 26th of 1886. Glenn V. Jackson and» Glenn v. Galaway, before the late Judge Baxter, reported in the Louisville Courier-Journal, October 31, 1885. Glenn v. Dorsheimer, 23 Fed. Rep. 695; 8. C. 24 Fed. Rep. 536; Glenn v. Springs, 26 Fed. Rep. 494; Glenn v. Scott, 28 Fed. Rep. 804; Glenn v. Coyle, 22 Fed. Rep. 417; Glenn v. Soule, 22 Fed. Rep. 417; Foote v. Glenn, 36 Fed. Rep. 824 Mr. Chief Justice Fuller delivered the opinion of the court. ♦ Counsel for plaintiff in error contends that the decree of the Richmond Chancery Court making the call and assessment was void as against him, because he was not a party to the suit; that the cause of action was barred by the, statute of limitations; that he was not responsible upon one hundred and fifty shares of the stock; and that interest should not have been allowed from the date of the call, but only from the time of the filing of the complaint. The jurisdiction of the Richmond Chancery Court to settle the construction of the deed of trust, to remove the original trustees and substitute another, and to ascertain the extent of the liabilities and assets of the corporation, is not denied. It HAWKINS v. GLENN. 329 Opinion of the Court, is conceded that the balance remaining unpaid on subscriptions to stock is a trust fund for the payment of corporate debts and that a judgment obtained against a corporation cannot be impeached except for fraud. But it is said that a binding assessment cannot be levied without the presence of the stockholders or service of process or notice upon them. Under the charter of this company a call could only be made by the president and directors and was a corporate question merely, and in the situation of the company’s affairs it was a duty to make it, failing the discharge of which by the president and directors, creditors could set the powers of a court of equity in motion to accomplish it. Executing in that regard a corporate function for a corporate purpose, it is difficult to see upon what ground it could be held that the court could not order an assessment operating upon stockholders, who would be bound if the president and directors had ordered it. Sued after such an order of court, the defendant does not deny the existence of any one of the facts upon which the order was made, but contends that there has been no call as to him, because he was not a party to the cause between creditor and corporation. We understand the rule to be otherwise, and that the stockholder is bound by a decree of a court of equity against the corporation in enforcement of a corporate duty, although not a party as an individual, but only through representation by the company. A stockholder is so far an integral part of the corporation that, in the view of the law, he is privy to the proceedings touching the body of which he is a member. Sanger v. Upton, 91 U. S. 56, 58, in which case itds also said: “It was not necessary that the stockholders should be before the court when it [the order] was made, any more than that they should have been there when the decree of bankruptcy was pronounced. That decree gave the jurisdiction and authority to make the order. The plaintiff in error could not, in this ac-tion, question the validity of the decree; and for the same reasons she could not draw into question the validity of the 330 OCTOBER TERM, 1888. Opinion of the Court. order. She could not be heard to question either, except by a separate and direct proceeding had for that purpose.” As against creditors there is no difference between unpaid stock “ and any other assets which may form a part of the property and effects of the corporation,” (Morgan County v. Allen, 103 U. S. 498, 509,) and “ the stockholder has no right to withhold the funds of the company upon the ground that he was not individually a party to the proceedings in which the recovery was obtained.” Glenn v. Williams, 60 Maryland, 93, 116. In the last cited case, which was an action to recover upon the assessment controverted here, the Court of Appeals of Maryland passed upon the question now before us, and held in an able opinion by Alvey, J., that the Richmond Chancery Court acquired jurisdiction over the express company and the trustee; that that court had power and jurisdiction to make assessments upon the unpaid subscriptions to raise funds to pay the corporation’s debts, and its decree making such assessment was binding and effective “ upon the stockholders who were not in their individual capacities parties to the cause;” that Glenn was legally appointed trustee; and that the statute of limitations began to run only from the time the assessment was made by the decree of the court in Virginia and could form no bar to the right to recover in the action. Sanger v. Upton, supra, is quoted from, and it is correctly stated that that decision “ was made not in pursuance of any express provision of the bankrupt law, but in analogy to the powers and procedure of a court of equity and to meet the requirements and justice of the case.” In Hambleton v. Glenn, 13 Virginia Law Journal, 242, [decided in the Court of Appeals of Virginia March 14, 1889, and not yet reported in the official series,] the rejection by the Circuit Court of Henrico County, Virginia, to which the suit in the Richmond Chancery Court had been removed, of a petition of certain stockholders to be made parties, and for a rehearing of the cause, came under review in the Supreme Court of Appeals of Virginia, and that court among other things said: “ The first question raised in this court is that the appellants are entitled to be made parties to the suit of Glenn v. HAWKINS v. GLENN. 331 Opinion of the Court. National Express and Transportation Compa/ny, because the relief sought is against them. The suit of Glenn v. The National Express and Transportation Company is a creditor’s suit against a corporation, and, by the terms of its charter and the laws of this State applicable to said company, it was lawfully sued as such by its corporate name, and the individual stockholders were not proper parties to such a suit, the president and directors being by their selection their representatives for this purpose. The appellants admit this as to any live and going corporation, and claim, as the corporation is dead, that by its deed of trust it assigned to trustees and ceased to exist; that in a suit by a creditor, or by creditors generally, the suit against the corporation is in fact one not against the corporation, but against them as stockholders, and they are not represented by the company nor by the trustees. By the law of this State, (Code of 1873, c. 56, § 31,) ‘ when any corporation shall expire or be dissolved, or its corporate rights and privileges shall have ceased, all its works and property, and debts due to it, shall be subject to the payment ^of debts due by it, and then to distribution among the members according to their respective interests; and such corporation may sue and. be sued as before, for the purpose of collecting debts due to it, prosecuting rights under previous contracts with it, and enforcing its liabilities, and distributing the proceeds of its works, property and debts, among those entitled thereto.’ By which it is provided that, notwithstanding its death, it stands, for the purpose of being sued by creditors, just as it did while live and going, and may sue and be sued as before, and that the directory has assigned to trustees alters the case only so far as to make the trustees necessary parties.” The section quoted from the Code of 1873 is identical with section 30 of chapter 56 of the Code of 1860 ; and as the corporation, notwithstanding it may have ceased the prosecution of the objects for which it was organized, could still proceed in the collection of debts, the enforcement of liabilities, and the application of its assets to the payment of its creditors, ah corporate powers essential to these ends remained unimpaired. We concur in the decision to this effect of the highest 332 OCTOBER TERM, 1888. Opinion of the Court. tribunal of the State where the corporation dwelt, in reference to whose laws the stockholders contracted, {Canada Southern Railway v. Gebhard, 109 U. S. 527,) and in whose courts the creditors were obliged to seek the remedy accorded. Barclay n. Tallman, 4 Edw. Ch. 123; Bank of Virginia v. Adams, 1 Parsons Sei. Cas. 534; Patterson n. Lynde, 112 Illinois, 196. We think it cannot be doubted that a decree against a corporation in respect to corporate matters, such as the making of an assessment in the discharge of a duty resting on the corporation, necessarily binds its members in the absence of fraud, and that this is involved in the contract created in becoming a stockholder. The decree of the Richmond Chancery Court determined the validity of the assessment; and that the lapse of time between the failure of the company and the date 'of the decree did not preclude relief, by creating a bar through statutes of limitation or the application of the doctrine of laches. And so it has been held in numerous cases referred to on the argument. The court may have erred in its conclusions, but its decree cannot be attacked collaterally, and, indeed, upon a direct attack, it has already been sustained by the Virginia Court of Appeals. Hambleton n. Glenn, supra. Some further observations may not inappropriately be added. Unpaid subscriptions are assets, but have frequently been treated by courts of equity as if impressed with a trust sub modo, upon the view that, the corporation being insolvent, the existence of creditors subjects these liabilities to the rules applicable to funds to be accounted for as held in trust, and that therefore statutes of limitation do not commence to run in respect to them, until the retention of the money has become adverse by a refusal to pay upon due requisition. But the conclusion as to the statute need not be rested on that ground; for, although the occurrence of the necessity of resorting to unpaid stock may be said to fix the liability of the subscriber to respond, he cannot be allowed to insist that the amount required to discharge him became instantly payable though unascertained, and though there was no request, or its equivalent, for payment. HAWKINS v. GLENN. 333 Opinion of the Court. And here there was a deed of trust made by the debtor corporation for the benefit of its creditors, and it has been often ruled in Virginia, that the lien of such a trust deed is not barred by any period short of that sufficient to raise a presumption of payment. Smith v. Virginia Midland Railroad, 33 Grattan, 617; Bowie v. The Poor School, 75 Virginia, 300; Hambleton v. Glenn, 13 Virginia Law Journal, 242. This deed was not only upheld and enforced by the decree of December 14, 1880, but also the power of the substituted trustee to collect the assessment by suit in his own name, was declared by the Court of Appeals of Virginia, in Lewis’s Administrator v. Glenn, 6 S. E. Rep. 866. See also Baltimore de Ohio Railroad v. Glenn, 28 Maryland, 287. By the deed the subscriptions, so far as uncalled for, passed to the trustees, and the creditors were limited to the relief which could be afforded under it, while the stockholders could be subjected only to equality of assessment, and as the trustees could not collect except upon call, and had themselves no power to make one, rendering resort to the president and directors necessary, or, failing their action, then to the courts, it is very clear that the statute of limitations could not commence to run until after the call was made. The rule laid down in Sco'oill v. Thayer, 105 U. S. 143, 155, applies. In that case it was said by Mr. Justice Woods, speaking for the court: “There was no obligation resting on the stockholder to pay at all until some authorized demand in behalf of creditors was made for payment. The defendant owed the creditors nothing, and he owed the company nothing save such unpaid portion of his stock as might be necessary to satisfy the claims of the creditors. Upon the bankruptcy of the company, his obligation was to pay to the assignees, upon demand, such an amount upon his unpaid stock as would be sufficient, with the other assets of the company, to pay its debts. He was under no obligation to pay any more, and he was under no obligation to pay anything’until the amount necessary for him to pay was at least approximately ascertained. Until then his obligation to pay did not become complete?’ And it was held, “ that when stock is subscribed to be paid 334 OCTOBER TERM, 1888. Opinion of the Court. upon call of the company, and the company refuses or neglects to make the call, a court of equity may itself make the call, if the interests of the creditors require it. The court will do what it is the duty of the company to do. . . . But under such circumstances, before there is any obligation upon the stockholder to pay without an assessment and call by the company, there must be some order of a court of competent jurisdiction, or, at the very least, some authorized demand upon him for payment; and it is clear the statute of limitations does not begin to run in his favor until such order or demand.” o Constituting, as unpaid subscriptions do, a fund for the payment of corporate debts, when a creditor has exhausted his legal remedies against the corporation which fails to make an assessment, he may, by bill in equity or other appropriate means, subject such subscriptions to the satisfaction of his judgment, and the stockholder cannot then object that no call has been made. As between creditor and stockholder, “it would seem to be singular if the stockholders could protect themselves from paying what they owe by setting up the default of their own agents.” Hatch n. Dana, 101 U. S. 205, 214. The condition that a call shall be made is, under such circumstances, as Mr. Justice Bradley remarks in the matter of Glen Iron Works, 20 Fed. Rep. 674, 681, “but a spider’s web, which the first breath of the law blows away.” And as between the stockholder and the corporation, it does not lie in the moutlT of the stockholder to say, in response to the attempt to collect his subscription, for the payment of creditors, that the claim is barred because the company did not discharge its corporate duty in respect to its creditors earlier. County of Morgan v. Allen, 103 U. S. 498. These considerations dispose of the alleged error in not sustaining the defence of the statutory bar. By §26, c. 57, Tit. 18, “Chartered Companies” of the Virginia Code of 1873, (p. 551,) it is provided that “no stock shall be assigned on the books without the consent of the company, until all the money which has become payable thereon shall have been paid; and on any assignment the assignee and assignor shall each be liable for any instalments which may HAWKINS v. GLENN. 335 Opinion of the Court. have accrued, or which may thereafter accrue, and may be proceeded against in the manner before provided.” And this was the provision of the Code of 1860, (c. 57, Tit. 18, § 24,) and in Hambleton v. Glenn, supra, it was held “ that under that section the assignee and assignor are liable for anv instalment which may have accrued or which may hereafter accrue,” and to the same effect is McKim v. Glenn, 66 Maryland, 479. Defendant claims that of the two hundred and fifty shares for which he subscribed, he took one hundred and fifty shares for three other persons. The stock ledger shows that five certificates of fifty shares each were sent to defendant, made out in his name; and it appears from his evidence that he transferred three certificates for fifty shares each to Hoge, Battle and Williamson, though they failed to have them transferred to their own names on the books of the company. Of the remaining one hundred shares, defendant retained fifty and transferred the other fifty to five other persons whom he had anticipated, when he subscribed, might take them. So far as appears from the stock register the plaintiff remained the original owner of two hundred shares and the assignor of fifty, and no error is assigned as to this fifty. Section 25 of c. 57, Tit. 18, of the Code of Virginia of 1860, is as follows: “A person in whose name shares of stock stand on the books of a company shall be dfeemed the owner thereof as it regards the company.” Code of 1873, Tit. 18, c?57, § 27. So far as creditors were concerned, Hawkins remained a shareholder as to the two hundred shares. Pullman n. Upton, 96 U. S. 328; Richmond v. Irons, 121 U. S. 27; Upton v. Tribilcock, 91 U. S. 45. The judgment of the Circuit Court cannot be disturbed because the defendant was held liable on two hundred and fifty shares. It is also objected that interest upon the amount called should have been allowed from the date of the commencement °f the suit and not from the date of the decree, but the difficulty with this contention is, that there was no motion for a new trial in the case. The court, so far as appears, gave OCTOBER TERM, 1888. Syllabus. no instruction on the subject of the amount of the interest, and the exception to the instruction to find for the plaintiff does not question the amount found by the jury. The Code of Virginia of 1860 provides: “If the money, which any stockholder has to pay upon his shares, be not paid as required by the president and directors, the same, with interest thereon, may be recovered by warrant, action or motion as aforesaid.” (Code of 1860, Tit. 18, c. 57, § 21; Code of 1873, Tit. 18, c. 57, § 23.) Interest would, therefore, seem chargeable from the date of the call. The judgment of the Circuit Court is Affirmed. EMBREY v. JEMISON. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA. No. 235. Argued April 3, 4, 1889. — Decided May 13, 1889. A contract for the purchase of “ future-delivery ” cotton, neither the purchase or delivery of actual cotton being contemplated by the parties, but the settlement in respect to which is to be upon the basis of the mere “ difference ” between the contract price and the market price of said cotton futures, according to the fluctuations in the market, is a wagering contract and illegal and vpid, as well under the statutes of New York and Virginia, as generally in this country. The original payee cannot maintain an action upon a note, the consideration of which is money advanced by him upon or in execution of a contract of wager, he being a party to such contract, or having directly participated in the making of it in the name, or on behalf of one of the parties. The statute of Virginia, (Code of 1873, c. 146, § 20,) provided that when a right of action accrues “ against a person who had before resided in this State, if such person shall, by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted "Held, that this was inapplicable when the defendant, although once a resident of that State, removed therefrom before any right of action accrued against him, and before the transactions occurred out of which the plaintiffs cause of action arose. EMBEEY v. JEMISON. 337 Statement of the Case. This was an action of debt to recover from the plaintiff in error, who was the defendant below, the amount of four negotiable notes executed by him, January 21, 1878, and payable at the office of E. S. Jemison & Co., in the city of New York, to the order of Moody & Jemison, by whom they were indorsed, before maturity, to the plaintiff, Jemison. Each note was for the sum of $7594.15, two of them payable six months, and the remaining two twelve months, after date. There was a trial before a jury, resulting in a verdict and judgment in favor of the plaintiff for the amount demanded in the declaration. The case was brought here for review, the defendant contending that the court committed such errors of law as entitled him to a reversal of the judgment and to a new trial. In addition to a plea of nil debet, the defendant filed a special plea of wager, in which it was averred, in substance, that on the last of February, or the first of March, in the year 1877, he contracted with the firm of Moody & Jemison, brokers and commission merchants of the city of New York, and members of the Cotton Exchange, to purchase for him, through the plaintiff, one of that firm, “ on a margin,” in said Cotton Exchange, not actual cotton, but four thousand bales of “ futuredelivery ” cotton, for May delivery, commonly called “ futures,” which he did; that at the time of the purchase the defendant had in the hands of Moody & Jemison about eight thousand dollars as a margin to protect said purchase against fluctuations in the market; that in the first few days of the month of March the plaintiff, as a member of the firm of Moody & Jemison, reported that the margin was about exhausted by a decline in the market, and called for more margin, which defendant informed him he was unable to put up; that no agreement or contract was at that time, or afterwards, made with the firm of Moody & Jemison to have the said “ cotton futures ” carried for his account; that no report was afterwards made to him of any sale of such futures; that on the 21st day of January, 1878, in the city of New York, the plaintiff called on him for his four notes for losses which he alleged the firm of Moody & Jemison had sustained by carrying said “ cotton VOL. CXXXI—22 338 OCTOBER TERM, 1888. Statement of the Case. futures,” which notes the defendant executed, and which are the identical notes described in the declaration ; “ that the purchase or delivery of actual cotton was never contemplated, either by the defendant or the said Moody & Jemison, and it was understood between them that the settlement was to be made between said - parties by one party paying to the other the difference between the contract price and the market price of said cotton futures, according to the fluctuations in the market ; and, therefore, the defendant says that the said contract was a wagering contract, and that it and the said four notes for the consideration aforesaid are void and of no force in law.” A demurrer to this plea was sustained, the defendant taking his exception in proper form. On the trial of the case on the plea of nil débet the plaintiff, to maintain the issue upon his part, gave in evidence the four notes described in the declaration, and the defendant testified to the facts set forth in the above special plea of wager. And 'this was all the evidence before the jury. Thereupon the defendant asked the court to instruct the jury as follows : “ If the jury shall believe from the evidence that it was not the intention of either party that a contract, should be made by the plaintiff to buy and hold the bales pf cotton for delivery to the defendant, but that it was the real intention and understanding -of the parties that a contract should be made which should be closed at a future day, not by delivery of the cotton and payment of purchase price, but by, payment of money to the one party or the other, the party to receive the same and the amount to be paid to be determined upon a basis of the difference between the agreed purchase price on the ---day of -------------------------------------------------------,18 —, and the actual market value of the cotton on the day when the contract was to be closed, then the jury are instructed that such a contract is invalid in law and void, and that they must find for the defendant.” The court refused to give this instruction, and the defendant duly excepted. Although the notes in suit are dated at the city of New York, and were payable at the office of E. S. Jemison & Co., in that city, it does not clearly appear whether the origina EMBREY v. JEMISON. 339 Statement of the Case. contract between Embrey and the firm of Moody & Jemison, referred to in the special plea of wager, and in the above instruction, was made in Virginia, or in New York. There was, consequently, some discussion as to whether the statute of Virginia or that of New York should control the determination of the question as to the illegality of that contract. The statute of Virginia provides that “ every contract, conveyance, or assurance, of which the consideration, or any part thereof, is money, property, or other thing won or bet at any game, sport, pastime or wager, or money lent or advanced at the time of any gaming, betting or wagering, to be used in being so bet or wagered, (when the person lending or advancing it knows that it is to be so used,) shall be void.” Code of Va. 1873, 984, Title 43, c. 140, § 2. By the statute of New York it is provided that “ all wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever, shall be unlawful. All contracts for or on account of any money or property, or things in action, so wagered, bet, or staked, shall be void.” 1 Rev. Stat. N. Y., Part I, Title 8, art. 3, § 8. The defendant also pleaded the statute of limitations to the amended declaration; that the cause of action did not “ accrue to the said plaintiff at any time within five years next before the commencement of this suit.” To this the plaintiff replied, (setting up the Code of 1873, c. 146, § 20,) “ that he ought not to be barred by reason of anything by the said defendant in his said plea of the statute of limitations alleged, because he says that at the time when the said several causes of action in the declaration mentioned, and each and every of them did accrue to the said plaintiff, the said defendant had before resided in the State of Virginia, and did by departing without the same obstruct the said plaintiff in the prosecution of his said several causes of action, and of each and every of them for several, to wit, two or more years next after the same accrued as aforesaid; and the said plaintiff says that- the time that such obstruction continued is not to be computed as any part of the time within which the said several causes of action 340 OCTOBER TERM, 1888. Argument for Defendant in Error. and each and every of them ought to have been prosecuted, and that, excluding the said time that such obstruction continued, the plaintiff brought this said action within five years next after the accruing of the said several causes of action and of each and every of them.” The defendant rejoined “that the plaintiff ought not by reason of anything in his replication alleged to have and maintain his action against him, because he says that by his removal from the State of Virginia and departing without the same, as in his said replication is alleged, he did not obstruct the said plaintiff in the prosecution of his suit upon the alleged causes of action in the declaration mentioned, because he says that his removal from the State of Virginia and departing without the same was in the year 1859, a long time before any of the alleged causes of action existed or accrued to the plaintiff against this defendant, and that when said causes of action accrued to the plaintiff he was, and still considers himself, a citizen of the State of Louisiana.” Other issues were made by the pleadings, which the opinion of the court makes unimportant. J/r. Joseph Christia/n, and Mr. James M. Matthews for plaintiff in error. Mr. Henry M. Herman for defendant in error. I. The court below did not err in sustaining the demurrer to the defendant’s amended plea of wager. There was no error in the action of the court below striking out the plea of wager, for there is at the very threshold of this case a well-settled principle of law which excludes it from consideration entirely, viz.: that when parties, having mutual matters of account between them growing out of a contract, deliberately come together and state a balance, and the party who on such accounting is found indebted to the other, pays the debt or gives a written obligation for its payment, this settlement is so far conclusive between the parties that it cannot be re-opened or gone into either at law or equity except upon clear proof of fraud or mistake, or of an express under- EMBREY v. JEMISON. 341 Argument for Defendant in Error. standing that certain matters were left open for settlement. Oil Co. v. Van Etten, 107 IT. S. 325; Perkins v. Hart, 11 Wheat. 237; Hager v. Thomson, 1 Black, 80; Bull v. Harris, 31 Illinois, 487; Lee v. Reed, 4 Dana, 109; Hodges v. Hosford, 17 Vermont, 615 ; Martin v. Beckwith, 4 Wisconsin, 219; Gibson v. Hanna, 12 Missouri, 162; Cogswell v. Whittlesey, 1 Root, 384; Sergeant v. Ewing, 36 Penn. St. 156; Nicholson v. Pelanne, 14 La. Ann. 508. And when such an account is settled, the presumption is that all the previous dealings between the parties relating to the subject matter of the account are adjusted. Bourke v. James, 4 Michigan, 336; Mills v. Geron, 22 Alabama, 669. It is a well-settled principle in the Federal courts that a party to a negotiable instrument is not a competent witness to prove any fact existing at the time of his accrediting the paper, tending to invalidate it. Bank of the United States v. Dunn, 6 Pet. 51; Bank of the Metropolis v. Jones, 8 Pet. 12; Scott v. Lloyd, 12 Pet. 145; Henderson v. Anderson, 3 How. 73; Smyth v. Strader, 4 How. 404; Saltmarsh v. Tuthill, 13 How. 229; Sweeney v. Easter, 1 Wall. 166; Davis v. Brown, 94 IT. S. 423. It has also been settled in this court that a continued recoo--o mtion of a debtor’s liability and his agreement to discharge it, after he has full knowledge of all the facts in relation to the matter, estop him from pleading a want of consideration or setting up fraud as a defence to an action on the promise. Fitzpatrick v. Flannagan, 106 IT. S. 648; McCreary v. Parsons, 31 Kansas, 447; Stebbins v. Cra/wford County, 92 Penn. St. 289; Negley v. Lindsay, 67 Penn. St. 217. A negotiable note or bill of exchange is an extinguishment of a simple contract debt, the maker being liable to pay the money to a third person. 2 Bac. Abr. Debt, G. 290; Kearslake v. Morgan, 5 T. R. 513. These promissory notes are evidence of an account stated. And after giving them, Embrey cannot go into evidence to impeach the charges in the first account, which has been settled. Laycock v. Pickles, 4 B. & S. 497; Milwa/rd v. Ingram, 2 Mod. 44. 342 OCTOBER TERM, 1888. Argument for Defendant in Error. The only statute in Virginia as to wagers, enacted in 1849, is the following: ft Every contract, conveyance or assurance, of which the consideration, or any part thereof, is money, property or other thing won, or bet, at any game, sport, pastime or wager, or money lent or advanced at the time of any gaming, betting or wagering, to be used in being so bet or wagered, (when the person lending or advancing it knows that it is to be so used,) shall be void.” This statute is a penal statute, and must be strictly construed. It must be limited in its application to the object the legislature had in view, and cannot be extended to matters that did not exist when the statute was made. Penal statutes cannot be enlarged by intendment, and acts not expressly forbidden by them cannot be reached merely because they resemble the offences provided against, or are equally, or in the same way demoralizing or injurious. They cannot be made to embrace anything which was not within the intent of the legislature. Shaw n. Clark, 49 Michigan, 384; United States v. Clayton, 2 Dillon, 219 ; Griffiths v. Sears, 112 Penn. St. 523; United States v. Morris, 14 Pet. 464; McCormick v. Nichols, 19 Brad well (Ill. App.) 334; United States v. Wiltberger, 5 Wheat. 76; Reed n. Darois, 8 Pick. 514; United States n. Sheldon, 2 Wheat. 119; Sprague n. Birdsall, 2 Cowen, 419; Ferrett v. Atwill, 1 Blatchford, 151; Jenkinson v. Thomas, 4 T. R. 665; Fletcher n. Lord Sondes, 3 Bing. 501; Rex v. Handy, 6 T. R. 286; Rex v. Hymon, 1 T. R. 536; Nalmn v. Smith, 1 Salk. 177; United States v. Ragsdale, Hemp. 497. On this point see especially Brown v. Speyers, 20 Grattan, 296, 308, where this question is fully discussed. Though an illegal contract will not be enforced, yet, when it has been executed by the parties, and the illegal object has been accomplished, the money or thing which was the price of it may be a legal consideration between the parties for a promise express or implied. Planters' Bank n. Union Bank, 16 Wall. 483 ; Brooks v. Martin, 2 Wall. 70; Cook v. Sherman, 20 Fed. Rep. 167. The transaction alleged to be illegal is completed and closed, and will not be affected by what the court is asked to do, between the parties. McBlair v. Giboes, 17 How. 232; Brooks v. Martin, ubi supra. EMBREY v. JEMISON. 343 Opinion of the Court. II. The court below correctly construed the statute of limitations. The construction given by a state court to a statute of the State is received as true; and enforced in all Federal courts unless it conflicts with the Constitution or laws of the United States. Leffingwell v. Warren, 2 Black, 599. State statutes of limitation, no rule being given by Congress, form the rule of decision in United States courts and the like effect is there given as in the state courts. McCluny v. Silliman, 3 Pet. 270; Hoss v. Duval, 13 Pet. 45; Harpending v. Dutch Church, 16 Pet. 455; Moores v. National Bank, 104 U. S. 625 ; Henderson v. Griffin, 5 Pet. 151; Goldenberg v. Murphy, 108 U. S. 162. The state statutes of limitations govern in common law cases in the Federal courts unless Congress has provided otherwise. Rev. Stat. § 721. In Ficklin v. Carrington, 31 Gratt. 224 to 227, the Court of Appeals of Virginia passed on precisely the same plea of the statute of limitations as that set up by the plaintiff in error in this case, and the opinion in that case delivered by Christian, Judge, is identical with the construction given to it by the court below, in this case. And this is the construction placed upon similar statutes in other States and by this court. It applies when the party is without the limits of jurisdiction of the State where the action is brought. Murray v. Baker, 3 Wheat. 541; Bank of Alexandria v. Dyer, 14 Pet. 141; Brent v. Tasker, 1 Harr. & McH. 89; Forbes v. Foot, 2 McCord, 331; Ä C. 13 Am. Dec. 732 ; Benham v. Hdleman, 26 Georgia, 182; A C. 71 Am. Dec. 198; White v. Bailey, 3 Mass. 271; Byrne v. Crowninshield, 1 Pick. 263; Galusha v. Cobleigh, 13 N. H. 79. Mr. Justice Harlan, after stating the case, delivered the opinion of the court. Whether the validity of the original contract for the purchase of future-delivery cotton must depend upon the New York statute or upon the Virginia statute, it is not important to determine; for, if such contract, as alleged, is a wagering contract, it is void under the law of either State. The plea makes a case of money advanced by the plaintiff’s firm solely for the purpose of carrying “cotton futures,” for which he 344 OCTOBER TERM, 1888. Opinion of the Court. or they contracted, when, according to the averments of the rejected plea, neither party contemplated the purchase or delivery in fact of cotton, and when it was understood that any settlement, in respect to such purchases, should be exclusively upon the basis of one party paying to the other only 11 the difference between the contract price and the market price of said cotton futures, according to the fluctuations in the market.” If this be not a wagering contract, under the guise of a contract of sale, it would be difficult to imagine one that would be of that character. The mere form of the transaction is of little consequence. If it were, the statute against wagers could easily be evaded. The essential inquiry in every case is as to the necessary effect of the contract and the real intention of the parties. Mr. Benjamin, in his Treatise on Sales, (vol. 2, 717, 6th Amer. ed. by Corbin, § 828,) after stating that at common law wagers that did not violate any rule of public decency or morality, or any recognized principle of public policy, were not prohibited, says: “ It has already been shown that a contract for the sale of goods to be delivered at a future day is valid, even though the seller has not the goods, nor any other means of getting them than to go into the market and buy them.” “But such a contract,” he proceeds to say, “is only valid where the parties really intend and agree that the goods are to be delivered to the seller, and the price to be paid by the buyer. If, under guise of such a contract, the real intent be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, then the whole transaction constitutes nothing more than a wager, and is null and void under the statute.” The statute referred to by the author is that of 8 and 9 Viet. c. 109, § 18, which provides “ that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which should have been deposited in the hands of any person, to abide the event on which any wager should have been made.” EMBREY v. JEMISON. 345 Opinion of the Court. In Irwin n. Willia/r, 110 IT. S. 499, 508, 510, the general subject of wagering contracts was carefully considered, and in the opinion, delivered by Mr. Justice Matthews, we expressed approval of the doctrine as announced by Mr. Benjamin, observing that generally, in this country, all such contracts are held to be illegal and void as against public policy. It was there said :• “ It makes no difference that a debt or wager is made to assume the form of a contract. Gambling is none the less such because it is carried on in the form or guise of legitimate trade.” Referring to the decision in Rountree v. ¡Smith, 108 IT. S. 269, it was further said: “It is certainly true that a broker might negotiate such a contract without being privy to the illegal intent of the principal parties to it which renders it void, and in such a case, being innocent of any violation of law, and not suing to enforce an unlawful contract, has a meritorious ground for the recovery of compensation for services and advances. But we are also of the opinion that when the broker is privy to the unlawful design of the parties, and brings them together for the very purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by himself on behalf of either in forwarding the transaction.” In the present case, according to the averments in the plea of wager, the plaintiff was the broker who effected the purchases of future-delivery cotton. He was privy to the unlawful design of the parties ; represented one of them in all the transactions ; and advanced the money necessary to carry, and for the express purpose of carrying, these cotton “ futures ” on account of the defendant. His position, therefore, wTas not that of a person merely advancing money to or for one of the parties to a wager, without having himself any direct connection with the making or execution of the contract of wager itself. He was, in every sense, particeps criminis. In Bigelow v. Benedict, 70 N. Y. 202, 206, the Court of Appeals of New York said that “where an optional contract ¿or the sale of property is made, and there is no intention on the one side to sell or deliver the property, or on the other to buy or take it, but merely that the difference should be paid 346 OCTOBER TERM, 1888. Opinion of the Court. according to the fluctuation in market values, the contract would be a wager within the statute.” In Story v. Salomon, 71 N. Y. 420, 422, which was an action upon a written contract for an option to buy or sell certain shares of stock, and the defence was that it was illegal and void under the statute of New York against gaming, the court said: “ If it had been shown that neither party intended to deliver or accept the shares, but merely to pay differences according to the rise or fall of the market, the contract would have been illegal.” The same principle was announced in Kingsbury v. Kirwan, 77 N. Y. 612. There are many other authorities to the same effect, but in view of our decision in Irwin v. ^Williar, with which we are entirely satisfied, it is not necessary to cite them. The plaintiff relies upon Brown v. Speyers, 20 Grattan, 296, as expressing a different view of this question. But we do not so understand that case. The Supreme Court of Appeals of Virginia did not there indicate its opinion as to the validity of a contract for the purchase of “ futures,” the settlement in respect to which was to be upon the basis of paying simply the difference, according to the fluctuations in the market, between the contract price and the market price. It is contended that this is not an action upon the original contract, but upon the notes executed by Embrey after the business transacted for him by Moody & Jemison was closed, and with full knowledge, upon his part, of all the facts. In such a case, it is argued, the principles announced in Irwin v. Williar cannot be applied. This argument concedes, at least for the purposes of the present case, that, as the law, for the protection of the public, and in the interest of good morals, declares a wagering contract to be void, the plaintiff could not maintain an action for the moneys advanced in execution of the original contract to carry these li futures.” And yet it is insisted that he ought to have judgment on the notes in suit, although it appears they have no other consideration than the moneys so advanced. A judgment upon the notes wrould, in effect, be one for the amount claimed by the plaintiff, under the original contract, at the time he demanded their execution EMBREY v. JEMISON. 347 Opinion of the Court. by the defendant. Indeed, it has been held that a note could not of itself discharge the original cause of action, unless, by express or special agreement, it was received as payment. Sheehy v. Mandeville, 6 Cranch, 253, 264; Peter v. Beverly, 10 Pet. 532, 568; The Kimball, 3 Wall. 37, 45. While there are authorities that seem to support the position taken by the defendant in error, we are of opinion that, upon principle, the original payee cannot maintain an action on a note the consideration of which is money advanced by him upon or in execution of a contract of wager, he being a party to that contract, or having directly participated in the making of it in the name of or on behalf of one of the parties. In Steers v. Lashley, 6 T. R. 61, it appeared that the defendant was engaged in stock-jobbing transactions with different persons, in which one Wilson was employed as his broker, and had paid the “ differences ” for him. A dispute having arisen as to their amount, the matter was referred to the plaintiff and others, who awarded a certain sum as due from the defendant. For a part of that sum the broker drew a bill on the defendant, and after it had been accepted indorsed it to the plaintiff. Lord Kenyon said: “ If the plaintiff had lent this money to the defendant to pay the differences, and had afterwards received the bill in question for that sum, then, according to the principle announced in Pelrie v. Hannay, 3 T. R. 418, he might have recovered. But here the bill on which the action was brought was given for these very differences; and therefore Wilson himself could not have enforced payment of it. Then the security was indorsed over to the plaintiff, he knowing of the illegality of the contract between Wilson and the defendant; for he was the arbitrator to settle their accounts; and under such circumstances he cannot be permitted to recover on the bill in a court of law.” In Amory v. Meryweather, 2 B. & C. 573, 578, which was an action of debt on bond, conditioned for the payment of money by instalments, the plea in substance was that the bond was given in place of a promissory note previously executed in payment for moneys advanced by an agent of the obligor in discharge of differences arising upon contracts for 348 OCTOBER TERM, 1888. Opinion of the Court. buying and selling shares in the public stocks, against the form of the statute; the plaintiff having knowledge, when he received the bond, that the note had been made by the defendant on the occasion and for the purpose stated. Abbott, C. J., after observing that there was no period of time when the plaintiff could have maintained an action upon the note, said: “We are all of opinion that as it appears upon the plea that the bond was given as a substitute for a note which was taken by the plaintiffs subject to an infirmity of title of which they had full notice before the bond was taken, the latter instrument is void.” In Fisher n. Bridges, 3 El. & Bl. 642, 649, which was an action upon a covenant in a deed to pay a certain sum, and which covenant was given as security for payment of a part of the purchase money of real estate sold by the plaintiff to the defendant, to be by the latter disposed of by lottery, as the plaintiff knew, the court said: “ It is clear that the covenant was given for the payment of the purchase money. It springs from and is the creature of the illegal agreement and, as the law would not enforce the original illegal contract, so neither will it allow the parties to enforce a security for the purchase money, which, by the original bargain, was tainted with illegality.” See also Fareira v. Gabdl, 89 Penn. St. 89; Griffiths v. Stears, 112 Penn. St. 523; Flagg v. Baldwin, 38 N. J. Eq. 218, 227; Cunningham v. Bank of Augusta, 71 Georgia, 400; Tenney v. Foote, 95 Illinois, 991; Rudolf v. Winters, 7 Nebraska, 126; Lowry v. Dill/man, 59 Wisconsin, 197; £ C. 18 N. W. Rep. 4. Assuming the averments of the plea of wager to be true, it is clear that the plaintiff could not recover upon the original agreement without disclosing the fact that it was one that could not be enforced or made the basis of a judgment. He cannot be permitted to withdraw attention from this feature of the transaction by the device of obtaining notes for the amount claimed under that illegal agreement; for they are not founded on any new or independent consideration, but are only written promises to pay that which the obligor had verbally agreed to pay. They do not, in any just sense, constitute a distinct or collateral contract based upon a valid considera- EMBREY v. JEMISON. 349 Opinion of the Court. tion. Nor do they represent anything of value, in the hands of the defendant, which, in good conscience, belongs to the plaintiff or to his firm. Although the burden of proof is on the obligor to show the real consideration, the execution of the notes could not obliterate the substantive fact that they grew immediately out of, and are directly connected with, a wagering contract. They must, therefore, be regarded as tainted with the illegality of that contract, the benefits of which the plaintiff seeks to obtain by this suit. That the defendant executed the notes with full knowledge of all the facts is of no moment. The defence he makes is not allowed for his sake, but to maintain the policy of the law. Coppell v. Hall, 7 Wall. 542, 558. We are of opinion that the special plea of wager presented a good defence to the action, and ought not to have been rejected ; also, that the instruction asked by the defendant should have been given. The case presents another question, which it is necessary to consider. The defendant in one of his pleas alleged that the plaintiff’s cause of action did not accrue within five years next before the commencement of suit. That is the time within which, by the general statute of limitations of Virginia, actions like the present one must be brought. Virginia Code, 1873, § 8, p. 999, § 14, p. 1001. To this plea the plaintiff replied, specially, that he ought not to be bound by anything therein alleged, because when the several causes of action in the declaration mentioned, and each of them, accrued to him, the defendant “ had before resided in the State of Virginia,” and by departing without the same obstructed him in the prosecution of his several causes of action, for several, to wit, two or more years next after the same accrued as aforesaid; that the time such obstruction continued is not to be computed as any part of the period within which his causes of action, and each of them, ought to have been prosecuted; and that, excluding such time, the plaintiff brought this action within five years next after the accruing of his several causes of action. This replication was based upon the following provision in the Virginia statute of limitations: “ Where any such 350 OCTOBER TERM, 1888. Opinion of the Court. right as is mentioned in this chapter shall accrue against a person who had before resided in this State, if such person shall, by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted. But this section shall not avail against any other person than him so obstructed, notwithstanding another might have been jointly sued with him if there had been no such obstruction. And upon a contract which was made and was to be performed in another State or country, by a person who then resided therein, no action shall be maintained after the right of action thereon is barred by the laws of such State or country.” Code of Virginia, 1873, 1002, c. 146, § 20. The defendant rejoined that the plaintiff ought not, by reason of anything in the replication alleged, to. have and maintain his action, because by his removal from the State of Virginia and departing without the same, as alleged, he did not obstruct the plaintiff in the prosecution of his suit upon the alleged causes of action in the declaration mentioned, because such removal occurred in the year 1859, a long time before any of the alleged causes of action existed or accrued, and that, when said causes of action accrued to the plaintiff, the defendant was, and still considers himself, a citizen of the State of Louisiana. Upon plaintiff’s motion, the rejoinder of the defendant was rejected upon the ground that the above section excepted from the general act of limitation a case in which the cause of action accrued against a person previously, no matter how long before, residingin Virginia, although he may have left the State before the contract sued upon was made, and, therefore, before any cause of action thereon accrued. This construction of the statute was supposed to be required by the decision in FioHin s Executor n. Carrington, 31 Grattan, 219. We are satisfied, upon a careful examination of that case, that it was misinterpreted by the learned district judge who presided at the trial below. That was an action of assumpsit to recover the amount of a note dated April 1, 1865. The defendant Car- EMBREY v. JEMISON. 351 Opinion of the Court. rington pleaded the statute of limitations. The plaintiff replied that he ought not to be bound by reason of anything in that plea alleged, because “ on the first day of April, 1865, when the said several promises and undertakings in the plaintiff s declaration mentioned 'were made and entered into, and previous thereto, the defendant was and had been a resident of the State of Virginia, and that afterwards, to wit, on or before the 15th day of November, 1866, the said defendant departed without the State, and thereafter resided in the State of Maryland, and thereby the said defendant obstructed the said B. F. Ficklin, deceased, in his lifetime, and the plaintiff since his death, in the prosecution of his suit upon the said several promises and undertakings, until the 13th day of June, 1874, when this suit was instituted.” The defendant replied, specially, that by his removal he had not obstructed, etc. The court held that the removal of the defendant, as stated, in the replication, did, within the meaning of the statute, obstruct the bringing of the suit, and, consequently, the time subsequent to such removal was not to be counted in his favor. It also held that the above statute, although somewhat different in its phraseology and structure from previous enactments, made no substantial change in the previous statutes, one of which, (that of 1819, 1 Rev. Code of Virginia, 491, § 14,) provided that “ if any defendant shall abscond or conceal himself, or by removal out of the country or the county where he resides when the cause of action accrued, or by any other indirect ways or means, defeat or obstruct the plaintiff, then the defendant shall not be admitted to plead the statute of limitations.” We are of opinion that the defendant’s rejoinder to the plaintiff’s replication to the plea of limitations was improperly rejected. It shows upon its face that the defendant’s removal from Virginia occurred nearly twenty years before the contract vn question was made, and that when the plaintiff’s causes of action accrued he was not a citizen or resident of Virginia, but of Louisiana. The statutory provision upon which the plaintiff based his replication has no application to this case, if, as shown by the rejoinder, the defendant removed from Virginia before he made any contract with the plaintiff. We 352 OCTOBER TERM, 1888. Syllabus. cannot suppose that his removal from that State, nineteen years before that contract was made, can be regarded, under the statute of Virginia, as an obstruction to the plaintiff’s prosecution of his action. The statute, so far as it relates to obstructions caused by a defendant having departed from the State, means that, being a resident of Virginia when the cause of action accrues against him, and being then suable in that State, the defendant shall not, in computing the time in which he must be sued, have the benefit of any absence caused by his departure after such right of action accrued, and before the expiration of the period limited for the bringing of suit. The plaintiff was at liberty to sue the defendant wherever he could find him. Having elected to sue him in Virginia, the courts sitting there must give effect to the limitation prescribed by her law, without any saving in favor of the plaintiff on account of the defendant’s removal prior to the making of any contract whatever with the plaintiff. The judgment is Reversed, with directions to grant a new trial, and for further proceedings in conformity with this opinion. MELLEN v. MOLINE MALLEABLE IRON WORKS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 250. Argued April 16, 1889. — Decided May 13,1889. A suit instituted by a creditor of a corporation, on his own behalf and on behalf of other unsecured creditors, to set aside a conveyance of its real estate and a mortgage of its personal property, both made by the corporation in trust to secure certain preferred creditors, including among them a director of the corporation, and also to procure a dissolution of the corporation, and the closing up of its business, is a suit brought to remove an incumbrance or lien or cloud upon the title to such property within the meaning of § 8 of the act of March 3, 1875, 18 Stat. 472, c. 137, which authorizes a Circuit Court of the United States to summon in an absent defendant, and to exercise jurisdiction over his rights in the property in suit within the jurisdiction of the court. MELLEN v. MOLINE IRON WORKS. 353 Statement of the Case. It is not necessary that the creditor of an insolvent corporation should pbtain judgment on his claim, and take out execution and exhaust his remedies at law, in order to invoke the jurisdiction of a court of equity in his favor to remove an incumbrance or cloud or lien upon the title of the corporation’s property, under the act of March 3, 1875, 18 Stat. 470, c. 137. An adjudication that a particular case is of equitable jurisdiction is not void, even if erroneous, and cannot be disturbed by a collateral attack. A sale of the trust property which is in dispute in a cause pending in a court of equity, made by the receiver by order of court, and after full compliance with its directions as to notice, is not open to attack by one who is subsequently summoned into the suit, if there has been no fraud, no sacrifice of the property, or no improvidence; since the proceeds of the sale take the place of the property, and all his rights in the latter are transferred to the former. The proceedings in this case to remove the incumbrance upon the property of the Moline Iron Works, which are set forth and described in the opinion of the court, conformed to the requirements of the act of March 3, 1875, 18 Stat. 470. Purchasers of property involved in a pending suit may be admitted as parties, in the discretion of the court; but they cannot demand, as of absolute right, to be made parties, nor can they complain if they are compelled to abide by whatever decree the court may render, within the limits of its power, in respect to the interest their vendor had in the property purchased by them pendente lite. This was an appeal from a final decree sustaining a plea in bar to a suit brought by the appellants, and dismissing their bill of complaint for want of equity. On the 23d of June, 1883, the Moline Malleable Iron Works, an Illinois corporation doing business at Moline, in that State, executed a deed, which was duly acknowledged and recorded, conveying to Charles F. Hemenway several lots or parcels of land in that city. The deed recited that S. W. Wheelock and A. L. Carson had been induced by the grantor, which was in need of money to carry on its business, to guarantee, by indorsing, its commercial paper to the extent of $49,000, (of which $48,500 was then outstanding and unpaid,) by the promise to protect the same by a lien on those premises; and that George H. Hill, of Ohio, and the J. S. Keator Lumber Company, had been induced by it to guarantee, in the same way, other of its commercial paper, the former to the extent of $20,000, and the latter to the extent of $1000. It also recited VOL. CXXXI—23 354 OCTOBER TERM, 1888. Statement of the Case. that the grantor had agreed with each of the guarantors to meet said paper as it fell due, so that neither of them should be subjected to any liability, loss, cost, damage, or expense, by reason of having severally made such guarantees or indorsements. The conveyance to Hemenway was in trust to secure and protect said guarantors, respectively, against all liability arising from such indorsements, with power in the trustee, upon the request of either guarantor, or of his legal representatives— if, at the time of such request, there existed any liability upon the part of the person so requesting — to foreclose the deed and sell and convey the property, and out of the proceeds, after paying the expenses of foreclosure and sale and reasonable solicitors’ fees, to pay the guarantors all costs, damages and expenses to which they may have been subjected; “it being the intention that the property conveyed hereby shall be understood to be for and shall stand for security to each of the parties aforesaid, viz., Wheelock, Carson, Hill and Keator Lumber Company, alike in proportion to the ultimate liability to which each may be subjected; and that they shall receive the benefit and protection, pro rata, according to the extent of their liability and in proportion thereto,” As part of the same transaction, the Moline Malleable Iron Works executed its chattel mortgage, which was duly acknowledged and recorded, conveying to Hemenway, upon like trusts and conditions, certain personal property in Illinois, consisting, in part, of malleable iron, manufactured and in process of manufacture by the grantor. The Moline Malleable Iron Works made default in the payment of the notes, and in the performance of its obligations as set forth in the trust deed and chattel mortgage. On the 12th of April, 1884, George H. Hill sold and conveyed his entire interest in the trust deed and chattel mortgage, and in the said indebtedness of $20,000, to the appellant Mellen, in trust for the sole use and benefit of the appellant Sophia H. Boyd. The present suit was commenced by an original bill exhibited May 5, 1884, by said Mellen and Boyd, citizens of Ohio, against the Moline Malleable Iron Works, Hemenway, Whee- , MELLEN v. MOLINE IRON WORKS. 355 Statement of the Case. lock, Stephen T. Walker, Carson, and Jeremiah S. Keator and Ben. C. Keator, late partners as J. S. Keator & Son, all citizens of Illinois. The bill showed that Hill was compelled to pay and did pay off the debt of $20,000, with the interest accruing on the several notes, aggregating that sum. It stated that in a suit in equity, instituted in the Circuit Court of the United States for the Northern District of Illinois, on the 2d day of July, 1883, by the National Furnace Company, a corporation of Wisconsin in behalf of itself and other general, unsecured creditors of the Moline Malleable Iron Works against the last-named corporation, George H. Hill, and others, the said trust deed and chattel mortgage were assailed as null and void, as against the general creditors of the Moline Malleable Iron Works, upon the following grounds : “ First. Because they constitute a partial assignment for the benefit of creditors by which said corporation seeks to prefer the indorsers therein named in preference to the other creditors of the corporation, which said attempt your orator is advised and believes is fraudulent and unlawful under the statutes of the State of Illinois. “ Second. Because the said assignment does not purport to put the said assignee in possession of said property, and the said assignee has not actually taken possession thereof and has not given bond to the county court of Rock Island County, as provided by law in the case of assignments for the benefit of creditors, and it is not intended to file such bond or distribute the said assigned property under the provisions of. the statutes in such cases made and provided. “ Third. That the two assignments constitute a part of the same transaction, and that the chattel mortgage upon the personal property therein described is void as against the creditors of the said corporation, because the said corporation has been and still is allowed by the said assignee to manage, control, and use the property therein described in the usual and ordi-nary course of business to the same extent and in the same manner as the same were used by the said corporation before the execution of the said chattel mortgage. 356 OCTOBER TERM, 1888. Statement of the Case. “Fourth. Because the said documents operate, and were designed to operate, to hinder and delay the creditors of the said Moline Malleable Iron Works in the collection of their debts. “ Fifth. Because, as against the fair and honest creditors of the said corporation, the preference sought to be given to the said Hill and the said Carson, two of the directors of the said corporation, is null and void. “ Sixth. For divers other reasons your orator has been advised that all of the aforesaid acts and doings of the said Moline Malleable Iron Works, as against your orator and the other bona fide creditors of said corporation, are null and void.” The object of that suit, as the bill in the present case averred, was to obtain a decree dissolving the Moline Malleable Iron Works as a corporation, closing up its business, ascertaining the amount, as well of its assets applicable to the payment of debts, as the extent to which its directors and officers were liable to creditors, and adjudging that the said conveyances executed by that corporation were fraudulent and void as to the National Furnace Company and other creditors. It was further alleged that the debt of the last-named corporation was not, nor was any part of it, due when it brought said suit, and was not secured by any attachment or other process against the property of the debtor corporation; that it had not exhausted its legal remedies for the collection of its debt, and had no lien or claim to the property covered by said trust deed or mortgage; and, consequently, that the court could not and did not acquire jurisdiction to make any valid decree affecting the interest of said Hill. The relief sought in the present suit, by original bill, was the foreclosure of said trust deed and chattel mortgage, the sale of the property, and the disposition of the proceeds according to the rights of the parties for whose protection those instruments were executed; and this, without reference to the proceedings and final decree in the suit of National Furnace Company v. Moline Malleable Iron Wor&s, etc. The defendants Stillman W. Wheelock, A. L. Carson, Charles MELLEN v. MOLINE IRON WORKS. 357 Statement of the Case. F. Hemenway, J. S. Keator and Ben. C. Keator filed a plea in bar of this suit. As the correctness of the decree below depends entirely upon the sufficiency of that plea, it is here given in full: “ That long prior to the time when said George H. Hill sold and conveyed to said complainant Mellen in trust, for the use and benefit of said Sophia H. Boyd, his interest in said trust deed and chattel mortgage, as alleged in said bill of complaint, to wit, on the 2d day of July, 1883, the said National Furnace Company, in its own behalf and on behalf of all the creditors of the Moline Malleable Iron Works, exhibited its original bill of complaint in this honorable court and made parties defendant thereto said Moline Malleable Iron Works, Stillman W. Wheelock, George H. Hill, Amaziah L. Carson, Charles F. Hemenway, Henry H. Hill, Stephen T. Walker, Walter J. Entriken and the J. S. Keator Lumber Company, thereby stating, among other things, that said National Furnace Company was a creditor of said Moline Malleable Iron Works, and that at the time when the said Moline Malleable IronWorks executed the said trust deed and chattel mort^affe GO it was insolvent and its indebtedness was largely in excess of its capital stock, and that its officers and directors had assented to the cifeation of its indebtedness, and that the said conveyances were fraudulent and void as against creditors of said Moline Malleable IronWorks, and therein and thereby prayed, among other things, that a receiver might be appointed to take charge of and manage the property of the said corporation under the orders of this court, and that the said trust deed and chattel mortgage might be held and adjudged fraudulent and void as against said National Furnace Company and creditors of said Moline Malleable Iron Works ; to which said bill these defendants put in their several answers, and said Moline Malleable Iron Works, Henry H. Hill, and Stephen T. Walker interposed their several demurrers; that after exhibiting said bill of complaint, to wit, on the 1st day of August, 1883, upon the application of said National Furnace Company, for the preservation of the property of the said corporation pending the said suit, and for the benefit of all parties inter- 358 OCTOBER TERM, 1888. Statement of the Case. ested therein and in the proceeds thereof, this honorable court entered an order in said cause, as appears of record in this court, appointing one Robert E. Jenkins receiver of the said Moline Malleable Iron Works, and of its property, and directing him to take and hold possession thereof under the orders of this honorable court, and directing the said Moline Malleable Iron Works to transfer and convey to said receiver its entire property, both real and personal, and to deliver up to said receiver the possession thereof; and that thereupon the said Moline Malleable Iron Works did transfer, convey and deliver up to said receiver its property and the possession thereof, and said receiver did enter into and take possession thereof. “That thereafter and long prior to the time when said George H. Hill sold and conveyed to said complainant Mellen his interest in said trust deed and mortgage, to wit, on the 28th day of November, 1883, the defendant Stillman W. Wheelock, by leave of this honorable court, filed his cross-bill of complaint in the aforesaid cause, made parties defendant to said cross-bill said Moline Malleable Iron Works, the National Furnace Company, George H. Hill, Charles F. Hem-enway and said Carson, and therein stated, among other things, that in the year 1880 the said Moline Mallea*ble Iron Works requested that he and the said Carson should become guarantors for it upon its commercial paper, and promised to give them security from any liability to loss by reason thereof by liens on its property, and that at this request and in reliance upon this promise they became guarantors for it from time to time to the amount of about fifty thousand dollars ($50,000); that afterwards, on November 12, 1882, a resolution was adopted by said corporation authorizing its officers to execute proper instruments to secure them from loss, and that thereafter, at the request of said Wheelock, said corporation executed said trust deed and mortgage, and that neither Wheelock nor Carson were in any way interested in or connected with said company when they incurred this liability at its request; that after the said resolution of November 12, 1882, was adopted by said company, said George H. Hill, who MELLEN v. MOLINE IRON WORKS. 359 Statement of the Case. was a stockholder and director, became a guarantor for said company, and that by and through his influence as an officer of said company he was named a beneficiary under said trust deed and mortgage; that the said company was then largely indebted in excess of its capital stock, and that said George H. Hill had assented to the creation of this indebtedness and was liable to its creditors for this excess, and that said trust deed and mortgage were a valid security to said Carson and the J. S. Keator Lumber Company, but that said Hill was not entitled to have and receive the security thereof; that the said property covered by the said trust deed and chattel mortgage was rapidly depreciating in value and should be sold as soon as possible; and praying, among other things, that the said trust deed and chattel mortgage might be declared valid; that the said receiver might be directed to sell immediately the property described in said trust deed and mortgage, together with the other property of said company, and the proceeds of the sale of the property described in said trust deed and mort-, gage might be applied in satisfaction of and to relieve said Wheelock, Carson and J. S. Keator Lumber Company from the liabilities assumed by them as indorsers for said Moline Malleable Iron Works and the balance disbursed pro rata among the creditors of said company; that thereupon, to wit, on the 28th day of November, 1883, it was ordered by this honorable court, as appears of record in this court in said cause, that said National Furnace Company, the Moline Malleable Iron Works, Hemenway, Carson and George H. Hill plead, answer or demur to the said cross-bill on or before the 20th day of December, 1883, and that a copy of said order be served on said Hill on or before December 5,1883, and that in case said Hill did not appear and plead, answer or demur to said cross-bill as aforesaid the same should be taken as confessed by him ; that said order was duly served on said Hill on the 1st day of December, 1883, to wit, long prior to the mak-lng of the said assignment to said Mellen; that the said defendants, the National Furnace Company, Hemenway and Carson, answered said cross-bill, as directed by said order, but that said Hill and said Moline Malleable Iron Works failed to 360 OCTOBER TERM, 1888. Statement of the Case. appear in said cause and to plead, answer or demur to said cross-bill therein, as directed by said order; that thereafter, to wit, on the 22d day of December, 1883, the said receiver filed his petition in said cause, alleging, among other things, that the property of said Moline Malleable Iron Works in his possession as such receiver (and including therein the said property covered by said trust deed and chattel mortgage) was rapidly depreciating in value, and that for the interests of all persons who might be interested therein, and to realize anything for the creditors therefrom, it should be sold at once, and praying that he might be authorized to offer the said property for sale, and that thereupon it was ordered, on said petition being filed, by this honorable court, as appears of record in said cause in this court, that the said receiver should offer and advertise for sale, in the manner directed by said order, all of said property and should report bids therefor to this court. “That thereafter, to wit, on the 20th of February, 1884, said receiver filed in said cause his report, stating therein, in substance, that he had advertised and offered said property for sale in the manner and as directed by said order, and that the highest bid received by him therefor was that of Stillman W. Wheelock, in the amount of thirty thousand dollars ($30,000); that it was thereupon ordered by this honorable court, as appears of record in this court, that all persons should show cause, by the 28th day of February, 1884, why said bid of said Wheelock should not be accepted; and that thereafter, to wit, on the 3d day of March, 1884, it was ordered by this honorable court in said cause, as appears of record in this court, that the said bid of said Wheelock for said property be accepted, and that said receiver sell and convey the same to him, and that thereupon said receiver did sell and convey the said property to said Wheelock in accordance with said order. “ That thereafter, to wit, on the 3d day of March, 1884, it appearing to this honorable court that said George H. Hill resided beyond the jurisdiction of this court, it was ordered by this honorable court, as appears of record in this court, that said George H. Hill do appear and plead, answer, or demur to MELLEN v. MOLINE IRON WORKS. 361 Statement of the Case. ’the said original and supplemental bill of complaint in said cause on or before the 15th day of April, 1884, and that a copy of said order should be served upon said Hill on or before the 15th day of March, 1884, and that in case' he did not appear, plead, answer, or demur to said bill as directed the same should be taken as confessed by him; and that thereafter, to wit, long prior to the time when said Hill sold and conveyed to said Mellen his interest in said trust deed and mortgage, a certified copy of said order was served on said Hill; and thereafter, to wit, on the 22d day of April, 1884, said Hill not appearing and pleading, answering, or demurring to said original and supplemental bill, as directed by said order, it was ordered by this honorable court in said cause, as now appears of record therein in this court, that said original and supplemental bill be taken as confessed by said Hill. “That thereafter, to wit, on the 23d day of April, 1884, long prior to the filing of the said bill of complaint by said William S. Mellen, said Hill not having appeared and pleaded, answered or demurred to said cross-bill, by the order of this court entered in said cause, and now appearing of record in this court, it was ordered that the said cross-bill of said Wheelock be taken as confessed by said George H. Hill; and afterwards, to wit, on the 26th day of June, 1884, the said cause came on to be heard upon the said original and supplemental bills of complaint and answers and replications thereto, and upon the said cross-bill of said Wheelock and the answers and replications thereto, and upon the testimony taken in said cause, and a final decree was then rendered therein, which now appears of record in this court, and it was therein, found by this honorable court, among other things, that the indebtedness of said Moline Malleable Iron Works was in excess of its capital stock in the sum of $75,000; that the said trust deed and chattel mortgage were valid in so far as they gave to said Wheelock, Carson and the J. S. Keator Lumber Company a first lien on the property therein described; and that said George H. Hill was not entitled to any lien or security by reason of said trust deed and mortgage: and that the same were invalid as to him, because the liabilities of said company 362 OCTOBER TERM, 1888. Argument for Appellants. in excess of its capital stock were incurred while he was one’ of the directors and its vice-president, and with his knowledge and assent thereto, and because he was named in said trust deed and chattel nfortgage as a beneficiary thereunder through his influence and control over said corporation as an officer thereof; and it was thereby decreed, among other things, that said Wheelock, Carson and the J. S. Keator Lumber Company were entitled to have and receive the proceeds derived from the sale of the property conveyed by said trust deed and mortgage in part satisfaction of the sums paid by them for said company. “ All of which matters and things these defendants do aver and plead in bar to said bill of complaint, and do pray judgment of this honorable court whether they should make any further answer to said bill of complaint, and to be hence dismissed with their costs and charges in this behalf most wrongfully sustained.” This plea was sustained, the present bill was taken for confessed by the Moline Malleable Iron Works and Walkey for want of plea, demurrer or answer, and the suit was dismissed for want of equity. Mr. Thomas McDougall for appellants. I. The Circuit Court never acquired jurisdiction of Hill, or of his interest in the property, in the National Furnace Company’s suit. He was a citizen of Ohio ; he never voluntarily appeared; he could not be brought in under the provisions of Rev. Stat. § 739, unless the case was within the provisions of Rev. Stat. 2d ed. § 738 (the act of March 3, 1875,18 Stat. 470). Neither he nor his interest in the property was before the court in that case for adjudication. The bill in this case which, for the purposes of the plea, is taken as admitted to be true, shows that the National Furnace Company had neither a legal nor an equitable lien upon, or claim to the property covered by the trust deeds. It shows that the Furnace Company was only a general unsecured creditor of the Moline Malleable Iron Works, and that its debt MELLEN v. MOLINE IRON WORKS. 363 Argument for Appellants. as such creditor was not due at the time it filed its bill of complaint in the Circuit Court. Its claim against the Iron Works had not been reduced to judgment, nor had it exhausted the property of the Iron Works, its debtor, by execution or other legal process, nor had any attachment or other process been issued by the Circuit Court or any other court, whereby any lien on or claim to the property covered by the trust deeds had been acquired. The case presented by that bill was not one covered by § 738, and, as attempting to enforce any lien on or claim to the property covered by the trust deeds, it could not have been sustained. Jones v. Green, 1 Wall. 330 ; Van Weel n.. Winston, 115 U. S. 228, 245 ; Freedman's Saving & Trust Co. v. Earle, 110 IT. S. 710; Shainwald n. Lewis, 6 Fed. Rep. 510; Pacific Railroad Co. n. Missouri Pacific Railway Co., 3 Fed. Rep. 772; Lovejoy v. Hartford Fire Ins Co., 11 Fed. Rep. 63; Hyde Park Gas Co. v. Kerber, 5 Brad well (Ill. App.) 132 ; Wincock v. Turpin, 96 Illinois, 135. Supposing, however, for the purposes of the argument, that it was such a bill, this suit is not one contemplated by § 738 of the Revised Statutes of the United States. An unsecured creditor bringing such a suit, whose claim is not in judgment, has no claim to and can have no lien on any part of the real or personal property of the corporation, such as is contemplated by § 738. In the event that the corporation is not dissolved, (and a creditor is not entitled to a decree to wind it up,) his bill necessarily must be dismissed. No receiver could be appointed who would have the right to sell the property until such action was taken by the court, and it does not appear by the record in this case that the Moline Malleable Iron Works ever was dissolved, or that the court found that the National Furnace Company was entitled .to have the corporation dissolved and the relief granted as provided by § 25, c. 32, of the Revised Statutes of Illinois. II. The Circuit Court had no authority to make the order of sale that it made in the case brought by the National Furnace Company. The bill in that case showed and advised the court at the time it was making these orders, and confirming said sale, that Hill was a citizen of the State of Ohio, and a 364 OCTOBER TERM, 1888. Opinion of the Court. resident thereof. Any order made by the court affecting his interest before jurisdiction had been acquired of him or of his interest in the property, must be void. Webster v. Heed. 11 How. 437, 457; Windsor v. Me Veigh, 93 U. S. 274; United States v. Walker, 109 U. S. 258; Bigelow v. Forrest, 9 Wall. 339 ; Ex parte La/nge, 18 Wall. 163. III. The cross-bill in that case did not enlarge the jurisdiction of the court over Hill’s interest in the property, or over him personally. Cross v. De Valle, 1 Wall. 1; Putnam v. New Albany, 4 Bissell, 365; Weaver n. Altee, 3 Woods, 152; Shields v. Barrow, 17 How. 130; Ayers n. Carver, 17 How. 591. IV. The complainants are entitled to the relief they pray for in their bill in this case. If we are mistaken in our contention therefor, and if the court did acquire jurisdiction over Hill and his interest in the property, nevertheless appellant was entitled to be made a party to that proceeding, and to have his rights protected; because at that time no decree had been taken on the merits of the bill, and he was interested in the proceeds of the sale and the questions touching the validity of the trust deeds. If, on the other hand, the court did not acquire jurisdiction of Hill’s interest in said property by the original and supplemental bills, and the jurisdiction of the court was not enlarged by the cross-bill, the complainants are entitled to the relief sought in the bill herein, if we are correct in our assumption as to the lack of jurisdiction by the court, in the case brought by the National Furnace Company, over the interest of said Hill in the property covered by the trust deeds. The Minnesota Co. v. The St. Paul Co., 2 Wall. 609 ; Pacific Bailroad of Missouri v. Missouri Pacific Railway, 111 IT. S. 505. Mr. Samuel A. Hynde (with whom was Mr. Charles M. Osborn on the brief) for appellees. Mr. Justice Harlan, after stating the case as above reported, delivered the opinion of the court. Was the decree in the suit instituted by the National Fui-nace Company (to be hereafter called the Furnace Company) MELLEN v. MOLINE IRON WORKS. 365 Opinion of the Court. against the Moline Malleable Iron Works (to be hereafter called the Iron Works) and others, declaring that Hill was not entitled to a lien or security by reason of the trust deed and chattel mortgage of June 23, 1883, void for want of jurisdiction in the court that rendered it ? This is the principal question in the present case. Its solution depends upon the construction of the eighth section of the act of March 3, 1875, determining the jurisdiction of the Circuit Court of the United States. 18 Stat. 472, c. 137, § 8. That section authorizes an order to be made directing an absent defendant in any suit brought in a Circuit Court of the United States to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon the title, to real or personal property within the district where such suit is brought — such defendant not being an inhabitant of or found therein, and not voluntarily appearing in the suit — to appear, plead, answer or demur, by a designated day. The order must be served upon the absent defendant, if practicable, wherever found, and upon the person, if any, in charge or possession of the property. If such personal service be not practicable, the order must be published in such manner as the court may direct, not less than once a week for six consecutive weeks. If the defendant does not appear, plead, answer or demur, within the time limited, or within such further time as may be allowed, the court — proof being made of service or publication of the order, and of the performance of the directions therein contained—may “entertain jurisdiction and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district.” “ But,” the act declares, “ said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district” A defendant, not personally notified as provided in the act, may within one year after final judgment enter his appearance in the suit; where-upon, the court must make an order setting aside the judgment and permitting him to plead, on payment of such costs as shall 366 OCTOBER TERM, 1888. Opinion of the Court. be deemed just; the suit then to proceed to final judgment, according to law. The previous statute gave the above remedy only in suits “ to enforce any legal or equitable lien or claim against real or personal property within the district where the suit is brought,” while the act of 1875 gives it also in suits brought “ to remove any incumbrance or lien or cloud upon the title to ” such property. Rev. Stat. § 738; 18 Stat. 472, c. 137, § 8. We are of opinion that the suit instituted by the Furnace Company against the Iron Works and others belonged to the class of suits last described. The trust deed and chattel mortgage in question embraced specific property within the district in which the suit was brought. The Furnace Company, in behalf of itself and other creditors of the Iron Works, claimed an interest in such property as constituting a trust fund for the payment of the debts of the latter, and the right to have it subjected to the payment of their demands. In Graham v. Railroad Company, 102 U. S. 148, 161, this court said that “when a corporation becomes insolvent, it is so far civilly dead, that its property may be administered as a trust fund for the benefit of its stockholders and creditors. A court of equity, at the instance of the proper parties, will then make those funds trust funds, which, in other circumstances, are as much the absolute property of the corporation as any man’s property is his.” See also Mumma v. Potomac Company, 8 Pet. 281, 286; County of Morgam v. Allen, 103 U. S. 498, 509; Wabash &c. Railway v. Ham, 114 IT. S. 587, 594; 2 Story’s Eq. Jur. § 1252; 1 Perry on Trusts, § 242. The trust deed and chattel mortgage executed by the Iron Works created a lien upon the property, in favor of Wheeler, Carson, Hill, and the Keator Lumber Company, superior to all other creditors. The Furnace Company, in behalf of itself and other unsecured creditors, as well as Wheelock, denied the validity of Hill’s lien as against them. That lien was therefore an incumbrance or cloud upon the title, to their prejudice. Until such lien or incumbrance was removed, they could not know the extent of their interest in the property or in the proceeds of its sale. The case made by the original, as well as cross-suit, seems to be within both the letter and the spirit of the act of 1875. MELLEN v. MOLINE IRON WORKS. 367 Opinion of the Court. It is, however, contended, that the Furnace Company could not rightfully invoke the aid of a court of equity to remove this lien or incumbrance, until it had, by obtaining judgment for its debt and suing out execution, exhausted its legal remedies. Jones v. Green, 1 Wall. 330 ; Van Weel v. Winston, 115 U. S. 228, 245. But that was one of the questions necessary to be determined in the suit brought by that company, and any error in deciding it would not authorize even the same court, in an original, independent suit, to treat the decree as void. Besides, the removal of alleged liens or incumbrances upon property, the closing up of affairs of insolvent corporations, and the administration and distribution of trust funds, are subjects over which courts of equity have general jurisdiction. It is, also, suggested that the court proceeded in the suit instituted by the Furnace Company upon the theory that it was maintainable under the provisions of the Illinois statute giving courts of equity “full power, on good cause shown, to dissolve or close up the business of any corporation, to appoint a receiver therefor who shall have authority, by the name of the receiver of such corporation, to sue in all courts and do all things necessary to closing up its affairs, as commanded by the decree of such court.” 1 Starr & Curtis Rev. Stat. Ill. 618, Title “Corporations,” c. 32, § 25. The appellants earnestly insist that no case was made that would bring that suit within these provisions of the Illinois statute, or that would give the Furnace Company any right to have the Iron Works dissolved as a corporation, and its business closed up. And on behalf of the appellees it is contended that the suit brought by the Furnace Company was not an ordinary creditor’s suit, but one for the administration and distribution of a trust fund. In the view we take of the case it is not necessary to determine the soundness of any of these propositions; for, if the court erroneously ruled upon any of them, its decree could not for that reason be assailed in a collateral proceeding as void for want of jurisdiction. An adjudication that a particular case is of equitable cognizance, cannot be disturbed by an original suit. Such adjudication is not void, even if erroneous. This brings us to the question whether the steps taken in 368 OCTOBER TERM, 1888. Opinion of the Court. the suit brought by the National Furnace Company were such as authorized a decree that would affect Hill’s interest in the property covered by the trust deed and chattel mortgage. We lay out of view the fact that Hill was a citizen of Ohio, and neither appeared, nor was served with process within the district in which the suit was brought. He was personally served with copies of the orders requiring him to plead, answer, or demur, and the decree only affects his interest in property within the territorial limits of that district. It appears from the plea upon which the cause was heard, that on the 1st of August, 1883, after the present appellees had answered the original bill in most part, and after the Iron Works had demurred, the court, upon the application of the Furnace Company, appointed a receiver to take possession of the property of the first named company, including that covered by the trust deed and chattel mortgage, for the benefit of all parties interested in it; and that, on the 28th of November, 1883, Wheelock, by leave, filed his cross-bill against the Iron Works, the Furnace Company, Geo. H. Hill, Hemen-way, and Carson, asking a decree declaring said trust deed and mortgage valid as to himself, Carson and the Keator Lumber Company, and Void as to Hill. He alleged that the property embraced in the trust deed and chattel mortgage was rapidly depreciating in value, and ought to be sold, and the proceeds applied, primarily, to relieve himself, Carson and the Keator Lumber Company from the liabilities assumed by them as indorsers for the Iron Works. On the same day an order was entered requiring the defendants to the cross-bill to plead, answer, or demur to the same on or before December 20, 1883, and providing that if Hill (being served with a copy of the order on or before December 5, 1883) did not appear, plead, answer, or demur to the cross-bill, by the time fixed, the same would be taken as confessed by him. Hill was served — presumably in Ohio, where he resided — on the 1st of December, 1883, with such copy; but neither he nor the Iron Works appeared, pleaded, answered, or demurred to the cross-bill. It appearing from the petition of the receiver, filed December 22, 1883, that the property covered by the trust deed and mort- MELLEN v. MOLINE IRON WORKS. 369 Opinion of the Court. gage was rapidly depreciating in value, he was authorized by an order of court to advertise and sell it. He did sell it, and, February 20, 1884, reported a sale, by him, to Wheelock, pursuant to and in the manner directed by the court. That sale was approved, time being given to show cause why it should not be confirmed. The property was conveyed by the receiver to Wheelock. On the 3d of March, 1884, Hill was required by order of court to appear on or before April 15, 1884, and plead, answer, or demur to the original and supplemental bill, and it was ordered that if he did not, on or before the latter day, being previously served with a copy of such order, appear and plead, answer or demur, the bill would be taken as confessed by him. Long prior to the sale to Mellen of Hill’s interest in the trust and mortgage the latter was served with a copy of the order of March 3,1884, and on the 22d of April, 1884, the original and supplemental bills, Hill not having appeared, and answered, pleaded or demurred, were taken as confessed by him. On the succeeding day a like order was entered against him as to the cross-bill, he not having appeared, pleaded, answered or demurred thereto. The cause came on to be heard on the 26th of June, 1884, upon the original and supplemental bill, upon the cross-bill, upon the answer and replications thereto, and upon the testimony taken in the cause, when the final decree was rendered as set forth in the plea embraced in the statement of facts preceding this opinion. A large part of the argument on behalf of the appellants is in support of the proposition, that, as the order requiring Hill to appear and plead, answer or demur, to the original and supplemental bills was not made until after the receiver had, by order of the court, sold the property, the sale was a nullity. We do not assent to this view. Whether the condition of the property was such as to require, for the protection of the parties, that it be sold, was a matter for the court, in its discretion, to determine. There is nothing to show that the order of sale was even improvidently made, much less that it was procured by fraud, or that the property was sacrificed. If the circumstances justified immediate action, the court had power to order a sale in advance of a final decree. The sale vol. CXXXI—24 370 OCTOBER TERM, 1888. Opinion of the Court. was not ordered or made until after Hill had been duly served with a copy of the order of November 28, 1883, to appear and plead, answer or demur, to the cross-bill by the day fixed in that order. If the sale was irregular, by reason of its being ordered and made before Hill was directed to appear and plead, answer or demur, to the original and supplemental bills, that is not a matter affecting the jurisdiction of the court to render a final decree in respect to his interest in the property; for the proceeds took the place of the property, and whatever rights Hill had in the latter were transferred to the former. So that the real question, upon this part of the case, is whether the proceedings in question conformed to the act of March 3, 1875. We are of opinion that they did. Before the final decree was rendered, Hill had been served with a copy of the several orders requiring him to appear and plead, answer and demur, as well to the original and supplemental bills as to the cross-bill, and was in default in respect to each order. It may not have been in accordance with the usual or proper practice to take the cross-bill for confessed before he had been duly served with the order to appear and plead, answer or demur, to the original and supplemental bills. But if that was an irregularity it was one that did not affect the power of the court to make a final decree and constitutes no ground for disregarding that decree in this collateral proceeding. We have considered the case just as if the present suit had been brought by Hill. The appellants have no greater rights than he would have, if the present suit had been instituted by him; for Mellen, the trustee for Sophia H. Boyd, acquired his rights pendente lite. Hill sold and conveyed to him, after he had been personally served with copies of the order to appear and plead, answer or demur, to the original and supplemental bills, and only three days before the time fixed for his appearance to the original suit. His sale was more than three months after he was required to appear, and plead, answer, or demur to the cross-bill. That sale and conveyance coni not affect the power of the court to proceed to a final decree, so far as his interest in the property was concerned.. Nor by such sale and conveyance did Mellen and his cestui que trus RAILWAY COMPANIES v. KEOKUK BRIDGE CO. 371 Syllabus. acquire any absolute right to become a party to the suit instituted by the Furnace Company. Purchasers of property involved in a pending suit may be admitted as parties, in the discretion of the court; but they cannot demand, as of absolute right, to be made parties, nor can they complain if they are compelled to abide by whatever decree the court may render, within the limits of its power, in respect to the interest their vendor had in the property purchased by them pendente lite. Eyster v. Gaff, 91 IT. S. 521, 524; Union Trust Co. v. Inla/nd Navigation and Improvement Co., 130 U. S. 565; 1 Story’s Eq. Jur. § 406; Hurray v. Ballou, 1 Johns. Ch. 566. As said by Sir William Grant, in Bishop of Winchester v. Paine, 11 Ves. 194, 197, “the litigating parties are exempted from the necessity of taking any notice of a title so acquired. As to them, it is as if no such title existed. Otherwise, such suits would be indeterminable; or, which would be the same in effect, it would be in the pleasure of one party at wrhat period the suit should be determined.” The present proceeding is an attempt, upon the part of a purchaser pedente lite, to relitigate, in an original, independent suit, the matters determined in the suit to which his vendor was a party. That cannot be permitted, consistently with the settled rules of equity practice. There is no error in the decree, and it is Affirmed. PITTSBURGH, CINCINNATI AND ST. LOUIS RAILWAY COMPANY v. KEOKUK AND HAMILTON BRIDGE COMPANY. . , PENNSYLVANIA RAILROAD COMPANY v. KEO-KUK AND HAMILTON BRIDGE COMPANY. appeals from the circuit court of the United states for THE NORTHERN DISTRICT OF ILLINOIS. Nos. 11,13. Argued January 25, 1888. — Decided May 13,1889. A contract made by the president of a railroad corporation, in its behalf, and within the scope of its chartered powers, to pay certain sums to the 372 OCTOBER TERM, 1888. Syllabus. proprietors of a railway bridge for the use thereof, and made known to the directors and stockholders, and not disapproved by them within a reasonable time, binds the corporation. A contract to pay certain sums for the use of a railway bridge across the Mississippi River, between Illinois and Iowa, is not ultra vires of a railroad corporation of Illinois or of Pennsylvania, whose road connects, by means of intervening railroads, with the bridge as part of a continuous line of transportation. A being a railroad corporation of Ohio, Indiana and Illinois, B a railroad corporation of Pennsylvania and Ohio, and C a railroad corporation of Pennsylvania, these three corporations, for the purpose of establishing a continuous line of transportation, entered into an indenture, by which A leased its railroad to B for ninety-nine years, B covenanted to pay to A a proportion of the earnings of that road, and to assume and carry out certain transportation contracts existing between A and other companies, receiving and*enjoying the benefits thereof, and C guaranteed the performance of B’s covenants. Before the execution of the lease, a contract was drawn up, by which a corporation of Iowa and Illinois, authorized by its charter to build a railway bridge across the Mississippi River from Keokuk in Iowa to Hamilton in Illinois, agreed to build such a bridge, and granted to A and three other railroad corporations in perpetuity the right to use it for the passage of their trains; and they agreed to pay monthly to the bridge company stipulated tolls, and, if those should fall below a certain sum, to make up the deficiency, each contributing in proportion to the tonnage passed by it over the bridge. After the execution of the lease, and upon a formal request of the presidents of B and C in their behalf, undertaking that they should assume all the liabilities and be entitled to all the benefits of the bridge contract, as if it had been specifically named in and made part of the lease, A s president, in its behalf, executed the bridge contract, and reported to his directors that he had done so, and they never took any action upon the subject. C’s president and directors, in two printed annual reports to their stockholders, declared the settled policy of the company to secure a continuous line of traffic /rom Philadelphia to Keokuk and westward, and stated that through B this object had been accomplished. A subsequent modification of the bridge contract, by which a deficiency in the tolls was to be borne equally by the four railroad corporations parties thereto, was executed by A’s president, pursuant to a similar request and undertaking of the presidents of B and of C. The bridge was then opened for use, and was afterwards used by B and C; and the sums payable by A under the modified bridge contract for tolls and deficiencies were semi-annually demanded by the bridge company from > and, after examination of the accounts, paid by B’s comptroller for three years. Held, that B and C were liable to the bridge company for the amount of subsequent deficiencies payable by A under that contrac , whether the lease was valid or invalid. RAILWAY COMPANIES v. KEOKUK BRIDGE CO. 373 Statement of the Case. This was a bill in equity, filed July 25,1881, by the Keokuk and Hamilton Bridge Company against thé Pittsburgh, Cincinnati and St. Louis Railway Company and the Pennsylvania Railroad Company, to recover deficiencies in tolls for the use of the plaintiff’s bridge, under a contract executed at the request of the presidents of those two railroad companies by the Columbus, Chicago and Indiana Central Railroad Company, which was made by amendment a party to the bill. The Keokuk and Hamilton Bridge Company was a corporation organized under the laws of Iowa and of Illinois. The Pennsylvania Railroad Company was a corporation organized under the laws of Pennsylvania. The Pittsburgh, Cincinnati and St. Louis Railway Company was formed in 1868 by the consolidation of the Pan-Handle Company, a corporation organized under the laws of Pennsylvania, the Holiday’s Cove Railroad Company, a corporation organized under the laws of West Virginia, and the Steubenville and Indiana Railroad Company, a corporation organized under the laws of Ohio. The Columbus, Chicago and Indiana Central Railroad Company was a corporation formed in 1867 by the consolidation of the Columbus and Indiana Central Railroad Company, a corporation existing under the laws of Ohio and Indiana, and the Chicago and Great Eastern Railway Company, a corporation existing under the laws of Indiana and Illinois. The railroads of the Pennsylvania Railroad Company from Philadelphia to Pittsburgh in Pennsylvania, of the Pittsburgh, Cincinnati and St. Louis Railway Company from Pittsburgh to Columbus in Ohio, of the Columbus, Chicago and Indiana Central Railroad Company from Columbus to the State line between Indiana and Illinois, and of the Toledo, Peoria and Warsaw Railway Company from that State line to Hamilton in Illinois, with the bridge of the Keokuk and Hamilton Bridge Company across the Mississippi River between Hamilton and Keokuk, and the road of the Des Moines Valley Railroad Company from Keokuk to Des Moines in the State of Iowa, form ’a continuous line of railroad transportation from Philadelphia, on the east, to Des Moines, on the west. For the sake of brevity, we shall speak of those companies respec- 374 OCTOBER TERM, 1888. Statement of the Casé. tively as the Pennsylvania Company, the Pittsburgh Company, the Indiana Central Company, the Peoria Company, the Bridge Company and the Des Moines Company. The bridge was built under a contract, dated January 19, 1869, made by the Bridge Company with the Indiana Central Company, the Peoria Company, the Des Moines Company, and a fourth railroad company (the Toledo, Wabash and Western Railway Company) whose railroad connected with the bridge at Hamilton. By that contract, the Bridge Company agreed to begin to construct forthwith across the Mississippi River at Keokuk, and to complete by January 1, 1870, “a substantial wrought-iron bridge, suitable for the running of railway trains ; ” “ to lay a track upon said bridge, and connect the same with railways belonging to the parties hereto, in such manner and at such points as may hereafter be agreed upon ; ” and “ to maintain and keep in repair in perpetuity the said bridge and track, so that trains may safely cross at all times, except when repairs make it necessary that crossing should be temporarily suspended, or when it shall be necessary to have the draw open for the passage of boats ; ” and granted to those four railroad companies, in perpetuity, the right to use the bridge for the purpose of passing their trains across the Mississippi River; and they agreed to pay monthly stipulated rates for the transportation of passengers and freight, and, if the gross amount of the rates for freight for any year should fall below the sum of $80,000, making up the deficiency, each of the four railroad companies contributing in proportion to the tonnage passed by it over the bridge; for which, by a subsequent modification of the contract in June, 1871, was substituted one fourth of such deficiency. This suit was brought to recover from the Pittsburgh Company and the Pennsylvania Company such deficiencies in the sums payable by the Indiana Central Company under the modified bridge contract since September 1, 1874, amounting to $118,076.89, and interest. The Circuit Court entered a decree for the plaintiff, in accordance with the prayer of the bill; and the Pittsburgh and Pennsylvania Companies each appealed to this court. KAILWAY COMPANIES v. KEOKUK BRIDGE CO. 375 Statement of the Case. The facts on which the Bridge Company sought to charge the Pittsburgh and Pennsylvania Companies for these sums were as follows: After the original bridge contract had been drawn up, and before it had been executed, the Indiana Central Company entered into an indenture with the Pittsburgh and Pennsylvania Companies, by which it leased its franchises and road, and all lands and property connected with the use thereof, to the Pittsburgh Company for ninety-nine years and the Pennsylvania Company guaranteed the performance of all the covenants of the Pittsburgh Company as lessee. The thirteenth and the sixteenth articles of that lease clearly manifest that one of its chief objects was to establish a continuous line for quick transportation from Pennsylvania to the West, and to procure freight and passengers at each end of the line; and they contain special provisions calling for action of the Pennsylvania Company, as well as of the Pittsburgh Company, so as to promote that object. The sixteenth article of the lease declares that it is in consideration of the benefits so accruing to the Pennsylvania Company, by reason of the covenants of the lessor and of the lessee, “in the forming, maintaining and operating of a continuous line of railway in connection with the road or roads of ” the Pennsylvania Company, that this company guarantees to the Indiana Central Company that the Pittsburgh Company will keep and perform all its covenants, and that, upon its failure or default to do so, the Pennsylvania Company will, upon written notice of the kind and nature of such failure or default, keep and perform those covenants; in which event it is agreed that it shall be entitled to all the benefits that might accrue therefrom to the Pittsburgh Company. Among those covenants of the Pittsburgh Company, as lessee, which the Pennsylvania Company thus guaranteed the performance of, were the covenant in the sixth article to pay to or for the benefit of the Indiana Central Company three tenths of the gross earnings of the property leased, and the covenant in the ninth article, by which the Indiana Central Company assigns to the Pittsburgh Company certain existing 376 OCTOBER TERM, 1888. Statement of the Case. contracts for transportation over, other railroads not mentioned above, and the Pittsburgh Company “ assumes, and agrees at its own risk and expense to carry out, each and all of said contracts, according to their respective tenors and legal liabilities, receiving and enjoying all benefits to be derived therefrom.” The lease was executed iri behalf of each of the three companies, parties thereto, by its president and secretary, under its seal, and was approved by votes of the directors and of the stockholders of the Indiana Central Company and of the Pittsburgh Company, on or before February 1, 1869, so as to make it valid under the laws of Ohio, and the Pittsburgh Company forthwith took possession of and has since operated the railroad so leased. The lease does not appear to have been approved by formal vote of the directors or stockholders of the Pennsylvania Company. But, immediately after its execution, the president and directors of this company, in their printed annual report to their stockholders of February 10, 1869, stated that the Pennsylvania Company controlled the railway of the Pittsburgh Company, “as an indispensable connection for the Pennsylvania Railway with the West and Southwest,” by means of the ownership by the Pennsylvania Company of more than five millions of the stock and bonds of the Pittsburgh Company, and of the lease from the Indiana Central Company to the Pittsburgh Company, “guaranteed by this company;” and expressed the settled policy of the Pennsylvania Company thereby to secure a continuous line of traffic to Keokuk and westward. The bridge contract was not one of the transportation contracts specified in the ninth article of the lease. But on February 16, 1869, the presidents of the Pittsburgh and Pennsylvania Companies, in their behalf, jointly addressed a formal letter to the president of the Indiana Central Company, referring to the bridge contract as having been under negotiation, but unexecuted by the Indiana Central Company, at the date of the final execution of the lease, and requesting him, in his official capacity, to execute the bridge contract, “it being KAIL WAY COMPANIES u KEOKUK BRIDGE GO. 377 Statement of the Case. understood that the said lessee and Pennsylvania Railroad Company shall assume all the liabilities and obligations and be entitled to all the benefits of said bridge contract, the same as if it had been specifically named and made a part of the ninth article of the said lease.” The president of the Indiana Central Company thereupon, in its name and under its seal, executed the bridge contract, and reported to its board of directors at the next meeting, in March, 1869, that he had done so; and the board never in any way repudiated or disapproved his act or took any action upon the subject. On February 1, 1870, an amendment of the lease, defining the gross earnings to be accounted for as the annual gross earnings of the road, after deducting, among other things, “the pro rata bridge tolls” and “terminal expenses allowed to other railroad corporations on through business between the East and the West,” was executed by the presidents of the three companies, and approved by votes of the directors and stockholders of the Indiana Central Company and of the Pittsburgh Company. This amendment, like the original lease, does not appear to have been approved by formal vote of the directors or stockholders of the Pennsylvania Company. But the annual report made in print by its president and directors to the stockholders a year after, on February 18, 1871, spoke of this company’s control of the western traffic, through the Pittsburgh Company, and by means of the lease of the Indiana Central Railroad, as an established fact. On June 6, 1871, the bridge contract was modified so as to have the deficiency in tolls paid to the Bridge Company by the Indiana Central Company and the three other railroad corporations, parties to that contract, one fourth each, instead of in proportion to tonnage; and the modification was executed by the president of the Indiana Central Company, pursuant to a request of the presidents of the Pittsburgh and Pennsylvania Companies, similar in terms to their request upon which the original bridge contract had been executed. It was on June 13, 1871, after all these transactions had 378 OCTOBER TERM, 1888. Argument for Appellants. taken place, that the bridge was accepted by the Bridge Company, and was opened for use ; and thenceforward it was used by the Pittsburgh and Pennsylvania Companies, in the exercise of the control asserted by them under the various contracts above mentioned. From that time the Bridge Company, acting in accordance with the understanding expressed in the letters from the presidents of the Pittsburgh and Pennsylvania Companies to the president of the Indiana Central Company, upon which the latter, in behalf of his company, had executed the bridge contract and the modification thereof, as well as the original lease and the amendment thereof, demanded payment directly from the Pittsburgh Company, semi-annually, of the sums payable by the Indiana Central Company for tolls and deficiencies under the modified bridge contract ; and for more than three years, from June, 1871, to September, 1874, the comptroller of the Pittsburgh Company, after examining the books of account of the Bridge Company, paid to the Bridge Company the amount both of such tolls and of such deficiencies. Since that time like payments were çlemanded by the Bridge Company of the Pittsburgh Company, and the tolls only were paid. JZr. George Hoadly for appellants. I. The lease and amended lease were ultra vires of both lessor and lessee. (1) As to the lessor. The Columbus, Chicago and Indiana Central Railway Company was a corporation of Ohio, Indiana and Illinois. By repeated decisions of this court, it is settled that this made it a separate corporation of each of the States, quoad the franchises conferred by and the property situate within such State. Ohio de Mississippi Railroad Co. v. Wheeler, 1 Black, 286 ; Railway Co. v. Whitton, 13 Wall. 270 ; Muller v. Dows, 94 IT. S. 444, 447 ; Kansas Pacific Railroad v. Atchison, Topeka dec. Railroad Co., 112 IT. S. 414. In order, therefore, that it might lease its entire road, the power must have been conferred by all the States through which its line ran. Doubtless, it might lease that part of its road lying in KAIL WAY COMPANIES v. KEOKUK BRIDGE CO. 379 Argument for Appellants. Ohio separately, if it had authority so to do under the laws of Ohio, and the same is true as to the portions of its line within the other States ; but to sustain a lease of its entire line, such as this was, the power must be shown to have been conferred by all these States. As that portion of the line situate within the State of Indiana, 424^ miles in length, separating the portions of the railroad lying in Ohio and Illinois from each other by the entire width of the State of Indiana, was necessarily an integral part thereof, it has been established by the decision of this court in the case of Pennsylvania Railroad v. St. Louis, Alton c& Terre Haute Railroad, 118 U. S. 290, 630, that there was no law of Indiana at the time this lease was made, conferring on the lessor company power to make it. (2) As to the lessee. The State of Ohio could not confer this power upon the Pittsburgh, Cincinnati and St. Louis Railway Company, because it was a power to be exercised with reference to property within the local jurisdiction and state sovereignty of Indiana alone. This is a necessary result of the limitations of the powers of the several States within the boundaries of those States. The United States, not the States severally, have the right to pass laws which shall operate in more than one State. I do not deny that the State of Ohio has authorized the lease, by one railroad company to another, of a railroad, part of which may be outside of the State of Ohio; but, as the power of the State is w^ra-territorial, this legislation is not in itself alone sufficient. II. Neither party to the lease had legal authority to enter into the bridge contract or either of the amendments thereto. This proposition is established by the decision in the case of Pennsylvania Railroad Co. v. St. Louis, Alton &c. Railroad, ubi supra. Neither the Columbus, Chicago and Indiana Central railway nor the Pittsburgh, Cincinnati and St. Louis railway approaches within two hundred miles of the bridge, whose receipts were attempted to be guaranteed by the contracts in question. Neither Ohio, Indiana nor Illinois have conferred the power 380 OCTOBER TERM, 1888. Argument for Appellants. on any of the parties to this case to enter into the bridge contracts. The Indiana statutes were before this court in the case of the St. Louis, Alton and Terre Haute Railroad Company, and need no further reference. The form of the statute of Ohio, in force at the time the contract was made, will be found in 1 Swan & Critchfield, 281. It carefully limits the power to railroad companies whose lines of railroad connect or are continuous, and does not extend to bridge companies at all. Pearce v. Madison and Indianapolis Railroad, 21 How. 441. See also Davis v. Old Colony Railroad, 131 Mass. 258; York and Maryland Line Railroad v. Winans, 17 How. 30; Green Bay and Minnesota Railroad n. Union Steamboat Co., 107 IT. S. 98; Eastern Counties Railway v. Hawkes, 5 H. L. Cas. 331; Ashbury Railway Carriage <& Iron Co. v. Riche, L. R. 7 H. L. 653; McGregor n. Dover and Deal Railway, 18 Q. B. 618; East Anglian Railway Co. v. Eastern Counties Railway, 11 C. B. 775; Downing v. Mount Washington Road Co., 40 N. H. 230; Pittsburgh & Steubenville Railroad v. Allegheny County, 79 Penn. St. 210. III. Neither lessor nor lessee authorized its officers to execute the bridge contract or either of the amendments thereto. This court in Thomas v. Railroad Co., 101 IT. S. 71, at p. 86, uses this language: “ In regard to corporations, the rule has been well laid down by Comstock, C. J., in Parish n. Wheeler, 22 N. Y. 494, that the executed dealings of corporations must be allowed to stand for and against both parties when the plainest rules of good faith require it.” It may be contended that this case is within this rule. To which we answer: (1), in the words of Mr. Justice Miller, following the passage just quoted: “ But what is sought in the case before us is the enforcement of the unexecuted part of this agreement.” (2) Had the bridge contract stood as originally executed, and without amendments, we should not be here complaining of an adverse decision in the Circuit Court; for that contract required the Columbus, Chicago and Indiana Company to pay only in proportion to its use of the bridge. IV. The lease and amended lease, and with them all liability upon the bridge contracts, were determined by eviction, RAILWAY COMPANIES v. KEOKUK BRIDGE CO. 381 Opinion of the Court. January 1st, 1875. The vifew taken by the court in its opinion makes it unnecessary to elaborate the argument on this point. Mr. Lyman, Trumbull and Mr. Melville IK. Fuller for appellee. Mr. Justice Gray, after stating the case as above reported, delivered the opinion of the court. The principal positions taken in the argument for the appellants were, that the Indiana Central Company, the Pittsburgh Company and the Pennsylvania Company never authorized their officers to execute the bridge contract, or to bind them by it; and that the contract was beyond the scope of their corporate powers. But the court is of opinion that upon the facts of this case neither of these positions can be maintained. When the president of a corporation executes, in its behalf, and within the scope of its charter, a contract which requires the concurrence of the board of directors, and the board, knowing that he has done so, does not dissent within a reasonable time, it will be presumed to have ratified his act. Indianapolis Rolling Mill v. St. Louis &c. Railroad, 120 U. S. 256. And when a contract is made by any agent of a corporation in its behalf, and for a purpose authorized by its charter, and the corporation receives the benefit of the contract, without objection, it may be presumed to have authorized or ratified the contract of its agent. Bank of Columbia n. Patterson, 7 Cranch, 299; Bank of United States v. Dandridge, 12 Wheat. 64; Zabriskie v. Cleveland &c. Railroad, 23 How. 381; Gold Mining Co. v. National Bank, 96 U. S. 640; Pneumatic Gas Co. v. Berry, 113 IT. S. 322, 327. This doctrine was clearly and strongly stated by Mr. Justice Story, delivering the judgment of this court, in each of the first two of the cases just cited. In Bank of Columbia v. Patterson, which was an action brought against a corporation by an administrator to recover for work done by his intestate under contracts with the committee of the corporation, he said: “ Wherever a corporation 382 OCTOBER TERM, 1888. Opinion of the Court. is acting within the scope of the legitimate purposes of its institution, all parol contracts, made by its authorized agents, are express promises of the corporation; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action may well lie.” 7 Cranch, 306. “ Let us now consider what is the evidence in this case, from which the jury might legally infer an express or an implied . promise of the corporation. The contracts were for the exclusive use and benefit of the corporation, and made by their agents for purposes authorized by their charter. The corporation proceed, on the faith of those contracts, to pay money from time to time to the plaintiff’s intestate. Although, then, an action might have lain against the committee personally, upon their express contract, yet, as the whole benefit resulted to the corporation, it seems to the court that from this evidence the jury might legally infer that the corporation had adopted the contracts of the committee, and had voted to pay the whole sum which should become due under the contracts, and that the plaintiff’s intestate had accepted their engagement.” 7 Cranch, 307. In Bank of United, States v. Dandridge, the point decided was that the approval of a cashier’s bond by the board of directors of a bank, as required by statute, need not appear upon the records of the board, but might be proved by presumptive evidence, in the same manner as similar facts might be proved in the case of private persons, not acting as a corporation or as the agents of a corporation. The general doctrine was affirmed, that the presumptions, which, by the general rules of evidence, “ are continually made, in cases of private persons, of acts even of the most solemn nature, when those are the natural result or necessary accompaniment of other circumstances,” are equally applicable to corporations; and it was said: “ Persons, acting publicly as officers of the corporation, are to be presumed rightfully in office; acts done by the corporation, which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter. Grants and proceedings beneficial to the corporation are presumed to be accepted; and slight acts on their RAILWAY COMPANIES v. KEOKUK BRIDGE CO. 383 Opinion of the Court. part, which can be reasonably accounted for only upon the supposition of such acceptance, are admitted as presumptions of the fact. If officers of the corporation openly exercise a power which presupposes a delegated authority for the purpose, and other corporate acts show that the corporation must have contemplated the legal existence of such authority, the acts of such officers will be deemed rightful, and the delegated authority will be presumed.” 12 Wheat. 70. The original bridge contract was executed by the president of the Indiana Central Company, in its behalf, upon the formal request of the presidents of the Pittsburgh and Pennsylvania Companies, undertaking that these two corporations should assume all the liabilities and obligations of that contract and be entitled to all its benefits. The board of directors of the Indiana Central Company, having been informed by its president that he had executed the contract, nevet dissented, and must therefore be presumed to have concurred. The modification of the bridge contract was executed by the president of that company, in its behalf, upon a similar request and undertaking of the presidents of the Pittsburgh and Pennsylvania Companies in their behalf. After all this, the bridge was opened for use, and was used by the Pittsburgh and Pennsylvania Companies. For more than three years, semi-annual accounts for the sums payable by the Indiana Central Company were rendered directly by the Bridge Company to the Pittsburgh Company, and settled by the latter, after examination by its comptroller. It must be presumed, although not affirmatively proved, that the comptroller reported his action in this respect to the board of directors, as well as to the stockholders at their annual or other meetings. There is no difficulty, therefore, in holding that the Pittsburgh Company was bound by the bridge contract and the modification thereof, if within its corporate powers. The evidence that the directors or stockholders of the Pennsylvania Company authorized or ratified the action of its president in this regard is not so full and conclusive, but is quite sufficient to bind this company. After the execution of 384 OCTOBER TERM, 1888. Opinion of the Court. the original bridge contract, the directors of the Pennsylvania Company twice joined with the president in a printed annual report to the stockholders, declaring in unequivocal terms the settled policy of this company to secure a continuous line of traffic from Philadelphia to Keokuk and westward, and stating that this object had been accomplished through the Pittsburgh Company. The reasonable inference from this evidence, which there is nothing in the record to control or qualify, is that the Pennsylvania Company had the benefit of the original bridge contract, and either authorized or ratified its execution; and, under the circumstances of this case, the president must be considered as having authority to procure and assent to the modification of that contract as to the proportion of the deficiency in tolls to be borne by the Pittsburgh Company as principal and the Pennsylvania Company as guarantor. From all the facts of the case, the conclusion is inevitable that the Pittsburgh and the Pennsylvania Companies were the real, though not the formal, parties to the bridge contract executed by the Indiana Çentral Company at their request and for their benefit, and that this contract, as well as the lease, bound the Pittsburgh and Pennsylvania Companies, if within the scope of their corporate powers. The outlines of the doctrine of ultra vires, and the reasons on which it rests, have been clearly stated in previous judgments of this court. The reasons why a corporation is not liable upon a contract ultra vires, that is to say, beyond the powers conferred upon it by the legislature, and varying from the objects of its creation. as declared in the law of its organization, are : 1st. The interest of the public, that the corporation shall not transcend the powers granted. 2d. The interest of the stockholders, that the capital shall not be subjected to the risk of enterprises not contemplated by the charter, and therefore not authorized by the stockholders in subscribing for the stock. 3d. The obligation of every one, entering into a contract with a corporation, to take notice of the legal limits of its powers. These three reasons are clearly brought out in the unani- RAILWAY COMPANIES v. KEOKUK BRIDGE CO. 385 Opinion of the Court. mous judgment of this court, delivered by Mr. Justice Campbell, in the leading case of Pearce v. Madison & Indianapolis Railroad, 21 How. 411, in which it was held that a railroad corporation was not liable to be sued upon promissory notes which it had given in payment for a steamboat received and used by it, and running in connection with its railroad. So it has been repeatedly adjudged by this court that a lease made by one railroad corporation to another, either of which is not expressly authorized by law to enter into the lease, is ultra vires and void. Thomas v. Railroad Co., 101 U. S. 71 ; Pennsylvania Railroad n. St. Louis &c. Railroad, 118 U. S. 290, 630 ; Oregon Railway v. Oregonian Railway, 130 U. S. 1. But while the charter of a corporation, read in connection with the general laws applicable to it, is the measure of its powers, and a contract manifestly beyond those powers will not sustain an action against the corporation, yet whatever, under the charter and other general laws, reasonably construed, may fairly be regarded as incidental to the objects for which the corporation is created, is not to be taken as prohibited. Accordingly, where the charter of a railroad corporation, or the general laws applicable to it, manifest the intention of the legislature, for the purpose of securing a continuous line of transportation of which its road forms part, to confer upon it the power of making contracts with other railroad or steamboat corporations to promote that end, such contracts are not ultra vires. Green Bay <& Minnesota Railroad n. Union Steamboat Co., 107 U. S. 98. See also Branch v. Jesup, 106 U. S. 468, 478. Whether, in view of the previous decisions of this court, the lease from the Indiana Central Company could be upheld it is unnecessary to consider, because the validity of the bridge contract does not appear to us to depend upon the validity or invalidity of the lease. The bridge contract and the lease were separate and distinct agreements. The bridge contract was in form between the Bridge Company and the Indiana Central Company. The lease was between the Indiana Central Company and the Pittsburgh VOL. CXXXI—25 386 OCTOBER TERM, 1888. Opinion of the Court. and Pennsylvania Companies, and the Bridge Company was not a party to the lease. The Bridge Company was organized under the laws of Iowa and Illinois, and was authorized by those laws and by the act of Congress of July 25, 1866, c. 246, § 7, (14 Stat. 245,) to construct and maintain the bridge; and its power to enter into the bridge contract is undoubted. The power of the Indiana Central Company, as an Illinois corporation, to enter into that contract is made equally clear by the statutes of Illinois, collected in the brief of the appellee. By the statute of February 28, 1854, all railroad companies of Illinois, having their termini fixed by law, and their roads intersecting by continuous lines, are authorized to consolidate their property and stock with each other, or with companies out of the state, whose lines connect with theirs; and when, by reason of such consolidation, or of such extension into or through an adjoining state, it is necessary for the construction of any railroad to cross any stream of water, it may be done by bridges or viaducts. By the statute of February 12, 1855, all railroad corporations of Illinois have the power to make all necessary and convenient “ contracts and arrangements with each other, and with railroad corporations of other states, for leasing or running their roads, or any part thereof; ” as well as the “right of connecting with each other and with the railroads of other states, on such terms as shall be mutually agreed upon by the companies interested.” By the statute of February 16, 1865, “ it shall be lawrful for the directors of any railroad company created by the laws of this state to contract for the use and operation of any railroad connecting with their line beyond the limits of the state; and in all contracts for the use and operation of any railroad by another corporation, it shall be lawful for the parties to provide for the use of any of the powers and privileges of either or both of the corporations parties thereto.” And by the statute of February 25, 1867, “ railroads terminating or to terminate at any point, on any line of continuous railroad thoroughfare, where there now is or shall be a railroad bridge for crossing of passengers and freight in cars over the same as part of such thoroughfare, RAILWAY COMPANIES v. KEOKUK BRIDGE CO. 387 Opinion of the Court. shall make convenient connections of such railroads, by rail, with the rail of such bridge; and such bridge shall permit and cause such connections of the rail of the same with the rail of such railroads, so that by reason of such railroads and bridge there shall be uninterrupted communication over such railroads and bridge as public thoroughfares.” See also Stats, of February 12, 1853, March 5, 1867, and March 11, 1869. Gross’s Stats. (3d ed.) 536-539. The bridge contract was therefore a lawful and valid contract as between the Bridge Company and the Indiana Central Company. Upon the question of its effect to bind the Pittsburgh and Pennsylvania Companies, some other facts attending its execution are worthy of consideration. The bridge contract was not in existence as an executed and binding contract when the lease was made. But it was signed after the execution of the lease and the delivery of possession of the road by the Indiana Central Company to the Pittsburgh Company, and at the formal request of the Pittsburgh and Pennsylvania Companies, embodying an express agreement on their part with the Indiana Central Company to “ assume all the liabilities and obligations, and be entitled to all the benefits of said bridge contract.” The reference in that request and agreement to the ninth article of the lease was for the purpose of defining the extent of the liabilities and benefits assumed, and perhaps of indicating that the Pittsburgh Company alone was bound as principal, and the Pennsylvania Company as guarantor only; but it did not make the bridge contract a part of the lease. The reasonable inference is that, according to the original intent and by the subsequent action of the parties, the Pittsburgh and Pennsylvania Companies were understood and treated as directly liable to the Bridge Company for the proportion of tolls and deficiencies, which, by the terms of the bridge contract, was chargeable to the Indiana Central Company. By the laws of Illinois, as we have seen, the bridge contract was valid, and might lawfully be made between the Bridge Company and the Indiana Central Company; and it appears 388 OCTOBER TERM, 1888. Opinion of the Court. to us equally clear that the laws of Pennsylvania authorized the Pittsburgh and Pennsylvania Companies to assume the obligation of that contract with the Bridge Company, either directly or through the intervention of the Indiana Central Company. By the statute of Pennsylvania of April 23, 1861, it is enacted that “It shall and may be lawful for any railroad company, created by and existing under the laws of this commonwealth, from time to time to purchase and hold the stock and bonds, or either, of any other railroad company or companies chartered by, or of which the road or roads is or are authorized to extend into, this commonwealth ; and it shall be lawful for any railroad companies to enter into contracts for the use or lease of any other railroads upon such terms as may be agreed upon with the company or companies owning the same, and to run, use and operate such road or roads in accordance with such contract or lease: Provided, that the roads of the companies so contracting or leasing shall be, directly or by means of intervening railroads, connected with each other.” Purdon’s Digest (11th ed.) 1439. While the first provision of that statute authorizes any railroad company of Pennsylvania to purchase and hold stock and bonds of such railroad companies as either are chartered by the State or have roads extending into it, the second clause makes it lawful for railroad companies of Pennsylvania to contract for the use or lease, not merely of railroads of the two classes defined in the first clause, but of any railroads whatever, provided only “ the roads of the companies so contracting or leasing shall be, directly or by means of intervening railroads, connected with each other.” The only reasonable construction of the words “any other railroads,” in the second clause, is that it includes all railroads, whether within or without the State, coming within the description of the proviso. But any question of the construction of that statute in this regard is removed, or rendered immaterial, by the statute of Pennsylvania of February 17, 1870, (passed more than a year before the modified bridge contract was executed, or the bridge completed or used,) which, in the clearest terms, authorizes RAILWAY COMPANIES v. KEOKUK BRIDGE CO. 38& Opinion of the Court. any railroad company of Pennsylvania to enter into a lease or any other contract on such terms and conditions as may be agreed upon, or to guarantee the payments or covenants thereof, as to any railroads, whether “ within the limits of this state, or created by or existing under the laws of any other state or states,” provided they are connected, either directly or by means of intervening lines, with its road, and form a continuous route for the transportation of persons and property. Purdon’s Digest (11th ed.) 1441. Nor can we have any doubt that the Bridge Company was a railroad company, and the bridge a railroad, within the meaning of these statutes. The principal purpose and use of the bridge was the passage of railroad trains. It was, in substance and effect, a railroad built over water, instead of upon land; and, strictly speaking, it was a railway viaduct rather than a bridge. Bridge Proprietors n. Hoboken Co., 1 Wall. 116. The necessary conclusion from the foregoing considerations is that it was rightly held by the Circuit Court that the Bridge Company was entitled to recover from the Pittsburgh Company, and it having declined to pay upon due demand, to recover from the Pennsylvania Company also, the amount of the deficiencies in tolls which, by the modified bridge contract, was payable by the Indiana Central Company. It is proper to add that our judgment does not rest in any degree upon the ground suggested in argument, that the bridge contract and the lease having been executed, the Pittsburgh and Pennsylvania Companies, having received the benefits of them, are estopped to deny their validity; because, according to many recent opinions of this court, a contract made by a corporation, which is unlawful and void because beyond the scope of its corporate powers, does not, by being carried into execution, become lawful and valid, but the proper remedy of the party aggrieved is by disaffirming the contract, and suing to recover, as on a guant/am meruit, the value of what the defendant has actually received the benefit of. Louisiana n. Wood, 102 U. S. 294; Parkersburg v. Brown, 106 U. S. 487, 503; Chapman n. Douglas County, 107 U. S. 348, 360; Salt 390 OCTOBER TERM, 1888. Statement of the Case. Lake City v. Hollister, 118 IT. S. 256, 263; Pennsylvania Railroad v. St. Louis &c. Railroad, 118 U. S. 290, 317, 318. The sole ground of our decision is that the bridge contract is independent of the lease, and is valid and binding as between the parties to this suit, whether the lease is valid or invalid. This being so, the question argued at the bar, whether the appellants, by reason of eviction, are no longer liable on the lease, becomes immaterial; and the judgment of the Circuit Court in a former suit, affirming the validity of the lease, has no effect upon our decision, for the same reason, as well as because the Bridge Company was not a party to that judgment, and therefore neither bound by it nor entitled to the benefit of it. Decree affirmed. Mr. Chief Justice Fuller and the late Mr. Justice Matthews, having been of counsel, took no part in the consideration or decision of this case. WILLIAMS v. CONGER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS. No. 105 of October Term, 1887. — Decided October 22, 1888. A renewal of an application for a rehearing after the close of the term at which judgment was rendered, and for reasons which have been passed upon by the court, is not in order, and does not commend itself to the favorable consideration of the court. This was a petition to correct a clerical mistake in the opinion of this court, delivered April 2, 1888, Williams v. Conger, 125 IT. S. 397, citing in support of the power to make the amendment Bank of Kentucky v. Wistar, 3 Pet. 431. To this petition was appended a petition for a rehearing which had been presented and overruled at October Term, 1887, accompanied by a “ demand upon the court ” to give it a hearing. MARSHALL v. UNITED STATES. 391 Opinion of the Court. Mr. Eugene Williams for both petitions. Mk. Justice Bradley delivered the opinion of the court. Leave to file a motion for rehearing in this case is asked for on the ground of clerical error in the opinion. A motion for rehearing was made at the last term upon precisely the same brief now sought to be filed, and notwithstanding the alleged misconception in the opinion of the point made by the plaintiff in error, the court was satisfied with the conclusion it had reached, and that no modification of the judgment was required, and no rehearing was necessary or called for. The motion was therefore denied. The persistent renewal of the application at this time, after the close of the term at which judgment was rendered, and especially upon the same reasons once overruled, is not in order, and does not recommend itself to the favorable consideration of the court. MARSHALL v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 57. Argued November 1, 1888. — Decided November 19, 1888. Marshall v. United States, 124 U. S. 391, is affirmed on rehearing. This case was heard at October Term 1887, and the judgment below was affirmed. 124 U, S. 391. A petition for rehearing was granted April 30, 1888, 127 U. S. 786, and the cause was reargued at this term. Mr. W. D. Davidge for appellants. Mr. Assistant Attorney General Howard for appellees. Mr. Chief Justice Fuller, on the 19th of November, 1888, announced that a majority of the court adhered to the views expressed by Mr. Justice Harlan in the opinion of the court m this case delivered at the last term, affirming the judgment of the Court of Claims. Affirmed. 392 OCTOBER TERM, 1888. Argument for the Motion. Mr Justice Harlan stated that he now believed that that opinion was wrong and that he dissented from the judgment of the court. RADFORD v. FOLSOM. APPRAT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOK THE SOUTHERN DISTRICT OF IOWA. No. 1014. Submitted November 5, 1888. — Decided November 26, 1888. The final decree in a suit in equity, entered October 10, 1885, adjudged and decreed that there was due to the administratrix of J. F. a sum named in the decree, and that if, within ninety days from that date the court should be satisfied that a certain other sum named as paid for the purchase of notes, etc., had inured to the benefit of J. F. or his estate, that sum should be credited on the amount so decreed to be paid; Held, that for the purpose of an appeal the date of the decree was October 10, 1885. This was a motion made by the administratrix of Jeremiah Folsom, deceased, to dismiss an appeal. The reasons for the dismissal, given in the motion were: “ That the decree appealed from was made and entered of record in the Circuit Court of the United States for the Southern District of Iowa, Western Division, on the 10th day of October, 1885; “ That the appeal in the above entitled cause was not taken until the 30th day of December, 1887, more than two years after the entry of the decree, as aforesaid.” Mr. H. H. Trimble and Mr. Joseph G. Anderson for the motion, submitted on their brief. This motion is based on § 1008 of the Revised Statutes, providing that no decree of a Circuit Court, in equity, shall be reviewed in the Supreme Court on appeal unless the appeal is taken within two years after the entry of such decree. That the appeal in this case was taken more than two years after the entry of the decree is plain. The decree was entered RADFORD v. FOLSOM. 393 Argument against the Motion. October 10, 1885. The appeal was not taken until December 30,1887. This is clearly not within two years. Mr. Walter H. Smith (with whom was Mr. M. F. Sapp) opposing. The essential part of the decree was as follows: “ The court doth further adjudge and decree that there is due from the plaintiff to the defendant, Agnes Folsom, as administratrix of the estate and effects of Jeremiah Folsom, deceased, the sum of fourteen thousand six hundred and forty-five dollars and thirty-two cents, with interest thereon from the twentieth day of December, a.d. 1884, at the rate of six per cent per annum, being the amount of rents received by the receiver in the cause in the state court mentioned in the said report with interest less taxes, and the court doth adjudge and decree that the complainant, George W. Radford, as assignee in bankruptcy of the estate and effects of Simeon Folsom and Frank Folsom, bankrupts, pay to the defendant, Agnes Folsom, as administratrix of the estate and effects of Jeremiah Folsom, deceased, the said sum of fourteen thousand six hundred and forty-five dollars and thirty-two cents (114,645.32) with interest thereon at six per cent per annum, from the twentieth day of December, a.d. 1884, and that execution issue therefor.” * * * * * “And.it is further ordered, adjudged and decreed, that if the complainant shall satisfy the court, within ninety days from this date,” (that date being October 10, 1885,) “ that the amounts paid by Simeon Folsom for the purchase of the incumbrances and notes specified in the master’s report, and particularly in Schedules Ko. 1 and 2 thereto, amounting, in the aggregate, to fourteen thousand and eighty-four dollars and seventy-seven cents, ($14,084.77,) or any part thereof, have enured to the benefit of Jeremiah Folsom or his estate, by the production and cancellation or discharge of said incumbrances and notes, in such manner as to terminate all liability thereon, then, and in such case, there shall be credited on the amount 394 OCTOBER TERM, 1888. Syllabus. hereinbefore ordered to be paid by the complainant the amount of such incumbrances and notes so produced and cancelled or discharged.” Then follows a decree involving title to sundry tracts of land in Iowa, covering six pages of the record in descriptions. This decree must be construed as an entirety. Taken as a whole, it shows that it was not to go into effect until the period of ninety days had expired from the time of its rendition. It first provides that the sum of $14,645.32 shall be paid by the complainant to the administratrix of Jeremiah Folsom, deceased, and that execution shall issue therefor. It then proceeds to provide that the complainant shall have ninety days from the date of the decree in which to satisfy the court that the sum of $14,084.77, or any part thereof, had been applied by Simeon Folsom for the purchase of certain incumbrances and notes therein specified, and had inured to the benefit of the Said Jeremiah Folsom, or his estate, then such amount “shall be credited on the amount hereimbefore ordered to be paid by the complainant” That amount was the $14,645.32 above stated. It is manifest that this could not be done if the decree took effect from its date, for its payment might have been coerced by the issuing of an execution, before the expiration of the ninety days. Per curiam : This case is dismissed for want of jurisdiction. PACIFIC EXPRESS CO. -y. MALIN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE • WESTERN DISTRICT OF TEXAS. No. 1203. Submitted November 19, 1888. —Decided November 26, 1888. When the defendant below sues out the writ of error, the matter in dispute here is the judgment rendered against him. In a case which had been dismissed for want of jurisdiction, no opposition PACIFIC EXPRESS CO. v. MALIN. 395 Opinion of the Court. having been made thereto, the court allowed a mandate, notwithstanding notice of the motion for the mandate had not been given. Motion to dismiss for want of jurisdiction. The defendant in error was plaintiff below, and brought his action at law against the plaintiff in error in the District Court of Mitchell County, Texas, for an injury done to his property by the defendant in error, and claimed damages in the sum of $5850. An answer was filed by the express company. On the 6th January, 1887, the case was removed on the defendant’s petition to the Circuit Court of the United States for the Western District of Texas, and there entered as No. 24. Certain proceedings were had in that court, and the case being at issue was tried before a jury on the 12th April, 1888, who rendered a verdict for plaintiff for $3000. Judgment was entered on this verdict. The plaintiff, at the suggestion of the court, entered on it a remittitur of $350, thus reducing the judgment from $3000 to $2650. The writ of error was sued out by the plaintiff in error to reverse this judgment. Mr. William Hallett Phillips for the motion. No one opposing. Per curiam : This case is dismissed for want of jurisdiction. Dismissed. Mr. Phillips, at a later day, moved the court for the issuance of a mandate, and, as cause therefor, he stated that no notice of the motion for the mandate had been served on the opposite party; but that no opposition had been made to the dismissal of the case, and, as the dismissal had been made for want of jurisdiction, there would seem to be no reason why the mandate should be withheld. Per curiam : Sufficient cause has been shown, and the mandate may issue at once. Mandate issued. 396 OCTOBER TERM, 1888. Statement of the Case. LIST v. PENNSYLVANIA. ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA. No. 984. Decided December 10,1888. The death of the accused in a criminal case brought here by writ of error abates the suit. The case is stated in the opinion. Mr. PF. P. Potter for plaintiff in error. Mr. IF. D. Porter for defendant in error. Per curiam : The death of George B. List, the plaintiff in error in this cause, having been suggested in a communication from counsel for defendant in error to the clerk, and it appearing to the court that this is a criminal case, it is considered by the court that this cause has abated. Therefore, it is ordered and adjudged by the court that the writ of error in this cause be, and the same is hereby, Dismissed. CHICAGO, BURLINGTON AND QUINCY RAILWAY COMPANY v. GRAY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF IOWA. No. 876. Submitted March 11, 1889. — Decided March 18, 1889. Since the act of March 3, 1887, 24 Stat. 552, c. 373, took effect, no appeal or writ of error lies to this court from a decision of a Circuit Court remanding a cause to a state court which had been removed from it, although the order remanding it was made before that act took effect. Motion to dismiss for want of jurisdiction. DENT v. FERGUSON. 397 Statement of the Case Mr. John F. Lacey for the motion. There is only one point involved in this motion. The plaintiff in error caused the removal of the cause from the District Court of Iowa to the United States Circuit Court. The defendant in error moved to remand the cause to the state court. This motion was submitted before Justice Miller and Judge Lorr and the motion sustained. The cause was removed and also remanded prior to the act of March 3d, 1887, but the writ of error was not sued out until after the passage of that act. It follows that when the right to sue out a writ of error in a cause that had been remanded was cut off by the statute, there being no reservation in relation to any past orders the jurisdiction was cut off, and so writ of error will not lie. No one opposing. Pee curiam : This case is dismissed for want of jurisdiction. Dismissed. DENT u FERGUSON. ORIGINAL MOTION IN AN APPEAL. FROM THE CIRCUIT COUET OF THE UNITED STATES FOE THE WESTEEN DISTRICT OF TENNESSEE. No. 269. Submitted March 18, 1889. —Decided April 1, 1889. Under the circumstances set forth in the motion papers below, the court, as to so much of the record as was printed by order of the court below, dispenses with the filing of ten of the twenty-five copies required by Rule 10 to be printed for the use of the court and counsel, and remits the clerk’s fees for supervision of printing. This was a motion, entitled in No. 269, “ to suspend section rule 10, and so much of the rules, as requires 25 copies to be filed, and allowing 15 copies to be filed instead.” The motion and supporting papers were as follows: 398 OCTOBER TERM, 1888. Statement of the Case. To the Honorable the Chief Justice and Associate Justices of the Supreme Court of the United States. Petition of Appellants To suspend Section 2, Rule 10, and so much of Rule as requires 25 copies to be filed, and allowing 15 copies to be filed instead. George G. Dent, Sarah L. Dent, H. G. Dent, Jr., Susan Dent, appellants herein, respectfully state to your Honors, that when this cause was heard in the court below, before Mr. Justice Stanley Matthews and the Hon. E. S. Hammond, it was ordered by them that the entire record be printed out of the funds in the hands of the Receiver, which was done at a cost of about one thousand dollars, ($1000,) and the records were printed in size and form required by the rules of this court, with the assurance that when the cause came to this court a reprint would not be required of any portion of the record, except such as might be made after the cause was heard, and such printing was accordingly done under the supervision of the Clerk of the United States Circuit Court at Memphis, who was paid therefor the sum of $500. Since the cause came to this court, and on the 7th day of July, 1888, the Clerk of this court sent petitioners a notice that it would require $1825 to print the record, to wit: Clerk’s Fees............................... . $ 800.00 Printing...................................... 1050.00 $1850.00 Less sum deposited.......................... . 25.00 $1825.00 A copy of which letter is made Exhibit A hereto. They further represent that the Clerk of this court has notified them that if they could furnish twenty-five copies and $100 to print the record, not already printed, and his fee of $800 for supervising the whole record, that the transcript could be gotten ready. Petitioners can furnish fifteen copies of the record as already DENT v. FERGUSON. 399 Statement of the Case. printed, and can raise the $100 to pay the additional printing, but are powerless to raise the $800 charge of the Clerk for supervising the printing, which petitioners insist should only include so much of the record as has not been heretofore printed, and which the Clerk estimates at $100. They are poor, and are informed and believe they will be able to so change the decree as made, as to give them substantial relief. They file herewith the certificates of the Hon. E. S. Hammond, Judge, and J. B. Clough, Clerk of the court, in corroboration of this their statement, and ask that upon the filing of fifteen copies of the record so printed and depositing the $100 estimated cost of printing the balance of the record, and whatever is proper cost to the Clerk of this court for supervising the printing of the remaining unprinted record, that they be allowed to have the record printed and their rights determined. All of which is respectfully submitted. D. H. Poston, Solicitor for Petitioners. At the request of counsel, I will state that at the time the printing was ordered in the Circuit Court Mr. Justice Matthews stated in substance that he would see that the printing need not be duplicated in the Supreme Court, by which I understood that he would ask that court to so direct. E. S. Hammond, U. 8. District Judge. January 24, 1889. Memphis, Tennessee, January 24, 1889. I was not Clerk of the United States Circuit Court when the record in the above case was printed, but under an order of the court, (printed record, p. 130,) as Master in Chancery, had the record as it then existed, printed, and for my services in that regard was paid by the Receiver, by direction of the court, the sum of five hundred dollars. John B. Clough. 400 OCTOBER TERM, 1888. Statement of the Case. I, T. B. Edgington, counsel for Isaac Ferguson and others, complainants in cause No. 269, October Term, 1888, acknowledge service of a copy of this record, and notice, and consent that the record as made may be handed to the Supreme Court of the United States for its action, waiving any objections that I may be entitled to. January 23, 1889. Exhibit A. SUPREME COURT OF THE UNITED STATES. Washington, D. C., July 7, 1888. Sir — It becomes necessary, under , the provisions of Rule 10, that your clients immediately provide the money necessary to pay for printing the record and the clerk’s fees, in the case of Geo. G. Dent, et al., appellants, v. Isaac A. Ferguson, et al., No. 269, October Term, 1888. This is the only notice that will be given you by the clerk, and if the parties fail to comply, the case when reached in the regular call of the docket will be dismissed pursuant to section 2 of said rule. In this case the amount estimated is as follows, viz.: Clerk’s fees.................................... 8800 00 Printing........................................ 1050 00 Total........................................... $1850 00 Deduct amount on deposit................. $25 00 Total amount to be furnished .... $1825 00 The amount paid for printing and clerk’s fees, in case of a reversal of the judgment or decree, will be taxed on the mandate, and be recoverable from the unsuccessful party. The fees accruing to the clerk belong to the United States, and it is his duty to collect them. See Rule 10, secs. 2 and 6, and an extract from the decision of the court in Steever v. Hickman, printed on the back of this notice. Respectfully, etc., James H. McKenney, Clerk. NICHOLS, SHEPARD & CO. v. MARSH. Syllabus. 401 January 24, 1889. Mr. Edgington: I send petition and agreement written by Dave Poston, who left last night for New York. He will be in Washington in three days, and said you would sign and I must forward to him. Respectfully, C. W. .Frazer. January 24, 1889. Col. C. TK Frazer: Dear Sir — On considering of this matter, I don’t believe I could sign this waiver of notice. The matter has now been delayed so long that we could not get ready to try the case at this term after printing the record. I would like to accommodate both you and Poston, but I am satisfied that I could not secure the approval of my clients at this late day in the course suggested. Yours truly, T. B. Edgington. Mr. A. B. Browne and Mr. D. H. Poston for the motion. No one opposing. Per curiam : On consideration ,of the motion for leave to furnish fifteen copies of the record as already printed, and for a remission of the clerk’s fee for supervising the printing, it is now here ordered by the court that, upon the appellants’ filing fifteen copies of the record as already printed, and making payment of $100 as for cost of additional printing required, that the balance of the estimated costs be remitted. NICHOLS, SHEPARD AND COMPANY v. MARSH. * ORIGINAL MOTION IN A CASE BROUGHT UP BY APPEAL. No. 95. Submitted March 18, 1889. — Decided April 1, 1889. ■ filed a bill in equity against S. for the infringement of letters patent. S. answered and filed a cross-bill. The decree dismissed the original bill vol. cxxxi—26 402 OCTOBER TERM, 1888. Statement of the Case. from which M. appealed. Thereupon S. took an appeal in the cross suit from rulings excluding evidence. In this court the clerk required S. to pay one half the cost of printing the record. This court, after argument, affirmed the decree dismissing the original bill, and dismissed the cross-appeal. 128 U. S. 605. Held, that S. was entitled to recover of M. the amount so paid. After the entry of the decrees in Marsh n. Nichols and Nichols' v. Marsh, 128 U. S. 605, the following motion was made, entitled in the two causes. And now comes the said defendant, Nichols, Shepard & Co., by Charles F. Burton, their solicitor, and moves the court now here, that they, the said Nichols, Shepard & Co., do recover against the said Elon A. Marsh, Minard Lefever and James Scott, as costs to be taxed in their favor, one half of the amount required for printing the record and supervising the printing of the record in said causes, -in addition to the amount, taxable and to be taxed in their favor, in the first above entitled cause. This motion is based on the records in said causes and on the affidavit of Charles F. Burton, hereto attached, and will be brought on for hearing on Monday, the 25th day of February, at the opening of said court. To B. A. Parker, Esq., Solicitor for Marsh Lefever md Scott. Charles F. Burton, Solicitor for Nichols, Shepard & Co. State and Eastern District of Michigan, 1 County of Wayne, ) Charles F. Burton, duly sworn, deposes and says, that he is the solicitor for Nichols, Shepard & Co., in the above entitled appeal and cross appeal, and that in response to a request from the clerk of this court, he sent to said clerk, on the 16th day of November, 1887, the sum of two hundred and seventy-five dollars, which the said clerk notified him was the amount of money required to defray the portion of the expense properly HUNT v. BLACKBURN. 403 Statement of the Case. to be borne in the first instance, by said Nichols, Shepard & Co., as one half the cost of printing the record in said cases. Charles F. Burton. Subscribed and sworn to before me, this 21st day of January, 1889. Charles H. Fisk, Notary Public. Wayne County, Michigan. Mr. Charles F. Burton for the motion. Mr. R. A. Parker opposing. Per curiam : On consideration of the motion for a retaxation of costs in this cause, and of the argument of counsel thereupon, had as well in support of as against the same: It is now here ordered by the court that the amount advanced by the appellants in this cause towards printing the record be recoverable by them from the appellees herein. [This order is entitled only in the cross-suit of Nichols v. Marshi] HUNT v. BLACKBURN. original motion in a cause appealed from the circuit court OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. No. 16. Submitted January 22, 1889.— Decided April 8, 1889. The counsel for appellees having undertaken to appear for the heirs and representatives of the original appellee, deceased, and having filed in the office of the clerk of this court a waiver of publication, and having failed to appear, and the cause having been heard and having proceeded to final hearing, (128 U. S. 464;) Held, that the decree be made absolute against the heirs and representatives of the deceased appellee. The previous proceedings in this case are reported in 127 U. S. 774; and 128 U. S. 464. On the 22d January, 1889, the following motion was made in .the cause: 404 OCTOBER TERM, 1888. Statement of the Case. The appellant, by his counsel, moves the court to enter the decree in this cause, reversing the decree below ; on the ground that the waiver of publication is equivalent to the publication; and that the undertaking of counsel to appear, is an appearance, or will justify the clerk in entering the appearance; and in this case, an order will follow for publication, to show cause why the appellant should not have the decree certified — or otherwise why execution should not issue. It is submitted, however, that if this latter is the proper course, the sci.fa. should issue from the court below after remand. If this be held by the court inadmissible, he then moves in the alternative, that an order be entered for publication, in such form as the court may order, and submits the following for the consideration of the court, as a proper order: V. S. Supreme Court, Oct. Term, 1888. Hunt 1 v. Llio. 16. Blackburn, et al. J This case having been heard on the undertaking of counsel for appellees to appear for the heirs and representatives of the original appellee, and upon a waiver of publication by the said counsel, filed in this court; and the said counsel having failed to appear, though requested by appellant’s counsel. It is on motion of appellant’s counsel ordered that publication be made in the Eastern District of Arkansas, weekly, in some newspaper published in said district, for four successive weeks; the first publication not to be later than the first day of February next, requiring Belle Buck, as administratrix of S. S. Buck, appellee, and in her own right, Willie Buck and Eddie Blackburn, children and heirs at law of Sallie S. Buck, appellee, and all other heirs or representatives of said Sallie S. Buck, to appear before this court, on or before the first Monday in April, 1889, and show cause, if any they have, why a decree shall not be entered in this cause, reversing the decree in the court below, and remanding the said cause, with directions to enter such decree as this court may order. FREELAND v. WILLIAMS. 405 Syllabus. J/r. J. B. Heiskell, for the motion, cited Lorymer v. Hollister, Strange, 693 ; 1 Tidd’s Practice, 241, 1163; Green v. Watkins, 6 Wheat. 260 ; Wicket v. Cremer, 1 Ld. Raym. 439; State v. McLean, 8 Heiskell, 289.. Per curiam : It is ordered that The decree of this court of November 26, 1888, be made absolute against the heirs and representatives of Sallie S. Blackburn, deceased. MENKEN v. ATLANTA. ERROR TO THE SUPREME COURT OF THE STATE OF GEORGIA. No. 674. Decided April 18,1889. The death of the accused in a criminal case brought here by writ of error abates the suit. The case is stated in the opinion. Mr. Hoke Smith for plaintiff in error. Mr. S. W. Packard for defendant in error. Per curiam: The death of Fritz Menken, the plaintiff in error in the cause having been suggested by Mr. Pope Barrow, in behalf of Mr. Hoke Smith of counsel for the said plaintiff in error, and it appearing to the court that this is a criminal case, it is considered by the court that this cause has abated. Therefore, it is. ordered and adjudged by the court that the writ of error in this cause be, and the same is hereby, Dismissed. FREELAND v. WILLIAMS. error to the supreme court of appeals of the state of WEST VIRGINIA. No. 267. Argued April 17, 18, 1889. — Decided May 13, 1889. The provision in the constitution of West Virginia of 1872 that the property of a citizen of the State should not “ be seized or sold under final process 406 OCTOBER TERM, 1888. Opinion of the Court. issued upon judgments or decrees heretofore rendered, or otherwise, because of any act done according to the usages of civilized warfare in the prosecution of ‘ the war of the rebellion,’ by either of the parties thereto,” does not impair the obligation of a, contract, within the meaning of the Constitution of the United States, when applied to a judgment previously obtained, founded on a tort committed as an act of public war. A bill in equity to invalidate a judgment obtained against the defendant for a tort committed under military authority, in accordance with the usages of civilized warfare and as an act of public war and to, also enjoin its enforcement, is “ due process of law ” and is not in conflict with the Constitution of the United States. In equity in a state court of .West Virginia to enjoin the enforcement of a judgment obtained against the complainant. Decree for the complainant. The defendant brought the case here by writ of error. The Federal question is stated in the opinion of the court. Mr. W. L. Cole (with whom was Mr. C. C. Cole on the brief) for plaintiff in error. Mr. Charles J. Faulkner and Mr. Robert White for defendant in error. Mr. Justice Miller delivered the opinion of the court. This case is brought before us by a writ of error directed to the judges of the Supreme Court of Appeals of the State of West Virginia. We can, perhaps, best present the questions of Federal cognizance, which are supposed to give this court jurisdiction, by a short statement of its history. David Freeland, the present plaintiff in error, brought, in the Circuit Court of Preston County, in the State of West Virginia, against Joseph V. Williams and his brother Charles Williams, an action of trespass dé bonis asportatis for the taking and conversion of cattle which were the property of the plaintiff; and on the 22d day of December, 1865, he recovered a judgment in that court against Joseph V. Williams, for $1110, with interest and costs, there being a verdict in favor of the other defendant. * From that judgment the FREELAND v. WILLIAMS. 407 Opinion of the Court. defendant took a writ of error, on which it was affirmed in the Supreme Court of Appeals of the State of West Virginia. Williams v. Freeland, 2 West Virginia, 306. The trespass took place while the late civil war was flagrant in that part of the country. The records of the Circuit Court of Preston County, in which this judgment was rendered, have been destroyed by fire, and no transcript of the proceedings of that case is to be found in the record presented to us, except that a certified copy of the judgment of the Supreme Court of Appeals, affirming the judgment of the Circuit Court, is appended as an exhibit to the answer of Freeland made in the suit now under consideration. The judgment thus recovered remaining unsatisfied, the defendant in that case, Joseph V. Williams, on thè 15th day of August, 1883, filed his bill in chancery in the Circuit Court of Preston County, which, as it is short and contains the matter which we are called upon to review, will be here inserted, as follows : “ The bill of complaint of Joseph V. Williams, plaintiff, against David Freeland, defendant, filed in the Circuit Court of Preston County. “ To the Honorable Wm. T. Ice, Judge of the Circuit Court of Preston County : “ The plaintiff complains and says that the defendant instituted in the Circuit Court of said county his action of trespass against the plaintiff and a certain Charles Williams, and on the 22d day of December, 1865, recovered a judgment therein against the plaintiff alone for $1110, with interest thereon from the 4th day of January, 1864, and for the costs of the plaintiff therein expended. The record of said judgment has been destroyed by the burning of the court-house of said county. From said judgment the plaintiff obtained a writ of error and supersedeas, and the said judgment was by the Supreme Court of Appeals, at the July Term thereof, in the year 1867, affirmed ; and thereafter, on the---------day of----------, 1875, the said defendant sued out an execution on said sum of 408 OCTOBER TERM, 1888. Opinion of the Court. $-------, with interest from the------day of---------, and for costs and damages as was in said case then provided for by law ; that the plaintiff then proceeded to invalidate and have said judgment set aside, according to an act of the legislature of the State of West Virginia, on the------day of--------, and said judgment was by the Circuit Court of said county, by order entered in said proceedings, set aside, and a new trial ordered in said original action ; that from said order an appeal was taken by »said Freeland, and said order was reversed and said proceedings to set aside said judgment were dismissed ; and so, therefore, the said original judgment is apparently in force, although, in fact, void, for reasons hereinafter stated. The plaintiff further states that said action in which said judgment was obtained was not an action ex contractu, but was an action ex delicto j that it was, in fact, for cattle or other personal property alleged by the defendant to belong to him taken by the military authorities of the Confederate States, and taken by the soldiery and military authorities aforesaid during the late war between the government of the United States and a part of the people thereof ; and the plaintiff says that said judgment was for acts done according to the usages of civilized warfare in the prosecution of said war by the said Confederate States and the military power and authority thereof. The plaintiff further states that during said war he was a citizen of the State of Virginia until the formation of the State of West Virginia, and thereafter was and has been continually since a citizen of the State of West Virginia, and is now a citizen of the State of West Virginia; that he aided and participated in said war in the armies of the said Confederate States from the time he entered the service thereof, in the year 1862, until the termination thereof. The plaintiff further states that he resides in the county of Grant, and is the owner of real estate therein ; that said judgment has been docketed in his said county, as he believes, and has occasioned a cloud upon his title to said property. The plaintiff further says that he is advised that said judgment is void, and that his property is not liable to be seized or sold therefor, and, notwithstanding said judgment is void, he is threatene FREELAND v. WILLIAMS. 409 Opinion of the Court. and is in danger of having his property so seized and sold to satisfy said judgment, and the value and salable character of his said real estate by reason of the cloud on the title thereof as aforesaid is greatly impaired. The plaintiff further states that he has not full or adequate relief against said judgment, except by this his bill and the due process of law thereby, and by the enforcement of the protection afforded by the 35th section of the 8th article of the constitution of this State in his behalf, and to have said judgment by judicial authority declared void and inoperative. The plaintiff therefore prays that said judgment be declared void; that the defendant be perpetually enjoined and restrained from collecting the same and every part thereof, whether of principal, interest, cost, or damages, and from suing out execution thereon; and that he may have such other relief as the court may see fit to grant. “Joseph V. Williams, “By Counsel” To this bill there was a demurrer by Freeland, and also an answer. The demurrer relies upon the proposition that the 35th section of article 8 of the constitution of the State, which the plaintiff in that case sets up as the foundation of his relief, is in conflict with the 10th section of the first article of the Constitution of the United States, and also with the 1st section of the 14th article of amendment to that constitution, and is therefore null and void. The answer sets out the same matter, and also says that the judgment was for a lot of cattle owned by Freeland and taken and converted by the plaintiff, but not in accordance with the usages of civilized warfare; and that Williams went to trial on the plea of not guilty to the action of trespass for the recovery of the value of these cattle, though the plaintiff might have waived the trespass and declared in assumpsit. To this there was a replication, and testimony by way of depositions was taken on the issue as to whether the taking, on which the original judgment for the plaintiff rested, was an exercise of belligerent rights, and was done according to the usages and principles of public war. There can be no question 410 OCTOBER TERM, 1888. Opinion of the Court. that these depositions establish the fact that Williams, the defendant in the original action, was a soldier under the command of General Fitzhugh Lee, whose force was dominant in that part of West Virginia in January, 1864, and that it was under his orders that the cattle were seized while Lee was on a raid through that county*, the object of which was to get beef cattle, and the order of the commanding officer was to take beef cattle and surplus horses. Upon the final hearing the Circuit Court rendered its decree in the following language: “ It is therefore considered by the court that the judgment in the bill mentioned in favor of the defendant, against the plaintiff, described as a judgment rendered by the Circuit Court of Preston County, on the 22d day of December, 1865, for $1110, with interest thereon from the 4th day of January, 1864, and the costs, is void, and that the defendant be perpetually enjoined and restrained from the enforcement and collection of the same and every part thereof, and that the defendant do pay to the plaintiff his costs herein.” Thereupon Freeland, the present plaintiff in error, made application, according to the laws.of West Virginia, by a petition, for an appeal, which petition was denied. This denial, as in the case of similar proceedings in the State of Virginia, this court has held to be a final judgment of the hig-hest court of the State, which can be reviewed in this court in a proper case. The errors assigned, and the questions presented by counsel and by this record, are substantially two: 1st. That the new constitution of West Virginia, relied on as the foundation of relief by the defendant in error, is a violation of that clause of the Constitution of the United States which declares that no State shall pass any law impairing the obligation of contracts. Section 10, Art. I, of the original Constitution. 2d. That it violates the provision of the 1st section of the 14th article of amendment, viz., that no State shall “ deprive any person of life, liberty or property without due process of law. It is proper to observe that counsel have commented upon the fact that the defendant Williams, in the original action FEEELAND v. WILLIAMS. 411 Opinion of the Court. of trespass, filed certain, pleas setting up the fact that what he did in the way of seizing the cattle was under order of superior military authority, and in the exercise of belligerent rights, and that, therefore, he was not personally liable to the plaintiff for the alleged trespass. But there is no evidence in this record that any such pleas were ever offered to be filed, or were rejected by the trial court; nor is any such fact stated by Williams in the bill which is the foundation of the suit now before us. It is very true that this circumstance is mentioned in some of the opinions of the Supreme Court of Appeals of the State, in one of the cases where this matter was before it; but this could not be received as evidence of a fact not found in the record, even if those opinions and judgments had been made a part of this case by reference or otherwise. But this matter is, we think, immaterial in regard to the issue presented here. The defence which Williams now says he offered to make by those pleas was competent under the plea of not guilty, on which the case was tried; and in the depositions taken in the present case on the bill for an injunction it is made quite clear that such a defence was offered, but held to be insufficient by the court. The constitutional provision of the State of West Virginia, adopted by vote of the people on the 22d of August, 1872, on which the defendant in error mainly relies in support of the decree rendered in this case, is the 35th section of the 8th article of that instrument, and reads as follows : “No citizen of this State who aided or participated in the late war between the government of the United States and a • part of the people thereof, on either side, shall be liable in any proceeding, civil or criminal; nor shall his property be seized or sold under final process issued upon judgments or decrees heretofore rendered, or otherwise, because of any act done, according to the usages of civilized warfare, in the prosecution of said war, by either of the parties thereto. The legislature shall provide, by general law, for giving full force and effect to this section by due process of law.” •The legislature of West Virginia undertook to discharge the 412 OCTOBER TERM, 1888. Opinion of the Court. duty imposed by this constitutional provision, by section 3 of chapter 58 of the acts of 1872-3, which is in the following language: “ That if it shall be alleged by petition, under oath of the defendant, or his personal representative, to the court in which any judgment or decree shall have been rendered, or to any court to which such judgment or decree shall be transferred, that such judgment or decree was recovered or rendered by reason of an act done by the defendant according to the usages of civilized warfare in the prosecution of said war, a copy of which having been served on the plaintiff, his agent or attorney at law, or, if he be dead, upon his personal representative, ten days prior to filing the same, the court shall suspend proceedings upon such judgment or decree ; and being satisfied of the truth of said allegation, or if it appears by the record that a plea, setting forth that the matters complained of were done in accordance to the usages of civilized warfare in the prosecution of said war, was filed, or offered to be filed, by the defendant, and rejected or overruled by the court, shall set aside the judgment or decree, and award a new trial therein, which shall be governed by the provisions of this act; and in case the judgment or decree upon the new trial be in favor of the defendant, and he shall- have paid the said judgment or decree, or any part thereof, the court shall render a judgment or decree that the same shall be restored to the defendant, with interest, and shall enforce such restitution by execution or other proper process.” The Supreme Court of Appeals of the State of West Virginia, in the case of Peerce v. Kitzmiller, 19 West Va. 564, held in a case precisely similar to this, that while the constitutional * provision of that State was not in violation of any provision of the Constitution of the United States, the mode prescribed by the legislature for obtaining the relief which the new constitution authorized was not due process of law, and that the statute was void. But it also held that the provisions of the constitution, and the relief which it intended to give, might be carried into effect by proceedings in courts, which would be due process of law, and intimated that a proceeding in chan- FREELAND v. WILLIAMS. 413 Opinion of the Court. eery for an injunction against the execution of the original judgment might be such due process of law. We are, therefore, relieved from any further consideration of the special provisions of this statute, and are remitted to the question of conflict between the constitutional provision of 1872 of the State of West Virginia and the Constitution of the United States. As we have already said, the first of the questions thus presented is whether that constitutional provision, in its application to a judgment like the present, in existence when this state constitution was adopted, impairs the obligation of a contract. On this question the court has very little difficulty. The proposition that a judgment, duly rendered in a court of law, in an action of tort, is protected by this provision of the Federal Constitution, has been before us more than once in recent years, and was before this court also many years ago. In the case of Louisiana v. Mayor of Nero Orleans, 109 U. S. 285, the precise question was presented and very fully considered. In that case, a judgment was recovered against the city of New Orleans for injuries received by the riotous proceedings of a mob. At the time when this judgment was rendered the laws of Louisiana authorized taxes to be levied to pay all judgments rendered against the city. Afterwards changes were made in the laws on the subject of taxation, so that the power of the city to levy taxes was limited in such a manner that no taxes could be raised that could be appropriated to the payment of this judgment. An application was made to the Supreme Court of Louisiana to compel the city authorities of New Orleans to levy taxes to pay this judgment, which was denied by that court. The case was brought here on a writ of error, on the ground that the statute, under which the court of Louisiana denied the writ of mandamus, impaired the obligation of the contract found in the judgment in favor of the plaintiffs against the city. This court held, however, that that judgment was not a contract, and was not evidence of a contract within the meaning of the constitutional provision. The whole question of the nature of judgments, as 414 OCTOBER TERM, 1888. Opinion of the Court. being founded upon torts, or founded upon contracts, as they relate to that provision, was very fully discussed; and, while it was conceded that such a judgment might be declared upon as a specialty, or a contract of record, under the old authorities, such a proposition could not “convert a transaction, wanting the assent of parties, into one which necessarily implies it. Judgments for torts are usually the result of violent contests, and, as observed by the court below, are imposed .upon the losing party by a higher authority against his will and protest. The prohibition of the Federal Constitution was intended to secure the observance of good faith in the stipulation of parties, against any state action. Where a transaction is not based upon any assent of parties it cannot be said that any faith is pledged with respect to it; and no case arises for the operation of the prohibition. Garrison v. City of New York, 21 Wall. 203. There is, therefore, nothing in the liabilities of the city, by reason of which the relators recovered their judgments, that precluded the State from changing the taxing power of the city, even though the taxation be so limited as to postpone the payment of the judgments.” The case of Garrison n. City of New York, 21 Wall. 196, above referred to, sustains the proposition for which it is quoted. In that case a proceeding to condemn certain real estate in the city of New York, for the purpose of widening Broadway, had been carried to its end, and an assessment was made in favor of Garrison for taking his property to the amount of $40,000. On this a judgment or order of confirmation was entered in the proper court. The legislature of New York subsequently passed a statute authorizing an appeal from the order of confirmation, to be taken by the city at any time within four months, and made it a duty of the court to which such application should be made that, if it should appear there was any error, mistake or irregularity at any stage of the proceedings, or that the assessments or awards had been unfair and unjust, to vacate the order of confirmation and refer the matter back to new commissioners, who should proceed to amend and correct the report. This court said, in reviewing the judgment of the Circuit FREELAND v. WILLIAMS. 415 Opinion of the Court. Court for the Southern District of New York on that question, that “the objection to the act of 1871, that it impairs the vested rights of the plaintiff, and is, therefore, repugnant to the constitution of the State, is already disposed of by what we have said upon the first objection. There is no such vested right in a judgment, in the party in whose favor it is rendered, as to preclude its reexamination and vacation in the ordinary modes provided by law, even though an appeal from it may not be allowed; and the award of the commissioners, even when approved by the court, possesses no greater sanctity.” The language there used, and the circumstances of that case, are eminently applicable to the one now before us. In the earlier case of Satterlee v. Katthewson^ 2 Pet. 380, in an action of ejectment between the parties, twice tried before the Supreme Court of the State of Pennsylvania, that court had held the law to be, as it undoubtedly was in that State, that the doctrine that a tenant was estopped to deny the title of his landlord was inapplicable to cases where the title originated under the claim of the State of Connecticut to lands in the State of Pennsylvania. While a third trial, of the same case, between the same parties, was pending, the legislature of the State of Pennsylvania passed a statute to the effect that the “ relation of landlord and tenant shall exist and be held as fully and effectually between Connecticut settlers and Pennsylvania claimants as between other citizens of this common* wealth, on the trial of any cause now pending, or hereafter to be brought within this commonwealth, any law or usage to the contrary notwithstanding.” The Supreme Court of the State of Pennsylvania conformed its judgment to this statute, which was at variance with the rights established by the two former judgments. The case came to the Supreme Court of the United States, and was argued before that court on the ground that the statute impaired the obligation of the contract between the tenant and the landlord, and also the obligation of the contract by which one party derived his title from the Connecticut claim. The court held that no such question was raised; that there was no contract in the case affected by this provision of the statute. 416 OCTOBER TERM, 1888. Opinion of the Court. The opinion, however, is more remarkable, and more pertinent to the present case, in its discussion of the doctrine of vested rights under judgments of a court, and under the condition of the title to the property existing at the time the statute was passed. We are of opinion that the constitution of West Virginia of 1872, in its provision for this class of cases, does not violate the obligation of a contract, where the judgment was founded on a tort committed as an act of public war. The other question which we are called upon to decide presents more difficulty. Ever since the case of Dow v. Johnson, 100 IT. S. 158, the doctrine has been settled in the courts, that in our late civil war each party was entitled to the benefit of belligerent rights, as in the case of public war, and that, for an act done in accordance with the usages of civilized warfare, under and by military authority of either party, no civil liability attached to the officers or soldiers who acted under such authority. The case as it is now presented to us shows that the trespass for which the original judgment was rendered was of that character; and it is argued with much force that the court which rendered that judgment had no jurisdiction of the case, or, at all events, had no jurisdiction to render such a judgment, and that it is therefore void. It follows from this view of the subject that the court in which it was originally rendered had jurisdiction to set it «aside or annul it without the aid of the constitutional provision of the State of West Virginia, and that, on that ground alone, the decree we are called upon to review must be affirmed. In this view of the subject some of the judges of this court concur. On the other hand, it is argued that, from what appears to have been done in that court, it was an action of which the the court had jurisdiction when it was brought; that the casp presented to it by the pleadings was a simple act of trespass de bonis asportatis, in which the defendant wrongfully seized and carried off the cattle of the plaintiff. On the issue of not guilty, judgment was rendered for the plaintiff. Whether the question of belligerent rights was there presented and tried is not to be ascertained from its records, 1st, because no record FREELAND v. WILLIAMS. 417 Opinion of the Court. of the proceeding exists in that court; and, 2dly, because it does not appear from anything of record now to be found that the question of belligerent rights was there considered. Nor are we prepared to admit, if it was considered and decided against the defendant, that the judgment is wholly and absolutely void. It is not here denied that the doctrine of Dow v. Johnson is correct, and that parties are protected by that doctrine from civil liability for any act done in the prosecution of a public war. But one of the very things to be decided, when an act like this is brought in question, and the defence is that it was done in the exercise of belligerent rights, is whether this defence is established by the evidence. As regards the case now before us, we are of opinion that the judgment rendered by the Circuit Court of Preston County in this case is prima facie a valid judgment. On the face of the record, if the record now existed, as set forth in the case before us, it would be prima facie valid. It is only the facts proved by the evidence taken in the present case which impeach that judgment and establish that it was rendered on account of acts done in pursuance of the powers of a belligerent in time of war. Without, therefore, considering whether this judgment is absolutely void, or whether there existed any rule of law known to the court by which its validity could be inquired into before the adoption of the constitutional provision of the State of West Virginia, we proceed to inquire how the matter stands with the aid of that provision and under all the circumstances of this case. The proposition of the plaintiff in error is, that by the judgment of the Circuit Court of Preston County he had acquired a vested right in that judgment; that the judgment was his property; and that any act of the State which prevents his enforcing that judgment, in the modes which the law permitted at the time it was recovered, is depriving him of property without due process o.f law, and, therefore, forbidden by the 14th Amendment of the Federal Constitution. This right of the plaintiff to enforce that judgment is insisted upon as a vested right with which no authority can lawfully interfere. vol. cxxxi—27 418 OCTOBER TERM, 1888. Opinion of the Court. It is to be observed, in the first place, that the language of the prohibition against state interference with life, liberty or property is that the deprivation of these precious rights shall not be had without due process of law. This phrase, “due process of law,” has always been one requiring construction; and, as this court observed long ago, never has been defined, and probably never can be defined, so as to draw a clear and distinct line, applicable to all cases, between proceedings which are by due process of law and those which are not. Judgments, however solemn, however high the court which rendered them, and however conclusive in a general way between the parties, have been subject to review, to reconsideration, to reversal and to modification by various modes. Among these are motions for new trials, appeals, writs of error and bills of review; and these have always been held to be due process of law. So, also, judgments of courts of law have been subject to be set aside, to be corrected and the execution of them enjoined, by bills in chancery, under circumstances appropriate to such relief. This also must be held to be due process of law. The present case is a bill in chancery to enjoin the execution of a judgment, and such was the relief granted by the decree of the court. In that respect it is one of the recognized processes of law for reexamining the matters on which a judgment is founded and making such corrections, even to setting aside the whole judgment or perpetually enjoining its execution, as by the rules of equity jurisprudence are just and appropriate to the occasion. Undoubtedly the mode pursued in this case of obtaining relief against the judgment of the Circuit Court of Preston County is in its form due process of law. It is by an appeal to the courts in their regular course of procedure, and is not by any summary or unusual process applied to the determination of the rights of parties. If it be true that, when the original action was presented to the Circuit. Court of Preston County, the thing complained of was found to be an act in accordance with the usages of civilized war, during the existence of a war flagrant in that part of the country, that court should have proceeded no further, FREELAND v. WILLIAMS. 419 Opinion of the Court. and its subsequent proceedings may be held to have been without authority of law. While it is not necessary to hold that the judgment, as presented by the record, is absolutely void, it may be conceded that a court of equity, in a proper case, can prevent the enforcement of it. But the application of this remedy may have been, and probably was, embarrassed in this case by circumstances which would render it unavailing. There might be raised against it the proposition that the defence had been presented and considered by the court in which the case was tried. Lapse of time might have prevented a court of equity from redressing the wrong inflicted by the judgment. It may have been doubtful whether the case was one of equitable cognizance; it may have been insisted that the jury passed upon the facts of the case adversely to the defendant; and it is undoubtedly true that the Supreme Court of Appeals of the State of West Virginia had decided, in this class of cases, that the defence that the party was acting in accordance with belligerent rights was not a sufficient defence. These reasons, and probably the latter one mainly, were those upon which the constitutional convention of West Virginia acted, in framing the provision which we have already cited on this subject. Was it competent for that convention to establish a rule of law which is now the recognized rule of this court, and perhaps of all the courts of the United States, which is commended by the highest authorities, and which is eminently adapted to the purpose of quieting strife and securing repose after the turmoils of a civil war, although the principle asserted was in opposition to that held by the Supreme Court of Appeals of the State? That this principle would govern all cases where the act for which the party was sued occurred after its establishment does not admit of question. That it was the law of the country before its adoption by the state constitution there is as little doubt. Shall it be held to be incapable of enforcement and forbidden by the Constitution of the United States because it is made to cover judgments already rendered in violaton of the principle asserted ? The constitution of the State remedies the defects of the proceeding by bill in chancery; it. creates no new process of law; it 420 OCTOBER TERM, 1888. Opinion of the Court. makes that which has always been due process of law efficient by removing objections and obstructions to its operation. It simply declares that a judgment for a wrong or tort, which in itself was erroneous, is a voidable judgment, and may be avoided, if it can be brought within the due processes of the law already existing, and shall by this means be inquired into, and if it is against right, justice and law, shall be no longer in force, and the judgment plaintiff shall be forever enjoined from putting it into execution. Prior to the adoption of the 14th Amendment the power to provide such remedies, although they may have interfered with what were called vested rights, seems to have been fully conceded. The cases in which this had been decided in this court are Calder v. Bull, 3 Dall. 386 ; Satterlee v. Matthewson, 2 Pet. 380; Sampeyreac v. United States, 1 Pet. 222; Watson v. Mercer, 8 Pet. 88 ; and Freeborn v. Smith, 2 Wall. 160. In the latter case, Mr. Justice Grier, when the Congress of the United States had allowed an appeal where the judgment would have otherwise been final, used this language: “ If the judgment below was erroneous, the plaintiff in error had a moral right at least to have it set aside, and the defendant is only claiming a vested right in a wrong judgment.” And he thus quotes the language of Chief Justice Parker, in Foster v. Essex Bank,, 16 Mass. 245: “ The truth is there is no such thing as a vested right to do wrong ; and a legislature, which, in its acts not expressly authorized by the constitution, limits itself to correcting mistakes, and to providing remedies for the furtherance of justice, cannot be charged with violating its duty, or exceeding its authority.” Many other cases might be cited in which it was held that retrospective statutes, when not of a criminal character, though affecting the rights of parties in existence, are not forbidden by the Constitution of the United States. We do not think that the Supreme Court of Appeals of West Virginia, which seems to have carefully considered the question of due process of law in the case of Peercey Kitzmiller, and held that the statute of the State in carrying out the provisions of the constitution did not provide due FREELAND v. WILLIAMS. 421 Dissenting Opinion: Harlan, J. process of law, was in error when it also held that the remedy provided by the constitution of the State as carried out by the ancient proceeding of a bill in a court of equity, was not void for want of due process of law, nor in conflict with the Constitution of the United States. Its judgment is therefore Affirmed. Mb. Justice Haelan dissenting. In Ford v. Surget, 97 U. S. 574, 605, this court, speaking by the writer of this opinion, said that to the Confederate army was “ conceded, in the interest of humanity^ and to prevent the cruelties of reprisals and retaliation, such belligerent rights as belonged under the laws of nations to the armies of independent governments engaged in war against each other — that concession placing the soldiers and officers of the rebel army, as to all matters directly connected with the mode of prosecuting the war, ‘ on the footing of those engaged in lawful war,’ and exempting ‘ them from liability for acts of legitimate warfare.’ ” It necessarily results from this doctrine, without reference to the provision of the Constitution of West Virginia, that Williams was not civilly responsible for the value of the cattle in question, if, at the time he took them, he was regularly enlisted as a soldier in the Confederate army, and if his taking of them was consistent with the usages of civilized warfare.” If the taking was not an act of war, but a mere trespass, his being a soldier in the Confederate army would not have constituted a defence. But whether he was or was not a soldier in that army, and whether his act was or was not one of legitimate warfare, were questions determinable in the action of trespass instituted against him in the Circuit Court of Preston County. It is not disputed that it was open to him, in that action, to prove every fact relied upon in the present suit as establishing immunity from civil responsibility for the taking of Freeland’s cattle. There was a verdict and judgment against him, and that judgment, upon writ of error to the Supreme Court of Appeals of West Virginia, was affirmed in 1867. No writ of error was prosecuted to this court. 422 OCTOBER TERM, 1888. Dissenting Opinion: Harlan, J. If the taking of the cattle was illegal, the right to recover from the wrongdoer their reasonable value was an absolute one, of which the owner could not be deprived by a legislative enactment of the State, or by an amendment of its constitution. The judgment obtained by Freeland was an adjudication that the taking was illegal. He acquired by that judgment a vested right to have and demand the amount named in it, as well as the benefit of such remedies as the law gave for the enforcement of personal judgments for money. The judgment was, therefore, property of which the State could not deprive him, except by due process of law. And a constitutional provision, subsequently enacted, declaring that the defendant’s property should not be seized or sold under final process on such judgment, is not due process of law. I cannot agree that a State may, by an amendment of its fundamental law, prevent a citizen from recovering the value of property, of which, according to the final judgment of its own courts, he has been illegally deprived by a mere trespasser. That would be sheer spoliation under the forms of law. If the amendment in question had, in terms, given the defendant a right to a new trial of the action of trespass in the same court, after the time had passed within which, according to the settled modes of procedure, he could, of right, apply for a new trial, it would have accomplished, in respect to the judgment against him, precisely what, in effect, has been held in this case to be consistent with the Fourteenth Amendment. The present case is unlike Louisiana v. Mayor of New Orleans, 109 U. S. 285, 290, where the court sustained the validity, so far as the Constitution of the United States was concerned, of a state enactment so changing the laws for raising money by municipal taxation as to prevent, for the time, the enforcement of a judgment obtained against the city of New Orleans, for damages done to private property by a mob. But, even in that case, the court was careful to say that the relator was not deprived of his judgment, or of the right of himself or assignee to use it as a set-off against any demands of the city. It is, also, said: “ The question of the effect of legislation upon the means of enforcing an ordinary judgment for damages for FREELAND v. WILLIAMS. 423 Dissenting Opinion: Harlan, J. a tort rendered against the person committing it, in favor of the person injured, may involve other considerations, and is not presented by the case before us.” The radical difference between that and the present case is, that the right to sue the city of New Orleans for damages on account of private property destroyed by a mob was given by statute; whereas, the right to claim compensation from a wrongdoer for his illegal conversion of private property to his own use is inherent in the owner, and cannot be taken from him by the State. Nor, in my opinion, is the ruling in the present case sustained by Dow v. Johnson, 100 U. S. 158, 166. That was an action in the Circuit Court of the United States for the District of Maine, upon a judgment rendered by default in 1863 against General Dow while he was in the active discharge, within the lines of military operations, of his duties as a brigadier-general in the army of the United States. The judgment was rendered in a court of the city and parish of New Orleans. That officer was sued in the latter court for the taking of certain personal property by soldiers under his command. He was served with process, but did not appear and make defence. “ The condition of New Orleans,” this court said, “ and of the district connected with it, at the time of the seizure of the property of the plaintiff and the entry of judgment against Dow, was not that of a country restored to its normal relations-to the Union, by the fact that they had been captured by our forces, and were held in subjection. . . . The country was under martial law, and its armed occupation gave no jurisdiction to the civil tribunals over the officers and soldiers of the occupying army. They were not to be harassed and mulcted at the complaint of any person aggrieved by their, action. The jurisdiction which the District Court was authorized to exercise over civil causes between parties, by the proclamation of General Butler, did not extend to cases against them. The third special plea alleges that the court was deprived by the general government of all jurisdiction except such as was conferred by the commanding general, and that no jurisdiction over persons 111 the military service for acts performed in the line of their duty was ever thus conferred upon it. It was not for their 424 OCTOBER TERM, 1888. Dissenting Opinion: Harlan, J. • control in any way, or the settlement of complaints against them, that the court was allowed to continue in existence. It was, as already stated, for the protection and benefit of the inhabitants of the conquered country and others there not engaged in the military service.” General Dow, when thus sued in a local tribunal, existing by military sufferance in a country governed by martial law, was not bound, as this court said, to leave his troops and attend upon that tribunal, for the purpose of justifying his military orders, by showing-that the acts complained of were authorized by the necessities of war. It was consequently held that the New Orleans court was without jurisdiction to proceed against him. There is no analogy between that case and the present one; for, the action of trespass against Williams was brought* in a Superior Court of general jurisdiction, after the war closed, and when he was at liberty to appear and make defence. And it was determined by a court whose existence was independent of military authority. The only possible ground upon which the judgment below can be sustained, consistently with the law of the land, is to hold that no court of any State had jurisdiction, in the year 1867, even with the parties before it, to inquire, in an action of trespass, whether an alleged taking of the private property of a citizen was a mere trespass, or was an act of war upon the part of the defendant, a Confederate soldier, and to give judgment according to the result of that inquiry. But as the primary object in creating judicial tribunals is to provide a mode for the determination of controversies between individuals, and between individuals and the government, can it be said that no court had jurisdiction to inquire whether Freeland’s cattle were taken by Williams without authority of law ? Was the mere averment that the latter was a Confederate soldier, and that what he did was an act of war, sufficient to preclude all investigation as to the truth of that averment ? If not, how was such an investigation to be had. in any effective mode, except in a court of justice ? It is suggested that when the Preston Circuit Court ascertained that the taking of these cattle was legitimate warfare upon the part of Williams as a Confederate soldier, it ought to have dis- FREELAND v. WILLIAMS. 425 Dissenting Opinion: Harlan, J. missed the action, or directed a verdict to be rendered in his favor. But even if it erred in this respect, the judgment was not void. Its error, if any there was, could have been corrected in an appellate court. The affirmance of the judgment by the highest court of the state is to be taken as conclusive that no error was committed by the inferior state court in respect to any matter put in issue, or which was embraced by the issue tried. So if Williams failed to prove, under his plea of not guilty, that he was a Confederate soldier, and that his taking the cattle was an act of legitimate w’arfare, it was not in the power of the State, by an amendment of its constitution, and after a final judgment against him, to give a new trial. In legal effect, that is what was done. According to the doctrines announced by the court, if the present and similar suits in West Virginia had been decided adversely to the several defendants therein, and such decisions had been affirmed by the highest court of that State, it would be consistent with “ due process of law ” for the people of that State to make a further amendment of their constitution, and give the unsuccessful litigants still another opportunity to retry the very questions of law’ and fact determined against them in previous actions. And so on, indefinitely, until the alleged trespasser obtained a decision in his favor. I had supposed that a final judgment, and the right of the party in whose behalf it was rendered to have the benefit of it, rested upon a firmer basis than the popular will, expressed either in a constitutional amendment or in a legislative enactment. Without considering whether the judgment obtained by Freeland is not “ a contract of the highest nature, being established by the sentence of a court of judicature,” (2 Bl. 465 ; Taylor n. Root, 4 Keyes, 335, 344,) I place my dissent from the opinion and judgment in this case upon the ground that the state court, in the action of trespass, had jurisdiction as to person and subject matter, and that the constitutional amendment of 1872 taking from Freeland, upon the identical grounds involved in that action, the benefit of his judgment against the defendant, after it had been affirmed in the highest court of the State, deprived the former of his property without due process of law. 427 OCTOBER TERM, 1888. Cases not Otherwise Reported. CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, AT OCTOBER TERM, 1888, NOT OTHERWISE REPORTED, INCLUDING CASES DISMISSED IN VACATION PURSUANT TO RULE 28. No. 103. Adams v. Hatch. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. December 4, 1888: Dismissed, with costs, pursuant to the 10th rule. Mr. W. G. Griffith for appellant. Mr. F. P. Pritchard for appellee. No. 509. Adams v. Town of Lansing. Error to the Circuit Court of the United States for the Northern District of New York. January 4, 1889: Dismissed, with costs, per stipulation, on motion of Mr. Clarence A. Seward in behalf of counsel. Mr. James P. Cox for plaintiff in error. Mr. Francis Kernan for defendant in error. No. 78. Ambrose v. Board of Commissioners of Pilots. Error to the Supreme Court of the State of New York. May 19, 1888: Dismissed pursuant to the 28th rule. Mr. Coles Morris and Mr. Michael H. Cardozo for plaintiffs in error. Mr. Wm. Allen Butler for defendant in error. No. 741. American Diamond Rock Boring Company v. Sheldon et al. No. 742. Same v. Rutland Marble Company. No. 957. Same v. Gilson et al. No. 958. Same v. Sutherland Falls Marble Company. No. 959. Same v. Sherman et al. No. 960. Same v. Hawley et al. No. 961. Same v. Flint et al. No. 962. Same v. Kelley. No. 963. Same v. Hollister. No. 964. Same v. Freedley et al. No. 965. Same v. Columbian Marble Company. No. 966. Samf. v. 428 OCTOBER TERM, 1888. Cases not Otherwise Reported. Cutter Marble Company. Appeals from the Circuit Court of the United States for the District of Vermont. December 20, 1888: Dismissed, with costs, pursuant to the 10th rule. Mr. E. G. Thompson for appellants. Mr. E. T. Rice for appellees. No. 146. American Diamond Drill Company v. Sullivan Machine Company. Appeal from the Circuit Court of the United States for the Southern District of New York. December 20, 1888: Dismissed, with costs, pursuant to the 16th rule, on motion of Mr. E. T. Rice of counsel for appellee. Mr. E. G. Thompson for appellant. Mr. E. T. Rice for appellee. No. 228. American National Bank of Nashville v. Mayor and City Council of Nashville. Appeal from the Circuit Court of the United States for the Middle District of Tennessee. March 29, 1889 : Dismissed, with costs, pursuant to the 10th rule. Mr. Edward Baxter for appellant. No appearance for appellees. No. 9. American Railway Improvement Company v. Carpenter. Error to the Circuit Court of the United States for the Eastern District of Louisiana. April 22,1889 : Dismissed, with costs, per stipulation, on motion of Mr. William A. McKenney in behalf of counsel. Mr. W. W. Howe for plaintiff in error. Mr. A. H. Leonard for defendants in error. No. 1125. Arbuckle v. Quigley. Error to the Supreme Court of the State of Tennessee. March 18, 1889 : Judgment reversed, with costs, and cause remanded with instructions to enter judgment for the plaintiff in error pursuant to a stipulation of counsel. Mr. T. B. Turley and Mr. Luke E. Wright for plaintiff in error. Mr. Tsham G. Harris for defendant in error. No. 289. Arnson et al. v. Merritt. Error to the Circuit Court of the United States for the Southern District of New 429 OCTOBER TERM, 1888. Cases not Otherwise Reported. York. March 5, 1889: Dismissed on motion of Mr. Edwin B. Smith for plaintiffs in error. Mr: Attorney General for defendant in error. No. 1179. Arthur’s Executors v. Richard and Boas. Error to the Circuit Court of the United States for the Southern District of New York. January 28, 1889: Judgment affirmed, with costs, and interest, by a divided court. Mr. Attorney General and Mr.. Assistant Attorney General Maury for plaintiffs in ernor. Mr. Stephen G. Clarke for defendants in error. No. 216. Baldwin v. Marye. Error to the Circuit Court of the United States for the Eastern District of Virginia. March 19, 1889: Dismissed, with costs, on authority of counsel for the plaintiff in error. Mr. William L. Royall for plaintiff in error. Mr. R. A. Ayers for defendant in error. No. 1166. Baltimore and Potomac Railroad Company v. Crown. No. 1167. Same v. Knight. No. 1168. Same v. Anderson. No. 1169. Same v. Rowland. No. 1170. Same v. Stroebel. No. 1171. Same v. Neitzy. No. 1172. Same v. Richards. Error to the Supreme Court of the District of Columbia. April 17, 1889: Dismissed for the want of jurisdiction on the authority of the decision of this court in the case of Baltimore and Potomac Railroad v. Hopkins, 130 U. S. 210, on motion of Mr. S. S. Henkle for defendants in error, as per stipulation. Mr. Enoch Totten for plaintiffs in error. Mr. Samuel Maddox and Mr. S. S. Henkle for defendants in error. v No. 1174. Baltimore and Potomac Railroad Company v. Kent. Appeal from the Supreme Court of the District of Columbia. April 1, 1889: Dismissed, per stipulation, on motion of Mr. William A. McKenney in behalf of counsel for appellant. Mr. Enoch Totten for appellant. Mr. Linden Rent for appellees. 430 OCTOBER TERM, 1888. Cases not Otherwise Reported. No. 1438. Batchelder u Brickell. Error to the Supreme Court of the State of California. November 19, 1888: Docketed and dismissed, with costs, on motion of Mr. James Lowndes for defendant in error. No one opposing. No. 136. Bauer, a Minor, etc. v. Texas and Pacific Railroad Company. Error to the Circuit Court of the United States for the Eastern District of Arkansas. January 7,1889: Judgment affirmed with costs, by a divided court. Mr. Sol. F. Clark and Mr. Samuel W. Williams for plaintiffs in error. Mr. J. C. Brown, Mr. John F. Dillon and Mr. Winslow S. Pierce for defendants in error. No. 654. Bier v. New Orleans. Error to the Circuit Court of the United States for the Eastern District of Louisiana. October 22, 1888: Dismissed, with costs, as per stipulation, on motion of Mr. E. B. Kruttschnitt of counsel for plaintiff in error. Mr. E. H. Farrar and Mr. E. B. Kruttschnitt for plaintiff in error. Mr. Henry C. Miller for defendant in error. No. 252. Board of County Commissioners of Labette County et al. v. United States ex rel. Moulton. Error to the Circuit Court of the United States for the District of Kansas. April 16, 1889 : Dismissed, with costs, pursuant to the 10th rule. Mr. B. W. Perkins for plaintiffs in error.' No appearance for defendant in error. No. 731. Bonn v. McLane. Error to the Supreme Court of the State of Iowa. April 22, 1889: Dismissed, with costs, pursuant to authority of counsel for plaintiff in error, on motion of Mr. William A. McKenney in behalf of counsel. Mr. P. Henry Smyth for plaintiff in error. Mr. W. E. Blake and Mr. S. W. Packard for defendant in error. No. 1414. Boughton v. Charter Oak Life Insurance Company. Appeal from the Supreme Court of the District of Co- OCTOBER TERM, 1888. 431 Cases not Otherwise Reported. lumbia. October 22,1888: Docketed and dismissed, with costs, on motion of Mr. 8. R. Bond for appellees. No one opposing- ________ No. 1200. Brooks v. Ahrens. Error to the Court of Appeals of the State of Maryland. November 26, 1888 : Dismissed, with costs, on motion of Mr. Frank P. Clark, in behalf of counsel for the plaintiff in error. Mr. Skipwith Wilmer for plaintiff in error. No appearance for defendant in error. Bryant et al. v. White. Appeal from the Circuit Court of the United States for the Northern District of Illinois. December 19,1888: Dismissed, with costs, pursuant to the 10th rule. Mr. 0. H. Borton and Mr. Hugh L. Mason for appellants. Mr. Thomas Bent and Mr. Robert T. Lincolm for appellees. No. 451. Bullion, Beck, and Champion Mining Company v. Eureka Hill Mining Company. Appeal from the Supreme Court of the Territory of Utah. September 29, 1888: Dismissed pursuant to the 28th rule. Mr. Arthur Brown for appellant. Mr. Moses Kirkpatrick for appellees. No. 1528. Case v. McArthur. Appeal from the Circuit Court of the United States for the Southern District of Ohio. March 21, 1889: Docketed and dismissed, with costs, on motion of Mr. Lawrence Maxwell, Jr., for the appellees. No opposition. No. 171. Chicago and Eastern Illinois Railroad Company Dennison. Appeal from the Circuit Court of the United States for the Northern District of Illinois. January 22,1889: Dismissed, with costs, pursuant to the 10th rule. Mr. Wm. Armstrong for appellant. Mr. Fdwin Walker for appellee. No. 172. Chicago and Eastern Illinois Railroad Company Sanger. Appeal from the Circuit Court of the United 432 OCTOBER TERM, 1888. Cases not Otherwise Reported. States for the Northern District of Illinois. January 22, 1889 : Dismissed, with costs, pursuant to the 10th rule. Mr. Wm. Armstrong for appellant. Mr. Edwin Walker for appellee. ________ No. 852. Chicago, Milwaukee and St. Paul Railway Company v. Lourden. Error to the Circuit Court of the United States for the Northern District of Illinois. January 2, 1889: Dismissed, with costs, on motion of Mr. Edwin Walker of counsel for plaintiffs in error. Mr. Edwin Walker for plaintiffs in error. No counsel entered for defendant in error. ________ No. 104. Christ v. Fitzsimmons. Error to the Circuit Court of the United States for the Western District of Pennsylvania. December 4, 1888: Dismissed, with costs, pursuant to the 10th rule. Mr. H. C. Parsons for plaintiffs in error. No appearance for defendant in error. No. 301. Clarke v. Reyburn. Appeal from the Circuit Court of the United States for the Northern District of Illinois. December 10, 1888 : Dismissed, per stipulation, on motion of Mr. C. M. Osborn of counsel for appellees. Mr. George IF. Smith for appellant. Mr. C. M. Osborn for appellees. No. 139. Continental Insurance Company of New York v. Wright. Error to the Circuit Court of the United States for the Southern District of Illinois. January 7, 1889 : Judgment affirmed, with costs and interest, by a divided court. Mr. John M. Palmer and Mr. Henry Jackson for plaintiff in error. Mr. L. H. Bisbee, Mr. John P. Aherns and Mr. Henry Decker for defendant in error. No. 753. Continental Life Insurance Company, etc. Rhoads. Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. October 25, 1888. 433 OCTOBER TERM, 1888. Cases not Otherwise Reported. Dismissed, as per stipulation, on motion of Mr. Joseph K. McCammon in behalf of counsel for the plaintiff in error. Mr. Samuel C. Perkins for plaintiff in error. Mr. R. T. Cornwell for defendant in error. No. 272. Crehore v. Ohio and Mississippi Railway Company. Error to the Circuit Court of the United States for the District of Kentucky. April 24, 1889: Judgment reversed, with costs, (from the bench,) and cause remanded with directions to remand the case to the state court. Mr. John Mason Brown, Mr. Alexander Pope Humphrey and Mr. George M. Davie for plaintiff in error. Mr. TT. M. Ramsey, Mr. Lawrence Maxwell, Jr., and Mr. Mortimer Matthews for defendant in error. No. 696. Crapsey v. Gage County. Error to the Circuit Court of the United States for the District of Nebraska. May 13,1889: Dismissed, per stipulation, on motion of Mr. William A. McKenney, in behalf of counsel. Mr. J. M. Wool-worth for plaintiff in error. Mr. Charles F. Manderson and Mr. Robert 8. Bibb for defendant in error. No. 156. Davey v. Duggan. Appeal from the Supreme Court of the Territory of Dakota. January 8, 1889: Dismissed, with costs, pursuant to the 10th Rule. Mr. William. R. Steele for appellants. No appearance for appellees. No. 161. Davis v. South Carolina. Error to the Supreme Court of the State of South Carolina. January 10, 1889 : Dismissed, with costs, pursuant to the 10th Rule. Mr. James Lowndes for plaintiff in error. No appearance for defendant in error. No. 192. De La Mothe v. Angus. Appeal from the Circuit Court of the United States for the Southern District of VOL. CXXXI—28 434 OCTOBER TERM, 1888. Cases not Otherwise Reported. Illinois. March 12, 1889: Dismissed, with costs, pursuant to the 10th Rule. JZr. M. L. Merriman and Mr. J. H Graham, for appellant. Mr. David Eales, Mr. F. W. Hackett and Mr. Guy G. Noble for appellee. No. 251. Des Moines Navigation and Railroad Company v. Candee. Appeal from the Circuit Court of the United States for the Northern District of Iowa. April 16, 1889: Dismissed, with costs, per stipulation. Mr. C. H. Gatch for appellants. Mr. George Crane for appellee. No. 424. De Vries v. Marsh. Appeal from the Circuit Court of the United States for the Northern District of Illinois. May 13, • 1889 : Decree reversed on the stipulation of the parties and cause remanded for such order as the Circuit Court may see fit to make in the premises. Mr. N. T. A. Robinson and Mr. J. S. Stevens for appellant. Mr. Attorney General and Mr. W. G. Ewing for appellees. No. 153. Du Bois v. Boarman. Appeal from the Supreme Court of the District of Columbia. December 20, 1888: Dismissed, with costs, pursuant to the 10th rule. Mr. S. S. Henkle for appellant. No counsel entered for appellees. No. 1431. District of Columbia v. Brewer. Appeal from the Supreme Court of the District of Columbia. May 13, 1889: Dismissed for the want of jurisdiction, the amount involved being below the jurisdictional sum. Motion to dismiss submitted April 22,1889, by Mr. A. L. Merriman and Mr. IF. Willoughby for appellee. No one opposing. Mr. Henry E. Davis entered for appellant. No. 84. Eames v. Bickford. Error to the Supreme Judicial Court of the State of Maine. November 15, 1888: Dismissed, with costs, on the authority of counsel for the plaintiff 435 OCTOBER TERM, 1888. Cases not Otherwise Reported. in error. Mr. George F. Holmes for plaintiff in error. No counsel appearing for defendant in error. No. 83. Eames v. Savage. Error to the Supreme Judicial Court of the State of Maine. November 15, 1888 : Dismissed, with costs, on the authority of counsel for the plaintiff in error. Mr. G. F. Holmes for plaintiff in error. No counsel appearing for defendant in error. No. 299. Evansville v. Augusta Savings Bank. Error to the Circuit Court of the United States for the District of Indiana. April 26,1889 : Dismissed, with costs, pursuant to the 10th rule. Mr. John M. Butler for plaintiff in error. No appearance for defendant in error. No. 297. Evansville v. Moulton. Error to the Circuit Court of the United States for the District of Indiana. January 24, 1889: Dismissed, with costs, per stipulation, on motion of Mr. Walter H. Smith in behalf of counsel. Mr. John M Butler for plaintiff in error. Mr. T. C. Mather for defendant in error. No. 298. Evansville v. Post. Error to the Circuit Court of the United States for the District of Indiana. April 26, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. John M. Butler for plaintiff in error. Mr. T. C. Mather for defendant in error. No. 1485. Farmer u. Cobban. Error to the Supreme Court of the Territory of Dakota. January 14, 1889: Docketed and dismissed, with costs, on motion of Mr. S. S. Burdett for defendant in error. No one opposing. No. 140. Fire Association of Philadelphia v. Wright. Error to the Circuit Court of the United States for the South-ern District of Illinois. January 7,1889 : Judgment affirmed, 436 OCTOBER TERM, 1888. Cases not Otherwise Reported. with, costs and interest, by a divided court. Mr. John M. Palmer and Mr. Henry Jackson for plaintiff in error. Jfr. L. H. Bisbee, Mr. John P. Ahrens and Mr. Henry Decker for defendant in error. Ko. 538. First National Bank of St. Johnsbury v. Hen-dee. Error to the Circuit Court of the United States for the District of Vermont. October 18, 1888 : Judgment affirmed for the sum of twenty-nine thousand four hundred and fifty-four dollars and eighty-four cents, without costs, on motion of Mr. J. D. Rouse, in behalf of the parties, as per stipulation signed by the parties. No. 332. Fisher v. Union Trust Company. Appeal from the Circuit Court of the United States for the District of Minnesota. April 22,1889: Dismissed, with costs, per stipulation, on motion of Mr. William A. McKenney in behalf of counsel. Mr. F. B. Hart and Mr. F. H. Boardman for appellants. Mr. H. C. Whitney and Mr. Consider H. Willett for appellee. No. 270. Frankfort and State Line Bailroad Company v. Leonard. Appeal from the Circuit Court of the United States for the District of Indiana. April 23,1889 : Dismissed, with costs, pursuant to authority from counsel for appellant. Mr. A. C. Harris, Mr. W. H. Calkins and Mr. Clarence Brown for appellant. Mr. Robert G. Ingersoll for appellees. No. 337. Gaff v. Kiefer. Error to the Circuit Court of the United States for the Eastern District of New York. March 15, 1889: Dismissed, with costs, on motion of Mr. N. Dumont in behalf of counsel for the plaintiffs in error, as per stipulation. Mr. Miron Winslow for plaintiffs in error. Mr. M. L. Towns for defendant in error. No. 1429. Gest v. South Covington and Cincinnati Street Bailway Company. Error to the Circuit Court of the United OCTOBER TERM, 1888. 437 Cases not Otherwise Reported. States for the Southern District of Ohio. March 28, 1889: Dismissed, with costs, on motion of Mr. George Hoadly for plaintiff in error. No appearance for defendant in error. No. 241. Gibson v. Mill Creek Distilling Company. Appeal from the Circuit Court of the United States for the Eastern District of Virginia. September 14, 1888 : Dismissed pursuant to the 28th rule. Mr. Legh R. Page for appellant. #/■. Jno. A. Coke for appellee. No. 587. Goodell v. Kriechbaum. Error to the Supreme Court of the State of Iowa. December 14, 1888: Judgment reversed, with costs, per stipulation, on motion of Mr. J. M. Wilson in behalf of counsel, and cause remanded with an instruction to enter a judgment discharging the plaintiff in error from custody. Mr. Wirt Dexter for plaintiff in error. Mr. A J. Baker for defendant in error. No. 328. Grain Drill Manufacturers Company v. Rein-stedler. Appeal from the Circuit Court of the United States for the Eastern District of Missouri. November 19, 1888 : Dismissed with costs, on motion of Mr. Edward Boyd for appellant. Mr. E. E. Wood and Mr. Edward Boyd for appellant. EE. Arthur Stem for appellee. No. 160. Grain Drill Manufacturing Company v. Rude. Appeal from the Circuit Court of the United States for the District of Indiana. November 19, 1888: Dismissed, with costs, on motion of Mr. Edward Boyd for appellant. Mr. E. E. Wood and Mr. Edward Boyd for appellant. Mr. Arthur Stem for appellees. No. 177. Grant v. Central Trust Company of New York. Appeal from the Circuit Court of the United States for the District of Indiana. January 25, 1889 : Dismissed, with costs, 438 OCTOBER TERM, 1888. Cases not Otherwise Reported. pursuant to the 10th rule. Mr. Bluford Wilson for appellant. Mr. B. G. Ingersoll for appellees. No. 430. Graves v. Corbin. Appeal from the Circuit Court of the United States for the Northern District of Illinois. October 29, 1888: Appeal of James M. Flower, Curtis H. Remy and Stephen S. Gregory, three of the appellants in this cause, dismissed with costs, as per stipulation, on motion of Mr. J. M. Flower for appellants. Mr. J. M. Flower for appellants. Mr. Wm. J. Manning for appellee. No. 1529. Gray v. McArthur. Appeal from the Circuit Court of the United States for the Southern District of Ohio. March 21, 1889: Docketed and dismissed, with costs, on motion of Mr. Lawrence Maxwell, Jr., for appellees. No opposition. No. 702. Green v. Hayes. Error to the Supreme Court of the State of California. March 6, 1889: Dismissed, with costs, on motion of Mr. W. J. Johnston for plaintiff in error. Mr. W. J. Johnston for plaintiff in error. Mr. G. Wiley Wells and Mr. Walter Van Dyke for defendants in error. No. 1452. Hill v. Sharon. Appeal from the Circuit Court of the United States for the Northern District of California. December 14, 1888: Docketed and dismissed, with costs, on motion of Mr. Henry E. Davis of counsel for appellee. No. one opposing. No. 363. Hockett v. Indiana. Error to the Supreme Court of the State of Indiana. March 15, 1889: Dismissed, with costs, on motion of Mr. Joseph E. McDonald for plaintiff in error. Mr. Joseph E. McDonald and Mr. John M. Buller for plaintiff in error. No one entered for defendant in error. OCTOBER TERM, 1888. 439 Cases not Otherwise Reported. No. 601. Hubbard v. Crane. Appeal from the Circuit Court of the United States for the Northern District of Iowa. December 18, 1888: Dismissed, with costs, per stipulation, on motion of Mr. D. B. Henderson in behalf of counsel. Mr. C. H. Gatch and Mr. William Connor for appellant. Mr. George Crane for appellee. No. 102. Jackson County v. Ninth National Bank. Error to the Circuit Court of the United States for the Western District of Missouri. December 17,1888: Judgment affirmed, with costs and interest, by a divided court. Mr. C. 0. Tichenor and Mr. E. P. Gates for plaintiff in error. Mr. John B. Henderson for defendant in error. No. 257. Kahler v. Hoe. Appeal from the Circuit Court of the United States for the Southern District of New York. January 23, 1889: Dismissed, per stipulation, on motion of Mr. B. F. Lee, of counsel for appellant. Mr. B. F. Lee for appellant. Mr. M. B. Philipp for appellees. No. 126. Kentucky Central Railroad Company v. Bourbon County. Error to the Court of Appeals of the State of Kentucky. December 12,1888: Dismissed, with costs, pursuant to the 10th rule, on motion of Mr. Alvin Duvall of counsel for defendant in error. Mr. J. W. Stevenson for plaintiff in error. Mr. Alvin Duvall for defendant in error. No. 184. Leonard v. Chatfield. Appeal from the Circuit Court of the United States for the Eastern District of Arkansas. March 6, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. T. W. Brown for appellants. Mr. Van H. Manning, Mr. Jno. B. Jones and Mr. J. W. C. Watson for appellee. No. 185. Leonard v. Ozark Land Company. Appeal from the Circuit Court of the United States for the Eastern District 440 OCTOBER TERM, 1888. Cases not Otherwise Reported. of Arkansas. March 6, 1889 : Dismissed, with costs, per stipulation of counsel. Mr. T. IF. Brown for appellants. Mr. Van H. Manning, Mr. Jno. B. Jones and Mr. J. W. C. Watson for appellee. No. 600. Lewis v. Clark. Appeal from the Circuit Court of the United States for the District of Nebraska. June 5, 1888: Dismissed pursuant to the 28th rule. Mr. J. M. Wool-worth for appellant. Mr. Nathan 8. Harwood and Mr. John H. Ames for appellee. No. 1365. Lewis v. Witters. Appeal from the Circuit Court of the United States for the District of Vermont. May 13, 1889 : Dismissed, per stipulation, on motion of Mr. William A. McKenney, in behalf of counsel. Mr. A. G. Safford for appellants. Mr. Albert P. Cross for appellee. No. 111. Louisville, Cincinnati and Lexington Railway Company v. Switzerland Marine Insurance Company. Error to the Circuit Court of the United States for the Southern District of Ohio. December 10, 1888 : Judgment affirmed, with costs, by a divided court. Mr. T. D. Lincoln for plaintiff in error, hfr. C. B. Matthews for defendant in error. No. 906. Louisville City Railway Company v. Central Passenger Railroad Company. Appeal from the Circuit Court of the United States for the District of Kentucky. .April 22,1889 : Dismissed, with costs, per stipulation, on motion of Mr. John Mason Brown for appellee. Mr. Alexander Pope Humphrey for appellant. Mr. John Mason Brown for appellee. _________ No. 170. McHenry v. New York, Lake Erie and Western Railroad Company. Error to the Circuit Court of the United States for the Southern District of New’ York. June 19, 1888: Dismissed pursuant to the 28th rule. Mr. Henry OCTOBER TERM, 1888. 441 Cases not Otherwise Reported. Arden for plaintiff in error. Mr. Wm. G. Choate for defendant in error. No. 242. Mackinney v. Rosenband. Error to the Circuit Court of the United States for the Southern District of New York. April 10, 1889: Dismissed, with costs, pursuant to the 10 th rule. Mr. S. F. Kneeland for plaintiff in error. No appearance for defendants in error. No. 314. Matthews v. Flower. Appeal from the Circuit Court of the United States for the Eastern District of Michigan. January 10,1889: Dismissed, with costs, per stipulation, on motion of Mr. George L. Roberts of counsel for appellants. Mr. George L. Roberts for appellants. Mr. E. J. Hill for appellees. * No. 237. Memphis and Little Rook Railroad Company (as reorganized) v. Overton. Appeal from the Circuit Court of the United States for the Eastern District of Arkansas. April 5, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. John F. Dillon and Mr. B. C. Brown for appellant. Mr. U. M. Rose for appellees. No. 748. Miller v. Cole. Error to the Circuit Court of the United States for the District of Nebraska. August 10, 1888: Dismissed pursuant to the 28th rule. Mr. Geo. E. Pritchett for plaintiff in error. Mr. J. M. Woolworth for defendant in error. No. 62. Myers v. Smith. Appeal from the Circuit Court of the United States for the Eastern District of New York. November 5, 1888: Dismissed, as per stipulation, on motion of Mr. George Ticknor Curtis of counsel for the appellant. Mr. John A. Grow and Mr. George Ticknor Curtis for appellant. Mr. Samuel A. Duncan for appellee. 442 OCTOBER TERM, 1888. Cases not Otherwise Reported. No. 87. Nashua Manufacturing Company v. South Carolina Railway Company. Error to the Circuit Court of the United States for the District of South Carolina. November 16, 1888: Dismissed, with costs, pursuant to the 16th rule, on motion of Mr. Theodore G. Barker of counsel for the defendant in error. Mr. William E. Earle for plaintiff in error. Mr. William Allen Butler, Mr. Samuel Lord, and Mr. Theodore G. Barker for defendant in error. No. 89. Natchez, Jackson and Columbus Railroad Company v. Stone. Error to the Supreme Court of the State of Mississippi. November 20, 1888: Dismissed, with costs, on the authority of counsel for the plaintiff in error. Mr. W. L. Nugent for plaintiff in error. No counsel entered for defendants in error. No. 258. National Feather Duster Company v. Dearborn Feather Duster Company. Appeal from the Circuit Court of the United States for the Northern District of Illinois. April 17, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. J. A. Sleeper and Mr. H. K. Whiton for appellant. Mr. J. H. Peirce and Mr. G. P. Fisher, Jr., for appellees. No. 248. Northern Pacific Railroad Company v. Gates. Error to the Supreme Court of the State of Wisconsin. December 3, 1888: Dismissed, with costs, on motion of Mr. James McNaught of counsel for the plaintiff in error. Mr. James McNaught for plaintiff in error. No appearance for defendant in error. No. 138. Osmer v. The J. B. Sickles Saddlery Company. Appeal from the Circuit Court of the United States for the Eastern District of Missouri. November 16,1888: Dismissed, with costs, on motion of Mr. B. A. Bakewell in behalf of counsel for the appellant. Mr. William H. Bliss and Mr. Paul Bakewell for appellant. No counsel appearing for appellee. OCTOBER TERM, 1888. 443 Cases not Otherwise Reported. Ko. 1464. Pacetti v. Fkey. Appeal from the Circuit Court of the United States for the District of Maryland. March 28, 1889: Dismissed, with costs, on motion of Mr. George Hoadly in behalf of counsel for appellant. Mr. John H. Handy for appellant. No appearance for appellee. No. 158. Parker v. Denny. Appeal from the Supreme Court of the Territory of Washington. January 8,. 1889 : Dismissed, with costs, on motion of Mr. John H. Mitchell of counsel for appellant. Mr. John H. Mitchell for appellant. No appearance for appellee. No. 1486. Parker v. Denny. Appeal from the Supreme Court of the Territory of Washington. January 15, 1889 : Docketed and dismissed, with costs, on motion of Mr. James IL Hoffecker, Jr., for the appellee. No one opposing. No. 312. Philadelphia and Reading Railroad Company v. Patent. Error to the Court of Common Pleas of the city of Philadelphia, State of Pennsylvania. January 7, 1889: Dismissed, with costs, on motion of Mr. William A. McKenney ya behalf of counsel for the plaintiff in error. Mr. Thomas Hart, Jr., for plaintiff in error. No counsel entered for defendant in error. No. 120. Pilla v. German School Association and Free Community of St. Louis and Bremen. Appeal from the Circuit Court of the United States for the Eastern District of Missouri. December 19, 1888: Dismissed, with costs, pursuant to the 10th rule, on motion of Mr. Linden Kent in behalf of counsel for the appellee. Mr. W. H. Clopton and Mr. W. Hallett Phillips for appellants. Mr. Henry Hitchcock and Mr. G. A. Finkelnburg for appellee. No. 124. Pinckney v. South Carolina. Error to the Supreme Court of the State of South Carolina. December 12, 444 OCTOBER TERM, 1888. Cases not Otherwise Reported. 1888: Dismissed, with costs, pursuant to the 10th rule. Mr. Jno. Ficken for plaintiff in error. No appearance for defendant in error. No. 274. Post v. T. C. Richards Hardware Company. Appeal from the Circuit Court of the United States for the District of Connecticut. April 23, 1889 : Dismissed, with costs, per stipulation. Mr. Wm. E. Simonds for appellants. Mr. C. E. Mitchell for appellee. No. 655.. Prentiss v. New Orleans. Error to the Circuit Court of the United States for the Eastern District of Louisiana. October 22, 1888: Dismissed, with costs, as per stipulation, on motion for Mr. E. B. Kruttschnitt for plaintiff in error. Mr. E. H. Farrar and Mr. E. B. Kruttschnitt for plaintiff in error. Mr. Henry C. Miller for defendant in error. _________ No. 1554. Prescott v. Adams. Error to the Circuit Court of the United States for the Western District of Pennsylvania. April 22,1889 : Docketed and dismissed, with costs, on motion of Mr. 'William A. McKenney for the defendant in error. No opposition. No. 32. Pullman’s Palace Car Company v. Pennsylvania. Error to the Supreme Court of the State of Pennsylvania. October 18, 1888 : Judgment reversed, with costs, as per stipulation. Mr. E. S. Isham, Mr. William Burry and Mr. M. E. Olmsted for plaintiff in error. Mr. W. S. Kirkpat/rick and Mr. John F. Sanderson for defendant in error. No. 491. Randolph v. Quidneck Company. Appeal from the Circuit Court of the United States for the District of Rhode Island. November 19,1888: Motion to dismiss, in pursuance of the 15th rule, submitted on behalf of appellee, no one opposing. November 26th : Motion granted, and cause dismissed with costs. Mr. B. F. Butler and Mr. A. D. Payme OCTOBER TERM, 1888. 445 Cases not Otherwise Reported. for appellant. J/r. C. Frank Parkhurst and Mr. Charles FL Parkhurst for appellee. December 3,1888: Motion to rescind and annul the decree of dismissal of November 26,1888, and to restore cause to the docket, submitted by Mr. Benjamin F. Butler in behalf of the executors of Evan Randolph, deceased. December 10, 1888 : Motion to rescind and annul the decree of dismissal of November 26,1888, granted upon the executors.of Evan Randolph, deceased, being duly made parties, and their appearance, under the rule, within thirty days, and the payment of costs. December 12, 1888: John S. Jencks, William H. Jencks and Charles Rhoades, executors of Evan Randolph, deceased, made the parties appellants in this cause and decree of dismissal of November 26, 1888, vacated and set aside and cause restored to the docket. No. 286. Republican Valley Railroad Company v. State of Nebraska ex rel. Mattoon. Error to the Supreme Court of the State of Nebraska. April 25, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. T. M. Marquette for plaintiff in error. Mr. T. F. Burke for defendants in error. No, 162. Richardson v. Bresnahan. Appeal from the Circuit Court of the United States for the District of Massachusetts. September 17, 1888: Dismissed pursuant to the 28th rule. Mr. William A. Macleod for appellant. Mr. Chas. Allen Taber for appellees. No. 671. Robertson v. Pinkus. Error to the Circuit Court of the United States for the Southern District of New York. November 19, 1888: Dismissed, with costs, on motion of Mr. Assistant Attorney General Maury for plaintiff in error. Mr. Attorney General for the plaintiff in error. Mr. 8. G. Clarke for the defendant in error.* No. 930. Rodgers v. Seventh National Bank of Philadelphia. . Appeal from the Circuit Court of the United States 446 OCTOBER TERM, 1888. Cases not Otherwise Reported. for the Western District of Virginia. January 31, 1889: Dismissed, with costs, on motion of Mr. J. Randolph Tucker for appellant. No counsel entered for appellees. No. 1447. Roge, individually and as Admr. v. Borie et al. Appeal from the Circuit Court,of the United States for the Eastern District of Pennsylvania. December 3, 1888: Docketed and dismissed, with costs, on motion of Mr. J. Hubley Ashton for the appellees. No opposition. No. 143. Ex parte : In the Matter of Max Rosengarten, Appellant. Appeal from the Circuit Court of the United States for the Northern District of Illinois. December 20, 1888: Dismissed, with costs, on authority of counsel for appellant. Mr. Robert Hervey and Mr. C. Stuart Beattie for appellant. No. 761. Rooke, etc. v. Shrewsbury. Appeal from the District Court of the United States for the District of West Virginia. April 22, 1889: Dismissed, with costs, per stipulation, on motion of Mr. William A. McKenney in behalf of counsel. Mr. W. P. Hubbard for appellants. Mr. E. B. Knight for appellees. No. 155. Schaeffer v. Goodrich. Appeal from the Circuit Court of the United States for the Western District of Missouri. January 8, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. John C. Gage for appellant. No counsel entered for appellees. No. 131. Seibert v. United States ex rel. Winter. Error to the Circuit Court of the United States for the Eastern District of Missouri. January 21, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. Jeff. Chandler, Mr. E. John Ellis, Mr. John Johns and Mr. D. A. McKnight for plaintiff in error. Mr. Clinton Rowell for defendant in error. 447 OCTOBER TERM, 1888. Cases not Otherwise Reported. No. 219. Sheeder v. Bicking. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. September 27, 1888: Dismissed pursuant to the 28th rule. J/r. N. S. Hollingsworth and Mr. Samuel IK Pennypacker for appellant. Mr. Henry R. Edmunds for appellee. No. 218. Sheeder v. Shannon. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. September 27, 1888: Dismissed pursuant to the 28th rule. Mr. S. S. Hollingsworth and Mr. Samuel JU Pennypacker for appellant. Mr. Henry R. Edmunds for appellee. No. 91. Shenfield n. Schirmer. Appeal from the Circuit Court of the United States for the Southern District of New York. November 21, 1888: Dismissed, with costs, pursuant to the 10th rule. Mr. E. N. Dickerson for appellant. Mr. Edmund Wetmore for appellees. No. 212. Simpkins v. Petersen. Appeal from the Circuit Court of the United States for the Eastern District of Missouri. November 16, 1888: Dismissed, with costs, on motion of Mr. R. A. Bakewell in behalf of counsel for the appellant. Mr. Paul Bakewell for appellant. No counsel appearing for appellees. No. 1063. Smith v. DeWire. Error to the Supreme Court of the State of Kansas. March 18, 1889: Dismissed, with costs, on motion of Mr. A. B. Browne for defendant in error, per stipulation of counsel. Mr. Oscar Forest for plaintiff in error. Mr. A. T. Britton and Mr. A. B. Browne for defendant in error. No. 494. Smith v. Holt. Error to the Circuit Court of the United States for the Northern District of Texas. March 11, 1889: Dismissed, with costs, on motion of Mr. W. Hallett Phillips for plaintiffs in error. Mr. Jno. D. Templeton and 448 . OCTOBER TERM. 1888. Cases not Otherwise Reported. Mr. TF. Hallett Phillips for plaintiffs in error. Mr. L. 8. Dixon for defendant in error. ♦ No. 1436. Smith v. Millek. Appeal from the Circuit Court of the United States for the District of Rhode Island. November 9, 1888: Docketed, and dismissed, with costs, on motion of Mr. Fillmore Beall of counsel for the appellees. No one opposing. No. 275. Smith v. Overton. . Appeal from the Circuit Court of the United States for the Southern District of Iowa. April 24, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. N. M. Hubbard for appellants. No appearance for appellee. • No. 259. Taft v. Steere. Appeal from the Circuit Court of the United States for the District of Rhode Island. April 17, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. A. K. P. Joy for appellant. No appearance for appellees. No. 112. Union Tubing- Company v. Patterson Company (Limited). Appeal from the Circuit Court of the United States for the Southern District of New York. December 7, 1888: Dismissed, with costs, pursuant to the 10th rule. Mr. Edmund Wetmore for appellants. Mr. Benjamin F. Thurston for appellees. No. 151, Union Pacific Railway Company v. Bowers. Error to the Supreme Court of the Territory of Utah. August 10, 1888: Dismissed pursuant to the 28th rule. Mr. John F. Dillon for plaintiff in error. Mr. Arthur Brown, Mr. J d. Sutherland and Mr. J. B. McBride for defendant in error. No. 668. Union Pacific Railway Company v. Lake. Error to the Circuit Court of the United States for the District of Colorado. August 10, 1888: Dismissed pursuant to the 28th OCTOBER TERM, 1888. 449 Cases not Otherwise Reported. rule. Mr. John F. Dillon for plaintiff in error. Mr. IF. S. Decker for defendant in error. No. 467. United States ex rel. Drew v. Valentine. Appeal from the Circuit Court of the United States for the Northern District of Florida. June 14, 1888: Dismissed pursuant to the 28th rule. Mr. Attorney General for appellants. Mr. H. Bisbee for appellees. No. 25. Vacuum Oil Company v. Buffalo Lubricating Oil Company (Limited). Appeal from the Circuit Court of the United States for the Northern District of New York. October 16, 1888: Dismissed as per stipulation. Mr. Theodore Bacon and Mr. Wm. F. Cogswell for appellant. Mr. James A. Allen for appellee. No. 783. Venner v. Atchison, Topeka and Santa Fe Railroad Company. Appeal from the Circuit Court of the United States for the District of Kansas. January 7, 1889: Dismissed, per stipulation, on motion of Mr. Sigourney Butler of counsel for the appellees. Mr. W. A. Underwood for appellant. Mr. George R. Peck and Mr. Sigourney Butler for appellees. No. 276. Wagner v. Lemen. Appeal from the Circuit Court of the United States for the Southern District of Iowa. April 24, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. N. M. Hubbard for the appellants. No appearance for appellees. No. 506. Wall v. District of Columbia. Appeal from the Supreme Court of the District of Columbia. January 21, 1889: Dismissed with costs. Motion to dismiss submitted January 14, 1889, by Mr. Henry E. Davis in support of motion, and by Mr. J. W. Douglass in opposition thereto. vol. cxxxi—29 450 OCTOBER TERM, 1888. Cases not Otherwise Reported. No. 356. Warren, substituted for Kelsey, Treasurer of Lucas County, Ohio v. First National Bank of Toledo, Ohio. No. 357. Same v. Second National Bank of Toledo, Ohio. No. 358. Same v. Toledo National Bank of Toledo, Ohio. No. 359. Same v. Merchants National Bank of Toledo, Ohio, No. 360. Same v. Northern National Bank of Toledo, Ohio. Appeals from the Circuit Court of the United States for the Northern District of Ohio. November 26, 1888: Dismissed for the want of jurisdiction, the amount involved in each case being less than five thousand dollars. Motion to dismiss submitted November 19, 1888, by Mr. John H. Doyle in support of motion. No counsel appearing in opposition thereto. Mr. Isaac P. Pugsley entered for appellants. Mr. John H. Doyle for appellees. No. 1534. Webber v. Pennsylvania. Error to the Supreme Court of the State of Pennsylvania. March 28, 1889 : Docketed and dismissed, with costs, on motion of Mr. George S. Graha/m for defendant in error. No opposition. No. 904. Western Air Line Construction Company r. McGillis. Error to the Circuit Court of the United States for the Northern District of Illinois. January 2, 1889: Dismissed, per stipulation, each party to pay its own costs in this court, on motion of Mr. Edwin Walker of counsel for the plaintiff in error. Mr. Edwin Walker for plaintiff in error. Mr. John S. Coop&r for defendants in error. No. 7. Western Union Telegraph Company v. Baltimore and Ohio Railroad Company. Appeal from the Circuit Court of the United States for the District of Maryland. October 12, 1888: Dismissed, with costs, pursuant to the 19th rule. Mr. Wager Swayne and Mr. C. J. M. Gwinn for appellant. Mr. John K. Cowen for appellee. 451 OCTOBER TERM, 1888. Cases not Otherwise Reported. No. 27. Western Union Telegraph Company v. Baltimore and Ohio Telegraph Company. Appeal from the Circuit Court of the United States for the District of Indiana. October 16, 1888: Dismissed, with costs, pursuant to the 19th rule. Mr. J. E. McDonald, Mr. J. M. Butler and Mr. Wager Swayne for appellant. Mr. John K. Cowen and Mr. W. H. H. Miller for appellee. No. 656. Whitehead v. New Orleans. Error to the Circuit Court of the United States for the Eastern District of Louisiana. October 22, 1888: Dismissed, with costs, as per stipulation, on motion of Mr. E. B. Kruttschnitt of counsel for the plaintiff in error. Mr. E. H. Farrar and Mr. E. B. Kruttschnitt for plaintiff in error. Mr. Henry C. Miller for defendant in error. No. 1364. Wilde v. Bircher. Error to the Circuit Court of the United States for the District of Colorado. May 13, 1889: Dismissed, per stipulation, on motion of Mr. .William A. McKenney in behalf of counsel. Mr. B. M. Hughes and Mr. Joseph W. Taylor for plaintiff in error. Mr. J. H. McGowan and Mr. Charles E. Gast for defendant in error. No. 1392. Wilson v. Harding. Error to the Circuit Court of the United States for the Southern District of Iowa. January 7, 1889 : Dismissed, per stipulation, on motion of Mr. William A. McKenney, in behalf of counsel. Mr. Charles A. Clark and Mr. N. M. Hubbard for plaintiffs in error. Mr. B. F. Kauffman for defendant in error. No. 603. Wolcott v. Crane. Appeal from the Circuit Court of the United States for the Northern District of Iowa. December 18, 1888 : Dismissed, with costs, per stipulation, on motion of Mr. D. B. Henderson in behalf of counsel. Mr. 0. H. Gatch and Mr. William Connor for appellant. Mr. George Crane for appellee. 452 OCTOBER TERM, 1888. Cases not Otherwise Reported No. 217. Weight v. Milleb. Appeal from the Circuit Court of the United States for the Middle District of Tennessee. March 19, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. Thomas L. Dodd for appellants. Mr. John P. Murra/y for appellees. No. 277. Young v. Sheldon. Appeal from the Circuit Court of the United States for the Northern District of New York. April 24, 1889: Dismissed, with costs, pursuant to the 10th rule. Mr. F. I. Allen for appellants. Mr. Jno. B. Bennett for appellees. No. 64. Zihlmann v. La Belle Glass Company. Appeal from the Circuit Court of the United States for the Southern District of Ohio. November 2, 1888: Dismissed, with costs, pursuant to the 10th rule. Mr. John F. Kelly for appellant. Mr. G. H. Christy for appellee. IN MEMORIAM. 453 Mr. Justice Matthews. STANLEY MATTHEWS, LL.D. SUPREME COURT OF THE UNITED STATES. Monday, April 15, 1889.. Present: The Hon. Melville W. Fuller, Chief Justice. Samuel F. Miller, Stephen J. Field, Joseph P. Bradley, John M. Harlan, Horace Gray, Samuel Blatchford, Lucius Q. C. Lamar, Associate Justices. Mr. Attorney General addressed the court as follows: May it please the court : At a meeting of the bar of this court, on the 6th instant, resolutions were adopted touching the death of the late Justice Matthews.1 These resolutions, 1 Mr. Justice Matthews died at Washington, on the morning of the 22d March, 1889. On convening on that day, the court adjourned until the 28th March. On the 25th, the funeral services took place, in Washington, and the body was taken to Ohio for interment. Justices Harlan, Gray, Blatchford and Lamar accompanied it. On the 30th of March, at 12 m., a meeting of the bar of the Supreme Court of the United States was held in the court room, to take action upon Ms death. Mr. William M. Evarts was elected chairman, and Mr. James H. McKenney, secretary of the meeting. Messrs. George E. Edmunds, Benjamin Butterworth, George F. Hoar, W. C. P. Breckenridge, George Ticknor Curtis, Samuel Shellabarger, George A. Jenks and Joseph E. McDonald were appointed a committee to prepare suitable resolutions; whereupon the meeting adjourned to April 6, at 11 a.m., at the same place. On the 11th April, at 11 a.m., Mr. Evarts took the chair. Mr. Edmunds, 454 IN MEMORIAM. Mr. Justice Matthews. as the representative of the Department of Justice, of which Stanley Matthews, both at the bar and on the bench, was so conspicuous an ornament, I was directed to present to this court. I beg leave to read the resolutions: “ Resolved, That the bar of the Supreme Court of the United States deeply deplores the decease of the late Mr. Justice Matthews, whereby the country has lost an always patriotic and respected citizen, alike eminent in his private and public career; the bar one of its long-time leaders, conspicuous as an example of the best relations of our profession with the administration of justice; and the court itself a member fitted by character, temperament, learning, and industry to the place he held in the highest judicial tribunal of a great nation. His name is rightly enrolled among those honored by their countrymen. “ Resolved, That the bar presents to the family of the departed Justice its sincere sympathy and condolence in their bereavement. “ Resolved, That the Attorney General be requested to present these resolutions to the court for such consideration as may be fit. u Resolved, That the chairman be requested to transmit a copy hereof to Mrs. Matthews.” May it please the court: In this august presence all human visitors stand uncovered and bow with reverence. But now and again your precincts are invaded by the herald of a Power which knows no rank or dignity, in whose court magistrate and private citizen, jurist and rustic, are upon a plane of absolute equality. Answering the summons of this Power, your eminent asso-on behalf of the committee, reported the resolutions which are printed above. Remarks were made by Mr. Edmunds, Mr. George Hoadly, Mr. R. D. Mussey, Mr. William S. Flippin, Mr. William C. P. Breckenridge, Mr. Joseph E. McDonald, and Mr. Evarts, when the resolutions were unanimously adopted, and the meeting adjourned. The remarks made by these speakers had not been finally corrected and printed when this volume was made ready for the press. IN MEMORIAM. 455 Mr. Justice Matthews. ciate, a worthy successor of the long line of illustrious men whose virtues and learning have adorned this great tribunal, has gone to that country whose mystery, so far as human effort is concerned, is no nearer solution than when in the childhood of the race Death snatched a brother’s life by a brother’s hand, or when the Poet King, bewailing his child, said all that can now be said, “ I shall go to him, but he shall not return to me.” We mourn the departure of your associate, our brother, not for his own, but for the country’s sake. True, his life has gone ©ut when at the zenith of its brightness. While not a young man, Justice Matthews was upheld by a spirit so buoyant, mastered difficult questions and wrote great decisions so easily, that no one thought of him as old in years. It is the dull, uneventful day which drags and seems long. The day or the life full of great thoughts crystallizing into great deeds seems always too short. Even the pagan had a better measure of life than years. Seneca says: “We must not care for length of life, but for life sufficient for its duties. Life is long if it is full; but it is full when the soul hath completed its development and hath shown all its latent powers.” Measured by this standard, the life we mourn had no further need of years on earth. For ourselves and the country, we regret that we could not have the benefit of further exertions of his splendid powers; but for himself, his life was full. He has gone over to the majority: to the majority of the great and good of all time; to the majority of the associates of his early life, that period in which most lasting attachments are formed; to the majority of his own kindred ; to the majority, I had almost said, of those who, as associates, extended to him the hand of welcome when he first took his seat as a justice of this court. My personal acquaintance with Judge Matthews was slight. While he was at the bar I occasionally met him, but only as a young man at the bar meets a great lawyer; since he has 456 IN MEMORIAM. Mr. Justice Matthews. been upon the bench I have only seen him in the discharge of his high duties. Of his personality, therefore, it does not become me to speak. Nor is this the time, nor am I the person, to indulge in extended eulogy on his career and character. Others, better fitted by intimate personal and professional association and by gifts of speech, have already performed this pleasing duty. This much, however, I may say in the way of characterization. The mind of Stanley Matthews seemed to me to be deeply original. He pioneered. He studied principles more than precedents; he surveyed the field of jurisprudence with the eye of a statesman as well as lawyer; he took his direction in the law by the compass and the stars, rather than by uncertain foot-prints or marks on the trees blazed by his predecessors. In conclusion, I ask that the resolutions of the bar be spread at large on your records, as a memorial to our children of our high appreciation of the virtues, learning and eminent character of our departed brother. The Chief Justice responded as follows: The court entirely concurs in the sentiments expressed in the resolutions which have just been read and in the observations of the Attorney General accompanying their presentation. Before he came to grace a seat upon this bench, Mr. Justice Matthews had, in high public place, political, professional and judicial, acquired eminent distinction and displayed the qualities which invite attention and command admiration and respect, while as a member of the bar his conspicuous ability, faithfulness and integrity had given him a rank second to none; and the felicity was also his of having rendered his country gallant service as a soldier. He brought here the garnered wisdom of years of varied experience, and constantly added to it the fruit of cultivation in this exalted field of exertion, whose margin faded before him as he moved, growing in strength with exigencies requiring the putting forth of all his powers. IN MEMORIAM. 457 Mr. Justice Matthews. In listening, patient and sympathetic; in intercourse with counsel, cordial but dignified; conscientious in investigation; honest and impartial in judgment; full of resource in supporting given conclusions by accurate and discriminating reasoning; ample in learning and comprehensive in scholarship ; luminous in jexposition and apt in illustration, he demonstrated such fitness for this sphere of action, that his removal in the midst of his usefulness cannot but be regarded as a severe loss to the bar, the judiciary, and the country. To the associates of years of personal companionship in the administration of justice that loss is quite unspeakable. The ties between those thus thrown into close intimacy are extremely strong, and when one is taken away upon whose painstaking scrutiny, clearness in explanation, and fulness of knowledge, reliance has been justly reposed by his. brethren, and whose amenity of temper and kindliness of heart have naturally inspired affection, a keen sense of personal bereavement mingles with the common sorrow. In view of a life like this, crowned with the success that waits upon absolute devotion to duty, how false the desponding exclamation of the Preacher, that “ that which now is, in the days to come shall be forgotten.” The remembrance of the just and the wise is with the generations always, and the works of his faithful public servant will follow him, “ in the days to come,” now that he rests from his labors. The court has heretofore adjourned as a mark of respect to the memory of the deceased and attended the funeral ceremonies in Ohio. The resolutions just presented and the remarks of the Attorney General will be spread upon the records, and the tribute of the bar of Saint Louis, which has been transmitted to the court, and such other commemorative proceedings as may be received, will be placed upon the files with a proper minute in regard to them. IN MEMORI AM. 459 John Archibald Campbell. In IMcnwviiun. JOHN ARCHIBALD CAMPBELL, LL.D. SUPREME COURT OF THE UNITED STATES. Friday, April 12, 1889. Present: The Hon. Melville W. Fuller, Chief Justice. Samuel F. Miller, Stephen J. Field, Joseph P. Bradley, John M. Harlan, Horace Gray, Samuel Blatchford, Lucius Q. C. Lamar, Associate Justices. Mr. Attorney General Miller addressed the court as follows: May it please the court: On thé 13th of March last John Archibald Campbell, a very distinguished lawyer and exJustice of this court, departed this life. For fifty years, a full half of the life-time of the government, this eminent man has been intimately and conspicuously associated with the interpretation of the laws of the land and the administration of justice. Nor is the length of Judge Campbell’s professional career its only striking feature. The manner of his coming to the bar was unusual. In the first year of the first term of President Jackson, by a special act of the legislature of Georgia, his native State, Mr. Campbell, with Robert Toombs and three or four others, was “ admitted to practise law and equity ” in that State. 460 IN MEMORIAM. John Archibald Campbell. Removing to the city of Montgomery, he at once took the same rank at the bar which he had maintained in school and college, among the foremost, and at the age of thirty he had no superior at the bar of Alabama. At forty-two he was appointed, and was worthy to be appointed, Associate Justice of this court. Not one of the learned and eminent jurists who sat with him here on the bench or in the consultation room now remains to boar witness to his virtues or his talents ; but the opinions he wrote, found in Howard’s Reports, volumes 15 to 24 inclusive, testify, and will testify so long as American jurisprudence shall last, of his industry, his great abilities and profound learning. A disciple, an admirer, and a friend of Mr. Calhoun, in 1861 Judge Campbell followed, though it is believed reluctantly followed, the teachings of the apostle of state sovereignty to their logical results. Since the war he has easily maintained a place at the bar, and, as a scholar and publicist, among the most eminent of the land. Having no personal acquaintance with Judge Campbell, it is not fitting that I should speak of his private life and personal character. Fully appreciating his great and good qualities, both of head and heart, the members of this bar, on the 6th instant, adopted resolutions expressive of our sentiments on the melancholy occasion of his death. These resolutions1 are as follows: “ The bar of the Supreme Court of the United States have 1 At a meeting of the bar of the Supreme Court of the United States held in the court room on Saturday, the 6th of April, 1889, at 2 P.M., on motion of Mr. George F. Edmunds, Mr. George Ticknor Curtis was called to the chair and Mr. James H. McKenney was elected secretary. Mr. Assistant Attorney General Maury offered the resolutions which are printe above; and after appropriate remarks by Mr. Maury, the Rev. Alfred • Powell of Grace Church, Baltimore, Mr. George Hoadly, Mr. William Evarts, Mr. George F. Edmunds and Mr. George Ticknor Curtis, they were unanimously adopted; and the meeting thereupon adjourned. The remarks made by these speakers had not been corrected and printed when this volume went to press. IN MEMORIAM. 461 John Archibald Campbell. assembled for the purpose of giving expression to their sense of the loss which they, in common with the whole country, have sustained in the death of John Archibald Campbell. “ It is but just to his memory to say that he was a jurist of extensive and varied learning in the common law, and civil law as well, and accustomed to resort to the great sources of jurisprudence, which are the school, we are told, where proficiency can best be acquired in the difficult art of applying the abstract principles of the law to actual cases. “ His learning in constitutional law and in international law, and his large acquaintance with the political history of the country, added to his vast reading in general history and literature, fitted him admirably to sit in the Supreme Court of the United States, where for nearly eight years he was an honored and influential associate: Therefore, be it resolved : — “ 1. That the bar of the Supreme Court of the United States do hereby attest their admiration and appreciation of the great career of John Archibald Campbell as a leading practising lawyer and as a judge of the first rank, and do hereby commemorate his many public and private virtues, and that modesty and simplicity which were the chaste setting of his great intellect and learning. “ 2. That we tender the family of the deceased our sympathy; and that the Chairman be, and he is hereby, requested to send them a copy of these proceedings. “3. That the Chairman be, and he is hereby, requested to transmit a copy of these proceedings to the Attorney General of the United States, with the request to present the same to the Supreme Court of the United States for such action as may be deemed proper.” Ma? it please the court: I move that these resolutions be incorporated in your record as permanent evidence of the high estimation in which Judge Campbell was held by his brethren of the bar. The Chief Justice responded as follows: The court recognizes in the decease of Mr. Justice Campbell the departure 462 IN MEMORIAM. John Archibald Campbell. of an eminent citizen, who through his power of intellect, profound learning and unremitting diligence, coupled with integrity of mind and sincere love of justice, deservedly achieved high reputation as a jurist and reflected corresponding credit upon this bench during the years he adorned it. His accession here had been preceded, as his regretted retirement was followed, by distinguished service in the legal profession. It is proper that marks of respect should be shown to his memory, now that, in the fulness of years, he has peacefully fallen asleep — “ Men must endure Their going hence, even as their coming hither: Ripeness is all.” The remarks of the Attorney General and the resolutions will be spread upon the record. APPENDIX TO THE REPORTS OF THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES FROM SEPTEMBER 24, 1789, TO THE END OF OCTOBER TERM, 1888. BY J. C. BANCROFT DAVIS, LL.D., REPORTER TO THE COURT. NEW YORK AND ALBANY: BANKS & BROTHERS. 1889. Copybight, 1889, By BANKS & BROTHERS. TABLE OF CONTENTS OF THE APPENDIX. Justices of the Supreme Court commissioned during the period covered by this Appendix . . . . . . v Appendix. Introductory Matter.................................... xi Federal Courts prior to the adoption of the Constitution . . . xix I. Courts of Appeal in Prize Cases............................xix Table of Cases decided by the Committee of Appeals in the Continental Congress, and cases decided by the Court of Appeals not reported by Dallas . . . xxxv II. Courts for determining disputes and differences between two or more States concerning boundary, jurisdiction, or any other cause whatever........................................... 1 New Hampshire v. Vermont.......................................... 1 New York v. Vermont . ., . . . . 1 Massachusetts v. Vermont.......................................... 1 Pennsylvania v. Virginia ...... liii Pennsylvania v. Connecticut . . . . . . liv New Jersey v. Connecticut......................................Iviii < Massachusetts v. New York.......................................Ixi South Carolina v. Georgia ......................................Ixii Omitted cases in the Reports of the Decisions of the Supreme Court of the United States..........................................Ixiv I. Omitted cases now reported in full........................Ixiv List of cases so reported in full . . . . Ixiv II. Table of Omitted Cases: (1) In which the opinion states facts upon which the judgment is rendered, involving no question of law; (2) In which a brief opinion orders judgment entered on the authority of some other case referred to, without further discussion; (3) In which judgment is entered partly on facts and partly on authority; or, (4) in which the opinion orders a judgment entered on the stipulation of the parties, or for incompleteness of the record, or for non-compliance with the rules of court . . . ccxx Table of the same cases alphabetically arranged . ccxxxii List of cases in which statutes or ordinances have been held to be repugnant to the Constitution or Laws of the United States, in whole or in part, by the Supreme Court of the United States, from the organization of the court to the end of the October Term, 1888 ....................................................ccxxxv Table of the same cases chronologically arranged . . cclviii Index of the Omitted Cases reported in full....................cclxiv JUSTICES OF THE SUPREME COURT COMMISSIONED DURING THE PERIOD COVERED BY THIS APPENDIX. John Jay of New York, Chief Justice. Commissioned September 26, 1789. Resigned June 29, 1795. John Rutledge of South Carolina, Associate Justice. Commissioned September 26, 1789. Declined. He was Chief Justice of South Carolina. William Cushing of Massachusetts, Associate Justice. Commissioned September 27, 1789. Died September 13, 1810. Robert H. Harrison of Maryland, Associate Justice. Commissioned September 28, 1789. “ Resigned.” He was Chief Judge of the General Court. Died in office April 20, 1790. James Wilson of Pennsylvania, Associate Justice. Commissioned September 29, 1789. Died August 28, 1798. John Blair of Virginia, Associate Justice. Commissioned September 30, 1789. Resigned 1796. James Iredell of North Carolina, Associate Justice, “in the place of Robert H. Harrison resigned.” Commissioned February 10, 1790. Died^October 20, 1799. Thomas Johnson of Maryland, Associate Justice, “vice John Rutledge resigned.” Commissioned August 5, 1791, in the recess. Recommissioned on confirmation November 7, 1791. Resigned March 4, 1793. William Paterson, “ Governor of the State of New Jersey,” Associate Justice, “ vice Thomas Johnson resigned.” Commissioned March 4, 1793. Died September 9, 1806. The judiciary act of 1789, 1 Stat. 73, provided for a Chief Justice and five Associate Justices. President Washington, on the 24th September, 1789, nominated for Chief Justice Mr. Jay, and for Associate Justices, Messrs. Rutledge, Wilson, Cushing, Harrison and Blair, (in that order,) and they were all confirmed on the 26th of that month. vi APPENDIX. John Rutledge of South Carolina, Chief Justice, in the place of John Jay resigned. Commissioned July 1, 1795, in the recess. December 10, 1795, the nomination was sent to the Senate, and on the 15th of that month the Senate, by a vote of 10 yeas to 14 nays, refused to advise and consent to it. William Cushing of Massachusetts, Chief Justice, in the place of John Jay resigned. Commissioned January 27,1796. Declined. Samuel Chase of Maryland, Associate Justice, li vice John Blair resigned.” Commissioned January 27, 1796. Died June 19, 1811. Oliver Ellsworth of Connecticut, Chief Justice, il vice William Cushing declined.” Commissioned March 4, 1796. In October, 1799, he was commissioned one of three Envoys Extraordinary and Ministers Plenipotentiaries to France, and resigned the office of Chief Justice from Paris in November, 1800. He died November 26, 1807. Bushrod Washington of Virginia, Associate Justice, in the place of James Wilson deceased. Commissioned September 29,1798, in the recess. Recommissioned on confirmation December 20, 1798. Died November 26, 1829. Alfred Moore of North Carolina, Associate Justice, “ in the room of Mr. Justice Iredell deceased.” Commissioned December 10, 1799. Resigned in 1804. John Jay of New York, Chief Justice, “ in the place of Oliver Ellsworth, who has resigned.” Commissioned December 19, . 1800. Declined. Died May 17, 1829. John Marshall of Virginia, Chief Justice, “ in place of John Jay, who has declined his appointment.” Commissioned January 31, 1801. Died July 6, 1835. William Johnson of South Carolina, Associate Justice, “ in the place of Alfred Moore resigned.” Commissioned March 26, 1804. Died August 11, 1834. Brockholst Livingston of New York, Associate Justice, “in the room of William Paterson deceased.” Commissioned in the recess November 10, 1806. Recommissioned on confirmation January 16, 1807. Died March 18, 1823. Thomas Todd of Kentucky, Associate Justice. (This appointment was made under the act of February 24, 1807, 2 Stat. APPENDIX. vii 421, c. 16, § 5, authorizing the appointment of an additional Associate Justice.) Commissioned March 3, 1807. Died February 7, 1826. Levi Lincoln of Massachusetts, Associate Justice “ in the room of William Cushing deceased.” Commissioned January 7, 1811. Declined. John Quincy Adams of Massachusetts, Associate Justice. Commissioned February 22, 1811. Declined. Joseph Story of Massachusetts, Associate Justice, “ in the place of John Quincy Adams declined.” Commissioned November 18, 1811. Died September 10, 1845. Gabriel Duvall of Maryland, Associate Justice, “ in the room of Samuel Chase deceased.” Commissioned November 18, 1811. Resigned January, 1835. Died March 6, 1844. Smith Thompson of New York, Associate Justice, “ in the place of Brockhoist Livingston deceased.” Commissioned in the recess, September 1, 1823. Recommissioned on confirmation December 9, 1823. Died December 18, 1843. Robert Trimble of Kentucky, Associate Justice, in the place of Thomas Todd deceased. Commissioned May 9, 1826. Died August 25, 1828. John McLean of Ohio, Associate Justice, in the place of Robert Trimble deceased. Commissioned March 7, 1829. Died April 4, 1861. Henry Baldwin of Pennsylvania, Associate Justice, in the place of Bushrod Washington deceased. Commissioned January 6, 1830. Died April 21, 1844. James M. Wayne of Georgia, Associate Justice, in the place of William Johnson deceased. Commissioned January 9, 1835. Died July 5, 1867. Roger B. Taney of Maryland, Chief Justice, in the place of John Marshall deceased. Commissioned March 15, 1836. Died October 12, 1864. Philip p. Barbour of Virginia, Associate Justice, in the place of Gabriel Duvall resigned. Commissioned March 15, 1836. Died February 24, 1841. William Smith of Alabama, Associate Justice. (This appoint viii APPENDIX. ment was made under the act of March 3, 1837, 5 Stat. 176, c. 32, which added two Associate Justices to the court.) Commissioned March 8, 1837. Declined. John Catron of Tennessee, Associate Justice. (This appointment was also made under the act of March 3, 1837.) Commissioned March 8, 1837. Died May 30, 1865. John McKinley of Alabama, Associate Justice, in the place of William Smith declined. Commissioned in the recess April 22, 1837. Recommissioned on confirmation September 25, 1837. Died July 19, 1852. Peter V. Daniel of Virginia, Associate Justice, in the place of Philip P. Barbour deceased. Commissioned March 3, 1841. Died June 30, 1860. Samuel Nelson of New York, Associate Justice, in the place of Smith Thompson deceased. Commissioned February 13, 1845. Retired November 28, 1872, under the provision of the act of April 10, 1869, 16 Stat. 45, c. 22. Died December 13, 1873. Levi Woodbury of New Hampshire, Associate Justice, in the place of Joseph Story deceased. Commissioned in the recess September 20, 1845. Recommissioned on confirmation January 3, 1846. Died September 4, 1851. Robert C. Grier of Pennsylvania, Associate Justice, in the place of Henry Baldwin deceased. Commissioned August 4, 1846. Retired January 31, 1870, under the provision of the act of April 10, 1869, 16 Stat. 45, c. 22. Died September 26, 1870. Benjamin Robbins Curtis of Massachusetts, Associate Justice, in the place of Levi Woodbury, deceased. Commissioned in the reoess September 22, 1851. Recommissioned on confirmation December 20, 1851. Resigned in 1857. Died September 15, 1874. John A. Campbell of Alabama, Associate Justice, in the place of John McKinley deceased. Commissioned March 22, 1853. Resigned in 1861. Nathan Clifford of Maine, Associate Justice, in the place of Benjamin R. Curtis resigned. Commissioned January 12, 1858. Died July 25, 1881. f Noah H. Swayne of Ohio, Associate Justice, in the place of John McLean deceased. Commissioned January 24, 1862. Be- APPENDIX. ix tired under the provision of Rev. Stat. § 714, January, 1881. Died June 8, 1884. Samuel F. Miller of Iowa, Associate Justice, to fill a vacancy. Two vacancies existed when Mr. Justice Miller was appointed ; one caused by the death of Mr. Justice Daniel, the other by the resignation of Mr. Justice Campbell. Mr. Justice Miller was not named specially for either. Commissioned July 16, 1862. David Davis of Illinois, Associate Justice, to fill a vacancy. Commissioned in the recess October 17, 1862. Recommissioned on confirmation December 8, 1862. Resigned March, 1877. Died June 26, 1886. Stephen J. Field of California. (This appointment was made under the act of March 3, 1863, e. 100, 12 Stat. 794, authorizing the appointment of an additional Associate Justice.) Commissioned March 10, 1863. Salmon P. Chase of Ohio, Chief Justice, in the place of Roger B. Taney deceased. Commissioned December 6, 1864. Died May 7, 1873. Edwin M. Stanton, Associate Justice, in the place of Robert C. Grier retired. Commissioned December 20, 1869, “ to take effect from and after February 1,1870,” at which time Mr. Justice Grier’s retirement was to take effect. Died December 24, 1869, before his commission took effect. William Strong of Pennsylvania, Associate Justice, to fill a vacancy. Two vacancies existed ; one the new judgeship created by the act of April 10, 1869, the other caused by the retirement of Mr. Justice Grier. President Grant sent the names of Mr. Bradley and Mr. Strong to the Senate in that order without specifying to which vacancy either was to be assigned. Mr. Justice Strong was commissioned February 18, 1870. Retired under the provisions of Rev. Stat. § 714, December, 1880. Joseph P. Bradley of New Jersey, Associate Justice to fill a. vacancy. Commissioned March 21, 1870. Ward Hunt of New York, Associate Justice, in the place of Samuel Nelson retired. Commissioned December 11, 1872. Retired January 7, 1882, under the provisions of an act of that date. Died March 24, 1886. Morrison R. Waite of Ohio, Chief Justice, in the place of Salmon X APPENDIX. P. Chase deceased. Commissioned January 21, 1874. Died March 23, 1887. John M. Harlan, Associate Justice, in the place of David Davis resigned. Commissioned November 29, 1877. William B. Woods of Georgia, Associate Justice, in the place of William Strong retired. Commissioned December 21, 1880. Died May 14, 1887. Stanley Matthews of Ohio, Associate Justice, in the place of Noah H. Swayne retired. Commissioned May 12, 1881. Died March 22, 1889. Horace Gray of Massachusetts, Associate Justice, in the place of Nathan Clifford deceased. Commissioned December 20, 1881. Samuel Blatchford of New York, Associate Justice, in the place of Ward Hunt retired. Commissioned March 22, 1882.1 Lucius Q. C. Lamar of Mississippi, Associate Justice, in the place of William B. Woods deceased. Commissioned January 16, 1888. Melville W. Fuller, Chief Justice, in the place of Morrison R. Waite, deceased. Commissioned July 20, 1888. 1 Roscoe Conkling was nominated to the Senate and confirmed as an Associate Justice in the place of Mr. Justice Hunt; but no commission issued, as Mr. Conkling declined. APPENDIX. The “ Act to Establish the Judicial Courts of the United States ” (1 Stat. 73) was approved by President Washington, in the city of New York, on the 24th day of September, 1789. It provided, in its opening words, “ that the Supreme Court of the United States shall consist of a Chief Justice and five Associate Justices, any four of whom shall be a quorum, and shall hold annually, at the seat of government, two sessions, the one commencing the first Monday of February, and the other the first Monday of August.” 1 On the 26th of the same month, John Jay, Esq., of New York, was appointed to be the Chief Justice of the new court, and John Rutledge, of South Carolina, an Associate Justice. William Cushing, Esq., of Massachusetts, was appointed Associate Justice on the 27th; Robert H. Harrison, of Maryland, on the 28th; James Wilson, Esq., of Pennsylvania, on the 29th; and John Blair, Esq., of Virginia, on the 30th of the same month. The court organized itself in the city of New York, on the first Monday of the following 1 The act of February 24, 1807, c. 16, § 5, 2 Stat. 421, authorized the appointment of a sixth Associate Justice. The act of March 3, 1837, 5 Stat. 176, authorized the appointment of two more Associate Justices, making eight Associate Justices in all. The act of March 3, 1863, 12 Stat. 794, added a ninth Associate Justice. Under the act of July 23, 1866, 14 Stat. 209, the number of Associate Justices was to be reduced to six, by not filling vacancies. The death of Justices Catron and Wayne reduced the number of Associate Justices to seven before this act was repealed. On the 10th April, 1869, 16 Stat. 44, it was enacted that “the Supreme Court of the United States shall hereafter consist of the Chief Justice of the United States and eight Associate Justices,” which law still remains in force. By the act of 1802, 2 Stat. 156, the August Term was dispensed with. By the act of May 4, 1826, 4 Stat. 160, the second Monday of January was substituted for the first Monday of February as the day for beginning. By the act of June 17, 1844, 5 Stat. 676, the first Monday of December was substituted for the second Monday of January; and by the act of January 24,1873, 17 Stat. 419, the second Monday of October was made the day for the beginning of the Term, as it still continues to be. APPENDIX. xii February (the 1st), and adjourned sine die on February 10, 1790. On the day of the adjournment, Mr. James Iredell, of North Carolina, was appointed an Associate Justice in the place of Mr. Harrison, who declined. He qualified August 2, 1790, at the opening of the August Term. Thus it will be seen that the first century of the existence of this court expires between the close of the present term and the opening of October Term, 1889. In view of this fact, after consultation with friends in whose judgment I place Confidence, I have gathered together several matters connected with the judicial history and decisions of the highest courts of the United States prior to the adoption of the Constitution ; and I have placed them in this Appendix, in order that they may be preserved in connection with the decisions of the highest court since its adoption, and in the belief that they will prove interesting and useful to the practising constitutional lawyer, as well as to the student of our judicial system. I have also, under like advice, caused the original records in the office of the clerk of this court to be carefully searched, in order to ascertain what opinions of the court have been omitted in the published reports ; and I have printed all such opinions in this Appendix, either in full or in substance. With these several papers incorporated into the official series of Reports, it is substantially complete, both as to the work done by the highest Federal courts before the adoption of the Constitution, and as to the decisions of this court. The ninth Article of the “ Articles of Confederation and Perpetual Union ” contained these provisions : “ The United States in Congress assembled shall have the sole and exclusive right and power of • . . appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no Member of Congress shall be appointed a judge in any of the said courts. “The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting oi that hereafter may arise between two or more States concerning boundary, jurisdiction or any other cause whatever. . • • A controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions as they APPENDIX. xiii may respect such lands and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be, in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States.” These Articles were finally “ agreed to” by Congress, in the session of Saturday, the 15th of November, 1777, and it was ordered that they should “be proposed to the Legislatures of all the United States, to be considered, and if approved of by them, they are advised to authorize their delegates to ratify the same in the Congress of the United States ; which being done, the same shall become conclusive.” On the 9th day of July, 1778, “the ratification of the Articles of Confederation, engrossed on a roll of parchment,” was laid before Congress, and was signed “ on the part and in behalf of their respective States by the delegates of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, Pennsylvania, Virginia and South Carolina.” The ratification of North Carolina was made on the 21st July, 1778 ; of Georgia on the 24th July, 1778 ; of New Jersey on the 26th November, 1778; and of Delaware on the 5th of May, 1779. Maryland delayed, in the hope of securing a provision for the holding of the unsettled public lands for the benefit of all the States. The negotiations on this point took shape in a paper which was submitted to Congress by the delegates from that State on behalf of the State, and spread upon the Journals on the 21st May, 1779. Things continued in this way, without anything being done to meet the wishes of Maryland, until February 12, 1781; when the delegates from that State presented to Congress a resolution of the legislature of the State, in which, after reciting that “ it hath been said that the common enemy is encouraged by this State not acceding to the Confederation, to hope that the union of the sister States may be dissolved, and therefore prosecutes the war ” as a reason why the State should give its adhesion, the delegates were authorized to affix their signatures. On the 1st of March following, the delegates from Maryland signed the engrossed parchment, and on that day the whole was entered in full on the Journal of Congress as it now stands. The value of these dates, as bearing upon the action of Congress on these subjects, will appear later. Congress took jurisdiction of appeals from the judgments of State Courts of Admiralty in prize cases some years before the ratification xiv APPENDIX. and adoption of the Articles of Confederation ; and it created a court with like jurisdiction about a year before that date. An account of its doings in this respect, and of the court which it created for this purpose, will be found in the paper entitled “ I. Courts of Appeal in Prize Cases.” What Congress and the courts which it established did, under the power conferred upon it concerning disputes and differences between two or more States, is shown in the paper entitled “II. Courts for .determining Disputes and Differences between two or more States concerning Boundary, Jurisdiction, or any other Cause whatever.” The power conferred upon it to appoint courts for the trial of piracies and felonies committed on the high seas it exercised in the following manner: On the 5th April, 1781, it passed an ordinance in which it was provided that persons charged with such offences should be “ enquired of, tried and judged by grand and petit juries, according to the course of the common law, in like manner as if the piracy or felony were committed upon the land, and within some county, district, or precinct of one of these United States. The justices of the supreme or superior court of judicature and judge of the court of admiralty of the several and respective States, or any two or more of them, are hereby constituted and appointed judges for hearing and trying such offenders.” “If there shall be more than one judge of the admiralty in any of the United States, then, and in such case, the supreme executive power of such State may and shall commission one of them exclusively to join in performing the duties required by this ordinance.” This ordinance was amended on the 4th of March, 1783, by providing that “the justices of the supreme or superior court of judicature, and the judge of the admiralty, or any two or more of them, including the judge of the admiralty in the several and respective States ; or, in case there shall be several judges of the admiralty in a State, the justices of the supreme or superior court of judicature, and a judge of the admiralty, to be commissioned for that purpose by the executive power of such State, or any two of them, including a judge of the admiralty, are hereby constituted and appointe a court for hearing and trying all offender^ who, in and by an ordinance entitled an ordinance,” etc., “passed the 5th day of Apii, 1781, are triable,” etc., etc. I have not thought that any good purpose would be served by hunting up and printing a List of the persons tried under these ordinances. APPENDIX. xv Some decisions of this court, made since the adoption of the Constitution, are also necessary, as has already been said, in order to make the series complete. These will be found in the paper entitled “ Omitted Cases in the Reports of the Decisions of the Supreme Court of the United States.” A word of explanation in regard to this paper may be advisable. When this court assembled in New York at February Term, 1790, for the purpose of organizing under the Judiciary Act of 1789, only one volume of American Reports had appeared. Kirby’s Cases decided in the Supreme Court of Connecticut was published at Litchfield, in that State, in 1789. It contained cases from 1758 to 1788; and of these cases, all after 1785 were decided subject to the provisions of a statute of that year which required the judges of the highest court in the State to give their opinions in writing. So far as I know, this is the first volume of Common Law or Equity Reports containing such written opinions. In the Ecclesiastical Courts of Great Britain the judges had been in the habit of giving written reasons for the judgments which they pronounced. See Cases temp. Lee; Hagg. Con. In the Admiralty Courts, also, there were exceptional instances of the same thing. See Marriott. That it had been done occasionally in Massachusetts, is evident from two cases in Quincy, first published in 1865. Harris & McHenry’s Reports, published in 1809, show that there had been early examples of the same practice in Maryland ; and from the first volume of Dallas, which made its appearance between the FebruarjT and August Terms of this court in 1790, it would seem that it obtained in the State of Pennsylvania, also, before the Revolution. From Hopkinson’s Judgments, (Philadelphia, 1789-1792,) it is apparent that this had been done at times in the Admiralty Court of Pennsylvania. In 2 Dallas, published about the close of the century, there are a few written opinions delivered by the judges in the Court of Appeals in cases of capture (1781-1787) ; but this was not the practice of that court. Mr. Cranch was the first regular reporter of this court. The cases reported by Mr. Dallas were mostly decided before the series under Mr. Cranch began; but they appeared in the last three volumes of Dallas at irregular intervals, in company with cases from other courts, and some of them as late as about the time of the issue of the third volume of Cranch. It is apparent from the cases in Dallas that in the outset this court did not reduce its opinions to writing except in important cases, especially in cases involving novel questions of constitutional xvi APPENDIX. law. Dallas probably published all the opinions that were filed. In the condition of the archives this cannot be accurately determined. It was not until the 14th of March, 1834, that an order was made requiring all opinions to be filed with the clerk. See 8 Pet. vii.1 Under this rule the manuscript record of opinions begins with January Term, 1835. The printed record does not commence until December Term, 1857. From 1863 to 1881, both inclusive, there are two records of opinions, one in print and one in manuscript. Then the rule which is printed in 108 U. S. 588, as § 3 of Rule 25, took effect, and, from 1882 on, there is only the printed recordi Prior to 1835, as there was no rule requiring the manuscript of the opinions to be filed in the office of the clerk of the Court, the Reports of Dallas, Cranch, Wheaton and Peters furnish the only accessible evidence for determining what opinions were delivered in writing. It is to be presumed, from the evidence, that the practice of delivering opinions in writing, which, in the beginning had been exceptional, had become the rule- when Mr. Cranch was made reporter. Indeed, he tells us himself that he was “ relieved from much anxiety, as well as responsibility, by the practice which the court had adopted of reducing their opinion to writing in all cases of difficulty or importance.” As in Mr. Dallas’s case, so here, there is no means of knowing whether, during the time covered by the nine volumes of Cranch, (August T. 1801 to February T. 1815,) the court delivered any opinion in writing which the reporter failed to report. In Mr. Wheaton’s time, which extends from February T. 1816 to January T. 1827, we know that some cases were omitted. He says in his preface that “ discretion has been exercised in omitting to report cases turning on mere questions of fact, and from which no important principle or general rule could be extracted; ” but what those cases were, it is impossible to determine from the records or minute books in the clerk’s office. Possibly an examination of the original rolls might disclose something that has not been printed ; on the other hand, however, there is a greater probability, for reasons already suggested, that it would disclose the absence of opinions in cases that have been reported. Mr. Peters, who began with January T. 1828, probably reported 1 As late as January T. 1830, it was held that certified copies of the opinions of the court were to be given by the reporter, and not by the clerk of the court. Anonymous, 3 Pet. 397. APPENDIX. xvii nearly everything. He said in his preface that it was his “ earnest endeavor ” “ to exhibit the facts of each case presented to the court.” An examination of the records from the commencement of January T. 1835, when the record of opinions begins, to the end of his term of office, (the close of January T. 1842,) shows that he reported all the cases in which there are recorded opinions, and several per curiam decisions, of which there are no records among the opinions. Only one case has been found ( West v. .Brashear) which seems to merit publication; and that does not contain a written opinion with the name of the justice delivering it. Mr. Howard, so far as I can find, omitted but few opinions. His time extends from the commencement of January T. 1843 to the close of December T. 1860. With the end of Mr. Howard’s time we come to the commencement of the war, and the consequent great increase in the business of the court. Mr. Black, (December Terms, 1861, 1862,) Mr. Wallace, (December T. 1863 to the close of October T. 1874,) and Mr. Otto, (October T. 1875 to the close of October T. 1882,) each, in the exercise of his discretion, omitted to report many cases with printed opinions. When I was appointed reporter, (October T. 1883,) I was directed to publish all the cases of the previous term “ not included in the volumes already published by Mr. Otto.” Regarding this as an indication of the desire of the court that thenceforward nothing should be omitted, I have since caused every opinion of the court to be published, however brief. Thus the omitted cases, taken in connection with the Reports of Dallas, Cranch, Wheaton, Peters, Howard, Black, Wallace, and the United States Reports, complete the reports of the decisions of this court, so far as a careful research enables us to call them complete. They now contain minutes of several cases which are not reported elsewhere. Some published opinions in Wallace and Otto differ from the opinions in the same cases on file in the clerk’s office. The records of the court are silent on the subject of these changes. If we assume that they were made by the reporter, we must infer that they were acceptable to the court. For it is not for a moment to be supposed that they escaped observation as volume after volume appeared, and it is certain that there is no repudiation of them in the records, on the part of the court, or of any justice. They therefore stand, and must continue to stand, in the published books, as the latest and accepted authoritative expression of the will of the court; 2 xviii APPENDIX. and this, all the more, that in many cases both the judge who delivered the opinion, and the reporter who reported it, have since died. But it cannot be true that these changes were all made by the reporter. Judges frequently correct their opinions in the hands of a reporter, after a printed copy has been filed with the clerk. When this is done, it is the habit of the present reporter to see to it that an order is made for like corrections in the records of the court; but his predecessors may not have done so, and probably did not. If one curious in such things would know how long this corrective practice has existed, let him look as far back as the 7th of Cranch, 1st ed., where, in a memorandum following the Table of Cases Cited, he will find some corrections by Mr. Justice Story in the opinion of the court, delivered by him, in Barnitz* Lessee v. Casey, 7 Cranch, 456. (In later editions, the changes are incorporated in the text.) If he would further know how absolutely unaltered in sense the opinion is left, after it has been subjected to literary changes dictated by taste or fancy, let him compare McLaughlin v. United States, 107 U. S. 526, with Western Pacific Railroad Company v. United States, 108 U. S. 510. These are two reports of the same case. Mr. Otto made the first report. When the present reporter was appointed, he was, as already stated, directed to publish reports of all the cases at October Term, 1882, not reported by Mr. Otto. This case was put into his hands by the clerk by mistake, the record title having been changed by Mr. Otto, in the exercise of his undoubted right, in order to make the names of the parties conform to those of the real contestants in the case. The report in 108 U. S. agrees with the opinion as recorded. That in 107 U. S., although varying from the other, sometimes in phrase or point or expression, and sometimes in the break of the paragraphs, in reality and at bottom differs from it less than tweedledum differs from tweedledee. In addition to these papers I have added, at the end of the Appendix, a list of cases in which statutes or ordinances have been held by the court to be repugnant, in whole or in part, to the Constitution or laws of the United States. The period covered by this table begins with 2 Dall, and ends with the present volume. * It only remains to say that all this matter has been laid before the justices of the court individually ; and it is now respectfully submitted to the judgment of the members of our common profession. APPENDIX. xix FEDERAL COURTS PRIOR TO THE ADOPTION OF THE CONSTITUTION. I. COURTS OF APPEAL IN PRIZE CASES. The idea of a Federal Court, with a jurisdiction coextensive with the limits of what were then the United Colonies and Provinces of Great Britain in North America, originated with Washington some months before Congress put off British rule. On the 11th of November, 1775, he wrote from Cambridge, in Massachusetts, to the President of Congress, enclosing a copy of an act then just passed by the Council and House of Representatives of that Province1 for the establishment of a Prize Court, and he added : “ Should not a court be established by authority of Congress, to take cognizance of prizes made by the Continental vessels ? Whatever the mode is which they are pleased to adopt, there is an absolute necessity of its being speedily determined on.” This letter was communicated to Congress on Friday, the 17th day of the same November, whereupon it was “Resolved, That a committee of seven be appointed to take into consideration so much of the General’s letter as relates to the disposal of such vessels and cargoes belonging to the enemy, as shall fall into the hands of, or be taken by, the inhabitants of the United Colonies.” A committee was chosen, consisting of Mr. George Wythe of Virginia, Mr. Edward Rutledge of South Carolina, Mr. John Adams of Massachusetts, Mr. William Livingston of New Jersey, Dr. Franklin and Mr. James Wilson of Pennsylvania, and Mr. Thomas Johnson of Maryland. Again, on the 4th of Dece'mber, 1775, Washington, not having heard of this action of Congress, wrote to its President as follows: “It is some time since I-recommended to the Congress that they would institute a court for the trial of prizes made by the Continental armed vessels, which I hope they have ere now taken into 1 This act is remarkable as having been the first which was passed by any of the colonies for fitting out vessels of marque and reprisal, and foj establishing a court to try and condemn the captured vessels of the enemy. 3 Sparks’ Washington, 154. See also 1 Curtis’ Hist. Constitution, 75-77. APPENDIX. Courts of Appeal in Prize Cases. their consideration; otherwise I should again take the liberty of urging it in the most pressing manner.” On the 23d of November, 1775, the committee to whom his letter of November 11th was referred brought in their report. After hearing it read, Congress “ ordered that the same lie on the table for the perusal of the members.” It was “debated by paragraphs” on the 24th and the 25th, and the resolutions which accompanied it were adopted on the latter date. They authorized the capture of prizes on the high seas; legalized those already made; settled a rate of distribution of prize money (a settlement which was afterwards modified) ; provided that suits for condemnation should be commenced in the first instance in Colonial courts, and, further, contained the following section respecting appeals : “6. That in all cases an appeal shall be allowed to the Congress, or such person or persons as they shall appoint for the trial of appeals, provided the appeal be demanded within five days after definitive sentence, and such appeal be lodged with the Secretary of Congress within forty days afterwards, and provided the party appealing shall give security to prosecute the said appeal to effect; and in case of the death of the Secretary during the recess of Congress, then the said appeal to be lodged in Congress within twenty days after the meeting thereof.” When Washington learned of this action he wrote to the President of Congress (December 14, 1775) : “The resolves relating to captures made by Continental armed vessels only want a court established for trial to make them complete. This I hope will soon be done, as I have taken the liberty to urge it often to the Congress.” The Colonies and States responded very generally to the suggestion of Congress that they should organize courts for this purpose; but they did it with jealous reservations. The collection of statutes in the library of Congress enables us to get a general outline of this legislation. In New Hampshire the statute was passed on the 3d of Jul}, 1776, which is set forth at length in Penhallow v. Doane, 3 Dall, pp. 57-59. In it the right of appeal to Congress was limited to cases in which the capture was made by an armed vessel, fitted out at the charge of the United Colonies; and in 1779 it was further limited to cases in which the claim should be made by a subject of a foreign government in amity with the United States. APPENDIX. sxi Federal Courts before the Constitution. Tn Massachusetts the State was divided into three districts, im each of which a court was established by the statute which Washington sent to Congress. (Act of November 1, 1875, 5 Acts and Resolutions of the Province of Massachusetts Bay, 436.) Boston, being occupied by the enemy, was not included in this division. On the 13th of April, 1776, (Id. 474, 477,) Boston having come into Federal possession, the districts were re-organized, and an appeal was given to Congress in cases of vessels captured by vessels fitted out at the charge of the United Colonies. On the 29th April, 1778, provision was made for a trial by jury in all cases. (Id, 806.) On the 30th of June, 1779, the right of appeal was extended to all cases of maritime capture. (Id. 1077.) This was declared to be done in consequence of the resolution of Congress of March 6, 1779 (which will be found on pages xxxii—xxxiii, infra) : “ the reasons upon which the said resolves are founded appearing to this court, in many instances, to arise out of the greatest political convenience and necessity.” In Rhode Island a Maritime Court was established in January, 1776. The act was amended in October, 1776. On the 9th of May, 1780, it was replaced by a Court of Admiralty, and the right of appeal to Congress was curtailed. In Connecticut County Maritime Courts were created in the counties bordering upon Long Island Sound. In New York the maritime counties being occupied by the enemy after the summer of 1776, there was no necessity for a court. New Jersey passed an act to establish a Court of Admiralty'on the 5th day of October, 1776. In 1778 an act was passed continuing this court. In 1781 a general statute was enacted to regulate and establish Courts of Admiralty, which was amended in 1782, and repealed in 1799. A Court of Admiralty for the port of Philadelphia was created by the legislature of Pennsylvania by the act of September 9, 1778. In this act it was provided that “ the finding of a jury shall establish the facts without re-examination or appeal.” On the 8th of March, 1780, a further act was passed which repealed this clause. In Delaware such a court must have been established before May 20, 1778, as on that day an act was passed recognizing it as an existing court, and conferring upon it additional jurisdiction over stranded vessels. In Maryland an Admiralty Court existed under a Colonial law of xxii APPENDIX Courts of Appeal in Prize Cases. 1763. The convention responded to the call of Congress, May 25, 1776, by an ordinance giving the desired jurisdiction, providing for trial by jury, and giving an appeal to Congress in all cases. There does not appear to have been any further legislation on the subject, except that a statute of November, 1779, settled the fees of the officers of the court. Virginia, by an act entitled “An ordinance for establishing a mode of punishment for the enemies to America in this Colony,” created a Court of Commissioners in Admiralty in December, 1775. In October, 1776, this was replaced, so far as prizes we,re concerned, by a Court of Admiralty, organized under a statute which provided for the supremacy of the laws of Congress and for an appeal to any appellate court which might be created by Congress. In 1779 this right of appeal was taken away when the controversy should be between two citizens of the State. In North Carolina the legislature passed the act of 1777, c. 16, “ to empower the Court of Admiralty of* this State to have jurisdiction in all cases of capture of the ships and other vessels of the inhabitants and subjects of Great Britain, and to establish the trial by jury in said court in cases of capture.” This act remained in force until the adoption of the Constitution. South Carolina created a Court of Admiralty on the 11th of April, 1776, and reconstructed it February 13, 1777, giving a right of appeal to Congress. Georgia, on the 16th of September of the same year, passed an act entitled, “An act regulating captures and .seizures made in this State or on the high seas under and by virtue of the resolves and regulations of Congress.” Under this act a Court of Admiralty was instituted. In nearly all these States the right of trial by jury was reserved in prize cases. We shall see later that this caused trouble. The purpose of Congress to take only appellate jurisdiction was apparently misunderstood in the beginning. The first two applications to it, one by a Mr. Barbain, on the 31st of January, the other relating to the brigantine Nancy 'and her cargo, on the 27th of February, 1776, prayed for the exercise of its original jurisdiction, but in each case Congress referred the applicant to the Colonial courts. On the 4th of the next April, however, it did undertake to regulate the sale of a prize vessel which had been run ashore within the county of Burlington, and the disposition of the proceeds arising from the sale. The vessel was the sloop Sally, James McKnight, APPENDIX. xxiii Federal Courts before the Constitution. prize master. The sale took place as ordered; but, on the 22d of the following month, Congress repealed its resolution of April 4th, alleging that McKnight had proceeded in the sale contrary to the mode prescribed, and without authority from Congress. After that time it only exercised an appellate jurisdiction through committees, sometimes styled commissioners, and abandoned even this when it established an appellate court. The case of the Schooner Thistle, the first appellate case under the new law, came before it on the 5th of August, 1776. Congress attempted to hear the appeal itself, but eventually referred it to a special committee, whose report, reversing the condemnation, was received and approved September 25th, 1776. The next three cases, The Elizabeth, The Charming Peggy and The Betsey, Nos. 2, 3 and 4 in the accompanying list, were referred to special committees, the same gentlemen being chosen as members in each case. Then came a case, Hopkins v. Derby, No. 6, which was referred to “ the Committee on Appeals,” without naming any members. Then followed two others, Nos 7 and 8, which were referred to the same special committee, naming them ; but by this time (January 4, and January 11, 1777) it had apparently become necessary to substitute two new members in the place of those who had been formerly named. This brings events up to the appointment of a standing Committee on Appeals. Under date of January 30th, 1777, the Journal of the Continental Congress contains this entry: “ Resolved, That a standing committee, to consist of five members, be appointed to hear and determine upon appeals brought against sentences passed on libels in the Courts of Admiralty in the respective States, agreeable to the resolutions of Congress; and that the several appeals, when lodged with the secretary, be by him delivered to them for their final determination.” The members then selected and chosen for this duty were Mr. James Wilson of Pennsylvania, Mr. Jonathan D. Sergeant of New Jersey, Mr. William Ellery of Rhode Island, Mr. Samuel Chase of Maryland and Mr. Roger Sherman of Connecticut. On the 8th day of the following May this committee was formally discharged, because it had been represented that it was too numerous; and it was “ Resolved, That a new committee of five be appointed, they or any three of them to hear and determine upon appeals brought to Congress.” Congress chose as this committee Mr. Wilson and Mr. Sergeant, as before, Mr. James Duane of New xxiv APPENDIX. Courts of Appeal in Prize Cases. York, Mr. John Adams of Massachusetts, and Mr. Thomas Burke of North Carolina. On the 12th of that month, this committee was “authorized to appoint a register to attend said committee” and apparently soon made the appointment. Again, on the 13th of the following October, “ a number of the members of the committee being absent,” it was “ Resolved, That a new committee, to consist of five members, be appointed, and that they, or any three of them, be empowered to hear and finally determine upon appeals brought to Congress.” Mr. John Adams, Mr. Joseph Jones of Virginia, Mr. Richard Law of Connecticut, Mr. Henry Marchant of Rhode Island and Mr. Henry Laurens of South Carolina, (who was at that time the President of Congress,) were chosen as the new committee. On the 17th of November, 1777, Mr. John Harvie of Virginia, Mr. Francis Dana of Massachusetts and Mr. Ellery of Rhode Island were elected as members of the committee in place of the President, Mr. Adams, and Mr. Marchant; and on the 10th day of the following December Mr. Benjamin Rumsey of Maryland was chosen as another member. On the 17th of February, 1778, Mr. Thomas McKean of Delaware, Mr. Samuel Huntington of Connecticut, Mr. John Henry, Junior, of Maryland and Mr. James Smith of Pennsylvania were added to the committee. On the 27th of July, 1778, it was “ Resolved, That three members be added to the committee for hearing and determining appeals and that any three of said committee be empowered to hear and finally determine appeals to Congress from the judgments of Courts of Admiralty.” Mr. Joseph Reed of Pennsylvania, Mr. William Drayton of South Carolina, and Mr. Elias Boudinot of New Jersey were duly elected as such new members. It further appears by the same record that, notwithstanding the numerous recruits brought into the committee by the various elections, Congress had been informed that but two members were then present, and that sundry causes were then ready for trial. On the 23d of September, 1778, Mr. John Matthews of South Carolina and Mr. Marchant of Rhode Island were added to the committee, and on the 26th of the following October Mr. Oliver Ellsworth of Connecticut was made a member. On the 9th of March, 1779, the record again says that the committee is reduced to three — Messrs. Drayton, Ellery and Henry APPENDIX. xxv Federal Courts before the Constitution. and Mr. Jesse Root of Connecticut and Mr. William Paca of Maryland were accordingly chosen to complete it. On the 29th of July, 1779, Mr. Marchant (again) and Mr. Edmund Randolph of Virginia were elected members in the places of Mr. Ellery and Mr. Paca, who were said to be absent. On the 27th of the next month Mr. Paca was again elected a member in the place of Mr. Randolph, who was said to be absent. On the 7th of December, 1779, Mr. Ezra L’Hommedieu of New York and Mr. Ellery were chosen to be members in the places of Mr. Marchant and of Mr. Root; and on the 5th of January, 1780, Mr. Ellswortli was again elected as a member, in the place of Mr. Paca, who was absent. These frequent changes in a body entrusted with judicial powers could not but prove injurious to the interests of suitors. They certainly vindicate the wisdom of Washington in urging Congress to complete its work by instituting a regular court. They also seem to show that the committee was well supplied with work, and sometimes failed to secure the requisite quorum for doing it. The time had now come when the whole subject was to be taken out of Congress and sent to a court for judicial determination. As early as Tuesday, the 5th of August, 1777, it was “ Resolved, That Thursday next be assigned to take into consideration the propriety of establishing the Court of Appeals.” When Thursday came the matter was postponed, and it was not until January 15th, 1780, that Congress, “ Resolved, That a court be established for the trial of all appeals from the Courts of Admiralty in these United States, in cases of capture, to consist of three judges appointed and commissioned by Congress, either two of whom, in the absence of the other, to hold the said court for the despatch of business; that the said court appoint their own register; that the trials therein be according to the usage of nations, and not by Jury;” and “ that the said judges hold their first session as soon as may be at Philadelphia, and afterwards at such times and places as they shall judge most conducive to the public good, so that they do not at any time sit further eastward than Hartford in Connecticut, or southward than Williamsburg in Virginia.” Mr. George Wythe of Virginia, Mr. William Paca of Maryland, and Mr. Titus Hosmer of Connecticut were elected as judges January 22d, 1780. A letter was read in Congress March 13th, 1780, from Mr. Wythe, declining the office, and Mr. Cyrus Griffin of Virginia was thereupon xxvi APPENDIX. Courts of Appeal in Prize Cases. elected in his place, April 28, 1780. Mr. Paca accepted on the 9th of February, and Mr. Hosmer and Mr. Griffin on the 4th of May, 1780. The great delay in creating the court probably arose from the reluctance of Congress to take such power to itself until the ratification of the Articles of Confederation should be substantially assured; which was done, as already seen, before the passage of this resolution. The resolution of January 15th, 1780, creating the court, made no general provision for the transfer of cases to it. On the 9th of May, an appeal being brought before Congress, (No. 65 on the list,) it was referred to the new court, and on the 24th of that month Congress resolved “ that the stile of the Court of Appeals appointed by Congress be ‘the Court of Appeals in cases of capture;”’ “that appeals from the Courts of Admiralty in the respective States be, as heretofore, demanded within five days after definitive sentence, and in future such appeals be lodged with the register of the Court of Appeals in cases of capture within forty days thereafter; ” and “ that all matters respecting appeals in cases of capture now depending before Congress, or the Commissioners of Appeals, be referred to the newly erected Court of Appeals, to be there adjudged and determined according to law ; and that all papers touching appeals in cases of capture lodged in the office of the Secretary of Congress, be delivered to and lodged with the register of the Court of Appeals.” Simultaneously with this, an appeal, presented that day to Congress, (No. 67 on the list,) was ordered referred to the court; and after that time I cannot find that any appeal, that had been properly taken, reached the court through the action of Congress. That body acted in a few cases, but only to give the court a jurisdiction which it could not have taken under the general law. Mr. Hosmer died in office on the 4th of August, 1780. On the 21st of November, 1782, Mr. Paca resigned, having been elected Governor of Maryland. At an election held on the 5th of December, 1782, Mr. George Read of Delaware was elected by Congress in the place of Mr. Paca, and Mr. John Lowell of Massachusetts in the place of Mr. Hosmer; and, on the 15th of that month, lots were drawn in Congress for precedence, with a result in favor of Mr. Read. In view of the provision in the Articles of Confederation that no member of Congress shall be appointed a judge of any of sai APPENDIX. xxvii Federal Courts before the Constitution. courts,” it may be noted that Mr. Read and Mr. Lowell, the only judges elected after the ratification of the Articles by all the States, were members of Congress when elected. Congress thus construed that instrument as meaning only that no person could act in both capacities at the same time. On the 23d of December, 1784, Congress being then in session at Trenton, in New Jersey, Mr. Griffin and Mr. Lowell addressed to its President the following letter : “Trenton, Dec. 23d, 1784. “Sir: We had the Honour, immediately after our last sitting, to’ inform Congress by a letter directed to the President, that all the Causes which had been brought before the Court of Appeals were determined, and altho’ some motions had been made for Rehearings, they had not been admitted. Since that Time no further applications have been made to us ; of this we also think it our Duty to inform Congress, that they may take such order concerning the Court as they may think proper. “We have the Honour to be, with great Respect, your Excellency’s Most obedient Servants, “ C. Griffin. “J. Lowell. “His Excellency, the President of Congress.” This letter was referred to a committee, and on the 1st of July, 1785, the committee, consisting of Mr. Pinckney, Mr. R. R. Livingston, Mr. King, Mr. Monroe, and Mr. Johnson, reported “ that in their opinion the present Judges of the Court of Appeals are still in commission, and that it will be necessary that the Court of Appeals should remain upon its present establishment, except with respect to the salaries of the judges, which should cease from the-day ’ aQd that in lieu thereof they shall be entitled to-------dollars per day during the time they shall attend the sitting of the courts, and including the time they shall be necessarily employed in traveling to and from said courts.” A motion was made by Mr. King, seconded by Mr. Smith, to Postpone the consideration of the report, to take up the following : üat the commission of the judges of the Court of Appeals be vacated and annulled : and that in all cases which have been xxviii APPENDIX. Courts of Appeal in Prize Cases. decided by the Court of Appeals, upon application to Congress, within-----, for a rehearing or new trial, the same shall be granted where justice and right may require it.” This being lost, the report was recommitted, and, immediately following, the Journal reads: “ On motion of Mr. Smith, seconded by Mr. Ramsay, Resolved, That the salaries of the Judges of the Court of Appeals shall henceforth cease.” Mr. Griffin apparently remonstrated against this : for, on the 9th of February, 1786, the first entry in the Journal reads: “On the report of a committee, consisting of Mr. Pinckney, Mr. King, Mr. Johnson, Mr. Grayson, and Mr. Hindman, to whom was referred a letter from Cyrus Griffin, Esq., Resolved, That Congress are fully impressed with a sense of the ability, fidelity and attention of the judges of the Court of Appeals in the discharge of the duties of their office ; but that, as the war was at an end, and the business of that court in a great measure done away, an attention to the interests of their constituents made it necessary that the salaries of the said judges should cease.” After that the Journals of Congress show but two entries respecting the court. On the 27th June, 1786, on the report of a committee “ to whom were referred several memorials and petitions from persons claiming vessels in the Courts of Admiralty in some of the States, praying for hearings and rehearings before the Court of Appeals, Resolved, That the judges of the Court of Appeals be. and hereby are, authorized and directed, in every cause which has been or may be brought before them, to sustain appeals and grant rehearings or new trials of the same wherever justice and right may in their opinion require it.” After a provision respecting suspense of execution, and one respecting a per diem pay to the judges while holding court an travelling, it was further “ Resolved, That the said court assemble at the city of New York on the first Monday of November next, for the despatch of such business as may then and there be before them; and that the Secretary of Congress take order for publishing these resolutions for the information of all persons concerned. The last entry in the Journals of Congress relating to this cour is on the 24th July, 1786, empowering it to hear an appeal agains a decree in the Court of Admiralty of South Carolina, condemning the sloop Chester. Soon after this the judges appeared in ot capacities ; and it would seem, from some cases reported in the APPENDIX. xxix Federal Courts before the Constitution of Dallas, that the appellate courts of the States gradually resumed jurisdiction over all such appeals. On the 20th November, 1787, Mr. Griffin presented his credentials as a member of Congress from Virginia, and on the 22d January, 1788, (the first meeting thereafter with a quorum of States,) was elected President of that body. Mr. Lowell, on the 11th of November, 1784, was appointed by Massachusetts a commissioner to represent it in Federal proceedings to adjudicate upon rival claims of Massachusetts and New York to certain territory, and he appears to have been occupied with this from time to time until October 8, 1787, when an amicable settlement was reported to Congress. Mr. Read was named as a member of the court to settle the controversy between New York and Massachusetts, which appointment did not take effect, as the controversy was settled amicably. He was a member of the Convention at Annapolis in 1786, and of the Convention which framed the Constitution. All three judges, however, met in New York in 1787, as appears by the reports of the c^ses, Luke v. Hulbert and The Experiment, in 2 DalL 40 and 41, and by original opinions and decrees bearing their signatures on file in the office of the Clerk of this court. The weak point of this whole judicial system was this: that it necessarily depended upon state officers to enforce the judgment of the appellate tribunal when it reversed the decree of a state court. State courts refused to enforce the rights of property acquired under Federal decrees. Doane v. Penhallow, 1 Dall. 218. How powerless the appellate court was left may be seen by examining the facts respecting the Susannah, captured by the McClary, reported in Penhallow v. Doane, 3 Dall. 54 ; and by the following report of the proceedings in regard to the sloop Active, gathered partly from the Journal of Congress, partly from the original archives in the custody of the Clerk of this court, and partly from United States v. Peters, 5 Cranch, 115. In the Admiralty Court of Pennsylvania the Active and cargo were libelled at the instance of Thomas Houston, libellant; Gideon Olmstead and others appearing as claimants. A trial was had by jury, whose verdict was as follows : “ One-fourth of the net proceeds of the sloop Active and her cargo to the first claimants ; three-fourths of the net proceeds of the said sloop and her cargo to the libellant and the second claimant as per agreement between them.” Judgment was entered on the verdict, from which an appeal was taken by Olmstead and others to the Committee on Appeals. XXX APPENDIX. Courts of Appeal in Prize Cases. / On the 15th of December, 1778, the Committee, in a decree in which they style themselves “Commissioners,” reversed the judgment, and directed the court below to issue process commanding the marshal to sell the sloop and her cargo, and to pay the residue remaining after payment of costs, charges and expenses to the appellants. On the 3d January, 1779, they received the following letter from General Benedict Arnold, commanding in Philadelphia, (evidently dated by mistake January 3, 1778:) “ Philadelphia, 3d Jan’y, 1778. “ Gentlemen : Such are the extraordinary and unprecedented attempts of the Judge and Court of Admiralty for this State and the appellees in the case of the prize sloop Active and cargo to baffle the attempt of the Court of Appeals to do justice and to prevent your determination from taking effect, that while the matter is under consideration in the Superior Court the judge is about getting possession of the money with the avowed and declared purpose of standing out obstinately against any orders that may be given. He has issued his orders to the Marshal to deliver the amount of sales to him, which is to be done by appointment at nine o’clock to-morrow morning, and positively declares that no order of the Court of Appeals shall take it out of his hands or be obeyed. Also from some other matters just come to my knowledge there is reason to fear that much trouble will ensue unless some steps can be fallen upon to stop the case from falling into his hands. Such a daring attempt as this to evade the Justice of the Superior Court at a time too when the matter is under consideration, will, I doubt not, apologize for my troubling you with a request to meet this evening at such time and place as you may think proper in order to determine upon what process shall issue at so early an hour to-morrow morning as will tend to the carrying into execution the decree above. “This I have wrote by the advice of the claimants’ counsel and hope you will think the necessity of the case a justification. “ I am with great respect and esteem, gentlemen, “ Your most obed’t humble serv’t, B. Arnold. “ P. S. I am informed from good authority that a member of the Assembly has applied to get the money paid into his hands, and if he should succeed in this it will probably be paid into the Treasury, and the claimants will have the whole State to contend with in then own government. “The Hon’ble, the Court of Appeals.” APPENDIX. xxxi Federal Courts before the Constitution. On the morning of the 4th of January Andrew Robeson the register of the Court of Admiralty of Pennsylvania, appeared before the commissioners and deposed “ that he, as register aforesaid, received notice from the judge of the said court, by the marshal of said court, to attend at the chambers of the said judge at nine o’clock this morning for the purpose of making a minute or record of the said marshal’s having paid into the said court the moneys arising from the sale of the cargo of the sloop Active, lately libelled against in the said court by Thomas Houston, etc.” Thereupon the commissioners issued an order of injunction against the marshal of that court, in which, after reciting the proceedings in the court below, the appeal, and the reversal, they said, “and whereas a copy of the decree of this court hath been regularly transmitted to the judge of the said Court of Admiralty, and by a certified copy of the proceedings of the said court since receiving the said decree it appeareth manifestly to this court that the said judge hath refused to pay obedience to the said decree, and did, on the twentyeighth day of December last, issue process returnable on the seventh day of January instant commanding you, as marshal of the said Court of Admiralty, to make sale of the said sloop, her cargo, etc., and, after deducting the cost and charges aforesaid, to lodge the residue of the monies arising from the said sale in the court aforesaid, ready to abide the further order of the said court; and whereas, on the twenty-eighth day of December aforesaid, a motion was made in this court for a writ to issue to the said marshal, commanding him to execute the decree of this court, and further argument on the said motion was appointed to be heard at five o’clock this evening; and whereas it is testified to this court, on oath, that this day at nine o’clock in the forenoon, is, by special order of the said judge, appointed for you to lodge the monies arising from the said sale in the said court, whereby the writ, upon the motion aforesaid, if this court shall think proper to issue such, will be eluded; these are therefore to command and firmly enjoin you to detain and keep in your hand and custody the whole of the monies arising from the said sale of the said sloop and her cargo, etc., saving and excepting the costs and charges aforesaid until the further order of this court be made known unto you, as you will answer the contrary at your peril. Given at Philadelphia, in the State of Pennsylvania, the fourth day of January, in the year of our Lord one thousand seven hundred and seventy-nine.” xxxii APPENDIX. Courts of Appeal in Prize Cases. ' This paper being duly served, the marshal on the same day made return as follows: “In obedience to a writ under the hand and seal of the Honorable George Ross, Esquire, judge of the Court of Admiralty for the State of Pennsylvania, I have deposited in the said court the monies arising from the sale of the cargo of the sloop Active, within mentioned. The said sloop being yet unsold, no monies have come into my hands on account of her.” “Whereupon the court declared and ordered to be entered upon record, that, as the judge and marshal of the Couft of Admiralty of the State of Pennsylvania had absolutely and respectively refused obedience to the decree and writ regularly made in and issued from this court, to which they and each of them were and was bound to pay obedience, this court, being unwilling to enter upon any proceedings for contempt lest consequences might ensue at this juncture dangerous to the public peace of the United States, will not proceed farther in this affair, nor hear any appeal, until the authority of this court shall be so settled as to give full efficacy to their decrees and process.” “ Ordered, That the Register do prepare a statement of the proceedings had upon the decree of this court in the case of the sloop Active, in order that the Commissioners may lay the same before Congress.” Congress referred this statement, when presented, to a committee consisting of Mr. Floyd, Mr. Ellery, and Mr. Burke, who reported, March 6, 1779, that the judge of the Court of Admiralty had refused to obey the mandate of the committee because the Pennsylvania act organizing the court “ had declared that the finding of a jury shall establish the facts in all trials in the Courts of Admiralty, without re-examination or appeal, and that an appeal was permitted only from the decree of the judge.” On the recommendation of the committee Congress thereupon passed the following resolutions, Pennsylvania only objecting: “ Resolved, That Congress, or such person or persons as thej appoint to hear and determine appeals from the Courts of Admiralty, have necessarily the power to examine as well into decisions on facts as decisions on the law, and to decree finally thereon, and that no finding of a jury in any Court of Admiralty, or court for determining the legality of captures on the high seas, can or ought to destroy the right of appeal and the re-examination of the facts reserved to Congress. APPENDIX. xxxiii Federal Courts before the Constitution. “ That no act of any one State can or ought to destroy the right of appeals to Congress in the sense above declared : “ That Congress is by these United States invested with the supreme sovereign power of war and peace : “That the power of executing the law of nations is essential to the sovereign supreme power of war and peace : “That the legality of all captures on the high seas must be determined by the law of nations : “ That the authority ultimately and finally to decide in all matters and questions touching the law of nations does reside and is vested in the sovereign supreme power of war and peace : “ That a control by appeal is necessary in order to compel a just and uniform execution of the law of nations : “ That the said control must extend as well over the decisions of juries as judges in courts for determining the legality of captures on the sea ; otherwise the juries would be possessed of the ultimate supreme power of executing the law of nations in all cases of captures, and might at any time exercise the same in such manner as to prevent a possibility of being controlled ; a construction which involves many inconveniences and absurdities, destroys an essential part of the power of war and peace entrusted to Congress, and would disable the Congress of the United States from giving satisfaction to foreign nations complaining of a violation of neutralities, of treaties or other breaches of the law of nations, and would enable a jury in any one State to involve the United States in hostilities ; a construction which for these and many other reasons is inadmissible : “That this power of controlling by appeal the several admiralty jurisdictions of the States has hitherto been exercised by Congress by the medium of a committee of their own members.”1 “ Resolved, That the committee before whom was determined the appeal from the Court of Admiralty for the State of Pennsylvania, in the case of the sloop Active, was’duly constituted and authorized to determine the same.” A committee was twice appointed by Congress to confer with a committee of the Pennsylvania legislature, and on the 8th March, 1780, the statute admitting juries to decide admiralty causes was This is the resolution referred to in the Massachusetts act of June 30, 1779. . 3 xxxiv APPENDIX. Courts of Appeal in Prize Cases. repealed. But it was left to this court, at its February Term in 1809, to settle the matter in dispute in this case, by deciding that the power exercised by the committee of the Continental Congress to reverse the judgment of the state court in this case was properly exercised. United States v. Peters; 5 Cranch, 115.1 Sixty-four cases in all were submitted to the committees of Congress, of which forty-nine were decided by them, four seem to have disappeared, and eleven went over to the Court of Appeals for decision. Fifty-six cases in all, including the eleven which went over, were submitted to the Court of Appeals, and all were disposed of. Appeals were heard from every maritime State except New York. None came from that State ; doubtless because its maritime counties were occupied by the enemy from the autumn of 1776 to the end of the war. It is possible, perhaps probable, that this showing is not quite accurate. No record is known to be left of the doings of either body, and only very incomplete dockets. It was their habit to draw decrees to be signed by the members of the committee or the court, and to place them on file with the other original papers. In some cases the decree is wanting, but its character and date are found in a minute on the file wrapper. In other cases where there is neither a decree nor a minute of one, there may nevertheless have been a decision. The records in the courts below, perhaps, would show. I have not felt justified, however, in entering upon that field 1 “ When the District Court proceeded to execute this mandate, the Governor issued orders to General Bright, directing him to call out a portion of the militia in order to protect the persons and property of the representatives of Rittenhouse against any process issued by the District Court of the United States in pursuance of this mandamus. At first the marshal was prevented from serving the process by soldiers under the command of Bright, but subsequently, eluding their vigilance, he succeeded in taking into custody one of the defendants. A writ of habeas corpus, sued out on behalf of the prisoner, was, however, discharged by Chief Justice Tilghman, and subsequently General Bright with, others were indicted in the Circuit Court of the United States for obstructing the process of the District Court. Mr. Justice Washington presided at the trial, which resulted in a verdict of guilty. The prisoners were sentenced to be imprisoned, and to pay a fine; but were immediately pardoned by the President of the United States. Olmsteds Case, Brightly, Penn. 1. This appears to have been the first case in which the supremacy of the Constitution was enforced by judicial tribunals agains the assertion of State authority.” (Mr. Justice Matthew’s Address before the Yale Law School, June 26, 1888.) APPENDIX. XXXV Federal Courts before the Constitution. of inquiry, although the returns which I have received from Philadelphia, through the kindness of the clerk of the District Court of the United States there, show that it is an inviting subject for historical-investigation. Some of the opinions below in the Pennsylvania Court of Admiralty will be found in Hopkinson’s “Judgments in the Admiralty of Pennsylvania,” Philadelphia, 1789, and in the “ Miscellaneous Essays and Occasional Writings of Francis Hopkinson, Esq.,” vol. 3, Philadelphia, 1792. See also Bee, Appendix 339-440; 1 Dall. 95 ; and 5 American Museum, 32, etc. So far as appears by these papers, no written reports in the nature of opinions were made by the committees. The Court of Appeals filed only eight opinions, all of which are reported in 2 Dall. 1-42, under the general title of “ Federal Court of Appeals.” These opinions were delivered in, (1) The Resolution, p. 1; and (2) S. C., on rehearing, p. 19 ; date of lodgment not known; final decree January 24, 1782 : — (3) The Erstern, p. 33 ; lodged January 11, 1781; final decree February 5, 1782 : — (4) The Gloucester, p. 36 ; date of lodgment not known ; final decree February 5, 1782:— (5) The Squirrel, p. 40, see No. 90 post in table: — (6) The Speedwell, p. 40; lodged June 17, 1783; decided May 24, 1784 : — (7) Luke v. Hulbert, p. 41; no papers on file : — (8) The Experiment v. The Chester, p. 41; referred by Congress by the resolution of July 24, 1786, already spoken of; decided May 1, 1787. They were properly placed in the volumes which contain the commencement of the series of Reports of the Supreme Court of the United States; for the court from which they proceeded was in its day the highest court in the country, and the only appellate tribunal with jurisdiction over the whole United States. table of cases decided by the committee of appeals IN THE CONTINENTAL CONGRESS, AND CASES DECIDED BY THE COURT OF APPEALS NOT REPORTED BY DALLAS; ALL arranged, so far as possible, in the order in which THEY WERE PRESENTED. 1. Roberts, Claimant and Appellant, v. The Thistle and McAroy. Appeal from a decree in the Court of Admiralty for the port of Philadelphia, condemning the vessel. September 9, 1776, referred to a committee. September 19, 1776, reversed. xxxvi APPENDIX. Courts of Appeal in Prize Cases. 2. The Elizabeth and Cargo, Wentworth Appellant. Appeal from a decree in the Court Maritime of New Hampshire, discharging the vessel and cargo. September 12, 1776, libellant’s appeal presented to Congress. September 30, 1776, the owners of the goods petitioned Congress to hear the appeal, whereupon it was referred to a committee. October 5, 1776, the petition of one Sheaf respecting it was referred to the same committee, styled Commissioners. October 14, 1776, the committee reported, and on their report the decree was reversed by Congress. 3. The Peggy and Cargo. Appeal from the Maritime Court in the Middle District of Massachusetts Bay. October 17, 1776, read and referred to a special committee. Transferred to the Committee on Appeals and then to the Court of Appeals, and dismissed by the latter, May 24, 1784, “neither party appearing.” In the Journal of Congress this vessel is called The Charming Peggy; but in the papers on file it is called The Peggy. 4. Barry v. Sloop Betsey. Appeal from a decree in the Court of Admiralty in the port of Philadelphia, in Pennsylvania, condemning the vessel. November 7, 1776, referred to a special committee, with power. November 26, 1776, decree below affirmed by the committee. 5. Joyne v. The Sloop Vulcan. Appeal from a decree in the Court of Admiralty for Virginia. November 27, 1776, referred to a special committee. January 24, 1777, decree below reversed by the committee. In the printed Journal (ed. 1823) Joyne is given as Jones. 6. Hopkins v. Derby and The Kingston Packet. Appeal from a judgment in the Court of Justice for the trial of Prize Causes for Rhode Island and Providence Plantations. December 31, 1776, referred to the Committee on Appeals. Septembers, 1777, reversed by the Committee on Appeals. 7. Craig x. Brig Richmond. Appeal from a decree in the Court of Admiralty in the port of Philadelphia in Pennsylvania, condemning the vessel. January 4, 1777, referred to a special committee. January7 17, 1777, affirmed by the committee. 8. Pierce n. Brig Phoenix and Cargo. Appeal from a decree in the Maritime Court for Rhode Island and Providence Plantations, condemning the vessel and cargo. January 12, 1777, referred to APPENDIX. xxxvii Federal Courts before the Constitution. a special committee. January 15, 1777, affirmed by the committee. January 31, 1777, in Congress, the affirmance set aside “ because it bad been heard and determined by a different committee from that appointed to hear it,” and it was “referred to the Standing Committee on Appeals.” June 7, 1777, the petition of Green and others for a new hearing referred to the Committee on Appeals. September’ 3, 1777, decree below reversed by the committee. 9. The Countess of Eglington, Jones Claimant, v. Babcock. Appeal from a judgment in the Superior Court of Judicature, Court of Assize and General Jail Delivery in Plymouth County, Massachusetts. The proceedings were begun on the 14th January, 1777, and the judgment was reversed September 14, 1783. 10. Newman v. The Sherburne and Cargo. Appeal from a verdict and judgment of condemnation in the Court of Admiralty in the port of Philadelphia, in Pennsylvania. January 30, 1777, referred to the standing committee for hearing and determination. April 12, 1777, the committee reported that they were divided in opinion, whereupon it was referred to a special committee. May 10, 1777, decree below affiryned. In May, 1777, the Marine Committee, to whom it appears to have been then referred, reported that the case had already received a judicial determination by the Committee on Appeals, and that it was improper for Congress to come to any resolution relative thereto. 11. Mary Alsop and others v. Ruttenburgh. Appeal from a judgment in the Court of Justice for the trial of prize causes for Rhode Island and Providence Plantations. March 6, 1777, lodged with the Secretary; and April 24, 1777, referred to the Committee on Appeals. May 20, 1777, reversed by the committee. 12. White v. The Sloop Polly and Cargo. Appeal from a judgment in the Court of Admiralty for Georgia condemning the vessel. March, 12, 1777, referred to the Committee on Appeals. August 6, 1777, J. Green and Peter Knight asked leave to file a further appeal, and the application was referred to the Committee on Appeals, who, on the 15th of August reported that the appeal had been taken too late. Congress then voted to authorize the committee to receive it, and, on the 18th of August, 1777, the decree below was affirmed by the committee. 13. The Leghorn, Polk Claimant, v. Baldwin. Appeal from a xxxviii APPENDIX. Courts of Appeal in Prize Cases. judgment in the Court of Admiralty for the Port of Philadelphia, in Pennsylvania. April 1, 1777, referred to the Committee on Appeals. May 24, 1777, affirmed by the committee. 14. The Industry, Coffin Master. Appeal from a judgment in a Maritime Court for the Southern District of Massachusetts Bay held at Plymouth, in Massachusetts, condemning the vessel. April 16, 1777, referred to the Committee on Appeals. September 8, 1777, decree below affirmed by the committee. 15. The Montgomery n. The Minerva. Appeal from a judgment in the Court of Admiralty of Maryland. April 24, 1777, referred to the Committee on Appeals. June, 2, 1777, decree below affirmed by the committee. June 24, 1777, a petition of Daniel Bucklin, commander of The Montgomery, referred to the same committee. 16. James Coor et al. v. The Hanover. Appeal from a decree of a Court of Admiralty for North Carolina, held at Newbern. May 1, 1777, referred to the Committee on Appeals. August 7, 1778, reversed by the committee. 17. Palmer v. Hussey. This' appeal seems to have been from the same judgment. It was dismissed May 22, 1777. 18. The Two Brothers, Joseph Stanton and Samuel Champlin Claimants. Appeal from a judgment in the Court of Justice for the trial of Prize Causes for Rhode Island and Providence Plantations, ordering a sale of the vessel for the benefit of the claimants. May 13, 1777, referred to the Committee on Appeals. August 30, 1779, decree below reversed by the committee, and sale ordered for the benefit of Stanton and others. This judgment was set aside, and, on a rehearing in the Court of Appeals, the decree below was affirmed May 28, 1783. 19. The Greenwich. Appeal from a decree in the Court of Admiralty for Rhode Island and Providence Plantations. June /, 1777, referred to the Committee on Appeals, and on their report denied. 20. Fowkes n. The Roseanna, Hussey Claimant. Appeal from a decree in the Court of Admiralty for North Carolina. Date of reference to the Committee on Appeals not known. June 9, 17/G affirmed. Reopened, and on the 25th October, 1777, reversed by the Committee. APPENDIX. xxxix Federal Courts before the Constitution. 21. White n. The Ship Anna Maria, Daniel Bucklin Claimant and Appellant. Appeal from a decree in the Maritime Court for the Middle District of the State of Massachusetts Bay, held at Salem in Massachusetts. June 24, 1777, referred to the Committee on Appeals. August 18, 1780, decree below affirmed by the Court of Appeals. 22. The Private Sloop of War Retaliation. Court below not known. August 2, 1777, memorial of Isaac Jones, on behalf of himself and other owners, referred to Committee on Appeals. Nothing further known. 23. The Polly—Caldwell v. Newman. Appeal from a judgment in the Court of Admiralty for the port of Philadelphia, in Pennsylvania. September 8, 1777, referred to the Committee on Appeals. September 12, 1778, reversed by the committee. 24. Weyman v. Arthur. Appeal from a decree in the Court *of Admiralty for South Carolina. September 12, 1777, referred to the Committee on Appeals. No further record. 25. Norris v. Schooner Polly and Nancy. Appeal from a decree in the Court of Admiralty for Soqth Carolina. April 20, 1778, referred to the Committee on Appeals. August 14, 1778, affirmed by the committee. 26. The Peggy. Court not known. August 14, 1778, petition of John Hart respecting it referred to the Committee on Appeals. 27. The Hinchinbroke. Appeal from a decree in a Court of Admiralty in Georgia, condemning the vessel. August 20, 1778, referred to the Committee on Appeals. Nothing further known. 28. Schooner Hope and Cargo, Lopez Claimant, v. Brooks and Griffith., Appeal from a decree in the County Court for the County of Hartford, in Connecticut. September 7, 1778, referred to the Committee on Appeals. April 10, 1779, decree below reversed by the committee. Motion for a new trial denied February 19, 1780. 29. Shaler v. The Speedwell. Appeal from a decree in the Court of Admiralty for New Jersey. September 21, 1778, referred to the Committee on Appeals. November 10, 1778, reversed by the committee. 30. Doane et als., Appellants, v. Treadwell and Penhallow, Libel xl APPENDIX. Courts of Appeal in Prize Cases. lants, and The Brig Susannah. Appeal from a decree in the Court of Admiralty for New Hampshire. October 9, 1778, referred to the Committee on Appeals. September, 1783, the Court of Appeals reversed the decree as to the appellants. For further proceedings in this case see Penhallow n. Doane, 3 Dall. 54. See also Doane v. Penhallow, 1 Dall. 218. 31. Godwin y. Schooner Fortune. Appeal from a decree in the Court of Admiralty for Delaware. October 12, 1778, lodged with the Committee on Appeals. September 5, 1779, decided by the committee, but in what way does not appear. 32. Murphy v. The Sloop Hawke. Appeal from a decree in the Court of Admiralty for Delaware. October 13, 1778, lodged with the Committee on Appeals. September 8, 1779, affirmed by the committee. •33. Taylor v. The Sloop Polly. Appeal from a judgment in the Court of Admiralty for the port of Philadelphia in Pennsylvania. October 20, 1778, referred to the Committee on Appeals. November 22, 1779, affirmed by the committee. 34. Jencks v. Sloop Fancy. Appeal from a judgment in the Maritime Court for Rhode Island and Providence Plantations. October 20, 1778, referred to the Committee on Appeals. December 3, 1778, reversed by the committee. In the printed Journal of Congress this vessel is called The Fanny. 35. Stevens y. Schooner John and Sally. Appeal from a decree in the Court of Admiralty for Nhw 'Jersey. October 23, 1778, referred to the Committee on Appeals. March 11, 1779, affirmed by the committee. The plaintiff’s name is Stephen in the printed journal. 36. Taylor v. Sloop Lark. Appeal from a decree in the Court of Admiralty for New Jersey. October 26, 1778, referred to Committee on Appeals. January 28, 1780, affirmed by the committee. 37. Tredwell v. Schooner Hawk. Appeal from a judgment in the Maritime Court for Rhode Island and Providence Plantations. October 26, 1778, referred to the Committee on Appeals. Affirmed March 29, 1779. ’ 38. Ingersol v. Schooner Lovely Nancy. Appeal from a decree in the Court of Admiralty for New Jersey. October 26, 1778, referred APPENDIX. xli Federal Courts before the Constitution. to the Committee on Appeals. August 22, 1780, affirmed by the Court of Appeals. 39. Houston v. The Sloop Active. 'Appeal from a judgment in the Court of Admiralty for the port of Philadelphia in Pennsylvania. November 28, 1778, referred to the Committee on Appeals. December 15, 1778, reversed. The further proceedings in this case have been already stated. — pp. xxix-xxxiv. 40. Griffin v. The Sloop George. Appeal from a decree in the Court of Admiralty for New Jersey. December 7, 1778, referred to the Committee on Appeals. December 23, 1780, reversed by the Court of Appeals. See Jennings v. Carson, 4 Cranch, 2. 41. Pope v. Sloop Sally. Appeal from a decree in the Court of Admiralty for Delaware. January 1, 1779, lodged with the Committee on Appeals. Decided by the committee in 1779. No £prther particulars. 42. Gibbs v. Sloop Conquerant, Pillas Claimant. Appeal from a decree in the Court of Admiralty for North Carolina. February 6,1779, lodged with the Committee on Appeals. March 18, 1779, affirmed by the committee. 43. Davis v. Schooner Polly, Gibbons Claimant. Appeal from a decree in the Court of Admiralty for North Carolina. February 6, 1779, lodged with the Committee on Appeals. March 23, 1779, reversed by the committee. 44. Gurney v. Schooner Good Intent, Tam Poy Claimant. Appeal from a judgment in the Court of Admiralty for the port of Philadelphia in Pennsylvania. February 8, 1779, lodged with the committee and affirmed by them November 13, 1779. 45. Johnson, Claimant, v. The Fame. Appeal from a decree in the Maritime Court for New Jersey. February 16, 1779, lodged with the Committee on Appeals. December 23, 1780, affirmed by Court of Appeals. 46. Elderkin v. Edwards. Appeal from a judgment in the Court of Admiralty in Connecticut. April 29, 1779, lodged with the Committee on Appeals. January 5, 1780, reversed by the committee. 47. Babcock v. Ship Nancy. Appeal from a judgment in the Maritime Court for the Southern District of Massachusetts Bay. xlii APPENDIX. Courts of Appeal in Prize Cases. May 12, 1779, lodged with the Committee on Appeals. August 9, 1779, affirmed by the committee. 48. Fossett v. Sloop Jane. Appeal from a decree in the Court of Admiralty for Maryland. May 31, 1779, lodged with the Committee on Appeals. January 18, 1780, reversed by the committee. 49. Scudder v. Gray, Claimant. Appeal from a judgment in the County Court of Fairfield County, Connecticut. May 31, 1779, lodged with the Committee on Appeals. December 23, 1780, reversed by the Court of Appeals. 50. Cook, Appellant, v. Conklin, in the cases of The Eagle and The Bermudas. Appeals from judgments in the Maritime Court for New London County, Connecticut. June 7, 1779, lodged with the Committee on Appeals. December 13, 1780, reversed by the Court of Areals. 51. Price n. The Success. Appeal from a decree in the Admiralty Court for New Jersey. July 2, 1779, lodged with the Committee on Appeals. July 20, 1779, dismissed on appellee’s motion, appellant not objecting. 52. ^Barrett v. Schooner Packet. Appeal from a decree in the Court of Admiralty for Delaware. July 21, 1779, lodged with the Committee on Appeals. February 28, 1780, settled by the parties. 53. Gleason v. The Mermaid. Appeal from a decree in the Court of Admiralty for New Jersey. July 21, 1779, lodged with the Committee on Appeals. In 1780 the decree was reversed by the Court of Appeals. 54. Bradford n. The Viper. Appeal from a judgment in the Maritime Court for the Middle District of Massachusetts Bay. July 24, 1779, lodged with the Committee on Appeals. November 8, 1779, affirmed by the committee. 55. Ingersol n. Brig Recovery. Appeal from a decree in the Court of Admiralty for New Jersey. August 17, 1779, dismissed with costs, not having been lodged within the forty days. 56. Tucker v. The Le Vern and Cargo, De Valmais Claimant. Appeal from a judgment in the Maritime Court for the Middle Dis trict of Massachusetts Bay. Referred to the Committee on Appeals-Date of reference not known. The decree below was made Sep APPENDIX. xliii Federal Courts before the Constitution. tember 17, 1779. In 1780 the decree'below was reversed by the Court of Appeals. Date of reversal not known. 57. Cabot v. Nuestra Señora de Merced. Appeal from a judgment in the Maritime Court for the Middle District of Massachusetts Bay. October 9, 1779, lodged with the Committee on Appeals. November 6, 1779, reversed by the committee. 58. Cleaveland v. The Ship Valenciano. Appeal from a judgment in the Superior Court of Judicature, Court of Assize, and General Jail Delivery at Boston in the Middle District of the State of Massachusetts Bay. October 9, 1779, lodged with the Committee on Appeals. November 1, 1779, reversed by the committee. 59. Board of War for Massachusetts v. Ship Victoria. Appeal from a judgment in the Maritime Court for the Middle District of Massachusetts Bay. October 9, 1779, lodged with the Committee on Appeals. November 6, 1779, affirmed by the committee. 60. Tracy v. Santos y Martyros. Appeal from a judgment on a verdict in the Superior Court of Judicature, Court of Assize, and General Jail Delivery at Boston, in the Middle District of Massachusetts Bay. October 9, 1779, lodged with the Committee on Appeals. November 6, 1779, affirmed by the committee. 61. Decatur v. Schooner Barbary. Appeal from a decree in the Court of Admiralty for the State of New Jersey. November 12, 1779, lodged with the Committee on Appeals. Decided in 1779 by the committee. Date and character of decision not given. 62. Harridan v. Sloop of War Hope. Appeal from a judgment in the Court of Admiralty, for the port of Philadelphia, in Pennsylvania. 3 Hopkinson’s Works, 14; Bee, 385, where it is reported that “ the verdict [in the court below] was contrary to the opinion of the judge.” November 30, 1779, lodged with the Committee on Appeals. Settled by the parties. 63. Courier v. Brigantine Pitt. Appeal from a decree in the Court of Admiralty for the State of Maryland. December 30., 1779, lodged with the Committee on Appeals. January 30, 1780, reversed by the committee. 64. Gardner v. The Brig Sea-Horse and Cargo, John Lynch Claimant. Appeal from a decree in the Court of Admiralty for New Jersey. March 14, 1780, claimant’s letter lodged with the xliv APPENDIX, Courts of Appeal in Prize Cases. Committee on Appeals. Decided in 1780. Date and judgment not given. 65. Bragg v. Sloop Dove. Appeal from a decree in the Court of Admiralty for North Carolina. May 9, 1780, lodged with the Court of Appeals. December 23, 1780, reversed by the court. 66. Nicholson v. The Sandwich Packet. Appeal from a judgment in the Maritime Court for the Middle District of Massachusetts Bay. June 2, 1780, lodged in the office of the Register of the Court of Appeals. August 14, 1780, affirmed. 67. Rathburn v. The Ship Mary. Appeal from a judgment of the Maritime Court for the Southern District of Massachusetts Bay. Date of lodgment in the office of the Register of the Court of Appeals not given. June 23, 1780, affirmed. 68. Jencks v. The Sloop Industry. Appeal from a judgment of the Maritime Court for the trial of prize causes in the State of Rhode Island and Providence Plantations. September 14, 1780, lodged in the Register’s office of the Court of Appeals. November 24, 1780, reversed. 69. Deshon v. Brig Kitty. Appeal from a decree of the Court of Admiralty at Beaufort, for North Carolina. October 28, 1780, lodged in the Court of Appeals. April 5, 1781, (probably) affirmed. 70. McClure v. Schooner John. Same v. Schooner Hepzdbeth. Appeals from decrees in the Court of Admiralty for North Carolina. October 28, 1780, lodged in the Court of Appeals. April 5, 1781, affirmed. 71. Old v. Sloop Betsy, Bradley Claimant. Appeal from a judgment in the County Court of the county of New Haven, Connecticut. November 20, 1780, lodged in the Register’s office of the Court of Appeals. September 21, 1783, reversed. 72. Young v. Sloop Two Friends. Appeal from a judgment in the Admiralty Court, for the port of Philadelphia, in Pennsylvania. 3 Hopkinson’s Works, 50-54. December 14, 1780, lodged in the office of the Register of the Court of Appeals. December 23,1780, affirmed. 73. Smith v. Sloop Mary and Cargo. Appeal from a decree in the Court of Admiralty for North Carolina. July 31, 1781, lodged APPENDIX. xlv Federal Courts before the Constitution. in the Register’s office of the Court of Appeals. May 6, 1784, dismissed. 74. Ellis n. The Sloop Hannah. Appeal from a decree in the Admiralty Court for New Jersey. June, 1781, lodged in the Register’s office of the Court of Appeals. August 4, 1781, reversed. 75. Babcock n. Brigantine Brunette. Appeal from a judgment in the Maritime Court for the Middle District of Massachusetts Bay. February 6, 1781, lodged in the Register’s office of the Court of Appeals. August 4, 1781, reversed. 76. Robinson v. Schooner Four Sisters and Rogers, Appellee. Appeal from a judgment in the Court of Admiralty for the county of New Haven, Connecticut. September 24, 1781, lodged in the office of the Register of the Court of Appeals. September 21, 1783, affirmed. 77. Earle, Appellee, n. Schooner Betsey, and Ridgway Appellant. Appeal from a decree in the Court of Admiralty for Delaware. October 4, 1781, lodged in the Register’s office of the Court of Appeals. June 14, 1783, reversed. 78. Barry v. Brig Mars. Appeal from a judgment in the Maritime Court for the Middle District of the Commonwealth of Massachusetts. October 12, 1781, lodged in the office of the Register of the Court of Appeals. Decided in 1781. Date and decree not given. 79. Wells v. Judson, etc. Appeal from a judgment in the County Court for Hartford County, Connecticut. January 21, 1782, lodged in the Register’s Office of the Court of Appeals. September 21, 1783, reversed. 80. Haven, Claimant, v. The Trumbull, etc. Appeal from a judgment in the Maritime Court for the county of New London, Connecticut. January 21, 1782, lodged in the Register’s office of the Court of Appeals. Decided 1782. Date and decree wanting. 81. Johnson, Appellee, v. Sundry British Goods, Gardiner et al. Claimants and Appellants. Appeal from a judgment in the County Court for Hartford County, Connecticut. January 21, 1782, lodged in the Register’s office of the Court of Appeals. September 21, 1783, reversed. xlvi APPENDIX. Courts of Appeal in Prize Cases. 82. Hart v. Foster et als. Appeal from a judgment in the Maritime Court for New London County, Connecticut. March 13,1782, lodged in the Register’s office of the Court of Appeals. September 21, 1783, reversed. 83. Lockwood v. Bradley, Claimant. Appeal from a judgment in the Maritime Court for Fairfield County, Connecticut. April 4, 1782, lodged in the Register’s office of the Court of Appeals. Dismissed in 1782, neither party appearing. 84. Spencer, Appellant, v. Sloop Sally, and Peters Appellee. Appeal from a judgment in the Maritime Court for New London County, Connecticut. May 16, 1782, lodged in the office of the Register of the Court of Appeals. June 12, 1783, reversed. 85. Coakley v. Brigantine Hope and John Martin. Appeal from a decree in the Admiralty Court for Maryland. June 10, 1782, lodged in the Register’s office of the Court of Appeals. May 6, 1784, reversed. 86. Preble v. Sloop Lark. Appeal from a judgment in the Supreme Judicial Court of the Commonwealth of Massachusetts. June 14, 1782, lodged in the Register’s office of the Court of Appeals. Ordered to be struck off the docket. Date of order not known. 87. Allen v. The Good Fortune. Howell and Others v. The Same. Appeals from a decree of the Court of Admiralty for North Carolina. August 26, 1782, lodged in the Register’s office of the Court of Appeals. June 14, 1783, decree affirmed in Allen’s Appeal. May 17, 1787, Howell’s appeal dismissed. 88. Randall v. Schooner Neustra Señora, etc., and Cargo, D'O. Claimant. Appeal from a judgment in the Maritime Court for the Middle District of the Commonwealth of Massachusetts. September 14,1782, lodged in the Register’s office of the Court of Appeals. May 29, 1783, affirmed in part and reversed in part. 89. Smith v. Sundry British Goods. Appeal from a judgment in the Maritime Court for Fairfield County, Connecticut. Septena ber 14, 1782, lodged in the Register’s office of the Court of Appeals. May 20, 1787, dismissed, neither party appearing. 90. Stoddard n. Read, Appellee, and the Squirrel. Appeal from a judgment in the Court of Admiralty for.Rhode Island. Novem APPENDIX. xlvii Federal Courts before the Constitution. ber 15,1782, lodged in the Register’s office of the Court of Appeals. For interlocutory proceedings in this case see 2 Dall. 40. October 1, 1783, decree below affirmed. 91. Jackson v. The Dolphin, Forman Claimant. Appeal from a decree of the Court of Admiralty for New Jersey. March 16, 1783, lodged in the Register’s office of the Court of Appeals. May 21, 1784, affirmed. 92. Jackson v. The Diamond, Forman Claimant. Appeal from a decree of the Court of Admiralty for New Jersey. March 16, 1783, lodged in the Register’s office of the Court of Appeals. May 31, 1784, affirmed. 93. Manly v. Ship Bailey, and Russell Appellee. Appeal from a judgment of the Maritime Court for the Middle District of the Commonwealth of Massachusetts. Certified copy of the record below, dated April 25, 1783, lodged in the Register’s office of the Court of Appeals, but the date of lodgment not known. May 13, 1783, affirmed. 94. Garrett, Claimant, v. Brig Nonsuch and Cathcart. Appeal from a judgment in the Maritime Court for the Middle District of the Commonwealth of Massachusetts. May 2, 1783, lodged in Register’s office of the Court of Appeals. May 13, 1783, affirmed. 95. Père Debade, Appellant, n. The San Antonio, Hayden et al. Libellants. Appeal from a judgment in the Maritime Court for the Middle District of the Commonwealth of Massachusetts. May 5, 1783, lodged in the office of the Register of the Court of Appeals. May 28, 1783, reversed. 96. Derby v. Ship Minerva, Kohler Appellant. Appeal from a judgment of the Maritime Court for the Middle District of the Commonwealth of Massachusetts. May 5, 1783, lodged in the Register’s office of the Court of Appeals. May 27, 1783, decree below affirmed, but with costs to appellant, which were fixed by agreement of the parties. 97. For can, Appellant, v. The Brig Maria Theresa, and Manly Appellee. Appeal from a judgment of the Court Maritime for the State of New Hampshire. Date of lodgment unknown. June 12, 1783, reversed. xlviii APPENDIX. Courts of Appeal in Prize Cases. 98. Norton v. Perceval and The Schooner Sally. Appeal from a judgment in the Supreme Judicial Court of the Commonwealth of Massachusetts. June 28, 1783, lodged in the Register’s office of the Court of Appeals. Settled by the parties. 99. Sampson v. Schooner Fanny, and Barlow. Appeal from a judgment in the Supreme Judicial Court of the Commonwealth of Massachusetts. June 28, 1783, lodged in the Register’s office of the Court of Appeals. May 28, 1784, affirmed. 100. Smith v. Sloop Polly, and Wickham Appellee. Appeal from a judgment in the Court of Admiralty for Rhode Island and Providence Plantations. August 9, 1783, lodged in the Register’s office of the Court of Appeals. May 26, 1784, reversed for want of jurisdiction. N.B. The date of this decree is May 26, 1782, an evident error. 101. McClure n. Sundry British Goods. Appeal from a judgment in the Maritime Court for New London County, in Connecticut. No date of lodgment. September 21, 1783, reversed. 102. Barrell v. Sloop Good Intent, Seymour Appellee. Appeal from a decree of the Court of Admiralty for Virginia. Date of lodgment not known. September 30, 1783, reversed. 103. The Brigantine Hope. Appeal from a judgment of the Maritime Court for New London County, Connecticut. This appeal being dismissed because not filed in time, a petition was filed praying the court to take jurisdiction. Citations were ordered, and the petition was dismissed by the court, May 3, 1787. 104. Barlow v. The Sloop Fanny, Coffin Claimant. Appeal from a judgment of the Supreme Judicial Court of the Commonwealth of Massachusetts. February 19, 1784, lodged in the Register’s office of the Court of Appeals. May 6, 1784, settled by the parties. 105. Harper, etc., v. Schooner Liberty. Court^>f Admiralty for North Carolina. Petition for appeal forwarded to the Delegates from Virginia, and presented by them to Congress, August 10, 1779, and referred on that day to the Committee on Appeals. May 6, 1784, dismissed, neither party appearing. 106. Boitar v. Schooner Adventure, Young Claimant. Appeal APPENDIX. xlix Federal Courts before the Constitution. from a decree in the Court of Admiralty for North Carolina. Date of lodgment not known. May 21, 1784, reversed. 107. Hathaway, Claimant of the Sloop Polly, v. Ingersol. Appeal from a judgment in the Supreme Judicial Court of the Commonwealth of Massachusetts. Libel not on file. May 21, 1784, affirmed. 108. Elkins v. The Sloop Good Intent. Appeal from a judgment in the Supreme Judicial Court of the Commonwealth of Massachusetts. Date of lodgment not known. May 23, 1784, affirmed. 109. Cruger v. The Captor of the Brig Cumberland. Original petition to the Court of Appeals, praying an appeal against a judgment in a Court of Admiralty in Connecticut. May 3, 1787, dismissed, neither party appearing. 4 1 APPENDIX. II. COURTS FOR DETERMINING DISPUTES AND DIFFERENCES BETWEEN TWO OR MORE STATES CONCERNING BOUNDARY, JURISDICTION, OR ANY OTHER CAUSE WHATEVER. The provisions in the Articles of Confederation for the proceedings in the selection of the court in these cases were as follows: “ Whenever the legislative or executive authority or lawful agent of any State, in controversy with another, shall present a petition to Congress, stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question ; but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges to hear ana finally determine the controversy, so always as a major part of the judges who shall hear the cause, shall agree in the determination.” The following are all’ the disputes between States which appear to have been brought before Congress for adjustment, including some in which no court was organized. Only one of them came to trial. There is an abundance of literature, both permanent and ephemeral, on the subject of these disputes; but we are concerned only with the judicial aspect of the controversies, as shown in the Journal of Congress. New Hampshire v. Vermont. New York v. Vermont. Massachusetts v. Vermont. The controversy for the jurisdiction of the tract of land which became the State of Vermont antedates the Revolution. In 1750 “New York carried its claims to the Connecticut River; France, APPENDIX. li Federal Courts before the Constitution. which had command of Lake Champlain, extended her pretensions to the crest, of the Green Mountains ; while Wentworth, the only royal governor in New England, began to convey the soil between the Connecticut and Lake Champlain by grants under the seal of New Hampshire.” 2 Bancroft Hist. United States (Last Revision) 361. The latter became known as the New Hampshire grants. In 1764 the king in council “dismembered New Hampshire, and annexed to New York the country north of Massachusetts and west of Connecticut River. This decision was declaratory of the boundary ; and it was therefore held by the royalists that the grants made under the sanction of the royal governor of New Hampshire were annulled.” 3 Id. 87. The towns and villages, whose title was thus drawn in question, were settled largely by New Englanders, under the New Hampshire grants. 3 Id. 54. Early in 1775 “ the Court of Common Pleas was to be opened by the royal judges in what was called the New York County of Cumberland,, at Westminster, in the New Hampshire grants, on the eastern side of the Green Mountains.- To prevent this assertion of the jurisdiction of New York and of the authority of the king, a body of young men from the neighboring farms on the thirteenth of March took possession of the court-house. The royal sheriff, who, against the wish of the judges, had raised sixty men armed with guns and bludgeons, demanded possession of the building; and, after reading the riot act and refusing to concede terms, late in the night ordered his party to fire. . . . The act closed the supremacy of the king and of New York to the east of Lake Champlain.” 4 Id. 142. The settlers adopted the name of Vermont, and, on the 15th January, 1777, in a convention, declared their independence of New York. In the following July a convention assembled at Windsor, which, on the 8th of that month, completed a constitution which was accepted by the legislature and declared to be a part of the laws of the State. 2 Charters and Constitutions, 1857. Upon this New York appealed to Congress, by a series of resolutions moved by its delegates in that body on the 22d of May, 1779. As a result of this, Congress, ^n the 24th September, 1779, “re-solved unanimously that it be, and hereby is, most earnestly recommended to the States of New Hampshire, Massachusetts Bay, and New York forthwith to pass laws expressly authorizing Congress to Dear and determine all differences between them relative to their lii APPENDIX. Courts for determining Disputes between States. respective boundaries* in the mode prescribed by the Articles of Confederation, so that Congress may proceed thereon by the first day of February next at the farthest; and further that the said States of New Hampshire, Massachusetts Bay and New York do, by express laws for the purpose, refer to the decision of Congress all differences or disputes relative to jurisdiction which they may respectively have with the people of the district aforesaid, so that Congress may proceed thereon on the first day of February next.” On the 2d October, 1779, it was further recommended to those States “ to authorize Congress to proceed to hear and determine all disputes subsisting between the grantees of the several States aforesaid with one another, or with either of the said States, respecting title to lands lying in the said district, to be heard and determined by ‘ commissioners or judges ’ to be appointed in the mode prescribed by the 9th article” of the Articles of Confederation. New York enacted the requisite legislation on the 21st October, 1779, and New Hampshire in the following November. Massachusetts had no real interest in the question. The persons most interested, the settlers on the disputed territory, “ proceeded as a separate government to make grants of lands and sales of estates,” for which Congress censured them on the 2d of June, 1780. Their evident purpose neither to submit to the jurisdiction of New York, nor to that of New Hampshire undoubtedly prevented a judicial settlement under the Articles of Confederation. No court was ever organized for that purpose ; but Congress itself proceeded with the investigation. On the 17th and 20th of September, 1780, the agents of New York laid their case before Congress, claiming that from 1764 to 1777 the people of the territory were represented in the legislature of that State, and submitted to its authority. On the 27th of the same month the agents for New Hampshire presented its case, maintaining that the tract was within the limits of New Hampshire, and that the people inhabiting it had no right to a separate and independent jurisdiction. The case lingered, unsettled, until after the adoption of the Constitution. In fact it could not be settled judicially, as the attitude of the. settlers converted it from a judicial into a political question.1 In 1781 Massachusetts as 1 “ Those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this State [New York] and the district of Vermont can vouch the opposition we experienced, as well from States not interested, as from those which were inter APPENDIX. liii Federal Courts before the Constitution. sented to the recognition of the independence of Vermont. New Hampshire followed in 1781, and New York in 1790. The controversy was then closed by the passage of the act of February 18,. 1791, 1 Stat. 191, admitting Vermont into the Union on the 4th day of March next ensuing. Pennsylvania v. Virginia. In the printed Journals of Congress, under date of Monday, December 27, 1779, we find the following entry: “ Whereas, it appears to Congress, from the representation of the delegates of the State of Pennsylvania, that disputes have arisen between the States of Pennsylvania and Virginia, relative to the extent of their boundaries, which may probably be productive of serious evils to both States, and tend to lessen their exertions in the common cause : therefore — “ Resolved, That it be recommended to the contending parties not to grant any part of the disputed land, or to disturb the possession of any persons living thereon, and to avoid every appearance of force until the dispute can be amicably settled by both States, or brought to a just decision by the intervention of Congress; that possessions forcibly taken be restored to the original possessors, and things placed in the situation in which they were at the commencement of the present war, without prejudice to the claims of either party,” • There is no subsequent entry in the Journals of Congress relating to this subject. An agreement for settlement was made in Baltimore, August 31, 1779. After some correspondence, the Rev. James Madison, the Rev. Robert Andrews, Mr. John Page and Mr. Thomas Lewis were appointed Commissioners on the part of Virginia, and Mr. John Ewing, Mr. David Rittenhouse, Mr. John Lukins and Mr. Thomas ested in the claim; and can attest the danger to which the peace of the confederacy might have been exposed, had this State attempted to assert its rights by force. . . . New Jersey and Rhode Island, upon all occasions, discovered a warm zeal for the independence of Vermont; and Maryland, until alarmed by the appearance of a connection between Canada and that place, entered deeply into the same views.” Federalist, No. VII., Alexander Hamilton. liv APPENDIX. Courts for determining Disputes between States. Hutchins, Commissioners on the part of Pennsylvania. “ The line commonly called Mason and Dixon’s line” was “extended due west five degrees of longitude,” “from the river Delaware for the southern boundary of Pennsylvania ” and “ a meridian line drawn from the western extremity thereof to the northern line of the State ” became the western boundary. On the 23d August, 1784, the commission reported that the Ohio River was reached. Pennsylvania v. Connecticut. The Journal of Saturday, November 3, 1781, contains this entry: “ A petition from the Supreme Executive Council of the Commonwealth of Pennsylvania was read, stating a matter of dispute between the said State and the State of Connecticut, respecting sundry lands lying on the east branch of the river Susquehanna, and praying a hearing in the premises, agreeably to the 9th Article of the Confederation.” On the 14th of November, 1781, Congress assigned the fourth Monday in June then next for the appearance of the States by their lawful agents, and ordered notice thereof in the following form: “ By the United States in Congress assembled, in the city of Philadelphia, on the 14th day of November, in the year of our Lord 1781, and in the 6th year of Independence. “ To the legislative authority of the State of Connecticut [Pennsylvania J . “ It is hereby made known that pursuant to the 9th Article of the Confederation, the Supreme Executive Council of the State of Pennsylvania have presented a petition to Congress, stating that a controversy has long subsisted between the said State of Pennsylvania and the State of Connecticut, respecting sundry lands lying within the northern boundary of the said State of Pennsylvania, and praying for a hearing in pursuance of the 9th Article of the Confederation , and that the 4th Monday in June next is assigned for the, appeal -ance of the said States of Pennsylvania and Connecticut, by their lawful agents, at the place in which Congress shall then sit, to proceed in the premises as by the said Confederation is directed. Monday, June 24, 1782, being the day assigned for the appearance of the States by their agents, Messrs. William Bradfoid, APPENDIX. lv Federal Courts before the Constitution. Joseph Reed, James Wilson and Jonathan Dickinson Sargent appeared for Pennsylvania, and their credentials were spread upon the journal. Mr. Eliphalet Dyer appeared for Connecticut, and presented credentials which were also spread upon the journal, from which it appeared that Messrs. Eliphalet Dyer, William Samuel Johnson and Jesse Root were the duly accredited agents of that State. On the 27th of June, Connecticut moved to postpone the proceedings until “ after the termination of the present war ; ” which motion was denied. • On the 16th of July, 1782, the agents of Pennsylvania presented new credentials, which were objected to by Connecticut. The objection was overruled, and the agents of the two States were directed to “ appoint by joint consent, commissioners or judges, to constitute a court for hearing and determining the matter in question, agreeably to the 9th Article of the Confederation.” On Monday, the 12th of August, 1782, Congress was informed, by a paper signed by the agents on both sides, and spread upon the journal, that they had agreed upon the Hon. William Whipple of New Hampshire, Major-General Nathaniel Greene of Rhode Island, Hon. David Brearley and William Churchill Houston, Esq., of New Jersey, Hon. Cyrus Griffin and Joseph Jones, Esq., of Virginia, and Hon. John Rutledge of South Carolina, any five. or .more of whom they had agreed should constitute the court, and have authority to proceed and determine the matter and différence between the States. On the 23d of August, 1782, they reported to Congress that General Greene could not attend, and that Mr. Rutledge declined, and that they had agreed upon Mr. Thomas Nelson of Virginia and Mr. Welcome Arnold of Rhode Island in their places: whereupon Congress directed commissions to issue to the judges according to the amended list. It was further agreed between the parties that the court should assemble at Trenton in New Jersey on the 12th day of the next November. On the 28th of August the form of commission was settled, and it was spread upon the journal. The court convened, and began its sessions at Trenton, November 12, 1782, with only Mr. Brearley and Mr. Houston present. They adjourned from day to day, up to November 18, when, enough members being present, the court was organized for work, with Mr. Whipple, Mr. Arnold, Mr. Brearley, Mr. Houston and Mr. Griffin as Ivi APPENDIX. Courts for determining Disputes between States. its members. After some skirmishing the agents on each side, on the 22d of November, put in a written statement, showing the claims set up by their respective States. Pennsylvania set up the patent of Charles II, of March 4, 1681, to William Penn, which included the disputed tract, “by which letters patent,” it was averred, “the jurisdiction and right of government within the limits aforesaid, and also the right of soil, were conveyed, and under which Pennsylvania hath been held, settled and possessed.” It was also charged that “ sundry persons, pretending to claim, under the late colony, now State of Connecticut, before the Revolution, have violently settled themselves within the limits aforesaid, and the colony of Connecticut, by an act of their legislature, made and passed a short time before the Revolution, have encouraged the said violent settlement, and intrusion, and asserted their claim as a colony to a large part of the lands within the limits aforesaid, as well in point of jurisdiction as territory; and that since the Revolution the said intrusions are continued and daily increased by the said persons pretending to claim under the State of Connecticut.” On the part of Connecticut there was set up: (1) the discovery by Sebastian Cabot, in 1497, from 25° N. to 67° 30' N.; the designation of a part of the discovery, extending from 40° N. to 48° N. as New England, by James I, by letters patent in 1620, and the incorporation of the Council at Plymouth for governing it; (2) the grant by the Council of Plymouth to Sir Henry Roswell, etc., of the country between the Merrimack and three miles south of the southerly end of Massachusetts Bay from the Atlantic to the Western Sea, in 1628 ; (3) the grant by the Council of Plymouth, in 1631, to Lord Say and Seal, of that part of New England which extends from Narragansett River forty leagues upon a straight line near the sea shore, towards the southwest, west, and by south or west, as the coast lieth, towards Virginia, and all the lands north and south in latitude and longitude of the breadth aforesaid, throughout the main lands from the Western Ocean to the South Sea on which grant the Connecticut people settled and established a government, extending their possessions to the Dutch possessions near the Hudson River, and, as early as 1650, to the west side of the Delaware River; (4) that in 1635 the Plymouth Company surrendered its charter, and the Crown granted, in 1662, new letters to John Winthrop and others, of the same tract granted to Lord Say APPENDIX. Ivii Federal Courts before the Constitution. and Seal, the grantees to form the company and society of the colony of Connecticut, and that thereby the colony became vested with all that land, including the lands in controversy. After setting forth the settlement of New York, and its acquisition by the British Crown, and the letters patent to the Duke of York, and the adjustment of the boundary line between Connecticut and New York, the paper averred that the lands in controversy to the west of New York remained in the colony of Connecticut, and that the grant by Charles II to Penn was taken by him, with a «knowledge that the northern limits of his grant interfered with and spread over the lands previously granted to Connecticut. It also set forth that Connecticut had made grants of land within this tract upon the Susquehanna and Delaware rivers to settlers from Connecticut who had acquired the Indian title, and that the legislature had approved of it, and had exercised jurisdiction over them. The hearing upon the issues thus made up lasted from day to day until the 30th December, 1782, when the court rendered the following judgment: “We are unanimously of opinion that the State of Connecticut has no right to the lands in controversy. “Weare also unanimously of opinion that the jurisdiction and preemption of all the territory lying within the charter boundary of Pennsylvania, and now claimed by the State of Connecticut, do of right belong to the State of Pennsylvania.” This judgment settled the question of jurisdiction and preemption, but the right of soil was still disputed by settlers who were not parties to the proceeding, and who for many years maintained a fierce struggle for their possessions, acquired under Connecticut, almost amounting to a civil war.1 1 “And even after the feud had been superficially appeased by the adjudication of the court at Trenton, which decided in favor of Pennsylvania, it broke out afresh at a later day in the shape of an armed crusade proclaimed by the Susquehanna Company, which claimed to hold the Wyoming Valley under authority from Connecticut, and which at a later stage of its operations, proceeded to recruit armed emigrants for the forcible occupation of the disputed territory. In Pennsylvania the insurgent leader of the Susquehanna Land Company, John Franklin, had been arrested, and in the latter part of the year 1787 had been deported to Philadelphia, that he might there be put on trial for high treason against the State. In retaliation for this arrest, Timothy Pickering, the Quartermaster General of the Revolutionary Army, and afterward Secretary of State of the United States, was kid- Iviii APPENDIX. Courts for determining Disputes between States. On the 23d of January, 1784, some of these settlers complained to Congress that they were disturbed in their private right of soil derived from Connecticut by others claiming under the State of Pennsylvania, and prayed that a court might be instituted under the 9th Article of the Confederation, for determining the said, right. Congress thereupon resolved that such a court should be instituted “ for determining the private right of soil within the said territory, so far as the same is by the said article submitted to the determination of such a court,” and assigned the fourth Monday of the next June for the appearance of the parties by their agents. On the 3d of June, Congress adjourned, to meet at Trenton on the 30th of October; so that, when the day for appearance came, there was no Congress. Nothing further was heard of this case; possibly because all parties came to understand that the whole question had been tried and adjudicated. Finally, in 1799, the legislature of Pennsylvania passed an act of compromise and conciliation, by which compensation was provided for Pennsylvania claimants, and if it appeared that a Connecticut claimant was an actual settler on the land prior to the Trenton decree, in accordance with regulations prevailing among thp settlers, he received a patent from the land office by paying two dollars per acre for land of first class, one dollar and twenty cents for land of second class, fifty cents for land of third class, and eight and one-third cents for land of fourth class. Commissioners were appointed to meet at Wyoming to carry out the law, and peace was thus finally restored. Pearce’s Annals of Luzerne County, pp. 58—98. New Jersey v. Virginia. On the 14th September, 1779, George Morgan, agent for the proprietors of a tract of land called Indiana, between the Little Kennawa, the Monongahela and the southern boundary of Pennsylvania, presented a memorial to Congress on their behalf showing that the proprietors had acquired this land from the Six Nations and other Indians for a consideration of £85,916 10s. 8d.; tha napped, carried into captivity, and held as a hostage.” President James C. Welling, of the Columbian University, before the New York Historica Society, May 1, 1888. See Pickering’s own account in 2 Upton’s Life 0 Pickering, pp. 381-390. APPENDIX. lix Federal Courts before the Constitution. after the acquisition it had been separated from the jurisdiction of Virginia by the king in council; and that Virginia had resumed jurisdiction over it and was about to order sales to be made. The memorial prayed that the sales might be stayed until the State and the memorialists could be heard before Congress. This memorial was referred to a committee. During the deliberations of the committee Virginia, on the 2d January, 1781, ceded to the United States its claims to the territory northwest of the Ohio. New York had already made a similar cession. On the 16th Octo-tober, 1781, the delegates from Virginia brought the matter before Congress, claiming that if the alleged purchase was within the limits of Virginia as settled by the cession, (which it apparently was,) it was a question to be dealt with by the State ; and if it was beyond it, then Congress ought not to receive any claim adverse to the cession. They proposed that before going farther the question should be taken “ whether it was the intention of Congress to authorize the committee to receive claims and hear evidence in behalf of said companies, adverse to the claims or cessions of Virginia, New York or Connecticut.” An effort was made to amend this so that it should read: “ It. was not the intention,” etc.; but the amendment was lost. To this committee had been referred the cessions of New York, Virginia and Connecticut, as well as the petitions of the companies. On the 1st May, 1782, they reported recommending that the cession made by New York be accepted; that the cession made by Virginia be not accepted because it was inconsistent with rights vested in the United States, and because Congress could not guarantee to that State the tract claimed by it in its act of cession; and that the petition of the companies be dismissed. On the 11th September, 1783, Congress, after discussion, voted to accept the cession without the condition proposed by Virginia that the United States should guarantee to that State all the territory between the Atlantic Ocean, the southeast side of the river Ohio, and the Maryland, Pennsylvania and North Carolina boundaries. Finally, on the 1st March, 1784, the deed of cession was presented to Congress, and accepted by that body, and spread upon the journal: but before that was done the following petition was presented and read: lx APPENDIX. Courts for determining Disputes between States. “ To the United States of America, in Congress assembled. “ The petition of Colonel George Morgan, agent for the State of New Jersey respectfully sheweth; that a controversy now subsists between the said State and the Commonwealth of Virginia respecting a tract of land called Indiana, lying on the river Ohio, and being within the United States: That your petitioner and others, owners of the said tract of land, labor under grievances from the said Commonwealth of Virginia, whose legislature has set up pretensions thereto: That in consequence of instructions from the legislature of New Jersey to their delegates in Congress, anno 1781, and the petitions of Indiana proprietors, anno 1779, 1780 and 1781, a hearing was obtained before a very respectable committee of Congress, who, after a full and patient examination of the matter, did unanimously report . . . that the purchase of the Indiana Company was made bona fide for a valuable consideration, according to the then usage and custom of purchasing lands from the Indians, with the knowledge, consent and approbation of the Crown of Great Britain and the then governments of New York and Virginia : That notwithstanding this report, the State of Virginia still continues to claim the lands in question, to the great injury of your petitioner and others: That your petitioner, on behalf of himself and the other proprietors of the said tract of land, applied to the said State of New Jersey, of which some of them are citizens, for its protection: That the legislature of the said State thereupon nominated and appointed your petitioner the lawful agent of the said State, for the express purpose of preparing and presenting to Congress a memorial or petition on the part and behalf of the said State, representing the matter of the complaint aforesaid, to pray for a hearing, and to prosecute the said hearing to issue, in the mode pointed out by the Articles of Confederation: That the said legislature ordered that a commission should be issued by the executive authority of the said State, to your petitioner, for the purposes aforesaid: That a commission was accordingly issued to your petitioner by the executive authority of the said State, a copy whereof accompanies this petition. . . . Wherefore your petitioner, as lawful agent of the said State of New Jersey, prays for a hearing in the premises, agreeably to the 9th Article of Confederation and Perpetual Union between the United States of America.” A motion was made to commit this petition and it was lost. This was followed by a motion to consider and prepare an answer to it- APPENDIX. Ixi Federal Courts before the Constitution. This motion, also, was lost; and Congress proceeded at once to accept the deed of cession from Virginia. No court was ever convened, and no other entry on the subject is found in the Journal of Congress. Massachusetts v. New York. On Thursday, June 3, 1784, Congress received the report of a committee to whom had been “ referred a petition from the legislature of the Commonwealth of Massachusetts, praying that a Federal Court may be appointed by Congress to decide a dispute between the said Commonwealth and the State of New York ; ” and resolved “ that the first Monday in December next be assigned for the appearance of the said States of Massachusetts and New York by their lawful agents, at the place in which Congress shall then be sitting.” The form of the notice was settled by another resolution. It contained a copy of the petition of the State of Massachusetts, from which it appeared that the subject of the controversy was a claim of Massachusetts to jurisdiction over a tract of land between 42° 2' N. and 44° 15' N., extending westwardly to the Southern Ocean, which was denied in part by New York. On Wednesday, the 8th December, 1784, both parties appeared by their agents, and presented their credentials, which were spread at length upon the journal. Congress directed each to examine the credentials of the other, and report upon the following Friday whether they were objected to. No objection being made on either side, the agents, on the 10th December, 1784, were “directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question, agreeably to the 9th of the Articles of Confederation and perpetual union.” On the 9th June, 1785, Messrs. John Jay, Robert R. Livingston and Walter Livingston, agents for New York, and Messrs. John Lowell, James Sullivan, Theophilus Parsons, Rufus King and S. Holton, agents for Massachusetts, in a paper signed by all, informed Congress that they had agreed upon Thomas Johnson, George Wythe, George Read, James Monroe,. Isaac Smith, William Patterson, Samuel Johnson, William Fleming and John Sitgreaves, Esqrs., as judges, and requested that commissions might issue to them, and that they be notified to meet at Williamsburg, in Virginia, on the third Tuesday of November then next, to hear and determine the controversy. Ixii APPENDIX. Courts for determining Disputes between States. Omitting some intermediate entries, it is sufficient to note that on Monday, the 8th October, 1787, Congress resolved as follows: “ Whereas it appears by the Journals of Congress that a Federal Court has been instituted, pursuant to the Articles of Confederation and perpetual union, to hear and determine a controversy respecting territory between the States of Massachusetts and New York; and whereas it appears by the representations of the delegates of the said States in Congress that the said controversy has ceased, and the same has been settled and determined by an agreement entered into on the 16th day of December last, by the agents of the said States, and any further proceedings in or relative to the aforesaid court having become unnecessary : “ Resolved, That all further proceedings in and relative to the said Federal Court, as also the commissions of the judges thereof, cease and determine.” The agreement between the two States was then spread at length upon the Journal of Congress. South Carolina v. Georgia. June 1, 1785,.Congress resolved “that the second Monday in May next be assigned for the appearance of the States of South Carolina and Georgia by their lawful agents; and that notice thereof, and of the petition of the legislature of the State of South Carolina, be given by the Secretary of Congress to the legislative authority of the State of Georgia.” The prescribed form of the notice contained a copy of the petition of the State of South Carolina, in which the subject of the controversy (after detailing the nature of the colonial claim of title on each side) was stated as follows: “ That South Carolina claims the lands lying between the North Carolina line and a line to be run due west from the mouth of Tugo-loo River to the Mississippi, because, as the said State contends, the river Savannah loses that name at the confluence of Tugoloo and Keowee rivers, consequently that spot is the head of Savannah River; the State of Georgia, on the other hand, contends, that the source of Keowee River is to be considered as the head of Savannah River. That the State of South Carolina also claims all the lands lying between a line to be drawn from the head of the river St., Mary, the head of Altamaha, the Mississippi and Florida, being, APPENDIX. Ixiii Federal Courts before the Constitution. as the said State contends, within the limits of its charter, and not annexed to Georgia by the said proclamation of 1763 [of the King of Great Britain] ; the State of Georgia, on the other hand, contends, that the tract of country last mentioned is a part of that State.” The time for their appearance having been extended, the agents of each State appeared before Congress on Monday, September* 4, 1786, and produced their credentials, which were extended at length on the journal. They were then directed “to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question, agreeably to the 9th of the Articles of Confederation and perpetual union.” On the 11th of September the agents for South Carolina reported that they could not agree upon the judges, and prayed Congress to proceed on the following Wednesday “ to strike a court agreeable to the Articles of Confederation.” On the following Wednesday (the 13th) the agents of both States attended. On motion of the delegates of Georgia, it was “ resolved that Congress proceed to strike a court in the manner pointed out by the Confederation.” Three persons were then named from each of the States, and from the list of persons so named each party alternately struck out one until the number was reduced to thirteen. Then, on motion of the delegates from South Carolina, these names were put in a box, and the following nine names were drawn out in the presence of Congress: Alexander Contee Hanson, James Madison, Robert Goldsborough, James Duane, Philemon Dickerson, John Dickinson, Thomas McKean, Egbert Benson and William Pynchon. On the next day, September 14, 1786, the delegates of Georgia moved that this court be held at the city of New York on the first Monday in May then next. The delegates from South Carolina proposed to amend by substituting the third Monday of the next November. This amendment being lost, the original motion was carried. There is nothing in the published Journals of Congress to show that this court ever sat. The difference was settled by a compact between the two States, the first and second articles of which will be found in 93 U. S. pp. 5, 6, in South Carolina v. Georgia. Ixiv APPENDIX. OMITTED CASES IN THE REPORTS OF THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES. Our researches have discovered three hundred and fifty-one such unreported cases. Three hundred and ten opinions were given in these cases, the same opinion being sometimes applied to several cases. Many of these opinions were very short, often not more than two or three lines. Some of them were given in announcing the entry of judgment on the stipulation <5f the parties, or for incompleteness in the record, or for noncompliance with the rules of the court, with neither facts nor law involved. Some were occupied entirely with a discussion of the facts on which the issue turned, with no question of law involved. Some contained neither facts nor law, but ordered judgment to be entered on the authority of some other case or cases referred to; and some were decided partly on the facts and partly on authority. It would be presuming too much upon the good nature of the profession to print such opinions at length. Therefore, after printing the cases which do not come under either of these categories, (one hundred and thirty in all, with one hundred and twelve opinions,) two hundred and twenty-one cases will be grouped together in a tabulated statement, which shows as to each whether it was decided on the facts, or on the stipulation of the parties, or on the authority of another case; and if so, of what case. L — OMITTED CASES NOW REPORTED IN FULL. LIST OF CASES SO REPORTED IN FULL. Ambler v. Whipple............ccvi American Wood Paper Co. v. Heft.......................xcii Andrews v. Congar........clxxxiii Bacon v. International Bank.. .ccxvi Baird v. United States.........cvi Baltimore and Ohio Railroad y. Marshall County Supervisors, .xcix Bergner v. Palethorp........ccviii Boise County Commissioners v. Gorman.................cxxv Brooks v. Martin......Ixxiv, n. Carson v. Ober................ Chicago v. Bigelow...........XC1U Clark v. United States......Ixxxv Clarke v. United States....Ixxxvi Connecticut Gen. Life Ins. Co. v. Burnstine.................. cU1 Connecticut Mutual Life Ins. Co., Petitioner..................clxxx Cox v. United States ex rel. Mc- Garrahan......................' Crandall v. Nevada.........lxxxlU Crane v. Kansas Pacific Railway Co..........................clx¥111 APPENDIX. Ixv Cases Omitted in the Reports. Dane ». Chicago Manufacturing Co........................ cxxvi Davidson ». Lanier........Ixxii Dayton ». United States....Ixxx De Liano ». Gaines........ccxiv Downing ». McCartney.....xcvlii Dumont ». Des Moines Valley Railroad ..................... clx Elizabeth ». American Nicholson Pavement Co............. cxlviii Farlow ». Kelley............cci First Nat. Bank of Washington ». Texas....................... ex Fletcher ». Blake........cxcvii Florida ». Anderson.......cxxxv Flournoy ». Lastrapes......clxi Foree v. McVeigh..........exlii Gardner ». Goodyear Dental Vul- canite Co..................... ciii Garratt ». Seibert............. cxv Germanica Nat. Bank ». Case.. .cxliv Gibbs ». Diekma............clxxxvi Hand v. Hagood..............clxxxi Harmon, Ex parte.............Ixvii Hauenstein v. Lynham..........exei Hill v. Harding.................cc Hunt v, Hunt..................clxv Huntington v. Texas.............ex Jones ». Grover & Baker Sewing Machine Co................... cl Kaiser ». Stickney..... .clxxxvii Kenosha ». Campbell...xcvii Knickerbocker Life Ins. Co. ». Schneider..................clxxii Knox County ». United States... clxvi Lane ». Wallace............. ccxlx Lange, Ex parte...............ccvii Latham ». United States.......xcvii Leary ». Long...............ccxviii Le More ». United States......Ixxxv Louisiana ex rei. Folsom ». New Orleans................ '..... cci Lynch ». De Bernal..............xciv I McIntyre ». Giblin...........clxxiv Marsh ». Citizens Ins. Co....ccxiii Marshall ». Ladd.............Ixxxix Marshall ». Knott............ccv Mayer ». The Venelia..'.............Ixx Mays ». Fritton...............cxiv Metropolitan Bank ». Connecticut Mutual Life Ins. Co..........clxii Mevs ». Conover.............exlii Meyer ». Pritchard...........ccix Milwaukee and Minnesota Rail- road v. Howard....... .......Ixxxi Milwaukee and St. Paul Railroad ». Soutter..................Ixxxvi Milwaukee and St. Paul Railroad v. Soutter..................Ixxxvi Milwaukee and St. Paul Railroad v. §outter..................Ixxxvi Miramontes v. United States.. .Ixxiii Monger v. Shirley..............ex Monger ». Shirley...........cxxxi Morris v. Shriner.............xci Nat. Life Ins. Co. ». Scheffer... .cciii Nonconnah Turnpike Co. v. Tennessee ex rel. Talley......clviii Nonconnah Turnpike Co. ». Tennessee ex rel. Talley......clviii Nonconnah Turnpike Co. v. Tennessee ex rel. Talley......clviii O’Reilly ». Edrington.....clxxvii Osborn ». United* States..cxxxvii Patterson ». Hoa’s Executrix, Ixxxviii Peyton v. Heinekin.............ci Phelps ». Edgerton.-.........Ixxi Phillips, Petitioner.......clxvii Phipps ». Sedgwick.........cxxxix Reife ». Wilson...........clxxxix Rice ». Edwards.............clxxv Risher ». Smith..............................clvi Ruckman ». Bergholz...........exliii Sawyer ». Weaver........... .cli Scruggs v. Memphis and Charles- ton Railroad..................cciv Shannon ». Cavazos...........Ixxi Smith ». Orton...............Ixxv Smoot v. United States.......ccvi Southern ». Hagood..........ccxii Stark v. United States........ccv 5 Ixvi APPENDIX. Cases Omitted in the Reports. Staten Island Railway Co. v. Lambert.....................ccxi Stitt v. Huidekopher........cxviii Texas v. Peabody’s Executors, xcvi, n. Texas v. White.................xcv Thatcher v. Kaucher..........cxlvi Treat v. Jemison............ cxxxv Underwood v. McVeigh......... cxix Union Pacific Railroad Co. v. Clopper....................cxcii United States v. Armejo.....Ixxxii United States v. Baird.........cvi United States v. Chetimachas In- dians........................Ixx United States v. Citizen’s Bank. .Ixix United States v. Clark’s Execu- tors....................... Ixix United States v. Driscoll.....clix United States v. Duplantier...Ixix United States v. Elkin’s Heirs.. .Ixix United States v. Fortier......Ixix United States ex ret. Phillips v. Gaines.....................clxix United States v. Johnson’s Heirs, Ixix United States v. Leonard’s Widow.................. Ixix United States v. Lynde’s Heirs. .Ixix United States v. Morgan...clxiv United States v. Pintard’s Widow....................Ixix United States v. Power’s Heirs. .Ixix United States v. Smoot.....ccvi United States v. Wikoff’s Administrator ................Ixix Van Norden v. Benner.......cxlv Van Norden v. Washburn....cxlvi Virginia, Petitioner.....Ixxxix Washington County v. Durant..Ixxx Waters v. Barrill........Ixxxiv Weatherby v. Bowie.........ccxv Welch v. Barnard........ ..civ West v. Brashear...........Ixvi Whitney v. Cook....... .cxcvii Williams, v. Reynolds.......cxi Wilson v. Hoss..............ccx Wood v. Richards.........xcviii WEST v. BRASHEAR. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY. No. 93. January Term, 1839. — Decided February 19,1839. The court on appellant’s motion reinstate a case which had been docketed and dismissed on motion of appellees. Mr. Sergeant, of counsel for the appellants, having stated to the court that the appellants had lodged the transcript of the record of this cause with the clerk of this court some time in the month of January in the year 1838, more than a twelve-month since, but had not been able to obtain the fee bond to the clerk required by the 37th rule of this court until since this appeal had been at the present term of this court docketed and dismissed, but that the appellant was now prepared to give the usual fee bond, and to have the record filed and docketed, now here moved the court to stiike out and rescind the order entered in this case on the 19th January of the present term of this, court, and for leave to file the recor and docket the cause; which was opposed by Mr. Crittenden, o counsel for the appellees, who stated that at the last term of this court he applied to have this appeal docketed and dismissed on t APPENDIX. Ixvii Ex parte Harmon. transcript of the record lodged with the clerk by the appellants, which this court refused until he produced the certificate required by the 30th rule of this court, since when he had obtained the necessary certificate, and whereon the appeal had been regularly docketed and dismissed with costs : whereupon this court, not being now here sufficiently advised of and concerning what judgment to render in the premises, took time to consider. Per curiam. On consideration of the motion made in this cause on a prior day of the present term of this court, to wit, on Saturday, the 16th instant, and of the arguments of counsel thereupon had, as well in support of as against the motion: It is now here ordered by the court that said motion be and the same is hereby granted, that said order be and the same is hereby rescinded and annulled ; and that the appellants have leave to docket this appeal, upon the payment of the costs in this case, and filing the usual fee bond. So ordered. Mr. Sergeant for appellants. Mr. Crittenden for appellees.1 EX PARTE HARMON. IN RE DIXON v. MILLER. ORIGINAL. No. 2. December Term, 1845. — Decided December 30, 1845. On application for mandamus on a Circuit Court, that court having made return, this court will not, on the suggestion of a third party, pass any order implying that the return was imperfect or might work injustice to the petitioner. Rule on judges of the Circuit Court of the United States for the District Court of Columbia to show cause why a writ of mandamus should not issue. Motion of A. D. Harmon to be made a party respondent. The case is stated in the opinion. Mr. Chief Justice Taney delivered the opinion of the court. At the last term of this court a petition was filed by Turner Dixon setting forth that he obtained a judgment in the Circuit Court of the District of Columbia for the county of Alexandria against William Deane, Aaron D. Harmon and Joseph H. Miller, upon which, on the 5th of December, 1843, he sued out a fieri 1 The cause was redocketed February 19, 1839, as No. 93 of January Term, 1839. Ixviii APPENDIX. Cases Omitted in the Reports. facias which was levied upon the goods and chattels of the said Miller; that further proceedings upon the execution were afterwards Stayed by injunction ; that various other proceedings, particularly set out in his petition, subsequently took place in relation to the said judgment in the Circuit Court sitting either as a court of equity or as a court of law; and that finally on the first of June, 1844, the Circuit Court, sitting as a court of law, made an order that no execution issued or to be issued on the said judgment, should be levied on the person or property of the said Miller; and the petitioner thereupon moved this court for a rule on the judges of the Circuit Court to show cause why a mandamus should not issue commanding them to permit an execution to be issued on the said judgment, and levied on the goods and chattels or body of the said Miller. Upon this motion a rule returnable to this term was accordingly granted, and the judges have made their return, which is now on the files of the court. In this state of the proceedings Harmon, one of the defendants against whom judgment was rendered as above mentioned, and against whom the^. fa. issued, has filed his petition stating that an order was passed by the Circuit Court in relation to the execution against him, precisely similar to that in relation to Miller of which the relator complains ; that he is equally interested yvith Miller in the proceeding here, but that his case is not brought up, nor the proceedings of the Circuit Court which show the order in relation to him. And upon this statement he and Miller jointly move the court to allow the judges of the Circuit Court to amend their return by adding thereto a statement of the proceedings in his case; a certified copy of which accompanies the petition. We do not see any ground on which this motion can be maintained. The judges of the Circuit Court have made no application to this court for leave to alter or add to their return, and we are therefore bound to suppose that they are themselves satisfied with it; and that it contains everything that they deem proper to say or return in answer to the rule. This court ought not therefore to pass an order, upon the suggestion of a third party, which would seem to imply that the return was imperfect, and that it might on that account work injustice to the petitioner. And as concerns the relator, he has undoubtedly a right to proceed if he thinks proper, against Miller alone, and cannot be APPENDIX. Ixix United States v. Lynde’s Heirs. compelled to move against the other parties to the judgment in question unless he desires to do so. Whether he has made proper parties or not, and whether he can obtain the remedy lie seeks for without including Harmon, are open questions which may be raised on the motion for the peremptory mandamus. But in this stage of the proceeding we certainly cannot inquire whether the necessary parties have all been brought before the court; nor can we require the relator against his will to add another when he himself elects to proceed against Miller alone. The motion is therefore overruled. Mr. Davis and Mr. Brent for relator. Mr. Smith and Mr. Coxe for respondent. UNITED STATES v. LYNDE’S HEIRS. SAME v. PINTARD’S WIDOW. SAME v. DUPLANTIER. SAME v. ELKIN’S HEIRS. SAME v. CLARK’S EXECUTORS. SAME v. POWER’S HEIRS. SAME v. WIKOFF’S ADMINISTRATOR. SAME v. JOHNSON’S HEIRS. SAME v. FORTIER, SAME v. LEONARD’S WIDOW. SAME v. CITIZEN’S BANK. APPEAL from the district court of the united states for the EASTERN DISTRICT OF LOUISIANA. Nos. 26, 43, 30,34,37, 38, 62, 70, 72, 75, 77. December Term, 1851. — Decided February 19,1852. Grants of land made by Spain after the Treaty of St. Ildefonso were void. The case is stated in the opinion. Mr. Chief Justice Taney delivered the opinion of the court. These cases all depend on the same principle. The several grants were all made after the treaty of St. Ildefonso, by which the territory was ceded to the United States. This court has repeatedly decided that these grants are void. And the decisions of the District Court to the contrary in the within mentioned cases must all be reversed, and a mandate issued directing the sevqfal petitions to be dismissed. Mr. Attorney General for appellant. Mr. May and Mr. R. J. Brent for appellees in No. 26. Mr. Taylor and Mr. Louis Janin for appellee in Nos. 43, 38 and 72. Mr. Taylor, Mr. Janin and Mr. Coxe for Appellees in No. 37. Mr. Fendall for appellee in No. 63. No appearance for appellees in Nos. 30, 34, 70, 75 and 77. Ixx APPENDIX. Mayer v. The Venelia. UNITED STATES v. CHETIMACHAS INDIANS. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA. No. 21, December Term, 1852. — Decided December 15, 1852. The Attorney General having stated that the Indians are entitled to the land claimed by them, the case is dismissed. The case is stated in the opinion. Mr. Chief Justice Taney said: The Attorney General having appeared in this case, and declined arguing it, on the ground that the Chetimachas Indians are entitled to the land claimed by them in this suit; there appears to be no controversy before this court, and the appeal from the District Court is therefore Dismissed. Mr. Attorney General for appellant. Mr. Taylor and Mr. Janin for appellees. MAYER v. THE VENELIA, HER TACKLE ETC., EDDES MASTER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. No. 14, December Term, 1854. — Decided December 18, 1854. The case is dismissed because neither party is ready for argument at the second term at which it is called. The case is stated in the opinion. Mr. Chief Justice Taney announced the following order in this cause: This cause came on to be heard on the transcripi of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, and it appearing to the court here that this is the second term at which this case has been called for argument, and that neither party is now prepared to argue the same, it is considered by the court that this appeal should be dismissed at the cost of the appellants pursuant to the 55th rule of this court: whereupon, it is now here ordered and decreed by this court, that this cause be, and the same is hereby dismissed, with costs; and that this cause APPENDIX. . Ixxi Cases Omitted in the Reports. be, and the same is hereby remanded to the said Circuit Court, to be proceeded in according to law and justice. Dismissed. Mr. H. M. Phillips for appellants. Mr.Kane and Mr. Fallon for appellee. SHANNON v. CAVAZOS. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF TEXAS. No. 74. December Term, 1857. — Decided April 19, 1858. One of several codefendants having appealed from a joint decree against all, without summons and severance, the case is dismissed. The case is stated in the opinion. Mr. Justice McLean delivered the following order and opinion: This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas, and it appearing to the court here, upon the motion of Messrs. Hale and Robinson, of counsel for the appellees, that the decree of the said District Court in this cause is a joint decree against several codefendants, and that Patrick C. Shannon alone has appealed therefrom, without any summons and severance from the rest of his codefendants, it is the opinion of this court that the case is improperly brought here. On consideration whereof, it is now here ordered, adjudged and decreed by this court, that this appeal be, and the same is hereby Dismissed, with costs. Mr. J. P. Benjamin for appellants. Mr. O. Robinson and Mr. Wm. G. Hale for appellees. PHELPS v. EDGERTON. ERROR to THÉ. CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 85. December Term, 1860. — Decided March 5,1861. It appearing to the court that this writ of error was sued out merely for delay, the judgment is affirmed with ten per cent damages. Assumpsit on a promissory note, to which the general counts were joined. The pleas were, a general demurrer to the first count, and non assumpsit. The demurrer was overruled, and a verdict taken for plaintiff, and judgment on the verdict, to which this writ Ixxii APPENDIX. Davidson v. Lanier. of error was sued out. On behalf of plaintiff in error it was contended that it was error to overrule the demurrer before joinder by plaintiff, and that by reason of non joinder the action was discontinued. On the part of defendant in error it was claimed that the appeal was taken for delay, and damages were asked for. Mr. Chief Justice Taney delivered the opinion of the Court. Upon examining the record in this case, the court is of opinion that the writ of error was sued out merely for delay, and therefore affirm the judgment, with ten per cent damages, according to the second section of the 23d rule of this court. Affirmed. Mr. T. Lyle Dicey and Mr. J. A. Rockwell for plaintiffs in error. Mr. B. C. Cook and Mr. L. Trumbull for defendants in error. DAVIDSON v. LANIER. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF MISSISSIPPI. Nos. 264, 265, December Term, 1860. — Announced March 14,1861. On a motion to dismiss for want of jurisdiction, the opposing counsel is entitled to a reasonable notice, having regard to the distance of his residence from the court, and to the time necessary to enable him to arrange his business so as to be able to be present at the hearing: and it is within the discretion of the court to determine whether the notice actually given was reasonable. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Taney delivered the opinion of the court. A motion has been made in each of these cases to dismiss it for want of jurisdiction, on account of certain defects, as it is alleged, in the process and proceedings made necessary by the act of Congress, in order to bring it before this court. It is the practice of this court to receive and hear motions of this kind on the day assigned for business of that description, before the case is reached in the regular call of the docket. And the rule has been adopted, because it would be unjust to the parties to delay the decision until the case is called for trial, if the court are satisfied that they have not jurisdiction, and that the case must be ultimately dismissed without deciding any of the matters in controversy between the parties. But in order to prevent surprise upon the plaintiff in error, or appellant, the court have always, where the motion is made in APPENDIX. Ixxiii Cases Omitted in the Reports. advance of the regular call, directed notice to be given to him or his counsel, and required proof that it was served long enough before the motion is heard to give him an opportunity of contesting the motion if he desires to do so. And the time required must depend upon the distance of the counsel or the party from the place of holding the court, and must be sufficient not only to enable him to make the journey, but to arrange business in which he may be engaged when he receives the notice. For, when a case stands so late on the docket of this court as to give no reasonable hope of reaching it during the term, it cannot be expected that distant counsel will leave their usual place of business, and attend here to guard against the possibility of a motion to dismiss. The motions in these two cases were made about three weeks before the close of the term, but as soon as it could be conveniently made after they were docketed, and the court directed the usual notice to be given. We are satisfied that the counsel for the defendant in error has used every means in his power to comply with the order. But he has no proof that it was actually served. The counsel and client both reside in Mississippi, and the cases stand so late on the docket that a trial could not be expected at this term. Nor could they anticipate that there would be any reason for their attendance. Under these circumstances the court order that the motion be continued, to be heard on the first Friday in next term, provided notice of the motions and the day of hearing be served on the party or his counsel, thirty days before the commencement of the next term. . No ordered. Mr. R. J. Brent in support of motions. No one opposing. MIRAMONTES v. UNITED STATES. appeal from the district court of the united states for the NORTHERN DISTRICT OF CALIFORNIA. No. 120. December Term, 1883. — Decided February 15, 1864. A petition to the Mexican government for a surplus of land which was not granted, is no foundation for an equitable claim against the United States. The case is stated in the opinion. Mr. Justice Grier delivered the opinion of the court. The appellant had a valid grant from Alvarado in January, 1841, Ixxiv APPENDIX. Miramontes v. United States, for a square league of land to be surveyed within certain boundaries. Soon after this grant was obtained, he procured judicial possession to be given him by an alcalde, and a survey to be made to his satisfaction at the time. But the line, as fixed by the alcalde, left a strip of land between it and one of the streams called for in his petition and diseño, as a boundary. This became a subject of dispute between Miramontes and José Antonio Alviso. In 1844 Miramontes presented a petition to the governor alleging a surplus within the limits of his grant of two thousand varas and praying for a grant of the sabrante. This petition was referred to the secretary to make report. A report was made, showing that Alviso claimed the land and objected to the grant. It does not appear that the governor granted the disputed land to either of the contesting parties, although Miramontes continues to complain up to April 1846, of the conduct of Alviso, and pray that he might be “ summoned to terminate this question.” The commissioners and District Court very properly confirmed the title of claimant to his square league, as it had been measured to him, and refused to extend his boundaries to cover this sabrante or surplus for which he had contended so long with Alviso, and had not succeeded in obtaining a title. The petition for a surplus not granted by the Mexican government, is no foundation for an equitable claim against the United States. The decree of the District Court is affirmed. Mr. J. A. McDougall for appellants. Attorney General, Mr. J. 8. Black and Mr. P. Della Torre for appellee. In Brooks v. Martin, 2 Wall. 70, No. 158, December Term, 1863, there is a statement by the reporter that Mr. Justice Catron dissented, but the dissenting opinion is not reported. It is now on file, and is as follows : These parties formed a partnership, to speculate on soldiers’ claims to land warrants, secured by the act of 1847. They contracted for more than six hundred claims paying about one half the contract price to the soldier, and taking his bond to assign the warrant, when it was issued and the balance paid ; and also a power to assign the warrant after its issue, which power was in blank, and to be filled up of a date subsequent to the issuing of the warrant. The price paid for the claims was about one half of what the warrant would have sold for if it had then existed. The profit on each warrant was seventy dollars, says the complainant in one of his letters. APPENDIX. Ixxv Cases Omitted in the Reports. SMITH v. ORTON. appeal from the district court of the united states for the DISTRICT OF WISCONSIN. No. 80. December Term, 1865. — Decided January 15, 1866. The grantee in a deed of realty, to whom it is conveyed to protect him against an obligation of the grantor’s for which he has become surety, becomes the holder of the legal title in trust for the grantor, when the latter has discharged the obligation and thus released him from the liability. An assignee of a chose in action takes it subject to the equities of the original debtor or obligor, and is bound to inquire into their existence when the instrument itself puts him upon the track of inquiry. To bring a defence in a case like this within the rule which affords protection to a bona fide purchaser without notice, it must be averred in the plea or answer, and proved, that the conveyance was by deed, and that the vendor was seized of the legal title; that all the purchase money was paid, and paid before notice; and there must be a distinct denial of notice, not only before purchase,: but also before payment. The case is stated in the opinion of the court. Mr. Justice Nelson delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the District of the State of Wisconsin, held by the district judge. The bill was filed to secure the title in lots Nos. 7 and 8, section No. 9, situate in the City of Milwaukee, to Smith, the complainant, against the defendant Orton. The equitable interest in these lots belonged originally to Otis Hubbard, the legal title being in Cyrus D. Davis. The equitable interest in lots Nos. 5 and 6, in block 43, in said city, also belonged to Hubbard, the legal title being in persons in the States of New York and Massachusetts. These lots Nos. 5 and 6 were sold by Hubbard, with the assistance of his friend T. D. Butler, to Joseph Schram; but as the legal title was not in him, it was agreed that the purchase money should not be paid until the title was obtained and conveyed to Schram, or satisfactory security given that it would be procured, within a given time. Security was accordingly given by David Knab, a responsible person, in which Butler joined, and the purchase money was paid. In order to indemnify Knab, Hubbard procured a conveyance of lots 7 and 8 by Davis to him. The security Ixxvi APPENDIX. Smith v. Orton. to Schram is in the form of a bond under seal, and bears date 22d July, 1848, and is conditioned to procure for him a conveyance of the title to the premises free from incumbrances within three months. On the same 22d July, Knab gave a bond to Butler, conditioned for the conveyance of lots 7 and 8, which had been conveyed to him by Davis as his indemnity on his (Butler’s) fulfilling the conditions of his obligation to Schram. The conditions of the bond given to Schram to secure a conveyance of the title to lots 5 and 6, were fulfilled by Hubbard. Schram, in his examination, states : “ I did receive from Otis Hubbard a deed of the lots described in the bond from Tertullus D. Butler, and David Knab to me. The lots were : twenty-five feet in lot 5, and ten feet in lot 6, in block 43,” etc. “The deed,” he says, “ was executed in part by Hubbard for himself, and in part by him as attorney for others.” We may add, these deeds were all found on record, several of them from persons holding the outstanding legal title to Hubbard, and also the deed from Hubbard to Schram, the latter bearing date July 4, 1850. At this stage of the case, and upon the facts as stated, it is apparent that Hubbard, having satisfied the condition of the bond given by Knab and Butler to Schram, the title to lots 7 and 8 held by Knab, simply as a security against this bond, belonged in equity to him. Knab had no longer any interest in it, and must be regarded as holding in trust for Hubbard. There is, however, another branch of this case that must be examined, and which calls in question this relation of Hubbard to the title, and asserts the title to be in Orton, the defendant. On the 22d July, 1851, something ihore than a year after Hubbard had satisfied the bond to Schram, Butler sold and transferred the bond to him from Knab for the title to these lots 7 and 8 to Orton, for a consideration of S2100, as is alleged, to be paid by the latter; and accompanying the sale and transfer, is a power to Orton to “pursue all legal means to recover the full enjoyment of the same. The defence in this branch of the case is placed on two grounds: 1. That Orton, the defendant, is a bond fide purchaser of the title in Knab without notice, and, 2. That Butler owned the title, having purchased it from Hubbard. As to the first ground; the answer sets up this defence, as fol APPENDIX. Ixxvii Cases Omitted in the Reports. lows: the defendant avers that he purchased said bond so executed by Knab to Butler, for the sum of $2100, which he paid at or about the date of purchase, except a portion thereof which was expended in complying with the conditions of the bond to Schram; and that he caused said bond and assignment to be recorded; that at the time of the purchase, the title of record to said lots was in Knab ; that this defendant did not know that said Hubbard had or claimed to have any right or interest therein ; that after he purchased said bond, he satisfied some of the incumbrances upon said lots 5 and 6, and indemnified Schram against the remainder and procured from him an assignment of the bond of Butler and Knab, and tendered the same to Knab and demanded a conveyance, &c. This averment in the answer, if admitted to be true, fails to bring the defence within the principle which affords protection to the title of a bond, fide, purchaser without notice ; and this upon two grounds : First. An assignee of a chose in action, to which class the bond in question belongs, takes it subject to all the equities of the original debtor or obligor. Now, Knab, who held a title to these lots at the time of this purchase of his bond by the defendant in trust for Hubbard, had a perfect defence against the claim of Butler, his obligee, for a conveyance. Butler had not complied with any one of the conditions of the bond. They were, in substance, that Butler should perform the conditions of the bond to Schram, and which were, as that instrument was drawn, that B. and K. should procure a conveyance of the title from the persons who held it, and who were named, residing in New York and Massachusetts, to themselves, and that they should convey it to Schram; whereas, no such conveyance had been procured nor any such title made to him. On the contrary, the title had beerf procured from these persons by Hubbard to himself, and he had made the title to Schram. Both these bonds were before Orton, the defendant, at the time he made the purchase.of the one from Knab to Butler, for that refers io terms to the one given to Schram ; and, being before him, it was not only his interest, but his duty, to inquire if the bond to Schram had been fulfilled, and to ascertain the truth of the transaction ; and, in mak-» ing that inquiry, he would have found that neither Knab nor Butler had performed the conditions, but Hubbard ; and the records of the city would, if examined, have confirmed it. He would have learned, also, that the bond to Schram was given for the benefit of Hubbard, and that his trustee, Davis, had conveyed the title in question to Ixxviii APPENDIX. Smith v. Orton. Knab, to indemnify him and Butler for entering into the obligation to Schram. All this he would have learned from Knab and Schram. But, secondly, the rule which affords protection to a bond fide purchaser without notice, has no application to this case. To bring the defence within it, it must be averred in the plea or answer and proved, that the conveyance was by deed, and that the vendor was seised of the legal title : that all the purchase money was paid and paid before notice. There must not only be a distinct denial of notice before the purchase, but a denial of notice before payment. Even if the purchase money has been secured to be paid, yet if it be not, in fact, paid before notice, the plea of purchase for a valuable consideration will be overruled. Jewett v. Palmer, 7 Johns. Ch. 65; Vattier v. Hinde, 7 Pet. 252, 271 ; Boone v. Chiles, 10 Pet. 177, 211; Story, Eq. Pl. §§ 805, 806. So utterly defective is the case on this branch of it on the part of the defendant, that it would be a waste of time to examine it. The remaining question is, whether or not Butler had acquired the interest of Hubbard in these lots, so as to cut off his equitable claim to them. Butler states, on his examination, that he made the purchase from Hubbard a short time before the conveyance of these lots from Davis to Knab ; that it was a purchase by parol, no writing having passed between them; that he paid no money as a consideration for the land; that Hubbard owed him for money and merchandise previously received, to the amount of $800; that he had no vouchers from Hubbard of the advances, as they were generally made on his verbal order. He further states that part of his demand against Hubbard was for board of him at different times during the years from 1844 or 1845, to 1849 or 1850. He says he had regular account books where the items of charge against Hubbard during these years were entered, but that they are lost. He further states that he received a portion of the purchase money paid by Schram, some $200 or more, at the signing of the bond to him, which he held in trust for Hubbard, and afterwards paid it over to him as he wanted it. The deed from Davis to Knab, the time when Butler claims to have acquired Hubbard’s interest in these lots, bears date 20th July, 1848. Butler does not pretend any fixed price was agreed upon between the parties, or that any money was paid at the time or since, to Hubbard. The payment of this indefinite consideration APPENDIX. Ixxix Cases Omitted in the Reports. relied on, is the previous advance of moneys and merchandise resting in a running account and board, all within the years from 1844 or 1845 to 1849 or 1850. No items of money, merchandise, or board are given, for the reason as assigned, that the books are lost. This reason might be satisfactory for the want of fulness and detail in an account, but hardly sufficient for the entire absence of evidence of any of the items. But the conclusive answer to the whole of this testimony is found in schedule “N” in the record, which embraces eight promissory notes given by Butler to Hubbard, extending from August, 1845, to May, 1850, and covering the period of time within which he claims that his account accrued against Hubbard. These notes amount, in the aggregate, to the sum of $1059. One of these notes for the sum of $300, payable one year from date, with ten pei’ cent interest, was given the 22d July, 1848, the day Schram paid the purchase money for lots 5 and 6 to Hubbard, a part of which, as appeal’s from the testimony of Butler, was received by him and paid to Hubbard soon afterwards, as he wanted it. The last note was given as late as May 11, 1850. These notes, unexplained, furnish conclusive evidence by necessary implication, that Hubbard was not indebted to Butler at the time they were given, and disprove the consideration set up by him for the purchase of Hubbard’s interest. Our conclusion, without further examination, is that Hubbard has not been divested of his equitable title to the premises which he held at the time of the conveyance from Davis to Knab. This interest he conveyed to Joachim F. Gruenhagen on the 7th of June, 1851, from whom the complainant Smith derives his title. He stands in the place of Hubbard invested with his equitable interest. It appears in the record that a bill was filed by Orton, the present defendant in the Circuit Court of the county of Milwaukee against Knab to compel him to convey the title held by him to these lots founded upon his bond, to Butler, which has been assigned to Orton; and such proceedings were had in the case, that a decree was rendered directing the conveyance. But as Smith, the present complainant, nor either of the persons from whom he derives title, were parties to that suit, these proceedings are of no importance. It also appears that Hubbard filed a bill in the same court against Knab, Orton and Butler, to compel a conveyance from Knab, and Ixxx APPENDIX. Dayton v. United States. to quiet the title; but as this case was afterwards discontinued, it is not material further to refer to it. Upon the whole, after the best consideration which we have been able to give the case, we are of opinion that the decree of the court below should be Reversed and the cause remitted, with directions to enter a decree for the complainant Smith, and that Orton release all claim or interest to lots 7 and 8 in controversy, and be enjoined from setting up any right or title to the same. Mr. James S. Brown for appellant. Mr. H. S. Orton and Mr. E. Mariner for appellee. WASHINGTON COUNTY v. DURANT. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF IOWA. No. 105. December Term, 1865. — Decided February 26, 1866. An appeal allowed or a writ of error served is essential to the exercise of the appellate jurisdiction of this court. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. This cause was submitted on a printed argument for the defendant in error. Upon looking into the record, we find that it has been brought into this court by agreement of parties, and without the issuing or service of a writ of error. We think that an appeal allowed or a writ of error served, is essential to the exercise of the appellate jurisdiction of this court. The appeal in this cause is therefore Dismissed. Mr. Charles Mason for plaintiff in error. Mr. James Grant for defendant in error. DAYTON, CLAIMANT OF THE SCHOONER MONTEREY AND CARGO v. UNITED STATES. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOK THE DISTRICT OF MARYLAND. No. 144. December Term, 1865. —Decided February 26, 1866. A decree in admiralty for the condemnation of a vessel is not final if the libel claims the condemnation of the cargo as well, and the cargo has been delivered to the respondents at an appraised value, and the money deposited with the register. APPENDIX. Ixxxi Cases Omitted in the Reports. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. We have looked into this record and find no final decree. The libel claims the condemnation of the schooner Monterey and cargo. The answer denies this liability. The cargo was delivered to the respondents at an appraised value, and the money was deposited with the register. The decree condemns the schooner, but makes no mention of the cargo. The decree, therefore, does not dispose of the cause and cannot be final. The appeal must, therefore, be dismissed, and the cause sent to the Circuit Court for the District of Maryland for further proceedings. Mr. Attorney General and Mr. Assistant Attorney General Ashton for the motion. Mr. Andrew S. Ridgely opposing. MILWAUKEE AND MINNESOTA RAILROAD COMPANY v. HOWARD. APPEAL from the circuit court of the united states for the DISTRICT OF WISCONSIN. . No. 149. December Term, 1865. — Decided April 3, 1866. The removal or appointment of a receiver in a suit for the foreclosure of a mortgage on a railroad rests in the sound discretion of the court below, and is not reviewable here. The case is stated in the opinion of the court. Mr. Chief Justice Chase delivered the opinion of the court. This is an appeal from an order denying a petition for the dismissal of a receiver. Sebre Howard filed his bill in the Districjt Court of the United States for the District of Wisconsin, as a judgment creditor of the La Crosse & Milwaukee Railroad Company and Selah Chamberlain, tQ set aside the contract between the defendants and the confessed judgment, which made the subject of the two suits just decided. The cause was afterwards transferred to the Circuit Court. Sebre Howard having deceased, Charles Howard was made complainant in his stead; and the La Crosse Company having been obliged to allow their road to be sold under mortgage, the Minnesota Company became the proprietor of an important division of it. Before either of these events, a receiver had been appointed in the suit, and had been for several years in possession and management of the road. 6 Ixxxii APPENDIX. United States v. Armejo. The Minnesota Company, on acquiring title, intervened in the suit by petition, and asked the court to discharge the receiver and put the petitioner in possession of the division of the road purchased by them. The court being divided in opinion, the petition was denied, and the petitioner appealed. We think the appeal was premature. The decision upon the petition was not a final decree in the cause. The removal or appointment of a receiver, as we have heretofore said, rests in the sound discretion of the court, and is not reviewable here. The appeal must, therefore, be dismissed. Mr. Matthew H. Carpenter for appellant. Mr. John W. Cary for appellee. UNITED STATES v. ARMEJO. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 164. December Term, 1865. — Decided April 3, 1866. After the lapse of a term a general appearance cannot be changed to a special appearance, so as to affect the rights of parties, without leave of court first obtained. The case is stated in the opinion. Mr Chief Justice Chase delivered the opinion of the court. The motion to dismiss the appeal in this case must be denied. It appears from the record that an appeal was allowed to the appellants from a final decree of the District Court for the Northern District of California, on the 21st December, 1863. The record was brought here and filed at the next term, but no citation was issued to the appellee. A general appearance was, however, entered in his behalf, and remained on the docket during the return term, which was the last term of this court. At this term, the entry was limited to a special appearance by the addition of the necessary words. This addition was made by the clerk without direction from the court, in order, as he states, to make it conform to the original direction given him, which he understood to be not for the entry of a general but of a special appearance, and which direction, through his inadvertence, was not properly performed. We think it was too late after the lapse of a term to alter a gen APPENDIX. Ixxxiii Cases Omitted in the Reports. eral to a special appearance, so as to affect the rights of parties; and no such alteration or any withdrawal of appearance can be allowed in any case, without proper notice, and leave of the court first obtained. We must hold, therefore, that the general appearance supplied the defect of citation, and that the appeal is now regularly before us. Motion denied. Mr. Attorney-General and Mr. John A. Wills for plaintiff in error. Mr. W. W. Cope and Mr. J. M. Carlisle for defendant in error. CRANDALL v. NEVADA. ERROR TO THE SUPREME COURT OF THE STATE OF NEVADA. No. 85. December Term, 1867.—Decided December 23, 1867. The order remanding the petitioner became, by the certificate of the clerk, a part of the record in this case. Motion to dismiss. The case is stated in the opinion. See Crandall v. Nevada, 6 Wall. 35, for further proceedings in this case. Mr. Chief Justice Chase delivered the opinion of the court. This is a motion to dismiss a writ of error to the Supreme Court of the State of Nevada. The suit in the state court was by writ of habeas corpus, issued out of the Supreme Court, upon return of which the petitioner appears to have been discharged; but on the same day this order seems to have been reconsidered, and the petitioner remanded to custody. The only question before us is, whether the certificate of the clerk appended to the order remanding the petitioner, made that order a part of the record. The usual certificate, that the transcript contains all the orders and proceedings in the cause, precedes the certificate just referred to in the record. Then follows the certification of the order to remand. We think that the order thus certified must be taken as a part of the record, precisely as it would be if it had been certified in obedience to a writ of certiorari issued upon a suggestion of diminution. The motion to dismiss must, therefore, be Denied. Mr. P. Phillips and Mr. T. J. D. Fuller for the motion. No one opposing. Ixxxiv APPENDIX. Waters v. Barrili. WATERS v. BARRILL. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MARYLAND. No. 90. December Term, 1867. — Decided March 23,1868. A citation served on the 1st December, before the return of the writ, is served in time. The averments of alienage and citizenship in the declaration are sufficient to give the court jurisdiction. The case is stated in the opinion of the court. Mr. Justice Nelson delivered the opinion of the court. This is a writ of error to the Circuit Court of the United States for the District of Maryland. A motion has been made to dismiss the case for want of jurisdiction, on the ground that the citation was not served in time. But this is a mistake. It was served on the first of December, befo’re the return of the writ, and is within the cases of Villabolos v. United States, 6 How. 81, 89, 90, and United States v. Curry, 6 How. 106, 112. Although it was returnable with the writ the first of the term, the defendants had thirty days by the statute to appear. The service on Barrill was good : he was one of the joint defendants, and it would have been good if Murr was dead, of which there is no legal proof, as the suit would survive against Barrill. Then, as to the merits. The only point made is the want of jurisdiction in the court below, for the defect of the averment as to the alienage of the plaintiff and citizenship of the defendant. There is no foundation for this objection in point of fact, as the declaration plainly sets out that the plaintiffs are aliens, and the defendant a citizen of Maryland. Covington Drawbridge Co. v. Sheppard, 20 How. 227; Philadelphia, Wilmington &c. Railroad n. Quigley, 21 How. 202 ; Sheppard v. Duncan, 14 How. 504, 508. Judgment affirmed. Mr. R. J. Brent for plaintiff in error. Mr. S. T. Wallis and Mr. John H. Thomas for defendant in error. APPENDIX. Ixxxv Cases Omitted in the Reports. LE MORE v. UNITED STATES. appeal from the district court of the united states for the SOUTHERN DISTRICT OF ILLINOIS. No. 107. December Term, 1867. Motion made in the case at December Term, 1868. — Decided March 22, 1869. This court will not recall a mandate at the term following the one when it was sent to the inferior court. This was a motion for the recall of a mandate sent down at the last term of court. The case made by the motion is stated in the opinion. • Mr. Chief Justice Chase delivered the opinion of the court. This is a petition that the court will cause to be brought before it, the record and proceedings in a cause which was argued and disposed of by decree at the last term, in order to correct an error in the printed transcript of the record. To make the allowance of the prayer of the petitioners available to them through the correction of the alleged error, it would be necessary to recall the mandate sent to the inferior court, to set aside the decree rendered at the last term, to rehear the cause and make a new decree. This cannot be done without reversing the settled and uniform practice of the court, and the petition must, of course, be Denied. Mr. Caleb Cushing for the petitioner. No one opposing. CLARK v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 113. December Term, 1867. — Decided March 30, 1868. The question of law in this case ought not to have been made, either below or here, and the judgment below is affirmed. The case is stated in the opinion. Mr. Justice Grier delivered the opinion of the court. The plaintiff’s claim in this case is on a contract made with Major Du Barry, an Assistant Commissary of Subsistence, acting in behalf of the United States. The only question of law raised upon the record was, whether the written agreement between the parties Ixxxvi APPENDIX. United States v. Allire. should be received as the correct exponent of the contract, or the correspondence between them which preceded it. The question of fraud or mistake was one of fact, and was negatived by the finding of the court, which is conclusive here. The question of law ought not to have been made, either in that court or here. Let the judgment of the Court of Claims be Affirmed. Mr. John Jolliffe for appellants. Mr. Eli P. Norton and Mr. John J. Weed for appellee. CLARKE v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 116. December Term, 1867. — Decided March 16,1868. A motion for a certiorari to the Court of Claims is denied. The case is stated in the opinion. Mr. Justice Nelson delivered the opinion of the court. This is a motion for a certiorari in the case of an appeal from a decree in the Court of Claims on a suggestion of diminution of the record. The diminution as alleged is, that the record does not set out the joinder of issue nor the trial of the same nor the evidence, findings, or judgment of the court; also many orders made in the case. We have looked into the record and are of opinion that the suggestions are not well founded, in point of fact, with the exception of the one relating to the evidence, which, of itself, is answered by the rules of this court on the subject. Motion denied. Mr. James Hughes and Mr. John M. McCalla for appellant. Mr. John J. Weed and Mr. Eli P. Norton for appellees. MILWAUKEE AND ST. PAUL RAILROAD COMPANY v. SOUTTER. SAME v. SAME. SAME v. SAME. APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WISCONSIN. Nos. 161, 43, 62. December Term, 1867. — Decided March 16, 1868. The decrees for the payment of rent by the Milwaukee and St. Paul Kail road Company to the receiver of the La Crosse and Milwaukee Railroa were not final decrees from which appeals could be taken to this cour , and this proceeding was irregular, and involved useless litigation. The case is stated in the opinion of the court. APPENDIX. Ixxxvii Milwaukee Railroad Co. v. Soutter. Mr. Justice Nelson delivered the opinion of the court. These cases are appeals from decretal orders of the Circuit Court for the District of Wisconsin. The first was rendered on the 18th July, 1865, directing the Milwaukee and St. Paul Company to pay to the receiver in the case of Soutter v. The La Crosse and Milwaukee Railroad, Company, $237,338.78, for the use of the rolling stock on the Western Division of the road, from the 12th June, 1863, to 28th February, 1865. The second is an appeal from a like decree by the same court, ordering the payment of $81,106.08, for the use of the same rolling stock from the 28th February, 1865, to the 9th January, 1866. The third is an appeal from a decree of July 18, 1865, directing the Milwaukee and St. Paul Company to deliver possession of this stock to the Milwaukee and Minnesota Company. These orders were made upon the idea, that the decree in the case of The Milwaukee and Minnesota Railroad Company v. The Milwaukee and St. Paul Railroad Company, on the demurrer to the supplemental bill, was a final decree, and settled the title to the rolling stock, the subject of controversy, in favor of the claim of the Eastern Division, and hence, that that division was afterwards entitled to compensation for the use of the stock; whereas, leave was given to the defendants to answer, and an answer put in, and proofs taken preparatory to a final hearing on pleadings and proofs, so that the questions involved were left open and undetermined. It was wholly irregular, therefore, in this state of the cause, to institute proceedings and endeavor to recover compensation for the use of the property in controversy, until the right to the same had been finally determined. The proceeding was not only destitute of any legal foundation, but involved an idle and useless litigation, upon an unwarranted assumption, as to the effect of the preliminary decision on the demurrer. The irregularity, as well as the awkwardness of the result from this inadvertent proceeding, is exemplified by the circumstance that the case has been heard on the pleadings and proofs at the present term, and the court.have determined, upon a full consideration, that the right to the use of the stock on the Western Division belonged to the Milwaukee and St. Paul Company, and hence it was not liable to the Eastern Division for the use of the same. It follows that the decrees in both cases are erroneous, and should be reversed, and the cause remanded to the court below, with directions to enter decrees for the Milwaukee and St. Paul Company. Ixxxviii APPENDIX. Cases Omitted in the Reports. The third is a decree from the same court, directing the Milwaukee and St. Paul Company to deliver this rolling stock into the possession of the Milwaukee and Minnesota Company, upon the idea, already explained, that the decision on the demurrer to the supplemental bill had determined that the right belonged to the Eastern Division. For the reasons above stated this decree is erroneous, and should be reversed. Decree reversed. Cause remanded, and decree to be entered for • Milwaukee and St. Paul Company. Decree reversed in each case. Mr. Justice Miller dissented. Jfr. J. W. Cary for appellant in each case. Mr. H. A. Cram, Mr. Caleb Cushing and Mr. M. H. Carpenter for appellee in Nos. 43 and 62, and Mr. H. A. Cram and Mr. Caleb Cushing for appellee in No. 161. PATTERSON v. HOA’S EXECUTRIX. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA. No. 326. December Term, 1867. — Decided March 27, 1868. It appearing, on inspection of the record, that the appeal bond was filed too late to make the writ of error operate as a supersedeas., the court vacates an order heretofore made allowing a writ of supersedeas. Motion to vacate a supersedeas. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. This is a motion to vacate a supersedeas, allowed provisionally in this cause at a former day of this term. It is made on the coming in of the answer of the District Judge holding the Circuit Court for the District of Louisiana, to a rule to show cause why an absolute supersedeas should not issue. On inspection of the record we find that the judgment of the Circuit Court was rendered on the 13th of May, 1863, and that the bond for prosecution of the writ of error sued put upon it was not filed until the 25th. In order to make a writ of error a supersedeas, the law requires that the bond be filed within ten days. In this case, consequently, the bond was filed too late. It is unnecessary, therefore, to consider the matters stated in the answer of the judge of the court below. The order heretofore made, allowing a writ of supersedeas, will APPENDIX. Ixxxix Marshall v. Ladd. be vacated, and the order now directed will be certified to the Circuit Court for the District of Louisiana. See 8 Wall. 292. Mr. P. Phillips for the motion. Mr. T. J. Durant opposing. THE STATE OF VIRGINIA, PETITIONER. ORIGINAL. No. 11. Original. December Term, 1868. — Decided February 15,1869. The court withholds its decision on this motion for a writ of prohibition, until the certificate of division of opinion on the allowance of the writs of habeas corpus complained of can be filed, and a hearing had thereon. This was a petition for a writ of prohibition. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. The Chief Justice, who holds by allotment the Circuit Court for the District of Virginia, has informed the court that before the pending motion for prohibition was made, he signified to the district judge his dissent from the opinion expressed by him in favor of the allowance of the writs of habeas corpus complained of in the petition ; and that he has advised the district judge now holding the Circuit Court, to direct that this division of opinion in respect to the motion for the writ now pending in the case of Peter Phillips, be certified to this court. There is nothing in the provisional order, staying further proceedings by the district judge, which can be properly construed as prohibiting this course; and it is expected that the certificate will be filed at an early day. On the first Friday thereafter the court will hear argument upon it; and in the meantime the decision of this court on the motion for a writ of prohibition, pending, will be withheld. The clerk will advise counsel accordingly, and will certify this direction to the district judge for the District of Virginia. Mr. J. H. Bradley and Mr. James Lyons for petitioner. MARSHALL v. LADD. ERROR TO THE SUPREME COURT OF THE STATE OF OREGON. No. 78. December Term, 1868. — Decided February 15, 1869. The legal title must prevail in ejectment; and neither party can set up facts which go to show that equitably the other party is the rightful owner of the property. XC APPENDIX. Cases Omitted in the Reports. The rulings of the court of Oregon upon the statutes of that State raise no Federal question in this case. Ejectment. The case is stated in the opinion. Mr. Justice Miller delivered the opinion of the court. In this case an action of ejectment was brought, by one of the defendants in the suit just decided (Silver v. Ladd, 7 Wall. 219), against the plaintiff in that suit and his tenant, Marshall, for a part of the land included in the certificate to Mrs. Thomas, the validity of which we have affirmed. In this case Ladd, the plaintiff, introduced his patent from the United States, and the defendants introduced the certificate of location to Mrs. Thomas, and relied on that and on the facts which went to show that it was rightfully issued, to defeat the recovery under Ladd’s patent. The court refused several instructions prayed by defendants, based on that defence, and told the jury that the legal title which passed from the United States to the plaintiff, must prevail over the claim to hold possession under the certificate. In this the court was undoubtedly correct. It is of the essence of the action of ejectment that the legal title must prevail. And neither party can set up in that proceeding facts which go to show that, equitably, the other party is the rightful owner of the property. It is the peculiar province of a court of equity to restrain the assertion of a legal title wrongfully held, or to compel its transfer to the person rightfully entitled to it. We need not here decide whether certain statutes of Oregon, intended to give to settlements made under the donation law the effect of a legal title, were applicable to a case where a patent had issued, or were properly construed by the Oregon court. Any error of that court in construing the statute of the State, cannot be reviewed here. The remedy of plaintiff in error is to compel a conveyance of the title from Ladd, and with it a decree for possession, or an action of ejectment founded on the title so acquired. The judgment of the Supreme Court of Oregon is Affirmed Mr. J. H. Mitchell, Mr. J. S. Smith and Mr. Rufus Mallory for plaintiffs in error. Mr. Edward Lander, Mr. T. J. Coffey and Mr. J. Hubley Ashton for defendants in error. APPENDIX. XCL J^orris v. Shriner. MORRIS v. SHRINER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS. No. 133. December Term, 1868. — Decided April 15, 1869. Where there is only one exception to a general finding by the court in an action at law tried without the intervention of a jury, and that is not well taken, this court will not examine the record further. Ejectment. The case is stated in the opinion. Mr. Justice Swayne delivered the opinion of the court. This is an action of ejectment. The plaintiff in error was the plaintiff in the court below. The parties waived the intervention of a jury and submitted the cause to the court. According to the statute regulating the practice in such cases, the finding of the court upon the facts may be either general or special, and shall have the same effect as the finding of a jury. When the finding is special, the review by this court may extend to the sufficiency of the facts found, to support the judgment. Act of March 3, 1865, § 4, 13 Stat. 501. In this case the finding was general, that the defendants were not guilty, etc., and judgment was rendered in their favor. We must, therefore, look to the bill of exceptions as if the finding had been by a jury, for the action of the court, and the grounds upon which it is sought to reverse the judgment/ The bill extends over more than fifty printed pages. It contains the testimony, mostly documentary, given by both parties. We have been able to find in it but one exception, that is to the admission of a small part of the evidence offered by the defendants. The court was clearly right in admitting it. The objection is not insisted upon in the agreement of the learned counsel for the plaintiff in error. We need not, therefore, more particularly advert to it. The bill concludes as follows: “ The court thereupon found for the defendants, and found that defendants were not guilty of unlawfully withholding from plaintiff the possession of the premises in controversy. To preserve all which matters and things of record in this cause, defendant prays the court to sign and seal this bill of exceptions on and during the progress of the trial herein, and as the several steps herein were xcii APPENDIX. Cases Omitted in the Reports. taken, which upon and during said trial was done accordingly, and this bill of exceptions filed on and during said trial.” There being but the single exception in the bill, we can examine the case no further. Finding that exception not well taken, we are constrained to affirm the judgment, and it is affirmed accordingly. Affirmed. Mr. J. M. Carlisle for plaintiff in error. Mr. Jackson Crimshaw for defendant in error. AMERICAN WOOD PAPER COMPANY v. HEFT. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. No. 154. December Term, 1868.—Decided March 1, 1869. In this case the court permits a third party to intervene and file affidavits to show that the suit has been settled between the parties, and that its further prosecution is collusive and fictitious and for the purpose of aiding further proceedings against persons not parties to the record; and, counter affidavits being filed by the appellant, a rule is issued against the appellant to show cause why the suit should not be dismissed. The case is stated in the opinion of the court. For further proceedings in it, see 8 Wall. 333. Mr. Chief Justice Chase delivered the opinion of the court. This is a motion for leave to intervene and to move to dismiss the appeal upon two grounds, namely: . (1) That the suit of the appellant is merely fictitious, there having been a settlement of the matter in litigation between the parties. (2) That the suit is now prosecuted, not to determine any real controversy between the parties to the record, but to obtain a decree on which to found an application for an injunction against persons really interested, adversely to the appellants, but not parties to the record, and among them against the person in whose behalf the motion is made. The affidavits in support of the motion do not show that there was no real controversy in the Circuit Court, but are introduced for the purpose of satisfying us that since the decree in that court the matters there litigated have been settled in such a manner that the appellees have no further interest in the cause. An affidavit against the motion has been filed by the appellants, in which affiant describes himself as yet of the company, and demes APPENDIX. xciii Chicago v. Bigelow. that the matters in litigation upon the appeal have been settled ; but avers, on the contrary, that the appeal is prosecuted in good faith and for the détermination of a real controversy. Taking all the affidavits together, in connection with the circumstance that no appearance has been entered in this court for the appellees, we are of the opinion that enough is shown to warrant a rule against the appellant, to show cause why the appeal should not be dismissed. In the case of Lord v. Veazie, 8 How. 251, 254, in this court, an appeal was dismissed upon motion, the court being satisfied, by the affidavit produced, that the suit was fictitious and collusive ; and the same course was pursued upon similar showings in Cleveland n. Chamberlain, 1 Black, 419, 425. Fletcher v. Peck, 6 Cranch, 87, 147, per Johnson, J., dissenting. In these cases no doubt was left in the judgment of the court, that the suits were in fact what the affidavits in support of the motion to dismiss alleged them to be. In this case, we do not think it proper to go at present to the extent of dismissal. We think, indeed, that it would be the better practice in cases similar to this, to move in the first instance upon affidavits for a rule to show cause wliy the suit should not be dismissed. That rule will now be awarded returnable the 9 th day of April next, and leave is given to both parties to take depositions on sufficient notice before any Commissioner of the United States, in support of the rule and against it. Rule granted. Mr. B. F. Butler for intervenor. Mr. T. A. Jenckes for appellant.. Mr. Leonard Myers for appellees. CHICAGO v. BIGELOW. appeal from the circuit court of the united states for the NORTHERN DISTRICT OF ILLINOIS. No. 183. December Term, 1868.—Decided April 12,1869. The record showing no allowance of appeal below, and it appearing by affidavits that an appeal was actually allowed of which the clerk omitted to make entry, this court refused a certiorari to bring up the record; and the case was passed to enable appellant’s counsel to move in the Circuit Court for an entry nunc pro tunc of the prayer and allowance. The case is stated in the opinion. xciv APPENDIX. Cases Omitted in the Reports. Mr. Chief Justice Chase delivered the opinion of the court. The record shows no allowance of appeal in the court below, and this is usually a sufficient ground for dismissal. But it appears from affidavits, that an appeal was in fact prayed and allowed ; and that the condition of the record is due to the omission of the clerk below to make the proper entry. Under these circumstances we think that neither the motion of Mr. Carpenter to dismiss, nor the 'motion of Mr. Irvin for a certiorari, should be allowed. We cannot dismiss for the want of an allowance of an appeal, when it is satisfactorily shown by the affidavits that an appeal was actually allowed, without giving the appellant the opportunity to make record proof of the fact. Nor can we allow a certiorari, when it appears that nothing is omitted from the record which is of record in the court below. The cause will be passed until the second Monday of October, that the counsel for the appellant may move upon proper showing for an entry, nunc pro tunc, of the prayer and necessary allowance of appeal, in the Circuit Court. If such an entry shall be made by direction of the Circuit Court, the motion for certiorari may be hereafter renewed. So ordered. Mr. B. R. Curtis and Mr. S. A. Irvin for appellant. Mr. M. H. Carpenter, Mr. S. A. Goodwin and Mr. E. C. Larned for appellee. LYNCH v. DE BERNAL. ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA. No. 305. December Term, 1868. — Decided November 5, 1869. A motion to dismiss for want of jurisdiction is denied because it involves looking into the merits. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. The question of jurisdiction in this case cannot be determined without opening the record and looking into the merits of the controversy. The motion to dismiss for want of jurisdiction will, therefore, be denied; but may be argued upon the hearing of the cause. See 9 Wall. 315. Denied. Mr. E. L. Goold and Mr. Frederick Billings for the motion. Mr. George H. Williams and Mr. J. Hubley Ashton opposing. APPENDIX. xcv Texas v. White. TEXAS v. WHITE. ORIGINAL. No. 4. Orig. December T., 1869. — Decided February 7, 1870, and November 11, 1870. A defendant in equity is required to pay into court for the benefit of complainant money received by him pending the litigation, before service of process but after knowledge of the complainant’s equity. A rule is granted without affidavits, under the circumstances of this case, (though the practice is irregular,) to show cause why money should not be paid into court for the benefit of complainant. These were two motions made after the entry of the final decree in Texas v. White, 7 Wall. 700, 741. The first motion which was for the payment of money into court related to the defendant, Stewart, who is mentioned in the note bn page 702 of the report of that case. In the second, (for a rule nisi to show cause why money should not be paid into court,) the motion was for a rule upon George W. Paschal. The result of the granting of this rule is reported in In re Paschal, 10 Wall. 483. Mr. Chief Justice Chase delivered the opinion of the court on the first motion, February 7, 1870. This is a motion in behalf of the complainant for an order upon the defendant, Stewart, to pay the amount of the money received by him pending the litigation into court. The decree in this cause heretofore rendered, found that the complainant was entitled to recover certain bonds and coupons, and any proceeds thereof which had come into the possession or control of the defendant, with notice of the equity of the complainant; and further that the defendant, Stewart, was accountable to the complainant to make restitution of four of said bonds, numbered 4230, 4231, 4235, and 4236, with the coupons attached, or make good the proceeds thereof. The decree as to Stewart was rendered pro confesso, and a motion was made to set it aside, and for a new hearing, on the ground that the proceeds of the bonds were paid to him before serving of process ; but on consideration, the court being satisfied that the payment of the bonds was received by him pending the litigation, and, though before service of process on him, with notice of the equity of the complainant, denied the motion. Upon the principle of this decision the complainant is entitled to the order for which the motion asks, and it will be allowed. xcvi APPENDIX. Cases Omitted in the Reports. The clerk is directed to ascertain the amount received by the defendant, Stewart, which amount the defendant is required to pay into court, for the use of the complainant, within thirty days from the date of this order, February 7, 1870. Motion granted. Mr. George W. Paschal for the motion. Mr. James Hughes opposing. Mr. Justice Clifford delivered the opinion and order of the court on the second motion November 11, 1870: Responsive to the motion submitted by T. J. Durant in this case: Ordered, that a rule nisi issue to George W. Paschal, returnable on Friday next, to show cause, if any, why the rule prayed in the motion shall not be granted — that he, the said Paschal, pay to the clerk of this court for the benefit of the complainant, the sum of forty-seven thousand three hundred and twenty-five dollars, gold, received by him in behalf of the complainant in said cause, as alleged in the pending motion. Motions for such a rule ought regularly to be accompanied by an affidavit verifying the facts on which they are grounded, and, when not so supported, they will not in general be entertained by the court for affirmative action ; but the docket entries and papers in the case show that due notice was given to the respondent before the hearing, and inasmuch as the respondent appeared by counsel and admitted that he had received the amount alleged in the motion, and expressed through his counsel his readiness to answer the motion upon the merits, the court think it proper to grant the rule nisi, giving leave to the parties respectively to file, at the hearing on the rule now ordered, such affidavits, pertinent to the issue involved in the rule, as they shall be advised are necessary to the present inquiry. Rule granted. Mr. T. J. Durant for the motion. Mr. A. G. Riddle opposing. On the 14th day of the same November, Mr. Justice Clifford announced that, Mr. Paschal assenting, a rule would issue to him to show cause why his name should not be stricken from the docket in the case of Texas v. Peabody’s Executors as counsel for the complainant. See In re Paschal, 10 Wall. 483. APPENDIX. xcvii Kenosha v. Campbell. LATHAM v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 6. December Term, 1869. — Decided December 13, 1869. An order for allowing an appeal relates back to the date of the prayer for allowance, and is considered as made on that day. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. This is a motion to dismiss the appeal from the judgment of the Court of Claims, on the ground that it was not allowed within the ninety days fixed by the statute. And it appears that the order of allowance was not made within the statutory time. But it also appears, on examination, that the prayer for allowance was within the time, and we have heretofore held that the order allowing the appeal must have relation back to the date of the prayer for allowance, and be considered as made on that day. The motion must therefore be Denied. Mr. Attorney General, Mr. Assistant Attorney General Talbot, Mr. E. P. Norton and Mr. J. J. Weed for the motion. Mr. J. M. Carlisle, Mr. J. D. McPherson and Mr. L. S. Chatfield opposing. This appeal was subsequently dismissed by the “ unanimous judgment of the court.” See 9 Wall. 145. KENOSHA v. CAMPBELL. error to the circuit court of the united states for the district OF WISCONSIN. No. 144. December Term, 1869. — Decided April 4,1870. Campbell v. Kenosha, 5 Wall. 194, affirmed. The court is satisfied that this writ of error was not sued out for delay, and refuses to allow 10 per cent damages. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. The record in this case was before us at the December Term, 1866. The judgment of the court below had been in favor of the city of Kenosha, and the writ of error was prosecuted by the now defendant in error. The judgment was reversed; and on a new 7 xcviii APPENDIX. Cases Omitted in the Reports. trial, there was a judgment against the city. And the city is now plaintiff in error, and seeks the reversal of the last judgment. Counsel have labored with much zeal and ability to satisfy the court that, upon the former hearing, w One important and controlling fact was misapprehended, or did not sufficiently appear in the case at that time.” But we are not convinced that there was any such misapprehension, or that any important fact escaped the observation of the court. The judgment of the Circuit Court, therefore, must be Affirmed. Under the circumstances of the case, however, we cannot say that it was prosecuted merely for delay. The motion for affirmance with ten per cent damages must, therefore, be denied. Mr. John W. Cary for plaintiff in error. Mr. Wm. P. Lynde for defendant in error. downing v. McCartney. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 163. December Term, 1869. — Decided April 11, 1870. An appeal by one of three complainants from a joint decree, without notice to the others and without their refusing to join in it, is dismissed. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. The decree below was joint against 'the three complainants. One only has appealed ; and there is nothing in the record showing that the other complainants had notice of this appeal, or that they refused to join in it. The appeal, therefore, must be Dismissed. Mr. W. C. Goudy for appellant. Mr. James Hughes, Mr. J. W. Denver, Mr. Charles F. Peck and Mr. L. Janin for appellees. WOOD v. RICHARDS. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF ALABAMA. No. 215. December Term, 1869. —Decided April 30, 1870. The hearing on a motion for additional security on a writ of error, supported by affidavits but without notice to the opposite party, is postponed in order that notice may be given. APPENDIX. xcix Baltimore Railroad v. Marshall County Supervisors. Motion to give security for costs, etc. Mr. Chief Justice Chase delivered the opinion of the court. This is a motion in behalf of defendant in error for an order that plaintiff in error, who was also plaintiff below, give additional security for costs and damages which may be sustained by the defendant by reason of his wrongful complaint. The motion is founded on affidavits of insolvency of the sureties in the original bond, which certainly are, prima facie, sufficient. But no notice of the motion appears to have been given to the plaintiff in error; and he has had no opportunity to put in counter affidavits. The hearing of the motion will, therefore, be postponed until the first motion day in November next, in order that proper notice may be given. Mt. L. P. Poland and Mr. George S. Boutwell for the motion. Mr. P. Phillips opposing. * THE BALTIMORE & OHIO RAILROAD v. MARSHALL COUNTY SUPERVISORS. CERTIFICATE OF DIVISION IN OPINION BETWEEN THE JUDGES OF THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WEST VIRGINIA. No. 267. December Term, 1869. — Decided December 13, 1869. This court has jurisdiction of a case brought up on a certificate of division of opinion on the question whether the Circuit Court has jurisdiction of it. A motion to advance is denied, because not coming within the 30th rule. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. The motion, to dismiss this case for want of jurisdiction, must be denied. It comes here upon a certificate of division of opinion, and the principal point certified is whether the Circuit Court has jurisdiction. It is quite clear that this court has jurisdiction to determine that point. A motion has also been made to advance the cause upon the docket on the ground that very important interests of the State of West Virginia are involved in the litigation. The case, however, does not come within any of the exceptions to the 30th rule, which requires that all cases shall be heard when c APPENDIX. Cases Omitted in the Reports. reached in the regular call of the docket, and in the order in which they are entered. We are obliged, therefore, to deny the motions. Both motions denied. Mr. B. Stanton and Mr. D. Lamb for the motions. Mr. J. H. B. Latrobe and Mr. J. R. Tucker opposing. COX v. UNITED STATES ex rel. McGARRAHAN. EBROK TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 337. December Term, 1869. —Decided January 19, 1870. The court deny a motion to rescind an order advancing this cause founded upon the fact that the writ of error to the judgment below was allowed November 30, 1869, less than thirty days before the first day of the present term, which began December 6, 1869. This was a motion to rescind an order, made December 13, 1869, advancing this case for trial. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. We have considered the objection made by Mr. Phillips to the hearing, during the present term, of the case of The Secretary of the Interior v. McGarrahan. It is founded upon the fact that the writ of error to the judgment of the Supreme Court of the District of Columbia, directing the issue of a peremptory mandamus to the Secretary was allowed on the 30th November, 1869, less than thirty days before the first day of the present term began, on the sixth of the present month. The citations and the writ of error were both served on the same day. The 22d section of the Judiciary Act, taken in connection with the act of 1803, provides for the re-examination of cases on writ of error, the adverse party having at least thirty days’ notice. This provision does not necessarily require that the thirty days notice shall be given prior to the first day of the term; but in the case of Welsh v. Mandeville, 5 Cranch, 321, the court held as a matter of discretion, that they would not compel the hearing of the cause at the first term unless such notice had been given, and this decision was made the rule of the court. This decision was made in accordance with a rule of the court adopted February Term, 1803, 1 Wheat, xvi, Rule XVI, that where the writ of error issued within thirty days before the meeting of the court, the defendant is at liberty APPENDIX. ci Peyton v. Heinekin. to enter his appearance and proceed to trial; otherwise, the cause must be continued. The above decision seems to have been made in 1809. By the rule adopted February Term 1821, 1 Pet. xxiv. Rule XIX, § 1, it was made the duty of the plaintiff to docket the cause or file the record within the first six days of the term, on failure of which the defendant might docket the cause and file the record; and thereupon the cause was to stand for trial as if the record had been filed within the first six days. The defendant had the option, upon a certificate of the clerk of the court where the judgment was rendered, to have the cause continued or dismissed without hearing. Motion denied^ Mr. Attorney General and Mr. J. Hubley Ashton for plaintiff in error. Mr. P. Phillips and Mr. A. L. Merriman for defendants in error. On the denial of this motion the argument of the cause proceeded. The case is reported in 9 Wall, at page 298. PEYTON v. HEINEKIN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE. MIDDLE DISTRICT OF TENNESSEE. No. 127. December Term, 1871. — Decided April 15, 1872. There is no merit in any of the defences set up here; and, it being apparent that the appeal was taken for the purpose of delay, the judgment below is affirmed with interest and 10 per cent damages. In a contract between a commission merchant in New York and a person in another State that the latter shall send merchandise to the former to be sold, and that the former shall make advances on it to be repaid with commissions and interest out of the sales, the rate of interest is to be determined by the laws of New York, the place of performance. A factor who insures goods consigned to him for the benefit of his principal may recover from him the cost of the insurance. The case is stated in the opinion. Mr. Justice Strong delivered the opinion of the court. There is no merit in any of the exceptions which have been taken to this decree. The contract, which was a deed of trust to secure the repayment of future advances, defined with sufficient certainty the property conveyed, and there could have been no difficulty in identifying it even without reference to the deeds of the grantor. These deeds were, however, referred to as parts of the description, and they may, therefore, be called in aid of the description, if it cii APPENDIX. Cases Omitted in the Reports. could be held defective. But no such defence was set Up in the court below. It was not there pretended that the contract was void, either for uncertainty of description, or for any other reason. Nor is there any validity in the objection that .the contract was usurious. The complainants were commission merchants in the city of New York, who agreed to advance money to the defendant, from time to time. To reimburse them for such advances, the defendant undertook to send flour to them in New York, which they agreed to sell and, after deducting commissions and legal interest according to the New York rate, to credit him with the balance. Thus the advances were to be made in New York, and they were to be repaid there. That State was the place of performance, and hence it was legitimate to fix the rate of interest there allowed by law. There is no error in the decree directing a sale. It is sufficiently specific, and the defendant cannot complain that the sale was ordered to be upon credit when it might have been decreed to be for cash. The exceptions to the report of the master require only slight notice. They are very trivial. The credit of $40 discount on the draft of August 24 was properly disallowed. The draft was paid by the complainants in full when it fell due, and the defendant is charged with interest only from the time of payment. The charge of money paid by the complainants for insurance was correct. They were factors, and it was their duty to protect the flour with the same care as that which a prudent man would extend to his own. It is a recognized usage, if not the duty, of factors, to insure their principal’s goods. Smith Mer. Law, 124, 125. The calculation of interest by the master was only too favorable for the defendant. This disposes of the case. It is very obvious to us that this appeal was taken only for the purpose of delay. * It is therefore Affirmed with interest and ten per cent damages. Mr. Henry Cooper, Mr. Baylie Peyton in person, and Mr. Caleb Cushing for appellant. Mr. Conway Robinson for appellees. APPENDIX. ciii Gardner v. Goodyear Dental Vulcanite Co. GARDNER v. GOODYEAR DENTAL VULCANITE COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND. No. 133. December Term, 1871. —Decided March 3,1873. One party to a suit cannot pay the fees of counsel on both sides, both in the court below and on appeal, without being held to have such control over both the preparation and argument of the cause, as to make the suit merely collusive in both courts. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. The original suit in equity was brought by the Goodyear Dental Vulcanite Company against Gardner, to enjoin him from the use of certain patented subjects, belonging, as alleged, to the company, and for an account. The case was heard upon a bill, answer and testimony, and there was a decree in favor of the company in the Circuit Court for the District of Rhode Island in September, 1870; Upon appeal to this court, the decree below was affirmed on the 6th of May, 1872, but the opinion has not been read. The defence was conducted by counsel originally employed and paid by Newbrough, under whom Gardner was licensee. On the 1st of July, 1869, before the decree in the Circuit Court, Newbrough and the company compromised all matters of difference between them, with the understanding that this suit should go on to the final hearing and determination, both in the Circuit Court and in this court, on appeal, as if the compromise had not been made. The company, however, paid the counsel employed for the defence as well as for themselves in the Circuit Court, and subsequently in this court. These facts appear from the record and from the admissions of the company, in the 9th Article of their answer to the motion to dismiss the appeal. They are the only facts which we think it necessary to notice. It may be that the company has not become the legal or equitable owners of the opposing interests involved in the suit. There may be, and doubtless are, large opposing interests, of which they are neither the legal nor equitable owners. But it cannot be admitted that one party to a suit can pay the fees of counsel on both sides, civ APPENDIX. Cases Omitted in the Reports. both in the court below and on appeal, without being held to have such control over both the preparation and argument of the cause, as to make the suit merely collusive in both courts. It can make no difference that the counsel fees were charged to the party apparently, though not really, liable to pay them, and payment from the other party procured through him. This, indeed, is a circumstance against the party who pays the fees, rather than in his favor. The motion to vacate the decree of affirmance, heretofore made, and to dismiss the appeal must, therefore, be granted, and an order made to recall the mandate which has been issued to the Circuit Court. We take occasion, however, to say, that we see nothing in the conduct of the counsel who actually represented the company which merits blame, or which ought to affect in any degree the high esteem in which they have been held. Neither of them appears to have had any knowledge of any arrangements made by their client with the opposing party. Motion granted. Mr. J. N. Black for the motion. Mr. Causten Browne submitted an explanatory statement to the court. WELCH v. BARNARD. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. • No. 141. December Term, 1871. — Decided April 22, 1872. The decree below rightfully denied to the parties their claim for rents and profits, and it is affirmed. The case is stated in the opinion. Mr. Justice Field delivered the opinion of the court. In 1837 one Thomas Barnard, a citizen of the State of Mississippi) filed a bill in the Circuit Court of the United States for the Eastern District of Arkansas, against Chester Ashley, Silas Craig and others, to obtain a decree for the cancellation of certain patents issued to them, and to quiet his title to certain real property in Arkansas, of which he claimed to be the owner and occupant. In 1853, by a decree of the court rendered in that suit and in a cross-suit commenced by the defendants, the title to the property was adjudged to be in Silas Craig, and the heirs and executrix of Chester Ashley, he having died pending the suits; and the complainants were decreed to surrender possession of the premises, or APPENDIX. cv Welch v. Barnard. such parts thereof as were occupied by them, and to pay the value of the rents and profits of such parts as were possessed and used by Barnwood or his heirs, he also having died pending the suits, after the conveyance of the property by the governor of the Territory to Craig and Ashley, until such parts were sold by them to other persons. And it was ordered that it be referred to a master in chancery, to take and state an account of such rents and profits, and to ascertain what portions, if any, of the property had been sold by Craig and Ashley to other persons ; and the master was directed to exclude from the account the rents and profits of the portions thus sold, from the time of their sale. This decree was affirmed by this court at the December Term, 1855, and the case was remanded for further proceedings to be had respecting the rents and profits. Upon filing the mandate in the Circuit Court a reference was had to a master to examine and state an account of the rents and profits as directed by the decree. No report was made by him, or if made, was ever acted upon; and in consequence of the death of some of the parties, and proceedings taken to revive the suit, nothing appears to have been done with respect to the account ordered until 1869. The suits being then revived, a new master was appointed to take the account; and in 1868 he made his report, finding that the rents and profits of the property whilst possessed and enjoyed by the complainants, with interest, amounted on the 16th of April of that year to over eighteen thousand dollars. He also reported that, as appeared by the answer and cross-bill of the defendants, Craig and Ashley, the lands, of which he had taken an account of the rents and profits, had been sold by them long anterior to the decree, and before any rent was proved to have accrued; and that no other* evidence of sale was presented to him. As the decree only required an account to be taken of the rents and profits which had accrued previous to a sale by Craig and Ashley, the Circuit Court refused to confirm the report, and denied to the parties their claim for rents and profits; and in so ruling, in our judgment, ruled rightly. Decree affirmed. Mr. Watkins and Mr. U. M. Rose for appellants. Mr. George Taylor for appellees. cvi APPENDIX. Cases Omitted in the Reports. BAIRD v. UNITED STATES. UNITED STATES v. BAIRD. APPEALS FROM THE COURT OF CLAIMS. Nos. 223, 224. December Term, 1871. — Decided November 18, 1872. Although this court does not apply strict rules of pleading to cases appealed from the Court of Claims, yet the allegations and proofs must so far correspond as to give to the United States the benefit of the principle of res judicata in cases where they ought to have the protection which it affords. When a petition in the Court of Claims is silent upon a subject which forms part of the res gestae, that silence concludes the petitioner. On the proofs, this court arrives at the conclusion that the judgment of the Court of Claims was right, both in respect of the petitioner, and in respect of the United States. The case is stated in the opinion. Mr. Justice Swavne delivered the opinion of the court. These are cross appeals from the judgment of the Court of Claims. Baird as the surviving member of the firm of M. W. Baldwin & Co. was the petitioner. That court gave him a judgment for $23,750. He appealed and contends that he is entitled to recover a much larger sum. The United States appealed and insist that he is entitled to nothing. The finding of facts presents the case as it is before us for examination. On the 17th of March, 1864, the United States, by their proper officer, ordered Baldwin & Co. to make for them fifteen locomotive engines, “ at the earliest practical period,” “ to the exclusion of all other interests or contracts whatever, it being understood” that they would be “indemnified from any damage resulting from a compliance with this order.” It was added, “In replacing any engines taken from other parties in filling this order, you are authorized to charge the government any advance in the cost of labor and materials over the cost of those on the 9th of November, 1863. On the same day Baldwin & Co. replied that they would furnish the engines. “ The whole number to have precedence of all other work whatever, and to be finished with all possible despatch, for which,” they said, “we are to receive $18,947.72 for each engine, and government tax.” This correspondence constitutes the contract between the parties. APPENDIX. cvii Baird v. United States. At the date of the order Baldwin & Co. were under a contract to make and deliver to other parties ninety-eight engines. Eighteen of them were finished while the government work was in progress. Of the remaining eighty, thirty-two were contracted for at fixed prices, and the remaining forty-eight at contingent prices to be determined by the cost of labor and materials at the date of delivery. In respect to the forty-eight the rise of prices was calculated, not up to the date of delivery, but up to sixty days before delivery, that is, up to the time at which they would have been delivered, as the petitioner alleged, but for the interposition of the government. The Court of Claims found that the abatement thus made by Baldwin & Co. was about $1250 upon each engine and that on a settlement with the Galena and Chicago Railroad Co., they sustained a specific loss of $5000 by reason of the delay caused by the execution of the order of the United States. The government paid the contract price of the engines, amounting in the aggregate to $292,742.25. There was paid subsequently on account of the increase in the cost of labor, materials, interest, etc., in respect to these engines the further sum of $97,507.76, making the whole sum paid by the United States $390,250.01. The Court of Claims awarded to the petitioner $1250 for the abatement of price on each of fifteen engines, which were, “in fact, pushed out of their place into a period of higher prices than they would otherwise have been built for, by the interposition of the government,” and the $5000 lost in the settlement with the Galena and Chicago Railroad Company. The aggregate of these sums is the amount for which the judgment was given. The question presented for our consideration is, whether this judgment is wrong as to either of the parties. The examination of the subject renders it necessary to look carefully into the contract, in connection with the facts developed in the findings by the court. The government was to pay a stipulated sum for each engine and the tax. This was done. It was to pay for any advance in the price of labor and materials beyond the rates which obtained on the 9th of November, 1863. This also has been done. Upon these subjects the petition is silent, and that silence concludes the petitioner. This court has never been strict in applying the rules of pleading to this class of cases, and has looked to the substantial justice and cviii APPENDIX. Cases Omitted in the Reports. law of the case, rather than to the manner in which the questions to be considered are presented. But the allegations and proofs must so far correspond as that the latter shall not wholly depart from the case made in the petition, and introduce demands which the government had no notice to meet. The rule of correspondence to this extent is vital to the substance of the proceedings, and it is necessary to give to the United States the benefit of the principle of res judicata in cases where they ought to have the protection which it affords. Baldwin & Co. were to be “ indemnified from any damage resulting from compliance with the order of the government.” The petition is confined to a claim arising under this clause of the agreement. It was, therefore, the only one open for the examination of the Court of Claims, and it is the only one before us for consideration. The $5000 lost by Baldwin & Co. in the settlement with the Galena and Chicago. Company was clearly within the scope of this clause, and was properly allowed by the court below. It-is equally clear that the fifteen engines constructed for the government displaced and postponed the construction of an equal number under the contracts of Baldwin & Co. with other parties, and subjected them to a loss of $1250 on each engine so postponed. If the indemnity clause has any meaning or effect it must be held to include this charge also. We think it was properly allowed by the Court of Claims, and that there is no ground for complaint on the part of the United States. But the court refused to make the like allowance for the residue of the eighty engines. In this the learned counsel for the petitioner insist that a gross error was committed, and here lies the stress of the case. The difficulty of arriving at a satisfactory conclusion is increased by the finding of the court that the work upon the whole eighty “ was delayed about two months. Nevertheless, we think this claim of the petitioner is not well founded. The Court of Claims found that eighteen engines “were finished for private parties while the government work was in progress.” In regard to them there was no delay. This shows that the -capacity of the establishment was equal to the construction of thirty-three engines at the same time. Baldwin & Co. were to construct eighty for private parties. They agreed to construct for the government fifteen in addition, and to give them the preference in the order of construction. The additional time necessary to con- APPENDIX. cix Baird r. United States. tract the eighty would be the time which it required to construct the additional fifteen for the government : no more and no less. Suppose when the government order was completed they had decided not to make the fifteen of the eighty which would have been first put under way if the government order had not been given. Then there could have been no postponement except as to those fifteen. The residue of the eighty would have been unaffected as to the time of their completion : Again ; if, when the government order was given it had been determined to construct the fifteen displaced and postponed engines last, instead of next after those of the government, and this purpose had been carried out, then, again, there could have been no delay except as to the fifteen last constructed. In the light of these considerations, we can come to no other conclusion than that the judgment of the Court of Claims was right in respect to the petitioner, as well as the United States. The allowance of damages was properly limited to fifteen engines, instead of being extended to the eighty in question. The contractors had no right so to conduct their business as unnecessarily to swell their claim for the damages. Their duty was in the other direction. Wicker v. Hoppock, 6 Wall. 94, 99. Nor can the petitioner be permitted now so to shape his demand as to work out improperly the same result. The theory submitted by his counsel is ingenious, but it does not answer the views we have expressed, and it is unsound. We think it is entirely clear that there could have been no delay, and consequently no loss imputable to the government beyond what relates to fifteen of the engines ordered by other parties. Neither party in the argument here objected to $1250 as the measure of damages to be applied. We have therefore not deemed it necessary to consider that subject. The judgment of the Court of Claims is Affirmed. Mr. Attorney General and Mr. Solicitor General, for the United States. Mr. J. M. Carlisle and Mr. J. D. McPherson for Baird. ex APPENDIX. Cases Omitted in the Reports. MONGER v. SHIRLEY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TENNESSEE. No. 355. December Term, 1871. — Decided March 25, 1872. No appeal being asked for below or rendered, no appeal bond given, and there being no citation, the appeal is dismissed on motion. Motion to strike the case from the docket. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. The record does not show that an appeal was asked for or rendered. An appeal bond was filed, but there was no approval of it by the court, nor was there any citation. It is unnecessary to say more than that the appeal must be dismissed. Brockett v. Brockett, 2 How. 238 ; Palmer v. Donner, 7 Wall. 541; Castro v. United States, 3 Wall. 46, 49. Dismissed. Mr. John Baxter for the motion. Mr. H. Maynard and Mr. T. A. R. Nelson, opposing. HUNTINGTON v. TEXAS. FIRST NATIONAL BANK OF WASHINGTON v. TEXAS. ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Nos. 429, 523. December Term, 1871. — Decided February 5, 1872. After hearing the parties the court advances the causes as causes in which a State is a party under the act of June 30,1870,16 Stat. 176, c. 181. Rev. Stat. § 949.* Motion to advance. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. The motion to advance these cases is made under the act giving priority to certain cases in which a State is a party in the courts of the United States. That act provides that it shall be the duty of the court on sufficient reasons shown, to give causes in which a State is a party preference and priority over all other civil causes pending in such court between private parties. The question presented by these cases relates to the right of the State of Texas to certain bonds of the United States which are said, under the decision of this court in Texas n. White, 7 Wall. 700, to belong to the State ; and it is stated by the governor of the State that the money APPENDIX. cxi Williams v. Reynolds. represented by the bonds is part of the school fund and is very much wanted for the schools. This seems to us sufficient reason for advancing the causes. They will, therefore, be specially assigned for hearing on Monday, the 4th of March, unless the counsel agree upon a different day. Motion granted. Mr. R. T. Merrick, Mr. Geo. Taylor and Mr. T. J. Durant for the motion. Mr. Walter 8. Cox and Mr. J. Hubley Ashton opposing. Mr. Caleb Cushing, for the Bank of Washington, opposing. WILLIAMS, Collector, v. REYNOLDS, Agent, etc., of the Lafayette and Indianapolis Railroad Company. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. No. 93. December Term, 1872. — Decided January 20, 1873. Since the passage of the act of July 13, 1866, c. 184, §§ 67, 68, 14 Stat. 172, and the repeal of § 50 of the act of June 30, 1864, 13 Stat. 241, the Circuit Courts of the United States have no jurisdiction of cases arising under the internal revenue laws, to recover duties illegally assessed, and paid under protest, unless the plaintiff and defendant in such suit are citizens of different States. The case is stated in the opinion. Mr. Justice Clifford delivered the opinion of the court. Internal Revenue taxes were assessed against the aforesaid Railroad Company, or against the plaintiff as their agent and trustee; and the plaintiff, as such agent and trustee, denying the legality of a portion of the tax, brought an action of assumpsit in the Circuit Court of the United States for that district against the defendant, the Collector of Internal Revenue, to recover back that amount, as having been unlawfully assessed by the assessor and illegally exacted by the defendant as such collector. It appeared by the declaration that the net earnings of the Railroad Company for the period therein specified, were duly and correctly reported to the assessor, and that the assessor assessed the same as required by law, and that the plaintiff, as the agent and the trustee of the Company, paid the amount of the tax without complaint. None of those proceedings are drawn in question ; but it also appears that the Company had on hand at that time the sum of one hundred thousand dollars invested in government bonds, the same being a surplus fund which accrued from the net earnings of an cxii APPENDIX. Cases Omitted in the Reports. earlier period; and that the assessor also levied an internal revenue tax of five per cent on that fund, to which the defendant, as such agent and trustee, objected and appealed to the commissioner for relief, which was denied by the commissioner; and it appears that he affirmed the action of the assessor. Payment having subsequently been demanded, the plaintiff submitted and paid the tax, and brought this action to recover back the amount. Service was made and the defendant appeared and demurred to the declaration, but the court, having heard the parties, overruled the demurrer, and the defendant was permitted to plead to the merits. Subsequently, the defendant filed a special plea in bar of the action in substance and effect as follows: That the fund assessed was a surplus fund of the Company; that the same nor any part thereof had ever been divided among the stockholders, nor paid over to them, or passed to their credit; that it was retained and held by the Company as a corporation; and that the legal title to the same remained vested in the Company; that the fund accrued from earnings of the Company, and was gain, profit and income; and that it was duly assessed as such against the plaintiff for that year; and that the tax was duly collected by the defendant as such collector. Instead of replying and taking issue upon the matters of fact set forth in the plea, the plaintiff filed a general demurrer to the same, and the defendant joined in demurrer. Hearing was had, and the court sustained the demurrer, and rendered judgment for the plaintiff, and the defendant sued out a writ of error and removed the cause into this court. Examination to any extent of the merits of the controversy is unnecessary, as the only error assigned by the present plaintiff is, that the Circuit Court had no jurisdiction of the suit, as both parties are citizens of the same State, and it is quite clear that the error assigned is sufficient to dispose of the case, as it appears from the pleadings that the matter of fact alleged to show a want of jurisdiction in the Circuit Court is well founded. Assumpsit for money had and received is undoubtedly the appropriate remedy to recover back moneys paid under protest for internal revenue taxes illegally exacted, or where an appeal in such a case was duly taken before making the payment to the Commissioner without success; and if commenced in the state court the APPENDIX. cxiii Williams v. Reynolds. action may be removed on petition of the defendant into the Circuit Court for the district where the service was made, and in that state of the case the jurisdiction of the Circuit Court is clear beyoud doubt, irrespective of the citizenship of the parties, as it is made so by the express words of an act of Congress. All cases in law or equity arising under the revenue laws were declared to be cognizable in the Circuit Courts by the act of the 2d of March, 1833, unless where it appeared that other provisions for the trial of the same had previously been made by law. 4 Stat. 632. Doubts were entertained whether cases arising under laws subsequently passed, to levy and collect internal revenue taxes, would be included in that provision, as no such acts were in force at the time that act was passed; and to remove all such doubts upon the subject, Congress, on the 30th of June, 1864, enacted that the provisions of that act “ shall be taken and deemed as extending to and embracing all cases arising under the laws for the collection of internal duties, stamp duties, licenses or taxes, which have been or may be hereafter enacted.” 13 Stat. 241. Beyond doubt, the effect of that enactment was to confer upon the Circuit Courts original jurisdiction in %11 cases, whether in law or equity, arising under the laws passed to levy and collect internal revenue taxes; but Congress, on the 13th of July, 1866, repealed the section of the act conferring such jurisdiction, and also enacted that the original act conferring such jurisdiction in certain revenue cases, entitled “ An Act to provide for the Collection of Duties on Imports,” shall not be so construed as to apply to cases arising under an act entitled “ An Act to provide Internal Revenue to support the Government,” or any act in addition thereto or in amendment thereof, nor to any case in which the validity or interpretation of said act or acts shall be in issue. 4 Stat. 632 ; 14 Stat. 172, §§ 67, 68 ; Hornthall v. Collector, 9 Wall. 560, 565 ; Insurance Co. v. Ritchie, 5 Wall. 541. Since the passage of the last-named act, and the repeal of the 50th section of the prior act, the Circuit Courts have no jurisdiction of cases arising under the internal revenue laws, to recover back duties illegally assessed and paid under protest, unless the plaintiff and defendant in such suit are citizens of different States. Such action, if the parties are citizens of different States, may be commenced in the Circuit Court; but if they are citizens of the same 8 cxiv APPENDIX. Cases Omitted in the Reports. State, the suit must be commenced in the state court and be prosecuted there, unless it is removed into the Circuit Court for the same district, in pursuance of some one of the acts of Congress passed for that purpose. Assessor v. Osborne, 9 Wall. 567 ; Philadelphia v. Collector, 5 Wall. 720, 728. Jurisdiction of the Circuit Courts in suits of a civil nature at common law or in equity, as conferred by the 11th section of the Judiciary Act, extended only to cases where the United States are parties or petitioners or where an alien is a party, or where the suit is between the citizen of a State where the suit is brought and a citizen of another State; but the 12th section of the act made provision that the defendant, in certain cases and under certain conditions, might remove the cases from the state court into the Circuit Court “to be held in the district where the suit is pending.” 1 Stat. 78. Amendments have been enacted to the provision giving authority to the defendants to remove such cases from the state courts into the Circuit Courts, extending that right, and even conferring the same right in a limited class of cases upon the plaintiff; but it is unnecessary to enter into any discussion of those provisions, as no one of them has any tAidency to support the jurisdiction in this case. 4 Stat. 632; 12 Stat. 756; 14 Stat. 46, 172, 307, 558; 15 Stat. 227, 253, 267; 16 Stat. 261, 440. Viewed in any light, it is quite clear that the Circuit Court had no jurisdiction of the case. Judgment reversed, and the cause remanded, with directions to dismiss the suit for want of jurisdiction. Mr. Attorney General for plaintiff in error. Mr. J. E. McDonald and Mr. A. L. Roache for defendant in error. MAYS v. FRITTON. ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA. e No. 553. December Term, 1872. —Decided February 10, 1873. The claim set up in the state court being founded on the Bankruptcy Act, and the decision of the state court being adverse to it, this court has jurisdiction to review it. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. APPENDIX. cxv . Garratt v. Seibert. This is a motion to dismiss the writ of error for want of jurisdiction. Upon looking into the record, we find that the only claim set up by the plaintiffs in error was founded upon the act of Congress known as the Bankruptcy Act; and that the decision of the Supreme Court of the State was against the claim. The case is within the very words of the act of February 5, 1867, giving to this court jurisdiction to review the decisions of the state courts; and the motion must be denied. Mr. J. H. Parsons and Mr. P. Phillips for the motion. Mr. T. J. Durant and Mr. C. W. Hornor opposing. GARRATT v. SEIBERT. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. No. 35. October Term, 1873. — Decided March 23,1874. If the subject of a patent is a combination of several processes, parts or devices, the use of any portion of the combination less than the whole is not an infringement. The second claim in the patent granted to Nicholas Seibert for an improvement in lubricators for steam-engine cylinders, does not embrace the heating apparatus and the combination devised for preparing tallow for use in the lubricator, which is covered by the first claim in the patent. This was an action at law for alleged infringement of letters patent, dated February 14, 1871, granted to Nicholas Seibert for an improvement in lubricators for steam-engine cylinders. The case is stated in the opinion. Mr. Justice Strong delivered the opinion of the court. If the true construction of the patent be, as the plaintiffs in error contend, that the patentee’s second claim is for a combination of all the devices mentioned in the specification, there was error in the instruction given to the jury by the Circuit Court. It is undoubtedly the law, that if the subject of a patent is a combination of several processes, parts or devices, the use of any portion of the combination less than the whole cannot be an infringement. There may indeed, be a patent for a combination of many parts, and at the same time for an arrangement of some of the parts constituting another combination, but still a part of the larger; yet, if there be no patent for the constituents, they are open to the public for use in cxvi APPENDIX. Cases Omitted in the Reports. combination, provided all the elements of the patented combination be not employed. It is therefore needful to inquire what are the elements of the combination which is protected by the patent. The specification describes it as a new and useful improvement in lubricators for steam-engine cylinders, and describes it largely, if not principally, by reference to the accompanying drawings. It consists in the arrangement of several constituents, no single one of which is claimed to be new. These parts are a condensing-pipe connecting the steam-pipe with the lubricator ; a reservoir for water, the product of condensed steam; a cup or vessel for oil or other lubricating material, placed vertically and somewhat lower than the water reservoir, but connected with it by a pipe leading from near its lower extremity to the bottom of the reservoir, and having near its upper end a pipe leading to the cylinder and valve chests, with a check-valve at the oil vessel and a stop-cock between it and the cylinder; a waste cock at the bottom of the oil vessel; a screw plug at its top, through which the lubricating material may be supplied; and a regulating valve by which the flow of water from the water reservoir into the oil vessel can be controlled. To these is added a glass tube with a sliding-gauge, arranged so as to stand vertically and parallel with the oil vessel, and connected with it at either extremity, its purpose being to indicate the amount of oil used. The operation of these devices thus arranged is described to be the following : The condensed water in the water reservoir, being higher and heavier than the oil in the oil vessel, forces itself under the oil in both that vessel and the glass tube, and causes it to pass out through the pipe leading to the cylinder and valve-chest into the steam-pipe, thus lubricating the valves and cylinders. These are all the devices necessary for the improved lubricator claimed to have been invented by the patentee, and such is their arrangement. The thing discovered and embodied in a practical combination was that by feeding a column of condensed water under the lubricant contained in a vessel the lubricant might be forced upward and outward, through a discharge pipe, into the cylinder, and upon the bearings of the engine, and that its flow might be controlled by a regulating valve. To embody this principle, nothing more than the devices we have mentioned is needed, and no other device is employed by the patentee. Those mentioned, arranged as they are, constitute a lubricator, and with a fluid lubricant they are sufficient. But as it might be desired sometimes to use tallow, the patentee APPENDIX. cxvii Garratt v. Seibert. devised another combination, of different devices, by which steam can be conducted from the steam-chest of the engine into an annular space between two concentric vertical tubes located in the vessel containing the oil or tallow, the purpose being to reduce the tallow to a fluid condition, so that it can be forced by the upward pressure of the water through the discharge-pipe into the cylinder and valvechest. It is for this combination the first claim of the patent is made, and the second claim is for the improved lubricator, consisting of the parts described in the specification, constructed and arranged substantially as specified. It is upon the construction of this second claim that the' parties are at issue, and the question to be decided is, whether the combination for heating tallow is a material part of the combination constituting a lubricator, which is the subject of the second claim. Upon the answer to this question depends the solution of the further question, whether a party not claiming under the patentee can use the lubricator, without the heating arrangement, and be guilty of no infringement. The Circuit Court was of opinion, and so instructed the jury, that the second claim covers only the combination which makes the lubricator, without the heating apparatus, and does not embrace the combination devised for preparing tallow for use in the lubricator. Was this instruction erroneous? It must be admitted the specification is obscure, and that the second claim has not the precision which it should have. But while it is impossible to determine with entire certainty what the patentee intended to assert in his second claim, we cannot say that a wrong construction was given to it by the court. The combination which primarily and essentially constitutes a lubricator, is independent of any heating or melting arrangement. It can be used by itself and accomplish all the purposes of a lubricator. Every part of it contributes to the embodiment of the principle of the invention. The other combination designated in the first claim is no necessary part of it. Nor is its purpose the same. Though it may be used in connection with the devices, that, combined, constitute a lubricator, its design is only to prepare solid substances for use in the other combination. Its principle is to accommodate the lubricator proper to the use of tallow. And the patentee appears to have considered it as not essential to the successful operation of his lubricator. He begins his description of it l>y specifying its primary element as a cock to regulate the admis- cxviii APPENDIX. Cases Omitted in the Reports. sion of steam from the steam-chest into the oil vessel “ when tallow is used.” Of course, when tallow is not used it has no office. It would seem, therefore, not to be an unreasonable construction of the second claim of the patent to hold that it embraces only the combination which makes up a complete lubricator. And that it does not comprehend the heating arrangement, which may or may not be used in connection with it. It follows that the exception of the plaintiffs in error to the charge of the circuit judge cannot be sustained. The judgment is Affirmed. Mr. M. A. Wheaton and Mr. Thomas T. Everett, for plaintiffs in error. Mr. Edmund L. Goold, Mr. A. H. Evans, Mr. Charles T. Botts and Mr. W. W. Boyce for defendant in error. STITT v. HUIDEKOPHER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA. No. 47. October Term, 1873. — Decided Octobei- 28, 1873. Under the circumstances, the court allows an amendment of the record, on the certificate of the court below, without issuing a writ of certiorari. Motion for certiorari. The case is stated in the opinion. Mr. Justice Clifford delivered the opinion of the court. The motion for certiorari is denied. But the court, in view of the circumstances, and on the authority of the case Woodward v. Brown and Wife, 13 Pet. 1, allow an amendment to be made in the transcript by the entry of the judgment in the following words: “ May 18, 1871. Judgment on the verdict.” It appearing by the certificate of the clerk of the Circuit Court that the judgment was so entered on that day and before the granting of the writ of error, and that the words aforesaid were inadvertently omitted by the clerk of the Circuit Court in preparing the transcript. Mr. M. C. Kerr, Mr. G. W. Guthrie and Mr. E. 8. Golden for plaintiff in error. Mr. Walter D. Davidge for defendants in error. After announcing its decision on this motion, the court heard argument on the same day on the merits. The case is reported 17 Wall. 384. APPENDIX. cxix Underwood v. McVeigh. UNDERWOOD v. McVEIGH. ERROR TO THE CORPORATION COURT OF ALEXANDRIA COUNTY, STATE OF VIRGINIA. No. 504. October Term, 1873. — Decided March 23, 1874. The writ of error is dismissed, because it should have been directed to the Court of Appeals of the State of Virginia. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court: The writ of error taken in this cause is dismissed, because it should have been directed to the Court of Appeals instead of the judge of the Corporation Court of Alexandria. Dismissed. Mr. Justice Clifford dissenting : Jurisdiction is vested in the Supreme Court, in certain cases, to re-examine and reverse or affirm upon a writ of error, the final judgment or decree rendered in the highest court of law or equity of a State, in which a decision in the suit could be had in the courts of the State. Cases of the kind consist of several classes, all of which are plainly described in the 25th section of the Judiciary Act, which also points out, in terms equally plain, the respective conditions annexed to the exercise of the right; as, for example, the decision of the state court, in one class of the cases, must be against the validity of a treaty or statute of, or an authority exercised under, the United States; and in another class the decision of the state court must be in favor of the validity of a statute of, or an authority exercised under, a State in the respect therein specified; and in a third class the decision of the state court must be against the title, right, privilege, or exemption specially set up or claimed, as therein described, by the parties suing out the writ of error. Congress undoubtedly intended by that provision to give the party aggrieved, in such a case, a right to remove the cause into this court for a re-examination, but whatever the grievance may be, the remedy, if any, must in every case be pursued by a writ of error as the act of Congress gives no other; nor does the power to re-examine and reverse or affirm extend to any proceeding, except a final judgment or decree, of the highest court of law or equity of a State in which a decision of the suit could be had. 1 Stat. 85. cxx APPENDIX. Cases Omitted in the Reports. No other process can be employed except thsit given by the act of Congress, but the act of Congress does not prescribe the tribunal to which the writ of error shall be directed, from which the clear inference is that Congress intended that it should be directed to the tribunal, or, if more than one, to some one of the tribunals, which can execute the commands of the writ, as it would be an idle ceremony to direct it to a tribunal which could not execute its commands. Common law writers define a writ of error as a commission by which the judges of one court are authorized to examine a record upon which a judgment is given in another court, and on such examination to affirm or reverse the same according to law. “Under the Judiciary Act,” says Marshall, C. J., “ the effect of a writ of error is simply to bring the record into the appellate court, and submit the judgment of the inferior tribunal to re-examination,” as it acts only on the record, and does not, in any manner, act upon the parties. Cohens v. Virginia, 6 Wheat. 264, 410; Suydam v. Williamson, 20 How. 437. Such jurisdiction arises only in the cases specified in the 25th section of the Judiciary Act; but it is a great mistake to suppose that it is limited in its scope to final judgments or decrees rendered in such a case by the highest court of law or equity of the State, as it plainly extends to every final judgment or decree rendered in such a case by the highest court of law or equity of the State, having jurisdiction to render the decision, which is the subject of complaint, however subordinate that tribunal may be, as compared with the other judicial tribunals of the State. Courts of various grades existed in the several States at the time the Judiciary Act was passed, and their power and jurisdiction at that time, as well as at the present time, were and are regulated by statute and, of course, were, as they now are, subject to constant change. Many changes, doubtless, have since been made, but all experience has proved that it would have been unwise to have prescribed to what tribunal the writ of error in such a case should be directed, as that is a matter which can best be determined by the court empowered to issue the writ, the object being that it should be directed to such a tribunal as can execute its commands. Appellate power, in some form, is exercised by courts in all the States, but the forms and modes of proceeding vary from time to time, and it is not probable that they are at the present time precisely alike in any two States. APPENDIX. cxxi Underwood v. McVeigh. • Where the appellate court requires the whole record to be sent up and executes its own judgments, it may well be held that the writ of error should be directed to that tribunal, as no other can obey the commands of the writ, and send the record, which is the subject of complaint, into the appellate court for re-examination. But where only a part of the record is sent to the appellate court, or where, whatever is sent up, whether the whole or a part, the transcript is immediately returned to the subordinate court, together with the judgment of the appellate court, for record, it is equally plain that the writ of error from this court should be directed to the subordinate court, as the only tribunal which can execute the commands of the writ. Cases arise also where the law of the State requires a full transcript to be sent up to the appellate court, and makes it the duty of that court, not only to record its own judgment, but also that it shall send down the same to the subordinate court to be there recorded, in which case.there is a complete record in both courts, and in such cases the practice is well settled that the writ of error may be directed to either court, as it is clear that either court is competent to execute the commands of the writ of error. Since the law requires a thing to be done, says Story, J., and gives the writ of error as the means by which it is to be done, without prescribing, in that particular, the manner in which the writ is to be used, it appears to the court to be perfectly clear that the writ must be so used as to effect the object. It may then be directed, as the learned judge said, to either court in which the record and judgment on which it is to act may be found. Unquestionably the judgment to be examined must be that of the highest court of the State having cognizance of the case; but the record of that judgment may be brought from any court in which it may be legally deposited, and in which it may be found by the writ. Gelston v. Hoyt, 3 Wheat. 246, 304. In that case it was directed to the Court of Errors, which, having parted with the record by remitting it, could not execute it. Without the direction having been changed, it was then presented to the Supreme Court of the State, but being directed to the Court of Errors, it could not be regularly executed by the Supreme Court. Beyond doubt a new writ of error would have been required, had not the parties consented to waive all objection and to consider the record as properly here, if, in the opinion of this court, the record cxxii APPENDIX. Cases Omitted in the Reports. could be properly brought up by writ of error directed to the Supreme Court of the State, which, in that case, was a court subordinate to the Court of Errors ; and this court having decided that question in the affirmative, the case was heard here under that arrangement. Exactly the same rule was promulgated by this court in the case of Webster v. Reid, 11 How. 457, the unanimous opinion of this court being given by Mr. Justice McLean, in which he says, the writ of error in such a case may be directed to any court in which the record and judgment on which it is to act may be found, and if the record has been remitted by the highest court to another court of the State, it may be brought up by the writ of error from the subordinate court. Examples where the writ of error has been directed to the subordinate court to which the record has been remitted are very numerous, and are sufficient to show that the rule laid down by Mr. Justice Story in the leading case of Gelston v. Hoyt, has always been regarded as the true rule of practice in such cases. State of New York v. Dibble, 21 How. 366 ; Almy v. State of Calfornia, 24 How. 169 ; Farney v. Towle, 1 Black, 350; Hoyt v. Sheldon, 1 Black, 518; Sherman v. Smith, 1 Black, 587; Cohens v. Virginia, 6 Wheat. 265 ; Buell v. Van Ness, 8 Wheat. 312 ; Hunt v. Palao, 4 How. 589 ; United States v. Booth, 18 How. 476. Noi’ is it necessary to rely merely upon examples, as the point has been directly adjudicated by this court in a more recent case, where it was decided that a writ of error from this court is properly directed to the court in which the final judgment is rendered, and by whose process it must be executed, and in which the record remains, although such court may not be the highest court of the State, and although such highest court may have exercised a revisory jurisdiction over points in the case, and may have certified its decision to the court below. McGuire v. Commonwealth, 3 Wall. 382. Direct adjudication to the same effect was also made by this court in the case of Green v. Van Buskirk, 3 Wall. 448, 450, in which also, as well as the preceding case, the opinion was given by the late Chief Justice, with the concurrence of all the associate justices of the court. By that case it is expressly determined that, when the highest court of a State renders a final judgment in such a case, and sends the judgment with the record to the court below for execution, the writ of error may be directed to the subordinate court, and the Chief Justice went farther in that case, and decided that a judg- APPENDIX. cxxiii Underwood v. McVeigh. ment cannot be regarded as final, in the sense of the act of Congress, until it is entered in a court from which execution can issue. Since those decisions were made and have become known to the legal profession, the examples where the writ of error has been directed to the subordinate court have very much increased in number, as will appear from the following citations, to which many more might be added: Butler v. Horwitz, 7 Wall. 258 ; Aldrich v. AEtna Co., 8 Wall. 491, 493 ; Downham v. Alexandria, 9 Wall. 659 ; Downham v. Alexandria Council, 10 W$ll. 173 ; Insurance Co., v. Treasurer, 11 Wall. 204; Northern Railroad v. The People, 12 Wall. 384; Miller v. State, 15 Wall. 478, 491; Commercial Bank v. Rochester, 15 Wall. 639; Crapo v. Kelly, 16 Wall. 610; Milten-berger v. Cooke, 18 Wall. 421; and Insurance Co. v. Dunn, 19 Wall. 214, both decided at the present Term. Three grades of courts are established by the laws of Virginia, of which the Court of Appeals is the highest, and from which writs of error may issue to the next highest grade, which are denominated Circuit and Corporation Courts, and from which writs of error may issue to the lower grade, called County Courts. Writs of error may issue from the Court of Appeals to the Corporation Courts, upon the application of an aggrieved party. Regularly, such a party should apply to the court which rendered the judgment, that the execution of the same may be suspended, as in that event it is the duty of the court to grant such a suspension for a reasonable time, in order that the applicant may apply to the Court of Appeals for a writ of error. He then presents to the latter court a transcript of the record, or of such portion of it as may be necessary to present fully to the appellate court the point or points involved in his complaint, accompanied by a petition for the writ, and an assignment of errors. If the writ of error is allowed, the judgment is suspended until the questions involved are decided in the Court of Appeals. Due hearing is had and the Court of Appeals, if the proceedings are regular, decides the question involved, and affirms or reverses the judgment below, and certifies their decision to the subordinate court, and by the law of the State, the decision of the Court of Appeals is then required to be entered by the subordinate court as its own, and the provision is that “ execution may issue thereon accordingly.” No execution can issue from the Court of Appeals, as their duty is fully performed when they have made their decision and certified the same down to the subordinate court. cxxiv APPENDIX. Cases Omitted in the Reports. Viewed in the light of the authorities cited and of these suggestions, it is quite clear, in my judgment, that the writ of error in this case was properly directed to the subordinate court, as fully appears from the transcript which that court has sent up to this court, and which is in all respects complete. Suppose it be conceded, however, that the full record also exists in the Court of Appeals as well as in the Corporation Court, which is not admitted, still it is clear that the case should not be dismissed, as in that case the law of this court is well settled by repeated decisions, that the writ of error “ may then be directed to either court in which the record and judgment on which it is to act may be found.” Gelston v. Hoyt, 3 Wheat. 245, 304; Webster n. Reid, 11 How. 436, 457; McGuire v. Commonwealth, 3 Wall. 382; Green v. Van Buskirk, 3 Wall. 448, 450. Nothing need be said in respect to the other grounds of the motion, as the order of this court is based entirely upon the ground that the writ of error is directed to the Corporation Court instead of the Court of Appeals. Such a motion, as it seems to me, is entitled to no favor, as the full record is here and has been printed, and is now in the hands of every justice of this court. All doubt upon that subject is foreclosed, as no one suggests any diminution. On the contrary, the principal argument in support of the motion is, that it will enable the defendant in error to get rid of the supersedeas, and to get his execution earlier than he will if he has to wait the decision upon the merits. Injury in that behalf will certainly result to the plaintiffs in error, as they will be obliged to pay the expense of another transcript, and the United States will be compelled to pay the public printer for furnishing the justices of this court with copies of the same, though the full record is already in print and in our hands. Much difficulty, it is apprehended, will result from the rule established in the case, from the fact that the appellate courts of the State have no power to supersede their own judgments in such a case, after the judgment has been remitted to the court below for record and execution ; and it is quite clear, that a writ of error from this court to an appellate court of the State will not operate to supersede a judgment recorded in a subordinate court of a State, whose duty it is to issue the final process. Whether this court can issue a writ of supersedeas in such a case to such subordinate court, it is not necessary now to decide, as it is APPENDIX. cxxv Boise County Commissioners v. Gorman. clear that it cannot be done in this case, more than sixty days having elapsed since the judgment was remitted to and recorded in the Corporation Court. Doubtless the dismissal of the suit will be satisfactory to the present defendant, as he will be immediately entitled to a writ of habere facias possessionem, and the plaintiff will never be able, by any subsequent writ of error or other proceeding, to supersede the judgment pending the litigation. For these reasons I am of the opinion that the motion to dismiss should be denied. Mr. 8. Ferguson Beach for plaintiffs in error. Mr. P. Phillips, Mr. C. Cushing and Mr. C. W. Wattles for defendant in error. BOISE COUNTY COMMISSIONERS v. GORMAN. ERROR TO THE SUPREME COURT OF THE TERRITORY OF IDAHO. No. 717. October Term, 1873. — Decided March 16, 1874. Supersedeas will not issue without notice to the other party, when the object is to avoid an alleged improper execution of the judgment below. Motion for supersedeas. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. The plaintiffs in error moved in this cause, 1, for the allowance of a supersedeas; and 2, for a writ which shall command the marshal of the Territory to restore Ben. T. Davis to the office of assessor and tax-collector of Boise County, from which he has been removed by the execution of the judgment in the court below. They claim that before the judgment had been enforced by the execution it had been stayed by supersedeas. If this claim is supported by the facts, no new supersedeas is now necessary. That already obtained will operate to stay any further proceedings which may be had under the judgment.- The real object of this motion is to avoid the effect of the alleged improper execution of the judgment, and restore Davis to his office. Such a motion cannot be entertained, except after reasonable notice to the opposing party. No such notice has been given in this case. This motion is, therefore, overruled, but without prejudice to its renewal after reasonable notice to the defendant in error. In the event of its renewal, the plaintiffs in error in order to cxxvi APPENDIX. Cases Omitted in the Reports. obtain the relief asked, will be required to show to the satisfaction of the court, that the judgment below was in fact executed after they had become entitled to a stay of proceedings. Motion denied. Mr. Henry E. Prickett for plaintiffs in error. No appearance for defendant in error. Notice of the motion was given in accordance with the suggestion of the court. The opinion of the court on this motion will be found in 19 Wall. 661. DANE v. CHICAGO MANUFACTURING COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 76. October Term, 1874. — Decided January 11, 1875. All the combinations and all their separate elements patented to William Westlake, April 6, 1864, for an improvement in lanterns, for which re-issued letters were obtained December 23, 1869, were anticipated by inventions referred to in the opinion of the court. Bill in equity for the infringement of letters patent. Decree dismissing the bill. Complainants appealed. The case is stated in the opinion. Mr. Justice Bradley delivered the opinion of the court. This case comes before us under peculiar circumstances. The appellants were complainants below, and filed a bill as assignees of William Westlake, of certain letters patent granted to him April 26, 1864, for an improvement in lanterns, for which they obtained a reissued patent November 23, 1869. The bill was dismissed, on what ground does not appear. The defendants have not appeared to contest this appeal. We are left to ascertain as best we can, with such aid as the appellant’s counsel have given us, the real merits of the controversy. The nature and objects of the alleged invention are described by the patentee as follows : “ The nature and objects of my invention consist in the construction of lantern guards without hooks, projections or catches, sticking out and interfering with the safe and convenient use of the lanterns, and so that the same can be readily attached or detached; in the employment of a band or disc to fill or cover the space be tween the enlarged band or ring at the upper end of the guard and the top of.the globe, and in the application of suitable fastenings to APPENDIX. cxxvii Dane v. Chicago Manufacturing Co. secure the dome to the guard.” In other words the improvement claimed is the adaptation to a globe lantern, of a wire guard, removable at pleasure, the top of which is a band or ring sufficiently large for the globe to be passed through it, and which is separated from the top of the globe by a disc to which it is connected by fastenings that allow the said parts (the disc and guard) to be detached at pleasure, so as to permit the removal of the globe. The object of the disc is said to be to cover the space between the top of the guard and the top of the globe, and to hold the latter, which it is important should be contracted at the top. It is stated that the fastenings referred to may be any suitable fastenings to secure the dome or disc to the guard; spring catches being specifically described for the purpose, but any proper fastenings being admissible. The reissued patent originally contained three claims as follows: “1. The lantern guard a, constructed entire, without hinge or joint, so that, as a whole, it can be readily attached to or removed from the lantern, as set forth.- “ 2. The disc g, in combination with the ring or band b, of the guard and fastenings e, substantially as and for the purposes specified. “3. The guard a, in combination with the disc g, fastenings e, and removable globe d, substantially as specified.” The letters in these claims refer to the drawings, but the parts designated will be readily understood from the foregoing description. The first claim, which was for the removable guard alone, was afterwards surrendered by a formal disclaimer filed in the Patent Office April 12, 1871. The other two claims are for combinations; but the disc designated in the drawings by the letter g, and being the disc before mentioned, as being used to fill or cover the space between the circular top of the guard and the contracted top of the globe, and to hold the latter in place, is the central and important element in each combination. In the second claim it is combined with the top ring or band of the guard and the fastenings that connect them; in the third, it is combined with the guard, the fastenings and the removable globe. But in both, all these elements are pre-supposed and implied. The idea of the guard is never dissevered from the circular ring or band which forms its top, and the guard and disc are never dissociated from the globe with its contracted top and capacity of removal. It is a globe lantern with the globe removable and con cxxviii APPENDIX. Cases Omitted in the Reports. tracted at top, to which the improved guard, with its enlarged and circular top and the attendant intervening disc are adapted, and for which they are constructed. This is what the patentee in substance says, and what, indeed, is essential to make his claim to invention even plausible. From the evidence before us, it appears that when Westlake applied for his patent in March, 1864, all the elements ‘of his improvement were well known. Butterfield’s lantern, patented in 1855, and Lamport’s, presented to the Patent Office for a patent in 1858, both had removable guards with bands at the top, and contracted topped globes, the guards being so constructed, however, as to open like a jacket, and thus to be removed from the lantern. But the top of the guard, when in place, fitted closely around the top of the globe ; and, therefore, there was no place or occasion for a disc between the guard and the globe, as in Westlake’s lantern. In Canning’s lantern, and in Max Miller’s, both presented for patents, and the latter patented in 1858, there was a nearer approach to Westlake’s. They had a guard with an enlarged top, consisting of a circular ring, large enough to allow the globe to be removed through the same, and this top was connected by fastenings, (bayonet fastenings are exhibited,) with the dome, the bottom of which was spread out like a broad flat bell, and might have served the purpose of a disc in Westlake’s lantern had it been admissible or required. But in these lanterns, the top of the globe not being contracted, as in Westlake’s, it filled the top of the guard, and left no intervening space for a disc between them. With this exception, namely : that the top of the globe was not contracted, the difference between the lanterns of Canning and Max Miller and that of Westlake was very slight. And as globes with contracted tops were not new, it may be deemed somewhat doubtful whether the application of such globe to these lanterns (Westlake’s being little more than this) was entitled to the merit of invention, and therefore patentable. In Water’s lantern, patented in 1855, there was a globe with a contracted top, such as is employed by Westlake, and said top was inserted for support in the lower part of the dome, around which a narrow flange spread outwardly, (somewhat like Westlake’s disc,) far enough to receive, in small apertures, the wires of the guard, the tops of which, (not being connected by a ring or band,) were inserted therein directly. But although the dome could be detached from the wires by pressing them inwardly, and lifting the dome off APPENDIX. cxxix Dane v. Chicago Manufacturing Co. from them, and thus give room for removing the globe, yet, as the parts were arranged, this could not be done conveniently; and, in fact, the globe was not removed from the top of the guard, but the latter was detached at the bottom, and lifted off from the globe, when it was desired to have access to the latter. In none of the lanterns thus far adverted to, was there fully exhibited and applied the disc described in Westlake’s patent, used for the same purpose as in his, although the germ of it was seen in Water’s lantern, and an adaptable equivalent for it in Canning’s and Max Miller’s. But Westlake in his testimony admits that the disc was old at the time he made his invention, when used as a reflector in a conductor’s lantern; and two English patents were put into the case, which exhibit it as used substantially in the same manner, and for the same purpose, that it is used in Westlake’s lantern. The first was a patent granted to Graham Chappell in 1812, and the other to Isaac Evans in 1861. The use of the disc was somewhat similar in both of the lamps or lanterns described in these patents. That of Evans will be more particularly adverted to. Evans’s lantern had an inner chimney, contracted at the top, an outer globe, and a guard having a circular rim or band at the top. The disc was called in the patent a crown plate, and filled and covered the space between the contracted top of the inner chimney and the outer globe, and between the latter and the top rim of the guard. It has some perforations to allow the air to pass upward between the chimney and the globe. The specification says : “Above the top of the outer.glass cylinder, a (the globe), and inside the upper ring, is placed a crown plate, I, provided with a number of projecting flanges, which serve to keep the upper part of the outer and inner glass cylinders, a and b, in their places.” As this lantern was intended to be used in mines, the crown plate was fastened to the top or rim of the guard by a screw, so as to obviate the danger of its being accidentally detached, but when it was detached and removed, the globe and cylindei’ could also be removed through the top of the guard, or the latter could be removed from the lamp by detaching it from below. This crown plate, therefore, seems to have served the precise office of Westlake’s disc. Stetson, the complainant’s expert, testifies as follows : “In Evans’s patent, Exhibit No. 1, the equivalency of the guard is somewhat doubtful; but I think it is substantially the same as the guard claimed in the first claim (of Westlake’s patent). It has a glass chimney, contracted 9 cxxx APPENDIX. Cases Omit'ted in the Reports. at the top, within the globe, which is held in place by a disc supporting it at the top, and extending out to the ring at the top of the guard.” This is a precise description of Westlake’s disc. It is true, the witness adds : “ But the disc has holes for the circulation of air ; the disc, practically, only fills the space between the small top of the lamp chimney and the globe.” But the fact that the disc had holes in it does not deteriorate from its importance as a disc to fill and cover the space between the chimney and the guard, and to hold the former as well as the globe in place. The witness admits that, “If the small holes were made in the defendant’s disc, their lanterns would still infringe the second claim of the patent,” thus implying that the holes do not destroy the identity of the disc. Smith, the defendant’s expert, says: “This lantern, Exhibit 1, representing Evans’s patent, has a guard so made that it may be separated from the top and from the base of the lantern, all in one piece. The parts are screwed together, instead of being held by catches ; but it admits the entire removal of the dome from the guard just the same. There is a plate inside the upper band of the guard, which has flanges upon it to maintain the top of the globe and the chimney, and this plate fills the entire space, except so far as it is perforated. The globe can be raised through the top band of thè guard. The guard, in this Exhibit 1, is whole, and can be removed, not from the entire lantern, any more than the guard in Exhibit B (Westlake’s), but from the other parts of the lantern, the same as the guard of Exhibit B. It cannot be removed from the other parts of the lantern as readily as the guard of Exhibit B, because it is screwed to the other part, and cannot be unscrewed as readily as spring catches can be worked. “ The lantern, Exhibit 1, comes as completely within the first claim of the complainant’s patent, No. 3747, marked Complainant’s Exhibit A, as the defendant’s lanterns do. “ The disc g is stated in the patent to be for filling and covering the space between the band and the top of the globe. There is such a disc in Exhibit 1, and it is the equivalent of disc g. The fastenings in the lantern, Exhibit 1, for securing the disc to the guard, or the guard to the disc, are not like the fastenings e, shown in the patent No. 3747, but they are equivalents for each other, because both specifications say that other fastenings may be used, and they both produce the same result and admit of the complete separation of the guard and discs, and in Evans’s Exhibit 1, the globe can be removed. APPENDIX. cxxxi Monger v. Shirley. “ The combination claimed in the second claim of the patent No. 3747, Exhibit A, is substantially embodied in the lantern, Exhibit 1, unless the claim embraces the guard a, removable, leaving an entire lantern. “ There is a loose globe in Exhibit 1, and it therefore substantially embodies the third claim; but there is a difference in construction between the lantern guards.” This testimony seems to us to be corroborated by the patents and other exhibits; and from this it sufficiently appears that both the second and the third claims of Westlake’s patent are exemplified in Evans’s lantern. It has the combination of the disc, the band and the fastenings specified in the second claim, and that of the guard, the disc, the fastenings and the globe, specified in the third claim. Whilst, therefore, it may be true that none of the lanterns referred to are equal to Westlake’s in beauty of form or convenience of adaptation to the purpose for which it is intended, yet every part has been anticipated and used in some form or other for the very purposes and uses to which it is applied in Westlake’s; and in Evans’s lantern all the essential parts are brought together and used in the combinations claimed by the patentee. Of course the combination might be new ; and if productive of new and useful results, and not a mere aggregation of results, might be the subject of a patent, though all the parts were used before. But here, the com-u binations patented, as well as their separate elements, had been anticipated. The decree is, therefore, Affirmed. Mr. L. L. Bond for appellants. No appearance at the argument, and no brief, for appellee. MONGER v. SHIRLEY. appeal from the circuit court of the united states for the EASTERN DISTRICT OF TENNESSEE. No. 129. October Term, 1874. — Decided January 18, 1875. On the facts reviewed in the opinion, Held, that the title of the appellant to the premises in dispute whether derived through the sale on execution, or acquired under the confiscation act, is void for fraud. The case is stated in the opinion. Mr. Justice Swayne delivered the opinion of the court. This is an appeal in equity from the Circuit Court of the United States for the Eastern District of Tennessee. cxxxii APPENDIX. Cases Omitted in the Reports. • Shirley was the complainant in the court below. His bill alleges that Monger instituted proceedings against him by attachment in the Circuit Court of Hamilton County, Tennessee, upon a promissory note purporting to be executed by Shirley to John W. Westmoreland, for the sum of ten thousand dollars, dated December 15, 1863, payable three months from date, and indorsed by the payee to Monger; that a judgment was rendered against Shirley by default; that a large and valuable farm belonging to him was sold under the judgment and bought in by Monger; that Shirley was then absent from Tennessee and was ignorant of the proceedings; that the note and indorsement were forgeries, and that the whole proceeding culminating in the sale of the farm was a gross fraud upon Shirley perpetrated by Monger. It is further alleged that Monger, in certain proceedings in confiscation in the District Court of the United States for the District of East Tennessee, had fraudulently acquired a title to the life estate of Shirley in the farm. The prayer of the bill is that Monger’s titles may be annulled, that he may be compelled to account for the rents and profits of the property, and for general relief. Monger answered and denied all the material allegations of the bill. Testimony was taken upon both sides. The court below sustained the bill and decreed accordingly. Monger thereupon removed the case by appeal to this court. The power of a court of equity to annul judgments and decrees, and all titles acquired under them, for fraud, where the rights of bona fide purchasers have not intervened, is too well settled to require discussion. Freeman on Judgments, §§ 486, 489, 490, 491 ; 1 Story Eq. Jur. § 252. The facts alleged by Monger are as follows: Shirley sympathized with the rebel cause, and early in the war removed to Georgia, within the insurgent lines. While he was there, a man claiming to be John W. Westmoreland came to Tennessee, passed through the lines of the Union Army, and offered to sell the note to Monger for its face in Confederate paper, which was then and there worth ten cents on the dollar. Monger bought the note, under-due, and paid for it accordingly. The deposition of David Westmoreland was taken in December, 1868. He testified that about three months before that time a man claiming to be John W. Westmoreland came to his house and said APPENDIX. cxxxiii Monger v. Shirley. the object of his call was to ascertain whether they were related. He mentioned that he had sold the note of Shirley to Monger. The witness had never seen him before, and never saw him afterwards.' The note disappeared from the files of the court and could not be-found. There is no proof of any consideration for giving the note,, and none of its execution, as to time, place, or circumstances. The testimony of John W. Westmoreland was not taken, and there is no proof that a person of that name was or had been in existence, except the testimony of the David Westmoreland before mentioned, and his further testimony that he had a brother so named who lived and died in Missouri before the war. According to Monger, the seller of the note came secretly and; departed secretly. There is no proof that at that time he saw any one but Monger. There is no trace of his residence or presence anywhere before or afterwards. The deposition of David Westmoreland in nowise identifies the stranger who called on him as the person he assumed to be. The testimony is injurious to Monger. That person, whoever he was, was living in the fall of 1868, while this suit was pending, and more than four years after the alleged transfer of the note to Monger. He was willing to give Monger the benefit of his declarations to David Westmoreland for whatever they were worth. His disappearance and subsequent non-appearance can be accounted for only on the ground that he was afraid to put himself within the reach of the law by appearing as a witness. Shirley’s deposition was taken. He swears positively that he nev^r executed the note and that he never knew any one of the name of the payee. Richey, a witness in his behalf, testifies that Campbell and Monger conspired together and forged the note. The character of Shirley for truth is shown by a host 'of witnesses to be very bad. The character and testimony of Richey are destroyed by the witnesses called to impeach and contradict him. There is proof that at the date of the note Shirley was very ill, and if not then unable to execute a note, certainly gave none. The effect of this evidence is much weakened by the adverse depositions taken by Monger. We have, therefore, laid the testimony of all these witnesses out of view. There is no evidence of the slightest weight that the signature to the note was in Monger’s handwriting. The whole superstructure of the case as regards the note rests upon the unsupported declarations of Monger. cxxxiv APPENDIX. Cases Omitted in the Reports. It is unnecessary to pursue the subject further. The facts of this branch of the case are as free from doubt and difficulty as the law. They fill the largest measure of conviction in the mind that the note was a forgery, that Westmoreland, if not a myth, was a party to the crime, and that he has wisely shrunk back and since remained in guilty concealment. But it is insisted that Monger has a valid title to the life estate of Shirley in the farm derived from the confiscation- proceedings, and that, therefore, the complainant’s case must fail. The life estate was sold in those proceedings, and Monger bought it in for seven hundred dollars. Before the sale was confirmed, Monger intervened and represented that before the libel of information was filed he had attached the premises, and he insisted that his lien thus acquired was paramount as well as prior to that of the government. The court decreed that the money he had paid, less the costs, should be refunded to him, and that the marshal should execute a deed conveying to him the life estate of Shirley. Both were accordingly done. The latter order was an extraordinary feature in tire case. The proceedings in behalf of the United States were thus used to pass a title for which they received nothing, and it was conveyed to Monger, who paid nothing for it. If the attention of the court had been called to the error in the entry, it would doubtless have been corrected. Fay v. Wenzel, 8 Cush. 315. The same learned judge who made the order, enjoined Monger in this case perpetually from asserting the title. This shows that he attached no importance to it. But, conceding that the marshal’s deed did pass the legal title to the life estate, the answer to the objection is, that under the circumstances, Monger must be held to have taken it, as he took his title under the attachment proceedings, in trust — ex malejicio — for Shirley, and subject to all his equities. It would be a reproach upon the administration of justice if such a title thus acquired could avail to defeat the rights of the complainant and give triumph to the iniquity which has been practised upon him. The decree of the Circuit Court is Affirmed. Mr. Horace Maynard for appellant. Mr. John Baxter for appellee. APPENDIX. cxxxv Florida v. Anderson. TREAT v. JEMISON. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. No. 721. October Term, 1874. — Decided April 5, 1875. When a judgment of affirmance is entered on motion under the rules, it will not be set aside and a rehearing ordered if the court is satisfied that the judgment below would be affirmed on the rehearing, if one were granted. This was a motion to set aside the judgment reported in 20 Wall. 652. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. Before affirming the judgment presented by this record, we carefully examined the arguments submitted by counsel, although not in conformity with Rule 21, and considered the case upon its merits. Being entirely satisfied that the judgment of the court below ought to be affirmed, and not deeming it necessary to discuss in an opinion the several questions presented for our determination, we availed ourselves of the opportunity to call the attention of the bar specially to the new rule as to the form of briefs, which, if adhered to, will, we think, be of great service to counsel as well as the court. The reason assigned for setting aside the judgment of affirmance and for leave to file a new brief, are such as would certainly have induced us to grant the motion, if it were necessary for a correct decision of the case. The questions involved were all fairly and ably presented by the arguments submitted on both sides. Since this motion we have again examined the case, and are confirmed in our original opinion. For the reason, therefore, that the judgment must be affirmed if a further hearing is granted, this motion to set aside the order of affirmance already entered, is Denied. Mr. M. Blair for the motion. No one opposing. FLORIDA v. ANDERSON. ORIGINAL. No, 3. Original. October Term, 1875. A question in the case made October 7,1876.— Decided December 11, 1876. The clerk of this court, when money paid into court is put in his custody, is entitled to a fee of one per cent of the amount. The court orders the balance of the fund paid to the State of Florida. cxxxvi APPENDIX. Cases Omitted in the Reports. After the decree in this case, (see State of Florida v. Anderson, 91 U. S. 667,) a question arose as to the clerk’s fee for the custody of the money paid into the court. Mr. Justice Bradley delivered the opinion of the court. A question arises in this case as to the proper allowance to the clerk for the custody of the money paid into court. It is suggested that, by the General Fee Bill, (Rev. Stat. § 828,) the clerks of the Circuit Courts receive one per cent, and that, by analogy, the same allowance would be proper in this case. The fees of the clerk of this court were prescribed by the Process Act of 1792, § 3, 1 Stat. 276, which allowed the clerk $10 per diem for attendance on the court; and for other services, double the fees of the Supreme Court of the State in which the court sat. This section was repeated in the act of Feb. 28, 1799, 1 ,Stat. 625, when the seat of government was about to be removed to this District, and has never been altered. The bill of fees then adopted was based on those allowed by the laws of Maryland, to the clerk of the Court of Appeals of that State. At that time, 1800*, the clerk of that court was allowed ten per cent on fees paid into court, (being a certain number of pounds of tobacco,) which had formerly belonged to the chancellor, but were then directed to be paid into the state treasury. 1 Kelty’s Laws, 1779, cxxv, § 23. By the present code of Maryland a commission of five per cent is allowed on taxes and license fees paid into court. 1 Maryland Code, 291. We find, however, no commissions specified for moneys paid into court generally, and presume that none are allowed. But by analogy to the fee bill, for the Circuit and District Courts, we think that one per cent should be allowed in this case. This is the first instance known of moneys being paid into this court. The allowance is made accordingly. Sundry persons having made application for the balance of this fund, the court, on the 11th December, 1876, after directing payment in full of one df the claims, ordered the rest paid over to the State of Florida to subserve the liens and trusts to which it was subject in the hands of the State. cxxxvii APPENDIX. Osborn v. United States. OSBORN v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DIS- TRICT OF KANSAS. No. 77. October Term, 1875. — Original motion in the cause made in October Term, 1876.— Decided November 27, 1876. When the judgment is silent as to costs in this court, neither party recovers his costs here; but each must pay, if not already paid, whatever fees are properly chargeable to him according to law and practice. When the clerk has no security for fees due to him from a party entitled to a mandate he may withhold the mandate until his fees are paid, or he is otherwise satisfied in that behalf. The rules relating to taxation of costs amended. The judgment in this case was entered at October Term, 1875. The case is reported in 91 U. S. 474. At October Term, 1876, motion was made for an order upon the clerk to issue a mandate. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. At the January Term, 1831, a rule of practice was adopted (No. 37), § 3 of which was as follows : “In all cases the clerk shall deliver a copy of the printed record to each party ; and in cases of dismission (except for want of jurisdiction) or affirmance, one copy of the record shall be taxed against the plaintiff; which charge includes the charge for the copy furnished him. In cases of reversal and dismission for want of jurisdiction, each party shall be charged with one-half the legal fees for a copy.” 5 Pet. 724. In 1858 the rules were changed under the supervision, as we see by the files of the court of Chief Justice Taney. The following are §§ 3, 4, 5 and 6, of Rule 10, as then adopted: “3. The clerk shall furnish copies for the printer, shall supervise the printing, and shall take care of and distribute the printed copies to the judges, the reporter, and the parties, from time to time, as required. “4. In each case the clerk shall charge the parties the legal fees for but the one manuscript copy in that case. “5. In all cases the clerk shall deliver a copy of the printed record to each party; and in cases of dismissal, reversal, or affirmance with costs, the fees for the said manuscript copy of the record cxxxviii APPENDIX. Cases Omitted in the Reports. shall be taxed against the party against whom costs are given, and which charge includes the charge for the copy furnished him. “6. In cases of dismission for want of jurisdiction, each party shall be charged with one-half the legal fees for a copy.” 21 How. viii. Under this rule the practice has always prevailed for the clerk to charge each party one-half the fees of the manuscript copy furnished the printer. A charge was made against the appellee in this case in accordance with this construction of the rule. In theory, at least, each party pays the clerk his fees for services in his behalf as the service is rendered. If afterwards costs are adjudged to him, he recovers from his adversary what he has thus paid, or is liable for if not paid. The judgment in this case is silent as to costs in this court, consequently neither party recovers his costs here, but must pay, if he has not already, whatever is properly chargeable to him according to law and the practice. The long practical construction which has been given to this rule, without objection having been made to the court, renders it probable that it has received the construction it was intended to have. One-half the copy of the printer was, therefore, properly charged by the clerk to the appellee. As the clerk has no security for his fees charged to the appellee, we think it not improper in this case for him to withhold the mandate, when asked for by that party, until such fees are paid or he is in some manner satisfied in that behalf. The motion made by Edward 8. Brown, therefore, in behalf of the United States, is Denied. Mr. Edward 8. Brown for the motion. Mr. Assistant Attorney General Smith opposing. At the last term, after our judgment in this case, we amended § 6 of Rule 10, so as to read as follows: “ In all cases of dismissal for want of jurisdiction the fees for the copy shall be taxed against the party bringing the cause into court, unless the court shall otherwise order.” To make the rule conform as a whole to this amendment, we now amend § 4, so that it will read as follows : ‘ ‘ In each case fees shall be charged in the taxable costs for but one manuscript copy of the record, and that shall be to the party bringing the cause into court, unless the court shall otherwise direct.” APPENDIX. cxxxix Phipps v. Sedgwick. PHIPPS v. SEDGWICK. 'APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 100. October Term, 1876. — Original motion in a cause decided at the last term. — Decided May 6, 1878. Whether this court can recall its mandate, and modify it, after the term is ended in which the judgment was rendered, quaere. In this case the mandate of this court, and the decree and mandate of the Circuit Court entered on that mandate, correctly represent what this court decided. This was a motion for a recall and modification of the mandate in the case of Phipps v. Sedgwick, reported in 95 U. S. 3. The case is stated in the opinion. Mr. Justice Miller delivered the opinion of the court. This case was argued and decided at the last term of the court, and the mandate sent in due time to the Circuit Court. The Circuit Court has also entered its decree in conformity to the mandate, and the case having originated in the District Court, sitting in bankruptcy, has remanded it to that court for further proceedings. A motion is now made in this court to correct the mandate which was sent to the Circuit Court on the ground that it does not convey correctly to that court the decree which this court intended to make. A very serious question is raised in limine as to the power of this court to recall its mandate and make the modification suggested, after the term has ended in which the judgment of the court was rendered. It is not necessary, however, to decide this question, because we are of opinion that the decree and mandate of this court and the decree of the Circuit Court entered on that mandate do correctly represent what this court decided, and what it intended to decide, and we are quite sure that if the District Court has misapprehended this, and shall, in consequence, in any future action of that court, injure the parties here moving in the matter, it will be corrected by a second appeal to the Circuit Court, or, if necessary, finally, to this court. The case originates in the bankruptcy of J. K. Place and James Sparkman, and a bill in chancery brought by Sedgwick, assignee of these bankrupts, in the District Court. The main object of that suit was to have certain valuable real estate, conveyed by Place to cxl APPENDIX. Cases Omitted in the Reports. his wife some time before the bankruptcy, subjected to ,the claims of the creditors as being made in fraud of their rights. To this bill Mrs. Place and Place himself, and many others, including Phipps & Co., were made defendants. • Phipps & Co. were creditors holding heavy obligations of the bankrupt firm, for which they had recovered a judgment about the time the proceedings in bankruptcy commenced. Mrs. Place had also given a mortgage to secure this debt, on the real estate mentioned, some time before that, in which her husband had joined. The District Court held that the conveyance of the lots by Place to his wife was but a reasonable provision out of his estate at the time it was made, and dismissed the bill. The Circuit Court, on appeal, held that the conveyance was a fraud upon the creditors of the firm; that it should be set aside and held for naught; and that the proceeds of the property which had been sold by order of the court pending the proceedings, should be paid to the assignee. In the finding of facts by the Circuit Court embodied in its decree, it is recited that the mortgage to Phipps & Co. was made in fraud of the provisions of the bankrupt law, and with a view to prevent the property from coming to the assignee, and that Phipps & Co. had reasonable cause to believe Place insolvent when it was made. Phipps & Co. and the exe.cutors of Mrs. Place, who had died, appealed to this court. On final hearing this court made the following decree: “ On consideration whereof it is now here ordered, adjudged and decreed by this court, that so much of the decree of said Circuit Court in these causes as directs the payment of the proceeds of the sale of the Fifth Avenue property, to wit: the sum of $93,161.42 to the assignee, John Sedgwick, is affirmed; but this affirmation is without prejudice to the right of any person now holding the debt growing out of Phipps & Co.’s commercial debt against James K. Place & Co. to present it for the purpose of having it allowed as a claim against the bankrupt estate, and without any determination of that right. “ And so much of said decree as directs that the complainant recover from the executors of Susan A. Place the sum of $22,160 and interest, be and the same is hereby reversed. “ In all other respects the decree is affirmed.’’ The Circuit Court on receiving the mandate which followed the words of this decree, made its own decree in the same terms by APPENDIX. cxli Phipps v. Sedgwick. entering the mandate on its record, and then remanded the case to the District Court for further proceedings. In that court the decree of this court is entered as part of its decree, but there is also added that part of the decree of the Circuit Court which contains the findings that Phipps & Co. had obtained a preference for their claim in fraud of the bankrupt law, and it is the fear of counsel that they will be used as conclusive against that claim, since filed with the assignee for a share in the distribution of the assets, which has caused the present motion. But this court is unanimously of the opinion that no such defence to that claim is consistent with the decree of this court, and that of the Circuit Court founded on it. In affirming that part of the decree of the Circuit Court which gave to the assignee the proceeds of the sale of the real estate, from which Phipps & Co. with others had appealed, the decree says in express terms that ‘ ‘ their affirmance is without prejudice to the right of any person now holding the debt growing out of Phipps & Co.’s commercial debt against James K. Place & Co. to present it for the purpose of having it allowed as a claim against the bankrupt estate, and without any determination of that right.” For the District Court to hold that this leaves in force the finding of the Circuit Court that Phipps’ claim was the subject of fraudulent preference, is to render nugatory the carefully considered words of the decree which we have given verbatim. It is as plain as language can make it, that.this court intended to declare that while Phipps & Co. had no lien on the land claimed by Mrs. Place, they might present their claim to the assignee, unaffected by the decree of the circuit or of this court; that neither the decree which we were reviewing nor the one we rendered on that review, should establish or defeat, or in any wise affect the action of the assignee or of the court on that claim, when presented for allowance as against the estate. If it did not mean that, it meant nothing; and it is too carefully inserted to justify the latter conclusion. The opinion of this court, 95 U. S. 5, is in strict conformity to this. In speaking of Phipps & Co.’s claim the court carefully avoids the question of fraudulent preference, but says: “It seems to be clear that the mortgage was taken under such circumstances of notice of the nature of Mrs’. Place’s title, on the part of Phipps & Co. that their claim under that mortgage is no better than the title of Mrs. Place.” As we held that Mrs. Place’s title was void, cxlii APPENDIX. Cases Omitted in the Reports. their mortgage on that property failed, without considering whether they had done anything in fraud of the Bankrupt Law or not. And so that question was left intentionally by the court, as fairly deducible also from the words of the decree, to be an open one if raised by anybody when the claim should be presented for allowance. We see no occasion to change a word in our decree or mandate, to give effect to the intent of the court, and the motion is, therefore, Denied. Mr. J. H. Ashton for the motion. Mr. F. N. Bangs opposing. MEVS v. CONOVER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 169. October Term, 1876. — Decided March 13, 1877. Upon a bill in equity by the owner against an infringer of a patent, the plaintiff is entitled to recover the amount of gains and profits that the defendant made by the use of the invention. The surrender of his patent by a patentee, in order to obtain a reissue, made after obtaining final judgment against an infringer, does not affect his rights which have passed into the judgment. The opinion of the court in this case is reported in full in 125 U. S. 144, 145, in the marginal note. Mr. A. J. Todd and Mr. Edward Patterson for appellant. Mr. Rodney Mason for appellee. FOREE v. McVEIGH. ERROR TO THE SUPREME COURT OF THE STATE OF VIRGINIA. No. 478. October Term, 1876. — Decided April 16, 1877. It appearing that the only Federal question involved in this case has been decided in another case at the present term, the court postpones the hearing of a motion to dismiss, in order to allow it to be amended, under the rules, by adding a motion to affirm. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. This case comes before us upon a motion to dismiss for want of jurisdiction. A similar motion was made and overruled at the last term, and we are satisfied with that decision. Rule 6 provides “ that there may be united with a motion to dis- APPENDIX. cxliii Ruckman v. Bergholz. miss a writ of error to a state court a motion to affirm, on the ground that, although the record may show that this court has jurisdiction, it is manifest the writ was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument.” So far as we can discover from the record, the only Federal question involved in this case was decided at the present term in Windsor v. McVeigh, [93 U. S. 274,] and if there had been united with the motion to dismiss a motion to affirm, we should, as at present advised, have been inclined to enter a judgment of affirmance. The only motion made, however, is one to dismiss, and that is the only motion of which the plaintiff in error has had notice. He has never been called upon to meet a motion to affirm. If a party desires to obtain an affirmance under the operation of this rule, his motion must be to affirm as well as to dismiss. Of this the plaintiff in error must have the requisite notice, so that he may resist if he chooses. The further hearing of the motion as it now stands .is, therefore, postponed, with leave to the defendant in error to amend by adding a motion to affirm because the question involved has been already decided and no further argument is necessary. So ordered. Mr. P. Phillips for the motion. Mr., S. F. Beach and Mr. B. F. Butler opposing. RUCKMAN v. BERGHOLZ. error to the court of error and appeals of the state of new JERSEY. No. 704. October Term, 1876. — Decided March 13, 1877. In an action in a state court by a real estate broker to recover commissions on sales of land, the exclusion of evidence that he had not paid the tax or received the license required by the statutes of the United States, when properly excepted to, raises a Federal question; but in this case the question was frivolous, and manifestly taken for delay. Motion to dismiss or affirm. Assumpsit in the Supreme Court of New Jersey by a real estate broker to recover of the defendant commissions on the sales of real estate. Plea non assumpsit. Verdict for the plaintiff for $13,903.65, and judgment on the verdict, which was affirmed on appeal. At the trial, the defendant’s counsel offered to prove that the plaintiff Cxliv APPENDIX. Cases Omitted in the Reports. had not paid the tax or received the license for carrying on his business which was then required by the statutes of the United States. The court excluded this evidence, and exceptions were duly taken to this ruling. This constituted the only Federal question in the case. The defendant moved to dismiss the writ of error for want of jurisdiction; or to affirm the judgment below on the ground that the writ had been sued out merely for delay. Mr. Chief Justice Waite delivered the opinion of the court. A Federal question is presented by this record, but it is so frivolous as to make it manifest that the writ was taken for delay merely. The motion to dismiss for want of jurisdiction is therefore overruled, but the motion to affirm under Rule 6, as amended May 8, 1876, is granted. Affirmed. Mr. Courtlandt Parker for the motions. Mr. Jacob Vanatta and Mr. Francis Kernan opposing. QERMANICA NATIONAL BANK v. CASE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA. No. 784. October Term, 1876. — Decided January 15, 1877. This court has jurisdiction of an appeal from a decree of a Circuit Court, requiring stockholders in an insolvent national bank to pay a given percentage on their stock which the comptroller of the currency had ordered collected, and such further sums as may be necessary to pay the debts of the bank. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. If the decree asked and obtained in this cause had been confined to an order for the payment of the seventy per cent upon the amount of the stock held by the appellants respectively, which the comptroller of the currency has already instructed the receiver to collect, the objection taken by the appellee to Our jurisdiction might have been good; but the decree as given goes further, and, after providing for the seventy per cent, adjudges that each of the appellants shall be liable to further contribution as stockholders until a sufficient sum is realized to pay the debts of the bank, and that the bill be retained until it shall be certain that no further contribution will be required. This fixes the liability of each of these appellants to contribute in this suit to the extent of the nominal amount of his stock if neces- APPENDIX. cxlv Van Norden v. Benner. sary, and as the bill alleges that at least twenty-five per cent more will be required, it is apparent that the “ matter in dispute” is not alone the amount already decreed but a sum in addition that may amount to thirty per cent of the stock, and is now expected to reach twenty-five per cent. Their liability generally as stockholders to make contribution has been finally established. That can never again be contested in this suit except under this appeal. For the purposes of jurisdiction we may consider that as in dispute which would be settled by the decree if it had not been appealed from. It follows that these motions to dismiss must be Denied. Mr. Charles Carr for the motion. Mr. H. H. Marr, Mr. Thomas J. Durant and Mr. C. W. Hornor opposing. VAN NORDEN v. BENNER. ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA. No. 794. October Term, 1876.— Decided April 30, 1877. The case presents no question of Federal law. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. We find no Federal question in this record. The plaintiffs in error in their answer below claimed no “title, right, privilege, or immunity” under the bankrupt law, but only that the defendant in error availed himself of his rights under that law to force them to execute the note sued upon in order to avoid an adjudication of bankruptcy against a corporation in the existence and prosperity of which they were largely interested. The case as presented by the pleadings seems to be that the defendant in error, owning stock in and having a debt against the corporation, commenced proceedings in bankruptcy to wind up its affairs. This he had the right to do. The plaintiffs in error, fearing that he would be successful in his application and believing that their interests would be injuriously affected if he was, preferred to assume his debt and purchase his stock, in the hope thereby of saving themselves. This they had the right to do, and all that can be said against the transaction is that the defendant in error may have taken advantage of their necessities to secure himself against probable loss. This presents no question of Federal law. The writ is dismissed for want of jurisdiction. io cxlvi APPENDIX. Cases Omitted in the Reports. Mr. Charles B. Singleton, Mr. Samuel Shellabarger and Mr. J. M. Wilson for the motion. Mr. Thomas J. Durant and Mr. C. W. Hornor opposing. Van Norden v. Washburn, No. 795, at the same Term, with a like state of facts and argued by the same counsel, was dismissed at the same time for the same reasons. THATCHER v. KAUCHER. ERROR TO THE SUPREME COURT OF THE TERRITORY OF COLORADO. No. 126. October Term, 1877. — Decided December 17, 1877. The acts of a person assuming to be an agent in the sale of personal property will not bind the principal, unless he either authorized him to make the sale, or held him out to the public as clothed with the authority of an agent; and there being no evidence in this case either of authority to sell the property in dispute, or of consent to the agent representing himself to have such authority, no basis has been laid for the propositions which the court was asked to give the jury. There was no error in the rulings of the court admitting evidence to show the market-value of the property converted. Trover. Verdict for plaintiff and judgment on the verdict. The case is stated in the opinion. Mr. Justice Strong delivered the opinion of the court. The several instructions which the defendant below desired to have given to the jury were properly refused. The bill of exceptions exhibits no evidence that justified a demand for any of them. While it is true that if an owner of personal property authorizes an agent to assume the apparent right to sell it, an innocent purchaser may safely buy from the agent, and his purchase will bind the principal,' though in fact there was no real authority to sell, yet the principal is not bound unless he has held out the agent to the public as clothed with such authority. There must be some evidence either of permission to sell or of consent to the agent representing himself to have such a license. We can find no such evidence in this case. It is not claimed that Minch, from whom Thatcher, the defendant, asserts he purchased the whiskey, had in fact any authority to sell the lot. All that, is insisted is that the plaintiff allowed him to assume such authority and held him out to the public as so authorized. But certainly there is nothing in the evidence that could warrant a jury thus to find. Minch was not a salesman employed by the plaintiff, and he assumed no appearance of ownership or of APPENDIX. cxlvii Thatcher v. Kaucher. authority to sell, in the presence of the plaintiff, or while the plaintiff was in the Territory. During that time he made no sales. Nothing, therefore, in the conduct of the plaintiff tended to show that Minch was clothed with any right to dispose of the property. And the act of leaving it in Minch’s charge in itself had no tendency to show such a right. A bailee for custody has not the indicia of an agent to sell. Nor were the small sales made by Minch, while he had the property in charge, and during the absence of the owner, any evidence of his right to sell. An agent’s authority cannot be proved by his own acts alone. The sales were made without the knowledge, and, of course, without the consent of the bailor; at least the sales themselves did not show such knowledge or consent. Nothing remains, then, to show the plaintiff’s consent to the sale made to the defendant, if any there was, except the fact that Minch was told to sell enough to pay his board during the plaintiff’s absence from the Territory. But there is no evidence that even this was made known to the public or that the defendant ever had knowledge of it. All that was known to the public was the fact that the bailee was selling the whiskey in small quantities during the absence of the bailor. And the limited license given was a very different thing from power to dispose of the whole property entrusted to the bailee’s care. There was, therefore, no evidence tending to show that Kaucher, the plaintiff, clothed Minch with the indicia of ownership of the property, or with powers fitted to induce innocent third persons to believe that he was authorized to make such a sale as the defendant claims was made to him. Much less is there evidence to show that the defendant was misled by any appearances. And it is not a little remarkable that the record exhibits no proof that such a sale was ever made, though the bill of exceptions contains all the evidence introduced at the trial. All that can be found is an unsworn declaration of the defendant that he had made such a purchase, a declaration made in reply to the plaintiff’s demand for the property; but that is no proof of the fact asserted. No witness testified that Minch had made a sale to the defendant, and no written evidence of such a sale was adduced. There was no basis, therefore, for the propositions which the court was asked to give as instructions to the jury. The remarks we have made are sufficient to show there was no error in excluding from the consideration of the jury the evidence given by the defendant relating to Minch’s conduct and declara- cxlviii APPENDIX. Cases Omitted in the Reports. tions after the plaintiff had left the Territory. It was all wholly immaterial. Nor was there error in any of the rulings of the court admitting evidence to show the market value of the property taken and converted. The judgment is, therefore affirmed, and the record is ordered to be remitted to the Supreme Court of the State of Colorado. Mr. W. Willoughby and Mr. J. W. Denver for plaintiff in error. Mr. John Q. Charles for defendant in error. ELIZABETH v. AMERICAN NICHOLSON PAVEMENT COMPANY. APPEAL FROM THE, CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY. No. 203. October Term, 1877. Original motion in the cause made at October Term, 1878.— Decided November 25, 1878. This court has power at any time to amend a decree which has by inadvertence or mistake been entered in a different form from that in which the court intended it. When a joint decree is made in the court below against two or more parties, and the decree is found to be correct as to some of the parties, and incorrect as to the others, the ordinary and proper practice is to reverse it as an entirety, and remand the cause for a new decree; but when such a decree does not affect the rights of the different parties in a different manner, as, for instance, when it is found right in all respects, except as to the amount, the court sometimes reverses it in part and affirms it in part, this being always within the discretion of the court. This was, in substance, a motion to amend the decree of the court, as not being in conformity with its opinion. Elizabeth v. Pavement Co., 97U. S. 126. The case is stated in the opinion. Mr. Justice Bradley delivered the opinion of the court. A motion is made in this case to amend the mandate so as to conform to the opinion delivered by the court at the last day of October Term, 1877. The motion cannot be entertained in the form in which it is made, because no mandate has in fact ever been issued in the case. The appellee, however, desires to convert the notice into one for amending the decree on the ground that it does not conform to the opinion. We have examined the decree and find that it does conform precisely to the opinion. The last .sentence of the opinion is in these words: “ The decree of the Circuit Court, APPENDIX. cxlix Elizabeth v. Nicholson Pavement Co. therefore, must be reversed with costs, and the cause remanded to said court with instructions to enter a decree in conformity with this opinion.” The decree of this court exactly follows this announcement ; it reverses the decree of the Circuit Court and remands the cause, with instructions to enter a decree in conformity with the opinion. We do not see any mistake at all in the form of entering the decree. We have no doubt of our power at any time to amend a decree which has by inadvertence or mistake been entered in a different form from that in which we intended it. As said by Mr. Justice Strong, delivering the opinion of the court in the case of Insurance Co. v. Boon, 95 U. S. 117, 125 : “ It is familiar doctrine that courts always have jurisdiction over their records to make them conform to what was actually done at the time.” But we see no occasion for exerting any such power in this case. The learned counsel for the appellee supposes that, in view of the conclusion to which the court came, as expressed in its opinion, it ought to have entered a different decree from that which it saw fit to enter. If it were necessary for the court at this time to enter upon a defence of its action, we should have no difficulty in showing that it was the proper course to take. The conclusion referred to was, that the decree of the Circuit Court, which was a joint decree against three parties, would have been correct if it had been made against one. of them and not against the others. The counsel of the appellee contends that, having come to that conclusion, we ought to have affirmed the decree as to the one party against whom such a decree might have been made, and reversed it as to the others. But we do not think so. The decree of the Circuit Court was wrong. All the defendants joined in an appeal for its reversal ; and it was the ordinary course to reverse the decree as an entirety and to remand the cause for a new decree. We have in some cases, it is true, affirmed a decree in part, and reversed it in part where such a course did not affect the interest of different parties in a different manner, as might have been the case here had we come to the conclusion that the decree was right in all respects except as to the amount. But even then it would have been in the discretion of the court to have reversed the decree and remanded the cause for correction. . This, as before said, is the ordinary course ; and if in any case we depart from it, it is in the exercise of that discretion which the court, in view of all the circumstances of the case, has a right to exercise in reference to the particular form of its decree. cl APPENDIX. Cases Omitted in the Reports. The motion, in fact, as now modified, is equivalent to a motion for a rehearing, and cannpt be entertained. The decree is in exact conformity to our intention, and must stand as it has been entered. The motion is denied. Mr. P. Phillips for the motion. Mr. W. A. Beach opposing. JONES v. GROVER AND BAKER SEWING MACHINE COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA. No. 231. October Term, 1877. — Decided February 18, 1878. A bill of exceptions, signed after the term at which the judgment was rendered, without the consent of the parties or an express order of court to that effect made during the term, will not be considered part of the record, except under very extraordinary Circumstances. The court cannot pass upon an exception to the admission of a paper in evidence at the trial, if the record contains no copy of it. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. In Müller v. Ehlers, 91 U. S. 249, after reviewing the earlier cases, we decided that, save under, very extraordinary circumstances, a bill of exceptions signed after the term at which the judgment was rendered, without the consent of parties, or an express order of the court to that effect made during the term, could not be considered part of the record in a cause. This rule excludes from this record the bill of exceptions signed October 9, 1875. The judgment was rendered at the June Term of that year, the writ of error sued out July 16, and the citation served the same day. The authentication of the transcript of the record annexed to and returned with the writ, as required by §997 Rev. Stat., bears date October 7, and the bill of exceptions, signed as it was after that time, is simply appended to what was thus authenticated. There is nothing to show that it was ever even filed in the office of the clerk of the court. Certainly such a paper cannot be considered here. The note of exception which does appear in the record, and upon which the only error insisted upon in the argument is assigned, contains neither a copy of the rejected agreement nor any statement of its contents. We can only reverse a judgment for error actually APPENDIX. cli Sawyer v. Weaver. appearing. Every presumption is in favor of the correctness of the ruling below, and until we know from the record what the paper offered in evidence was we cannot say that the court improperly excluded it. Judgment affirmed. Mr. Isaac I. Post and Mr. J. Hubley Ashton for plaintiffs in error. Mr. Enoch Totten for defendant in error. SAWYER v. WEAVER. APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 239. October Term, 1877. — Decided March 25, 1878. A deed of trust from the vendee of real estate to the vendor, to secure the payment of part of the purchase-money, recited that there was an indebtedness on the property of eight promissory notes, each for $1000 with interest, as appeared by a deed referred to, which were to be assumed by the vendee as part consideration of the sale, and the vendor saved harmless therefrom. By reference to the deed it appeared that these notes were payable in one, two, three, etc., years respectively, with interest; Held, that the interest on each of these notes was payable on its maturity, and, no fraud or mistake being shown, that the obligation of the vendee to protect the vendor extended to the payment of the overdue interest on the specified notes, as well as the principal. In equity. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. The undertaking on the part of Frederick P. Sawyer, the decedent, in respect to the payment of the indebtedness to North is thus expressed in the deed of trust executed by him, on receipt of the conveyance from Weaver, to secure the payment of the balance of his purchase-money: “ And whereas there is now an indebtedness on said property of eight promissory notes of S. D. Castleman and said Weaver, each for $1000 with interest, as will appear by deed recorded in liber No. 640, folio 474, and part of the consideration of this sale is that the said Sawyer should assume said indebtedness and pay the same, and hold the said Weaver harmless therefrom.” The deed referred to is dated March 24, 1871, and states the indebtedness to be “in the sum of ten thousand dollars, for which amount he (North) holds the ten joint and several promissory notes of the said Castleman and Weaver, bearing date on the 17th day of March, a.d. 1871, each for the sum of one thousand dollars, pay clii APPENDIX. Cases Omitted in the Reports. able, respectively, in one, two, three, four, five, six, seven, eight, nine and ten years after date, to the order of said Castleman and Weaver, with interest at the rate of seven per cent per annum.” Nothing would seem to be clearer than that this created an obligation on the part of Sawyer to pay the indebtedness of Castleman and Weaver to North upon the property. The assumption is not of eight thousand dollars, but of the indebtedness evidenced by eight of the notes described in the deed referred to, and this was eight thousand dollars with interest from March 17, 1871. The notes were not payable with interest annually, but with interest from date, which implies that the interest accruing from date to maturity was payable at maturity with the principal. Two of the notes described in the deed had matured before the .sale to Sawyer, and as eight only were assumed, the presumption is, in the absence of anything to the contrary, that the assumption was of the eight to mature thereafter. As express reference is made in the deed by Sawyer to that by Castleman and Weaver for a description of the indebtedness assumed, the same effect is to be given the contract of Sawyer, embraced in his deed, that would be if the language in the deed referred to had been in terms incorporated into his own. It is said, however, that the deed from Weaver to Sawyer, executed as it was at the same time with that of Sawyer and as part of the same transaction, must be construed with the deed of Sawyer for the purpose of determining what the contract between the parties actually was. This is undoubtedly so, but we do not think it alters the case. The items of the consideration, as recited in the deed of Weaver, it is true, amount in the aggregate to only twenty thousand dollars, and in the description of the debt to be assumed, special mention of interest is omitted, but the deed of Castleman and Weaver is referred to, and there is nothing to indicate an exclusion of the interest which that deed describes from the debt assumed. It is conceded on the part of the appellants that the deeds taken together contain the contract of the parties as finally reduced to writing. Parol evidence, therefore, is not admissible to contradict or vary it. An effort is, however, made to have the contract reformed on account of a mutual mistake of the parties as to the amount of the North debt, or the fraud of Weaver in concealing it. The pleadings in the case are not framed with a view to that relief, but if they were, the evidence fails entirely to make out such a case. Reference is given to the deed of Castleman and Weaver for a APPENDIX. cliii Connecticut General Life Ins. Co. v. Burnstine. description of the indebtedness, and it is there found distinctly stated. There could, therefore, have been no concealment, and there is no pretence whatever of any false statement. If Sawyer had exercised ordinary prudence he need not have been mistaken, and the testimony of the witness who drafted the conveyances, if it is to be relied upon, shows most conclusively that he was not. The decree is affirmed. Mr. T. T. Crittenden and Mr. George W. Paschal for appellant. No appearance for appellee. CONNECTICUT GENERAL LIFE INSURANCE COMPANY v. BURNSTINE. APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 240. October Term, 1877. — Decided March 25, 1878. A mortgagee who has notice through his agent in the negotiation of the loan, that the discharge of a prior mortgage on the property was fraudulently obtained, cannot acquire the property discharged of the prior incumbrance, by purchase at a sale under decree of foreclosure of his own mortgage. The question is one of fact; and this court cannot see that the evidence is so clearly against'the decision of the court below, that it would be justified in reversing it*. The case is stated in the opinion. Mr. Justice Hunt delivered the opinion of the court March 25, 1878. The contention in this case arises upon the priority of the security and the trust deeds held by the respective parties. The first deed was made by John N. Hubbard to Wm. H. Ward to secure the payment of a note of $3000, payable thirty days after its date, made by Hubbard, payable to and held by James M. Ormes. The papers bear date of January 31, 1872,. and within three days after that date the note and the trust deed were transferred and delivered to the plaintiff, Burnstine. The trust deed under which the insurance company makes claim bears date of November 11, 1872, made by the same Hubbard to trustees, to secure a loan of $12,000 made by the insurance company to Hubbard. The insurance company admits in its answer that at the time of making this loan and receiving its security therefor, the deed to Ward was on record and known to it, and was a cliv APPENDIX. Cases Omitted in the Reports. prior encumbrance. It insists, however, that by an agreement with Hubbard it retained and withheld from him a sum sufficient to pay and satisfy the debt of $3000 secured by the said deed, until there was delivered to it as ready for record a release of the debt and security referred to, and the company was notified that the prior lien had been paid off and discharged, and that thereupon, without knowledge or suspicion that the release had not been duly executed, it paid to Hubbard the amount which had been withheld as security in respect to the said prior encumbrance. This release and discharge of the trust deed was made by Ward, < the trustee, and Ormes the original payee of the $3000 note, but it was in disregard and in fraud of the rights of Burnstine, to whom the note had been transferred before maturity, with the accompanying security of the trust deed, and who was the actual holder thereof. The company claims that under these circumstances it became the first encumbrancer, and having subsequently purchased the property at the sale under the trust in good faith and without notice, it acquired the legal title and holds the same discharged of Burnstine’s claim. Without seriously contesting the soundness of the general principle of law set forth, the counsel of Burnstine contends that John G. Bigelow was the agent of the company in making its loan to Hubbard, and in making the subsequent payment to him, and in receiving the release. That Bigelow knew that Burnstine was the holder and owner of the note secured by the trust deed to Ormes, and knew that the execution of the release by Ward and Ormes was a fraud upon Burnstine. It is insisted that notice to the agent is notice to the principal, and that a mortgagee with notice of the fraudulent discharge of a prior mortgage is not a bona fide purchaser. 2 Leading Cases Equity, 1st ed. 1877, pp. 134, 144, 154, 157, 160, 178; Williamson v. Brown, 15 N. Y. 354, 359 ; Champlin v. Layton, 6 Paige, 189, 203 ; Morgan n. Chamberlain, 26 Barb. 163 ; Jackson v. Post, 15 Wend. 588, 594. There is but little difficulty as to the principles of law which should control the case. The question is one of fact: was Bigelow the agent of the company in receiving the release, and had he knowledge of the fraud? The fraudulent release was executed on the 4th day of February, 1873, and on or about that day was delivered to Mr. Bigelow. It was retained by him without being'placed on record until November. APPENDIX. civ Connecticut General Life Insurance Co. v. Burnstine. 1873, when he delivered it to Mr. Parsons, the president of the insurance company. Mr. Parsons retained it until the 7th day of February following, (for the reasons given by him,) when he placed it on record. We think that upon the evidence it is too plain for discussion that in February, 1873, and afterwards, Bigelow was the agent of the insurance company in disbursing its moneys to Hubbard and others, and in perfecting its title to the lots covered by the larger trust deed, and in paying out the money reserved for the indemnity of the Ormes or Burnstine security ; and that he received the release in question for and on behalf of the company, held it in that capacity, and at a convenient time delivered it to its president as a muniment of title. Whether Mr. Bigelow had knowledge that Burnstine was the owner of the $3000 note when this release was executed, and that Ward and Ormes had no authority to execute the release they delivered to him, is not free from doubt. Mr. Bigelow testifies positively that he had no such knowledge. Mr. Burnstine testifies positively that he had such knowledge, and that in the presence of his brother (now deceased) and himself, Mr. Bigelow saw him take the note and trust deed from his safe as his property, that they were examined, a calculation made by him of the amount due on the note, and the securities again placed in Burnstine’s safe. Mr. Ormes testifies that he informed Mr. Bigelow that Burnstine was the owner of the note or had an interest in it, and that he went with him to Burnstine’s office, leaving him at the door, which Bigelow entered, while he passed on. Mr. Bigelow admits that he was informed by Mr. Ormes that Burnstine held the note as collateral security, and testifies that he called upon Burnstine for the purpose of paying his claim, but that both Burnstine and his brother denied the ownership or possession of the note, or any knowledge whatsoever of the note or the security. The court below gave its decision in favor of Burnstine, and we do not see that the evidence is so clearly against that decision that we should be justified in reversing it. Adding to this the fact that a man who was honest and but reasonably prudent should not have been satisfied with a release without the production of the note secured, when he had information that there was question about its ownership, we feel constrained to affirm the decree. Affirmed. Mr. S. R. Bond for appellant. Mr. Enoch Totten for appellee. clvi APPENDIX. Cases Omitted in the Reports. RISHER v. SMITH. APPEAL EROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 246. October Term, 1877. — Decided April 22, 1878. In equity, parol testimony is admissible to show that a conveyance, absolute on its face, was in fact a mortgage. It is clear from the evidence that the order which was the subject matter of this action, was for the purpose of security only, and that the debt for which it was security was paid before the defendant Taylor received the government drafts. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. It cannot be considered an open question in this court that in equity parol testimony is admissible to show that a conveyance absolute on its face was in fact a mortgage. Russell v. Southard, 12 How. 138, 147; Babcock v. Wyman, 19 How. 289. Upon the evidence in this case it is clear that the order on Taylor given Biddle & Co. by Sawyer, Risher and Hall, and which is the subject matter of the action, was for the purpose of security only. All the parties must have so understood it. The order was not negotiable commercial paper. Consequently Smith, the plaintiff, took it subject to all equities between the original parties, and there is nothing to show that either the drawers or the acceptor have incurred any obligations to him except such as they were under to the drawees. The case is, therefore, to be considered the same as if Biddle & Co. were now themselves seeking to reach the fund in the hands of Taylor. After a careful consideration of the evidence we are satisfied that the debt to Biddle & Co. was paid and discharged long before either of the government drafts was received by Taylor. The order was dated June 20, 1867. On the 13th of September in that year Biddle & Co. stated their account, showing a balance in their favor of $25,476.33. Of this amount $12,948.91 was paid the same day, and $1014.53 September 19, leaving a balance at that date of $11,412.89. They then held as collateral, besides the order in question, certain notes of Mace Sawyer, on which $10,000 were afterwards collected. On the 19th October Biddle & Co. accepted two drafts for $6180.50 each, payable in ninety days and six months respectively, to settle a judgment against Sawyer, Risher and Hall APPENDIX. clvii Risher v. Smith. in favor of Lathrop, Luddington & Co. At the same time Risher and Hall, “ in consideration of indebtedness and advances made and to be made by Biddle & Co.,” gave Biddle an irrevocable power of attorney to collect all moneys that might become due to them from the United States for carrying the mails on certain designated routes for the year ending July 1, 1868. The amount paid by the government for this service after the date of the power of attorney was not far from $19,000, and as the power was filed in the office of the auditor of the treasury fox' the Post-Office Department on the 12th October, the payments must have been controlled at least by Biddle. On the 24th July, 1868, another power of attorney of like character was executed to Biddle for the year commencing July 1. About $25,000 were paid by the government on this account, and on the 5th of October, 1868, drafts on the department were drawn by Biddle in favor of Theodore Crane, president, amounting in the aggregate to $20,000 of this $25,000. In addition to this Biddle testifies that at one time he borrowed of Risher and Hall ten thousand dollars, upon a draft of his upon one Sampson, a resident of Texas. Under these circumstances certainly the burden is thrown upon Smith to show that the balance due Biddle & Co. was not paid out of the moneys thus received. This he has failed to do. Taylor received one draft from the government about October 1, 1868, for $4744.19, and another March 22, 1869, for $1332.52. He is entitled to one-fourth of the two amounts for his services. Shortly after the first draft was obtained Taylor drew the money upon it, under an arrangement by which he was to give security for its payment when required. He should, therefore, be charged with interest upon the balance in his hands, after deducting his commissions of twenty-five per cent upon the amount of the two drafts. This balance is conceded to be $3225.01. The decree is reversed, and the cause remanded with directions to dismiss the original bill at the costs of Smith, the plaintiff, and to enter a decree upon the cross-bill, requiring Taylor to pay Risher the balance in his hands, being $3225.01, with interest from the date of its receipt, and also to deliver to Risher the treasury draft of $1332.52 in his possession. The appellee, Smith, to pay the costs of the appeal. Mr. T. T. Crittenden and Mr. George W. Paschal for appellant. Mr. F. C. Wood and Mr. Thomas Jessup Miller for appellees. clviii APPENDIX. Cases Omitted in the Reports. NONCONNAH TURNPIKE v. TENNESSEE ex rel. TALLEY. SAME v. SAME. SAME v. SAME. ERROR TO THE SUPREME COURT OF TENNESSEE. Nob. 639, 640, 641. October Term, 1877. — Decided November 5, 1877. No Federal question is presented by the record, in these cases, the question respecting the forfeiture of the charter of the turnpike company being a question of state law only, as to which the judgment of the state court is final. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. No Federal question is presented in either of these records. Even if the point urged here in support of our jurisdiction was one involving Federal rights, which we are by no means prepared to admit, it does not appear in the cases as they come to us. Under a statute passed January 8, 1846, (Acts of Tenn., 1845-6, 107,) authorizing judicial enquiry “to ascertain whether any corporation by non-user or abuse of its franchises has incurred a forfeiture of its charter or has been disabled by a surrender of its franchises,” it seems to have been held by the courts of Tennessee, that to justify a decree of forfeiture there must have been wilful abuse or improper neglect in the exercise of the powers conferred. State v. Merchants’ Ins. and Trust Co., 8 Humphreys, 235, 284; State v. Columbia and Hampshire Turnpike Co., 2 Sneed. (Tenn.), 254. But in 1857-8, by the code then adopted, provision was made for a like proceeding against corporations that ‘ ‘ do or omit acts which amount to a surrender or forfeiture of their rights and privileges as a corporation,” and for a decree of forfeiture “ if it be adjudged that a defendant corporation has by neglect, non-user, abuse, or surrender, forfeited its corporate rights.” Tenn. Code, 1857-8, §§ 3409, 3425. This law was in force when the charter of the Nonconnah Turnpike Company was granted, and the Supreme Court in these cases decided that under its provisions the failure of the company to complete its road within the time limited was such a substantial non-compliance with the requirements and conditions of the charter as to subject the company to a decree of forfeiture. This is a question of state law alone, as to which the judgment of the state court is final. The cases are dismissed for want of jurisdiction, Mr. Albert Pike, Mr. L. H. Pike and Mr. Robert W. Johnson for the motion. Mr. Samuel Shellabarger, Mr. J. M. Wilson and Mr. D. K. McRae opposing. APPENDIX. clix United States v. Driscoll. UNITED STATES v. DRISCOLL. APPEAL FROM THE COURT OF CLAIMS. ORIGINAL MOTION IN THE CASE. No. 1053. October Term, 1877. — Decided April 8, 1878. A request for an order upon the Court of Claims for an additional finding is refused, because that court had not been requested to make the findings, in accordance with rules 4 and 5 regulating appeals therefrom. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. This motion is denied. At the same term with the order for additional findings in United States v. Adams, 9 Wall. 661, and to avoid the difficulty experienced in that case, rules 4 and 5, regulating appeals from the Court of Claims, were promulgated. 9 Wall. 7. The fourth requires that court to file its findings of facts at or before the time of entering the judgment, and the fifth permits either party to call for a finding upon a special question deemed material to the judgment in the case, and, if refused, to ask this court to pass upon the materiality of the fact alleged, and, should it be considered material, to send down for the finding. Such is the construction given the rules in Mahan v. United States, 14 Wall. 109, 112. The object is to present the question here as upon an exception to the ruling of the court below in respect to the materiality of the fact. For that purpose it must have been submitted to the court1 in a written request, as provided in the rule. Nothing of the kind appears here. While other requests were made, this was not, and the record upon its face does not show that the court has omitted to pass upon any fact necessary to the decision of the cause. No foundation has, therefore, been laid for this application. Motion denied. Mt. Thomas J. Durant for the motion. No one opposing. See United States n. Driscoll, 96 U. S. 421. clx APPENDIX. Cases Omitted in the Reports. DUMONT DES MOINES VALLEY RAILROAD COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF IOWA. No. 87; October Term, 1878. — Decided May 5,1879. A petition to file a bill of review on the ground of newly discovered evidence will not be granted if the bill, when filed, ought not to be sustained by reason of the laches of the petitioner in neglecting to discover the evidence earlier. Petition for leave to file a bill of review. The application was denied in the Circuit Court, and the petitioner appealed. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. This application is denied. The petitioners have not shown such diligence as will entitle them to reopen a litigation that has been carried on with so much pertinacity for a great number of years. The new matter relied upon consists principally of record evidence drawn from the archives of the government, which might as easily have been found at the time the controversy arose as now. The treaty was a part of the law of the land, and the maps and official reports have been on file in the proper government office, where they were discovered, for a quarter of a century. We are all of the opinion that if a bill of review should be filed containing all the averments that are in the present petition, it ought not to be sustained. Clearly, then, leave ought not to be granted ibr a continuance of the litigation. . Affirmed. Mr. Charles A. Clark and Mr. James Grant for appellant. Mr. C. C. Nourse and Mr. A. M. Hubbard for appellees. CARSON v. OBER. ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI. No. 123. October Term, 1878. — Decided January 13, 1879. The question raised, and decided in a state court, whether there could be a sale of cotton so as to pass title to the vendee before the payment of the government tax, is not a Federal question. The case, is stated in the opinion. APPENDIX. clxi Flournoy v. Lastrapes. Mr. Chief Justice Waite delivered the opinion of the court. We find no Federal question in this record. The court below decided that as between vendor and vendee there could be a sale and delivery of cotton, so as to pass title to the vendee before the payment of the government tax assessed upon the cotton, under the act of July 1, 1862, 12 Stat. 465. This was a question of general law only. The plaintiff in error claimed no right or title under the tax laws or treasury regulations. The court was not called upon to determine whether the lien of the tax was valid or invalid, but only whether so long as the lien existed the ownership of the property subject to the lien could be transferred. The case is clearly within the rule considered in Long v. Converse, 91 U. S. 105, 112. Dismissed for want of jurisdiction. Mr. J. S. Black and Mr. H. W. Garnett for plaintiff in error. Mr. S. T. Glover and Mr. J. R. Shepley for defendants in error. FLOURNOY v. LASTRAPES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA. No. 186. October Term, 1878. — Decided April 7, 1879. A sheriff’s deed executed by a deputy sheriff in his own name is good in Louisiana. An objection not made below cannot be assigned as error and considered here. A general verdict ‘ ‘ for the defendant ” is equivalent to a special verdict on each and all the issues tried. The judgment followed the pleadings. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. The first error assigned in this case is to the effect that the court admitted in evidence to prove the title of the defendant, a sheriff’s deed executed by a deputy sheriff in his own name, and not in the name of the sheriff. In some States this would be a good objection, but in Louisiana the rule appears to be otherwise. The precise question was raised and directly decided in Kellar v. Blanchard, 21 La. Ann. 38, 41, and we are not advised that the authority of this case has ever been questioned. The second assignment is that the sale and adjudication of the ii clxii APPENDIX. Cases Omitted in the Reports. property by the deputy sheriff was null and void, on account of the insufficiency of the bid. No such objection was made below, and it cannot be considered here. The third assignment is that the verdict of the jury was too vague and indefinite. The verdict was “ for the defendant.” This is equivalent to a special finding in favor of the defendant upon each and every one of the issues tried, and authorizes any judgment that could be entered on such a finding. The only remaining assignment is that the court gave judgment in favor of the defendant for the property in controversy. It is claimed that this could not be done under the pleadings. The prayer of the petition was that the petitioner might be decreed to be the true and lawful owner of the property ; that if the defendant set up color of title, he might be required to produce the same ; and if it should appear insufficient, that he might be prohibited from claiming ownership. The defendant answered, setting out his title, and asking that it be recognized and acknowledged, and that the plaintiff be condemned to surrender and deliver to the defendant full possession. The judgment followed this prayer in the answer. Affirmed. Mr. Thomas Hunton for plaintiff in error. Mr. W. Hallett Phillips for defendant in error. METROPOLITAN BANK v. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY. APPEAL EROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 229. October Term, 1878. — Decided November 4, 1878. Brine v. Insurance Co., 96 U. S. 627, followed, in regard to the right of redemption from a sale under foreclosure of a mortgage in Illinois. The case is stated in the opinion. Mr. Chief Justice Waite announced the judgment of the court. This was a bill in equity filed by the Connecticut Mutual Life Insurance Company in the Circuit Court of the United States for the Northern District of Illinois, to foreclose a mortgage executed to that company by the Marine Company upon certain lands in the city of Chicago. The Metropolitan National Bank of New York, a subsequent lien holder, was made a party defendant, and while APPENDIX. clxiii Metropolitan Bank v. Connecticut Mutual Life Ins. Co. not contesting the right of the complainant to a decree of sale, insisted in its answer, that if such a decree was rendered it should provide “ for the redemption therefrom required and secured by the statute of Illinois in that behalf.” The court, however, February 17th, 1875, directed that the sale be made “ in accordance with the course of practice that prevailed therein,” which did not allow redemption. A sale having been made and reported by the master under this decree, the bank objected to its confirmation, on the ground that it was absolute, when it should have allowed redemption in accordance with the state statutes, and that a certificate of sale should be given by the master instead of a deed, and redemption allowed. These objections were overruled and a decree entered August 14, 1875, confirming the sale and directing the master to convey the premises to the purchaser and the defendants to deliver the possession. The bank has taken this appeal, and in its assignment of errors returned, with the record alleges for error that the court directed the sale without redemption and confirmed the sale of the master as an absolute sale and without redemption. ’ The insurance company, appellee, seeing that the case is governed by our decision at the last term in Brine v. Insurance Co., 96 U. S. 627, now comes and, confessing the errors assigned, asks that the decree may be reversed and the cause remanded, and that the mandate issue immediately. Accordingly the decree of August 14, 1875, confirming the sale, is Reversed, and also so much of the decree of February 17, 1875, as directs that the sale be made in accordance with the practice of the court, but in all other respects the decree of February 17 is affirmed. The cause is remanded, with instructions to set aside the sale and modify the decree of February 17 by providing for a redemption from the sale in accordance with the statutes of Illinois. The costs of this appeal must be paid by the appellee, and a mandate may issue immediately. Mr. Melville W. Fuller for appellant. Mr. Edward 8. Isham and Mr. Robert T. Lincoln for appellee. clxiv APPENDIX. Cases Omitted in the Reports. UNITED STATES v. MORGAN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. No. 258. October Term, 1878. — Decided May 5, 1879. An adjusted account of an Internal Revenue Collector at the Treasury, showing the exact amount finally allowed him as extra compensation, is conclusive evidence on that question. The Secretary of the Treasury may fix the amount of an extra allowance to a Collector of Internal Revenue in advance of the service rendered. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. We find no error in this record. The objection to the admissibility of the testimony of Curtis and the defendant Morgan was not because it was insufficient to prove an arrangement between the Secretary of the Treasury and Morgan, by which Morgan was to be allowed his extra compensation, but because the Secretary of the Treasury might make the allowance at any time, and as the adjusted account showed the exact amount finally allowed, this account was conclusive evidence on that question. As the case stands upon the record it is to be presumed there was evidence tending to prove that the letter of the Commissioner of Internal Revenue was authorized by the Secretary of the Treasury. Upon the objection as made we think the ruling of the court was right. There is nothing in the act of Congress which precludes the Secretary of the Treasury from fixing the rate of extra compensation to be allowed in advance of the service rendered, and if he does, it becomes binding on the government and may be enforced in the settlement of accounts thereafter. The allowance of a commission upon the sum of $13,619.85, as part of the compensation of the collector for the year ending June 30, 1864, was also right. The money was all collected before the expiration of that year, and ten thousand dollars was actually paid into the treasury. As to the allowance of commissions for this there can be no doubt. It is a matter of no consequence that advices of the payment did not reach the accounting officers of the Treasury Department, so as to be entered on the books there, until after the year expired. No unnecessary delay occurred in paying over the remainder. It was actually collected in a distant part of APPENDIX. clxv Hunt v. Hunt. the collection district, and did not in the ordinary course of transmission reach the collector so that it could be paid into the treasury before June 30. The collector was accountable for it when it was collected, and since he paid it over as soon as he could, we think he was entitled to his compensation as for services rendered during the year. The objection to the claim for express charges paid was not made below and cannot be considered by us. We hear the case upon the rulings contained in the bill of exceptions and not upon the evidence. The same is true as to the claim now made that compensation has been given by the jury in their verdict in excess of the maximum limit fixed by the statute for the year. It does not appear from the bill of exceptions that this point was taken below. No error is assigned upon that part of the charge of the court which related to the payment of the bills of the assistant assessors. The judgment is Affirmed. Mr. Attorney General for plaintiff in error. Mr. W. W. Morrow for defendants in error. HUNT v. HUNT. ERROR TO THE COURT OF APPEALS OF THE STATE OF NEW YORK. No. 705. October Term, 1878. — Decided January 6, 1879. The contract of marriage is not a contract within the meaning of the provision in the Constitution prohibiting States from impairing the obligation of contracts. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. In the Dartmouth College Case, 4 Wheat. 629, it was expressly said by Chief Justice Marshall, in delivering the opinion of the court, that the provision of the Constitution prohibiting States from passing laws impairing the obligation of contracts “ had never been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice. It never has been understood to restrict the general right of the legislature to legislate upon the subject of divorces. Those acts enable some tribunal, not to impair a marriage contract, but tQ liberate one of the parties because it has clxvi APPENDIX. Cases Omitted in the Reports. been broken by the other.” This disposes of the first ground upon which our jurisdiction is invoked in this case. The law complained of simply provides for divorces in certain cases after hearing by a court of competent jurisdiction. The suit in Louisiana was one affecting the personal status of the defendant in error, a citizen of that State. The contract of marriage from which he sought to be liberated had been entered into in that State when both parties were citizens of the State. The question presented for decision below, and decided, was not what would be the rights of the plaintiff in error if she had been a citizen of the State of New York when the suit was commenced against her in Louisiana, but whether she was a citizen of New York. The court decided she was not. Such a decision of the state court does not present a question of which we have jurisdiction. The motion to dismiss is granted. Mr. Thomas J. Durant and Mr. C. W. Hornor for the motion. Mr. D. D. Lord opposing. KNOX COUNTY v. UNITED STATES ex rel. HARSHMAN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. No. 712. October Term, 1878. — Decided January 29, 1879. A defective supersedeas bond is vacated and a proper one ordered to be filed. This was a motion to vacate a supersedeas. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. The supersedeas bond in this case is clearly defective. It recites a judgment rendered, at the March Term, 1878, of the Circuit Court, against the defendant, “ in a suit depending in said court between George W. Harshman, plaintiff, and Knox County, in the State of Missouri, defendant.” That is not a true description of the judgment awarding the mandamus upon which the writ of error was sued out, or of either of the judgments for the collection of which the mandamus was awarded. We think the case a proper one for the allowance of an amendment of the bond, O’ Reilly v. Edrington, 96 U. S. 726, and it is accordingly ordered that the supersedeas be vacated, unless the plaintiffs in error shall, on or before thp first Monday in January APPENDIX. clxvii Phillips, Petitioner. next, file with the clerk of this court a new bond in the penal sum of twenty thousand dollars, with good and sufficient security, conditioned according to law. So ordered. Mr. T. K. Skinker for the motion. Mr. David P. Dyer opposing. PHILLIPS, PETITIONER. ORIGINAL. No. 11. Original. October Term, 1879. — Decided November 10, 1879. The court declines to hear an argument whether mandamus shall issue to the Circuit Court directing it to order stipulators for value and sureties on an appeal bond in an admiralty suit to appear for examination concerning their property: whether it has the power to issue the writ in such case quwre. This was a motion for a writ of mandamus. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. The petitioner shows that, having recovered a summary judgment in an admiralty suit against the stipulators for value and the sureties on an appeal bond, he moved the Circuit Court for an order on such stipulators and sureties to appear “ for examination concerning their property, according to the laws and practice of the State of New York;” and also for an order that they “disclose all information concerning their property, with a view to the sequestration thereof, and that they be directed to convey all their said property to a sequestrator to be appointed by the court,” and also that they “be punished for their contempt in not performing their stipulations and failing to comply with the provisions of the decrees.” These motions were overruled by the court, and we are now asked for an order on that court to show cause why a mandamus should not issue commanding it to exercise the power and grant the remedy sought. Even if we have the power to grant a mandamus in a case like this, the reasons assigned by the circuit judge in his opinion for refusing the motion are so satisfactory and show so clearly that he was right in what he did, that we think it quite unnecessary to hear an argument, and, therefore, deny the application for the rule. Rule denied. Mr. H. J. Scudder and Mr. Frank W. Hackett for the petitioner. No one opposing. J clxviii APPENDIX. Cases Omitted in the Reports. CRANE v. KANSAS PACIFIC RAILWAY COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS. No. 2. October Term, 1879. — Decided November 17,1879. The performance of a contract for the construction of a railroad, made by a deceased person with the railroad company, cannot be enforced by his heirs, even if the profits are partly in lands. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. This decree is affirmed. The suit was in equity by the children and heirs of Samuel Hallett, deceased, to enforce a contract he made in his lifetime with the railroad company, defendant, then known by another name, for the construction of its line of railway and telegraph. By the terms of the contract he was to be paid for his work in money, United States subsidy bonds, construction bonds, landgrant bonds, and capital stock of the company, and city and county bonds. He was not to become interested in any lands except indirectly as a stockholder in a corporation owning lands, and a holder of bonds secured by mortgage. When he died, the contract formed part of his personal estate, and belonged to his personal representative and not to his heirs, except upon distribution after all debts were paid. Had the personal representative performed the contract, he, like the intestate, would be entitled to money, stocks, and bonds for what he did. In this way he might have added to the assets of the estate for distribution, but he would get nothing which could pass directly to the heirs by inheritance. It matters not that since the death of Hallett others may have taken possession of the contract and made themselves in law trustees of the profits they have realized by its performance. As such trustees they must account to the personal representative of the estate and not to the heirs. If the profits for which they account are partly in lands, these lands do not pass to the heirs of Hallett by inheritance. They go to the personal representative as part of the personal estate, and through him on distribution to the heirs. It follows that the heirs could not bring this suit and that the demurrer to their bill was properly sustained. Affirmed. Mr. Matthew H. Carpenter and Mr. J. B. Stewart for appellant. Mr. J. P. Usher and Mr. C. E. Bretherton for appellees. APPENDIX. clxix Phillips v. Gaines. UNITED STATES ex rel. PHILLIPS v. GAINES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF TENNESSEE. No. 109. October Term, 1879. — Decided March 15, 1880. A court has no power to award costs in criminal proceedings unless some statute has conferred it. In Tennessee the costs of a criminal prosecution are made by statute a debt of the State, for which the comptroller may be compelled to draw a warrant upon the state treasurer when the proper foundation has been laid for such an order by the court; but in this case the steps required by law to be taken in order to charge such costs upon the State as a debt had not been taken. The case is stated in the opinion. Mr. Justice Strong delivered the opinion of the court. This case comes before us by writ of error, in a case where there was a certificate of division between the judges of the Circuit Court for the Middle District of Tennessee. It is a petition for a mandamus to the comptroller of the State, commanding him to issue his warrant to the state treasurer for the payment of a bill of costs of an indictment against Phillips, one of the relators, and others not named. The petition represents that on the 10th of October, 1870, the petitioner Phillips and others were indicted in the county of Putnam for the murder of one Stephen Ford ; that after his arrest, the said Phillips presented his petition to the state court, praying for a removal of the indictment into the Circuit Court of the United States, under and by virtue of the acts of Congress of March 3, 1863, May 11, 1866, and February 5, 1867; that the state court ordered and adjudged that the cause should be thus transferred and that copies of the record and all proceedings in that court were made out and duly filed in the said United States Circuit Court. The petition further represents that the Circuit Court took cognizance of the case until 1874, when the State of Tennessee, by her attorney, appeared and dismissed the case, agreeing that the costs should be adjudged against the State; that the court accordingly rendered such a judgment, and that a warrant for the payment of the costs had been demanded from the comptroller and refused. A portion of the record of the indictment and of the proceedings clxx APPENDIX. Cases Omitted in the Reports. thereon including what purports to be a bill of costs and the judgment of the court certified by the clerk and made an exhibit is appended to the petition. It is evidently incomplete. It does not contain the petition filed in the state court for the removal of the cause. The brief of the plaintiff in error, however, states that the killing, for which Phillips was indicted, was an act of war and in battle ; that the petitioner adhered to the cause of the government, and that Ford, the person killed, was a belligerent and soldier of the army of the rebellion. These averments are not denied, and if they were made in the petition it may be assumed that the indictment was removable and properly removed under the act of Congress, and that the Circuit Court obtained jurisdiction of it. The record made, as we have stated, an exhibit of the petition for a mandamus, shows that in the Circuit Court the State of Tennessee entered a nolle prosequi to the indictment; and that thereupon the court considered that the defendant, Phillips, be dismissed and go without day; that the State pay the costs of prosecution; and that the same be certified to the comptroller for payment. It also shows that a bill of costs including not merely the costs of prosecution but the defendant’s costs was presented to the comptroller, and that a warrant upon the treasurer therefor was demanded, but was refused. To this petition for a mandamus, the defence set up by the comptroller was twofold; first, that the Circuit Court of the United States had no power to render the judgment for costs against the State of Tennessee ; second, that the court had no power to enforce the collection of the judgment for costs by mandamus by reason of the facts averred in the petition, the defendant being an officer of the State and the -court having no power to control his action. For these reasons the court refused to grant the writ, and that refusal is now assigned for error. We are not, however, called upon to consider them, in view of the facts of the case as they are made to appear. Costs in criminal proceedings are a creature of statute, and a court has no power to award them unless some statute has conferred it. By the common law, the public pays no costs. In England, the king does not, and the State stands in place of the king. This is the rule in the State of Tennessee. Mooneys v. State, 2 Yerger, 578. But in that State, statutes have changed the rule. The act of 1827, c. 36, Hay and Cobb, 54, enacted as follows: APPENDIX. clxxi Phillips v. Gaines. “ In all criminal cases, above the grade of petit larceny, originating in the Circuit Courts, where the defendant may be acquitted, and in all cases where the defendant may be convicted and shall prove insolvent and unable to pay the costs, the same shall be paid out of the treasury of the State.” Before that act, in cases of acquittal by the verdict of a jury, costs were to be adjudged against the county. Act 1813, c. 136, § 3. The act of 1827 had no application to costs in cases ended by a nolle prosequi. But an act passed in 1832, c. 8, § 2, enacted that in all prosecutions for offences subjecting the offender to confinement in the jail and penitentiary house of the State in which a nolle prosequi shall be entered, or the defendant or defendants in such prosecution shall be otherwise discharged, the costs of such prosecution shall be paid by the State in the same manner and under the same provisions as in cases where the defendant or defendants may be acquitted by the verdict of a jury. The indictment against Phillips was such a case. Conceding, then, that the costs of the prosecution in that case were chargeable to the State, was the comptroller bound to. issue his warrant for the bill presented to him? It is made his duty by the law of the State, to examine and adjust all accounts and claims against the State, which are by law to be paid out of the treasury, and to draw warrants upon the treasury for the sums which upon such examination and adjustment, may be found due from the State. Civil Code, § 207. But the statutes of the State make some special provisions respecting costs. Before the comptroller can issue a warrant for their payment, a bill of fees and costs must be presented to him in legal form, and it must be shown that all the preliminary requisites of the law have been complied with. State v. Delap, Peck, 91. An examination of the state statutes will reveal what these preliminary requisites are. Section 5569, (Thompson and Steger’s Compilation,) declares that the costs chargeable upon the State or county in criminal cases shall be made out so as to show the specific items, and be examined and entered of record and certified to be correct, by the court or judge before whom the cause was tried or disposed of, and also by the district attorney. Section 5579 directs that a copy of the judgment and bill of costs, certified by the clerk of the court and by the Attorney-General and judge shall be presented to the comptroller, etc., . . . by the clerk or some person authorized by him, in writing, to receive clxxii APPENDIX. Cases Omitted in the Reports. the same, whereupon a warrant shall issue for the amount. Provisions somewhat similar are found in §§ 5571 and 5572. In the present case it does not appear that these prerequisites to a comptroller’s warrant had been complied with. The bill of costs had not been taxed, nor had it been examined and certified by the Circuit Court, nor by the Attorney General or district attorney, and it contained the costs of the defendant, for which the State is not liable. Though, therefore, the costs of the prosecution are undoubtedly a debt of the State, for which the comptroller may be compelled to draw a warrant upon the state treasurer, the demand made upon him by the relators was unauthorized by law; and, consequently the mandamus was properly refused. The judgment of the Circuit Court is Affirmed. Mr. John P. Murray and Mr. Benton McMillan for plaintiffs in error. No appearance for defendant in error. KNICKERBOCKER LIFE INSURANCE COMPANY v. SCHNEIDER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES 'FOR THE DISTRICT OF LOUISIANA. No. 163. October Term, 1879. — Decided March 2,1880. When the plaintiff in an action at law on a life insurance policy against the insurer avers in his declaration that the company had been notified of the death of the person whose life was insured in the policy, and that the necessary preliminary proofs required by it had been made, and the answer is a general denial of all and singular the allegations of the petition so far as the same may have a tendency to give to said plaintiffs any right or cause of action against the respondent, and, not specially traversing the allegations as to notice and proof, sets up specific defences, on which alone the defendant relies, it is not necessary to prove the notification, nor that the necessary preliminary proofs were made. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. This was a suit on a policy of insurance for $20,000 issued by the plaintiff in error on the life of Gustav Osterman in favor of Schneider & Zuberbier, his creditors. The policy provided for payment within three months after due and satisfactory proof of the APPENDIX. clxxiii Knickerbocker Life Ins. Co. v. Schneider. death of Osterman. The petition set forth his death on the 15th of September, 1876, and averred that the company was immediately notified thereof, and that due proof of the death, “ made under the forms and directions of said insurance company, were duly forwarded and their receipt acknowledged by said company.” The company answered the petition, denying “ all and singular the facts and allegations therein contained, so far as the same may have a tendency to give said plaintiff any right or cause of action against respondent,” and then averring that Osterman, at the date of the application for insurance and of the policy, “ was, and continued up to the time of his death to be, so far intemperate as to impair his health and shatter his constitution ; . . . that he was addicted to gambling, a duellist, a debauch er of women, . . . and an idle and roaming character; leading such a dissolute, profligate, and wandering life, as not only materially affected his health, but also considerably shortened the period of his life.” There were other averments sufficient to make this a good defence to the action if the allegations were true. It was also averred that the debt of Osterman to the plaintiffs was barred by the statute of limitations ; that certain warranties contained in the application for the policy had been broken, and that false answers were made to certain interrogatories propounded by the company’s medical examiner. The issues being made up by the pleadings, a trial was had before a jury. On the trial, the plaintiffs after proving the policy and the debt of Osterman, rested. The company then offered evidence tending to prove that the habits of Osterman at the time of the application were so far intemperate as to impair his health and shorten his life. Evidence in rebuttal was given, and both parties rested. The company then asked the court to charge the jury, “ that plaintiffs having failed to produce any evidence to show that previous to the institution of this suit they had given notice of the death of said Osterman, in conformity with the provisions printed on the back of the policy, and in fact as the plaintiffs had failed to adduce any evidence tending to show that plaintiffs had furnished, prior to the institution of this suit, any proof whatever of the death of Osterman, said plaintiffs could not recover.” This request was refused and the jury, in substance, told that if they found for the plaintiffs on the other issues, their verdict must be in favor of the plaintiffs for the full amount of the policy and interest from the commencement of the suit, because the pleadings, in effect, admitted the death of Osterman and placed the defence on the clxxiv APPENDIX. Cases Omitted in the Reports. ground that, under the facts of the case, his death was not covered by the policy. A judgment having been rendered against the company, this writ of error was brought. The only question presented by the assignment of errors is whether, under the issues made by the pleadings, it was necessary for the plaintiffs, before they could recover, to show by evidence that they had notified the company of the death of Osterman, and made the necessary preliminary proofs required by the policy before the suit was begun. We think it was not. It is directly averred in the petition that such notice was given and proof made. The answer is to be construed as a whole. There has been no attempt to set up separate defences, such as is allowed in common-law pleadings. No direct issue is made upon the fact of notice and proof, but the whole effort is to show that, notwithstanding such notice and proof, the plaintiffs cannot recover. It is true there is a general denial of all and singular the allegations of the petition, “ so far as the same may have a tendency to give said plaintiffs any right or cause of action against the respondent; ” but this we understand to be no more than a denial of such averments as are inconsistent with the specific defences set out in the other parts of the answer. Taken as a whole the answer in legal effect admits that the plaintiffs must recover unless the specific defences relied on are sustained. This evidently was the understanding of all parties at the time of the trial, for the objection now insisted upon was not made until the case on both sides had been closed, and the court was about to charge the jury. The judgment is affirmed, and as it is apparent to our minds that this writ was sued out for delay, damages to the amount of one thousand dollars, are awarded in addition to interest. Mr. Thomas J. Semmes for plaintiff in error. Mr. J. P. Hornor and Mr. W. S. Benedict for defendant in error. McINTYBE v. GIBLIN. . ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH. No. 173. October Term, 1879. — Decided December 1, 1879. In an action to recover damages for carelessly and negligently shooting and wounding the plaintiff, it is no error to charge the jury that in computing the damages they may take into consideration a fair compensation for the physical and also for the mental suffering caused by the injury. APPENDIX. clxxv Rice v. Edwards. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. This was a suit to recover damages for the careless and negligent shooting and wounding of Giblin, the plaintiff below, by McIntyre, the defendant. On the trial the court charged the jury that in computing the damages they might take into consideration “ a fair compensation for the physical and mental suffering caused by the injury,” and the only question submitted to us now is whether this charge was erroneous because the words “ and mental” were included. We think, with the court below, that the effect of this instruction was no more than to allow the jury to give compensation for the personal suffering of the plaintiff caused by the injury, and that in this there was no error. Judgment affirmed. Mr. Benjamin Sheeke and Mr. S. A. Merritt for plaintiff in error. Mr. E. D. Hoge for defendant in error. RICE v. EDWARDS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA. No. 222. October Term, 1879. — Decided April 5, 1880. A decree in equity will not be reversed for an immaterial departure from* technical rules when no harm has been done. If a bond contains a provision that on default of the payment of interest the principal shall become due at the election of the holder, and such default takes place, the commencement of suit to collect the principal and interest and the production of the bond at the trial are sufficient proof of such election. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. This case shows that on the first day of May, 1874, Henry M. Rice applied to the Equitable Trust Company, of New London, Conn., for a loan of twenty-five thousand dollars for five years, with interest at the rate of ten per cent per annum. His application resulted in his executing to the company twenty-five bonds of one thousand dollars each, payable five years after date, with interest semiannually at the rate of seven per cent per aijnum. The difference between seven and ten per cent interest was taken in advance, clxxvi APPENDIX. Cases Omitted in the Reports. the company deducting fifteen per cent from the face of the loan when paying over the money. The bonds contained a provision to the effect that if default should be made in the payment of any one of the instalments of interest as they fell due, and the default should continue for ten 'days, the principal of the bonds should become due, at the election of the holders, without notice. Payment was secured by a deed of trust from Rice and his wife to Edwards, the trustee. Default was made in the payment of an instalment of interest falling due November 1, 1875, and in another due May 1, 1876. Thereupon Edwards, the trustee, on the 9th of September, 1876, filed a bill in equity to foreclose the trust, alleging an election by the holders of the bonds to consider the principal sum due, as well as the interest. Rice and wife appeared and filed what is termed a plea to so much of the bill as avers that election was duly made that the principal should be due and payable, in which they denied all the allegations of the bill in that behalf. An issue was made on the averments in this plea, and on the 16th of July, 1877, the court below decided that the commencement of the suit, and the production of the bonds at the hearing, was sufficient evidence of the election in the absence of any proof that the owners of the bonds did not sustain the trustee in the course he had pursued. The cause was then at once referred to a master to ascertain the amount due. On the 6th of August a report was made, finding due at that date $29,210^^ principal and interest, and on the same day the court entered the usual decree of foreclosure and sale for that amount. On the 20th of August Rice appeared, by his solicitors, and moved the court to open the decree in respect to the amount due, and to refer the cause again to a master to state the account on the basis of deducting a proper sum for the interest taken in advance. Upon this petition an order was made on the master to compute, ascertain and report the amount which should be deducted for this cause. The master heard the parties and reported that a deduction of $1120.60 should be made for unearned interest paid in Advance, but the court on consideration, refused to modify the decree as originally entered. Rice and his wife thereupon took this appeal. The errors assigned are: 1, That, upon overruling the plea, a decree was entered without assigning the defendant to answer the bill, as provided in equity rule 34; 2, that there was no proof that any election had been made, before the suit was brought, to con- APPENDIX. clxxvii O’Reilly v. Edrington. aider the principal due; and, 3, that the decree was not modified by deducting therefrom $1120.60. As to the first error assigned, it is sufficient to say that no application was made for time to answer, and it nowhere appears that the failure to conform to the rule has resulted in harm to the appellants. In Allis v. Insurance Co., 97 U. S. 144, we said we would not reverse a decree for an immaterial departure from technical rules when we could see that no harm had been done. Here it is not pretended that the appellants have any other defence to the action than such as they set up in their plea, or presented to the court in their application for a modification of the decree. Upon both these defences they were fully heard, and the case is now here for review, with a sufficient record to enable us to pass upon all the questions presented. Under such circumstances it would be clearly wrong to reverse the decree because time was not given to file a formal answer, setting up what already appeared in the case. We agree with the court below that the election by the bondholders to consider the principal sum due was sufficiently proven by the bringing of the suit by the trustee and the production of the bonds at the hearing. The laws of Minnesota put no limit on the rate or amount of interest for which the parties may contract in writing. The contract in this case was to pay the fifteen per cent in advance, and the continuance of the loan for the five years was made dependent on the prompt payment of the semiannual interest at the rate of seven per cent. Decree affirmed. Mr. M. Lamphrey and Mr. C. K. Davis tor appellants. Mr. H. R. Bigelow for appellee. O’REILLY v. EDRINGTON. appeal from the circuit court of the united states for the SOUTHERN DISTRICT OF MISSISSIPPI. No. 246. October Term, 1879. — Decided April 19, 1880. The agreement of compromise between the parties which is referred to in the opinion was competent evidence and properly received as such, although not set forth and relied upon in the pleadings. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. O’Reilly, as assignee in bankruptcy of Edrington, Jr., and Steele, 12 clxxviii APPENDIX. Cases Omitted in the Reports. filed a bill in equity in the District Court for the Southern District of Mississippi, to foreclose a lien in the nature of a mortgage in favor of Edrington, Jr., on an undivided two-thirds of what was known as the Shipland plantation. In his bill he alleged it was important that the taxes on the property be paid from year to year, as the same should accrue; ‘ ‘ that taxes in arrears be also paid; and that all clouds upon the title be removed ; and that the said lands be redeemed from any tax sales.” It was then alleged “ that William H. Edrington, Jr., and Henry C. Edrington, as administrators of Eliza M. Edrington, deceased, and Charles S. Jeffords claim to have some equitable claims upon the lands aforesaid for money advanced by them for the payment of taxes, the exact nature and extent of whose claims are unknown to your orator.” The prayer was, among other things,44 that the rights of the defendants, Charles S. Jeffords, and William H. Edrington, Jr., and Henry C. Edrington, as administrators of Eliza M. Edrington, deceased, if any they have, be ascertained, declared, and settled.” The administrators, defendants, appeared the day the suit was begun and filed an answer and cross-bill. The cross-bill set forth, in substance, that the lands had been sold for taxes, and conveyed to one Richardson, April 10, 1872 ; that Richardson had also paid the taxes on the lands for 1870; that the payments by Richardson were, for 1870, $1244.08, and at the tax sale, $1754.87; that on the 29th of May, 1872, Mrs. Edrington, the deceased, paid Richardson for a deed of the lands to her $3142.89, being the amount advanced by him, and interest thereon $143.94, and that she afterwards paid the taxes of 1872, amounting to $1907.11. The prayer was that the administrators might be decreed to have a lien on the lands, and that O’Reilly, the assignee, be required to pay to them the several amounts so advanced. O’Reilly answered the cross-bill, admitting all the allegations except as to the amounts paid. As to these proof was demanded, but for such amount as should be found due it was admitted that the administrators were entitled to the relief they asked. On the 28th of May, 1875, a decree was entered finding the amount due on the mortgage debt and ordering a sale of the property. As to the cross-bill and tax claims all questions were reserved for future adjudication, and the decree in the principal suit was 44 without prejudice to said parties in asserting their claims either against the proceeds of said lands, when paid into the court, or against the APPENDIX. clxxix O’Reilly v. Edrington. lands themselves, in ease the assignee shall become the purchaser thereof.” On the 2d of December, the cause was referred to a master to ascertain and report the facts as to the tax claims, and he reported that payments had been made precisely as stated in the cross-bill, but that the taxes so paid covered the whole of the lands, and not two-thirds only. The whole amount paid was $5050.01. He also reported that O’Reilly objected to refunding the taxes of 1870, which had been paid by Richardson before sale, and that he claimed he was not, under any circumstances, chargeable with more than two-thirds of the whole amount, as his lien covered only that part of the land. He also reported that the administrators offered in evidence before him an agreement, of the date of April 30, 1874, between O’Reilly, as assignee, and the counsel of the Edringtons, but objection being made by O’Reilly it was not considered by him. By this agreement, “ to avoid further expensive litigation,” a compromise of all matters in controversy between the parties was effected, by which among other things, O’Reilly, as assignee, was to pay the administrators “such sums of money as were paid by said Eliza M. Edrington, in purchasing the tax-title to said plantation, and such further sums as have been paid by her or her heirs and administrators in the payment of taxes for and on account of such plantation,” and the administrators were to release all claims. This agreement was made subject to the approval and confirmation of the District Court in Bankruptcy. On the coming in of the report the agreement was approved by the court, and a decree entered to the effect that whenever the administrators should tender the assignee “deeds of quit-claim of all their interest in the lands described in the pleadings, including the one-third interest in said lands not sold under the decree rendered herein,” the said assignee should pay to them, from the proceeds of the sale then in his hands, the sum of $5050.01. From this decree O’Reilly appealed. The principal objection to the decree below is that it was made on the basis of an agreement of compromise entered into before the suit was begun, when that agreement was not set forth and relied on in the pleadings. The case brought up by the appeal is that made by the cross-bill, where all the several items of tax claim are set out, showing what were for taxes paid and what for purchases at tax sales. In the answer no objection was made because the claim included the taxes on the whole property, or because those clxxx APPENDIX. Cases Omitted in the Reports. for 1870 were paid before a sale. All O’Reilly required was proof of amounts, and that being made the right to the relief asked was conceded. No exception was taken to the amount as reported by the master. The questions as to liability for the taxes of 1870, and for the full amounts paid, rather than two-thirds, were first raised at the hearing on the reference. When those questions came to be considered by the court, the agreement of compromise, after having been examined and approved, was received as evidence that the full amount should be allowed. While the' agreement was not directly sued on, the amount it called for was claimed in the cross-bill. No defence was set up in the answer inconsistent with what had been agreed to, and, as the agreement has been perfected by the approval of the court, we see no reason why it may not be used in evidence to show that, for a valuable consideration, the assignee has waived the objections he now makes to the amount of the recovery. The decree, as rendered, is not for the specific performance of the agreement, but is one in which the rights of the administrators are “ ascertained, declared and settled,” in accordance with the prayer of the original bill, and establishing a lien on the lands for the taxes paid, and requiring the assignee to refund the amount expended, as asked for in the cross-bill. Affirmed. Mr. W. K. Ingersoll, Mr. A. P. Morse and Mr. A. B. Pitman for appellant. Mr. G. Gordon Adam, Mr. Thomas J. Durant and Mr. C. W. Hornor for appellees. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, PETITIONER. ORIGINAL. No. 8. Original. October Term, 1880. — Decided May 2,1881. Mandamus will not lie when there is an ample remedy by appeal if the case is put in a condition for it. This was an application for a writ of mandamus. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. This is a petition for a writ of mandamus to compel the Circuit Court of the United States for the Northern District of Illinois to hear and determine whether a master of the court shall execute to the relator a deed for certain lands bought under a sale ordered APPENDIX. clxxxi Hand v. Hagood. by that court. It nowhere appears from the relator’s own showing that the court has expressly refused such an order. The court has refused leave to file a certain petition in the suit, and it has refused an order on the master to show cause why he should not make such a deed. From the whole case as presented by the parties we infer that the court below, as constituted when the application was made, thought the deed ought not to be executed, and it is possible the order now complained of may be the equivalent of a final decree in the cause to that effect, from which an appeal to this court may be taken. But whether that be so or not, we will presume the court below will not hesitate, on a proper application, to put the record in a shape to enable us to pass on that question in the ordinary course of proceeding to obtain our review. Mandamus can only7 be resorted to when other remedies fail. It is an extraordinary writ, and should only be used on extraordinary occasions. Here the parties have ample remedy by appeal, if they put their case in a condition for such a form of proceeding. As the relator presents his case on this application, he must avail himself of that remedy. We cannot, under the facts he states, expedite the determination of his cause by mandamus. * The application is consequently denied. Mr. E. 8. Isham, Mr. Robert T. Lincoln and Mr. C. Beckwith for petitioner. Mr. George F. Edmunds, Mr. Henry 8. Monroe, Mr. William R. Page and Mr. W. C. Goudy opposing. HAND v. HAGOOD. ERROR TO THE SUPREME COURT OF THE STATE OF SOUTH CAROLINA. No. 2. October Term, 1880. — Decided October 25, 1880. On the facts set forth in the opinion, it is held that the judgment below, to which the writ of error was directed, was not a final judgment, and that this court was therefore without jurisdiction. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. The judgment from which this writ of error was taken is not a final judgment in the cause. Hand, a creditor of the Savannah and Charleston Railroad Company, sued that company in the Court of Common Pleas of. Charleston County, South Carolina, and obtained the appointment of a receiver to hold and operate the railroad of the company and apply the net profits to the payment of its clxxxii APPENDIX. Cases Omitted in the Reports. debts. In this condition of things the comptroller-general of the State applied to the court, by petition in that cause, to permit him to take possession of the road under the provisions of the act of 1869, and, if for any purpose it should be deemed advisable to continue the receivership, that he might be permitted to perform that duty in addition to those imposed on him by the law. The Supreme Court of the State, on appeal, adjudged that the comptroller-general was authorized to take possession of the road writh its appurtenances, “ and hold and administer the same according to the power conferred by said act.” Then followed these words : “ The assets of the road to be subject to the direction of the court, and the order now made to be in no wise regarded as affecting the lien obtained by any creditor of the said road established in the principal cause, qr in any way affecting the rights of creditors. The petition is remanded to the Circuit Court for such orders as may be necessary to give effect to the judgment of this court.” It nowhere appears that the Circuit Court has acted on this mandate. In effect the judgment, as it now stands, is nothing more than a direction to transfer the possession of the road to the comptroller-general, subject to such orders as the Circuit Court shall deem necessary for the protection of the rights of the parties in the principal suit. There is nothing to prevent the Circuit Court from following the suggestion of the comptroller-general in his petition and making him receiver. In fact, as the assets were to be kept subject to the direction of the court, that would seem to be what was expected. As receiver he would be bound to obey the orders of the court for all the purposes of the principal suit, and the practical result of the application of the comptroller-general would be nothing more than a change of receivers. Under these circumstances it seems to us clear that the rights of the comptroller-general, as against the parties to the suit, have not been finally settled, and that the writ of error was prematurely sued out. The suit is, therefore, Dismissed for want of jurisdiction. Mr. P. Phillips, Mr. John L. Cadwalader and Mr. James B. Campbell for plaintiff in error. Mr. Leroy F. Youmans, M -John Conner, Mr. D. T. Corbin, Mr. James Lowndes, and ■ T. J. D. Fuller for defendant in error. APPENDIX. clxxxiii Andrews, v. Congar. ANDREWS v. CONGAR. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 38. October Term, 1880. — Decided November 8, 1880. If a person, not a party to a promissory note, writes his name on the back of it when the note is made, the law in Illinois regards him as a guarantor, unless the contrary is shown; but the law in Missouri regards him as prima facie a joint maker. In a suit against a joint maker of a promissory note a charge to the jury that he was only a guarantor works no injury to him. Under the practice in Illinois if one is sued as guarantor of a note, and he verifies his plea of the general issue by affidavit, the plaintiff need not prove the execution of the note itself as well as the guaranty. When a contract is within the scope of the business of a partnership, each partner is presumed to be the agent of all, and it is immaterial what the secret understanding of the parties may have been as to the powers of each. There was no error in the ruling that if the maker of the note which forms the basis of the controversy in this case could not use an account on its books as a set-off against the note, the defendants as guarantors could not. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. There are nineteen errors assigned on this record, but those relied on in the argument present in reality but four questions. These are: 1. Whether the court erred in charging the jury that “ if a person not a party to a note, that is to say, not the payee or maker, writes his name on the back of the note at the time the note is made, the presumption is that he has assumed the liabilities and responsibilities of a guarantor; this presumption, however, is liable to be rebutted by the proof.” 2. Whether, under the practice in Illinois, which is regulated by statute, if one is sued as a guarantor of a note, and he verifies his plea of the general issue by affidavit, the plaintiff must prove the execution of the note itself as well as the guaranty. 3. Whether the defendants should have been permitted to prove that there was an agreement between themselves as partners, that neither of them should assume any liability on behalf of the firm out of the line of its regular business without the consent of the others, clxxxiv APPENDIX. Cases Omitted in the Reports. and that one of the defendants did not know that the liability sued on was incurred until long after the notes were made and indorsed, and that since he learned it he has always repudiated it. 4. Whether it was wrong for the court to instruct the jury that if, as between the plaintiff and the maker of the note, the maker could not use an account on its books as a set-off against the note, the defendants as guarantors could not. As to the first question. The charge as given states correctly the law of Illinois, as settled by the highest court of the State in a long series of decisions. Cushman v. Dement, 3 Scammon, 497; Stowell v. Haymond, 83 Illinois, 120. The contract, however, was made in Missouri, and was to be performed there. In that State the rule is that he who writes his name on the back of a note, of which he is neither the maker nor the payee, is prima facie liable as a joint maker. Powell v. Thomas, 7 Missouri, 440; Schneider v. Seiff-man, 20 Missouri, 571; Otto v. Bent, 48 Missouri, 26; Baker v. Block, 30 Missouri, 225. For this reason it is insisted that the contract is governed by the laws of Missouri, and that the jury should have been so instructed. Admitting this to be true, it is difficult to see how the plaintiffs in error have been harmed by the charge of which they complain. They claim to have been presumptively joint makers of the note, while the court told the jury they were guarantors only. Clearly the charge as given was more favorable than the one contended for. A recovery could have been had against them as joint makers under the common counts. The court, however, after stating what the presumption from such an indorsement was, went on to say, “ the law authorizes the holder of a note to write over the name thus written across the back of the note any agreement consistent with that made between the parties at the time the name was placed there; that is to say, if the party did actually, at the time he put his name on the back of the note, stipulate for any liability short of a guaranty, or different from that of guarantor, then the holder of the note had no right to write a false guaranty over the name.” Then, after calling attention to the facts which had been shown in evidence, and the claims of the respective parties, it was said: “If you are satisfied that the defendants in this case put their names upon the note at the time it was made, with the express understanding that they were to be liable as indorsers, that is, liable after the plaintiff had used due diligence to fix their liability as indorsers, then the defendants are not liable in this APPENDIX. clxxxv . Andrews v. Congar. action: but if, on the contrary, you are satisfied from all the evidence in the case that the defendants intended to become liable to pay the debt if the maker did not, that is, that they would stand in the relation of sureties and guarantors, substantially as the contract is now written over their names, then the defendants are liable.” And again, after referring to a condition which it was proved the plaintiffs in error had incorporated into the obligation they assumed, and which it was insisted should have been expressed in the guaranty as written over their signature, the court said: “ If you are satisfied that the positive performance of this part of the agreement was thus waived or abrogated by mutual consent of the plaintiff and defendants before the guaranty was written, then no mention need be made of it.” In this way, as it seems to us, the case upon this point was fairly put to the jury, and the plaintiffs in error were given the benefit of every circumstance they relied on to establish their defence. If the presumption arising from their indorsement had been overcome by the evidence, the jury were told in express terms to find accordingly. As to the second question. A statute of Illinois provides that “ no person shall be permitted to deny on trial the execution or assignment of any instrument in writing . . . upon which any action may have been brought . . . or is admissible in evidence under the pleadings, when a copy is filed, unless the person so denying the same shall, if defendant, verify his plea by affidavit.” • Ill. Rev. Stat. (Hurd, 1883), c. 110, § 34. This action was brought on a guaranty, a copy of which was filed. The affidavit only made it necessary to prove the execution of that instrument. That was done, and that of itself was equivalent to proof of an admission by the guarantors of the due execution of the note. Whether this admission was one that could be contradicted, need not now be determined. It was certainly sufficient until overcome. As to the third question. There is nothing in the case to show, or tending to show, that the execution of the guaranty was not in the line of the regular business of the partnership. On the contrary, it does appear that the partners were the owners of a majority of the stock in the corporation that made the note, and that the note and guaranty were given with a view to the protection and improvement in value of that stock. The transaction was one which appears to have been entered into for the common benefit of all the partners. clxxxvi APPENDIX. Cases Omitted in the Reports» Under such circumstances, it was of no consequence what the secret understanding of the partners may have been as to the powers of each. The contract being within the scope of the partnership business, each partner is presumed to be the authorized agent of all. As to the fourth question. A simple statement of the facts is all that is necessary to dispose of this question. The plaintiff was the president of the corporation, maker of the note guaranteed. On the books he was charged with moneys paid to him from time to time and credited with a salary and interest on his investment in stock. After he went out of office his successor settled with him and paid the balance found to be his due. The books were thereupon balanced. The plaintiffs in error sought to set off against their liability as guarantors of the note, the items which appeared on the debit side of the account, without any regard to the credits. As to this, the court instructed the jury that they “ must be satisfied that the company itself could use the same set-off against the note before the defendants could avail themselves of it, and that if they were satisfied from the evidence that the plaintiff’s account stood balanced on the books of the company as kept, then the defendants could not set up the account as a set-off to the note without showing fraud or mistake in striking such balance.” There can be no doubt as to the correctness of this ruling. This covers substantially all there is in the case. The other errors assigned are unimportant and need not be considered specially. The judgment is affirmed. Mr. George Herbert for plaintiffs in error. Mr. Charles Hitchcock for defendant in error. GIBBS v. DIEKMA. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN. No. 88. October Term, 1880. — Decided December 13, 1880. An objection on the ground of the non-joinder of parties who are proper but not indispensable parties cannot be made for the first time in this court. This court has power to adjudge damages for delay on appeals as well as writs of error, and this power is not confined to money judgments. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. The contract with Risdon embraced the lands specifically described APPENDIX. clxxxvii » Kaiser v. Stickney. and no mere. The last clause in the contract was evidently added by way of limitation, so as to exclude from the sale any of the parcels specifically described which should be found to have been previously contracted to other parties. The order on the Commissioner of the Land Office in favor of Gibbs was for patents for the lands sold Risdon, as described in his contract. No other reasonable interpretation can be put on the language of that instrument. It follows that Gibbs took the title to all lands patented to him, and not included in the Risdon contract, in trust for the complainants. If either Risdon or the other vendees of the complainants were proper parties to the suit, they certainly were not indispensable parties. The objection that they have not been joined in the suit comes, therefore, too late in this court., The claim that the complainants are not entitled to a decree because in some cases title was left in the State to avoid the payment of taxes, is frivolous. The decree is affirmed, and it is so apparent the appeal was vexatious and for delay only, that we adjudge to the appellees five hundred dollars as just damages for their delay. While § 1010 of the Revised Statutes includes, in express terms, writs of error only, § 1012 provides that appeals from the Circuit and District Courts shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error. This gives us authority to adjudge damages for delay on appeals as well as writs of error, and our power is not confined to money judgments only. Affirmed. Mr. Alfred Russell and Mr. Nathaniel Wilson for appellant. Mr. J. W. Stone for appellees. KAISER v. STICKNEY. APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 90. October Tenn, 1880. —Decided December 13,1880. In the District of Columbia a valid note of the husband may be secured by a deed of trust of the general property of the wife, executed by husband and wife in the manner required by law. Mr. Chief Justice Waite delivered the opinion of the court. It is very clear that the property in question was not, under the provisions of § 727 of the Revised Statutes of the District of Columbia, the sole and separate property of Mrs. Kaiser. She could clxxxviii APPENDIX. Cases Omitted in the Reports. not, therefore, convey it, or contract with reference to it, “ in the same manner and with the same effect as if she were unmarried,” (§§ 728 and 729,) but it was her general property which she could convey by uniting with her husband in a deed executed in the form required by §§ 450, 451 and 452 of the same statutes. In this way she could charge her property with the payment of a debt, although she might not be able to bind herself individually. Her husband did unite with her in the execution of the deed under which the appellees claim, and the requirements of the law as to the form of execution were in all respects complied with. The note secured was valid as the note of the husband, and the deed was, therefore, binding. We have not overlooked the fact that Mrs. Kaiser, both in her original bill and in her answer to the cross-bill, has averred that her husband signed the deed only as a witness to her signature; but the fact was clearly otherwise. His signature is affixed both to the note and deed as maker, and his due execution of the deed was properly acknowledged before a competent officer. An attempt was made to prove that he was mentally incapable of entering into a contract, but the evidence falls short of establishing this fact, notwithstanding the wife in her testimony said he only did what she told him to do. We have no hesitation in deciding that the deed was well executed and that it binds the property for the payment of the debt it was intended to secure. It is not claimed, either in the original bill or in the answer to the cross-bill, that the Trust Company did not in fact loan on the faith of the security all the money the note calls for. Consequently, upon the case as made, the decree was properly rendered for the full amount of the note and interest, deducting only what was shown to have been paid. It is insisted, however, that there is a variance between the proof and the allegations in the cross-bill, and that on that account there can be no recovery by the Trust Company in this suit. The objection is that in the cross-bill the property is proceeded against as the separate property of the wife, whereas the proof shows it to have been her general property. We do not so understand the effect of the pleadings. In the original bill the appellants sought to set aside the trust deed because it was executed by the wife alone for the conveyance of her general property, and, therefore, not binding. The appellees, on the contrary, in their cross-bill sought to enforce the deed because it was executed by both the husband and wife. The single point put in issue is the validity of the deed as a APPENDIX. clxxxix Relfe v. Wilson. conveyance in trust of the property owned by the wife to secure the debt which was described, and inasmuch as the wife insists that the property was her general property, the cross-bill ought not to be dismissed because of a single alternative averment that it was her separate property. The decree is affirmed. Mr. Michael L. Woods and Mrs. Belva A. Lockwood for appellants. Mr. Enoch Totten for appellee. RELFE v. WILSON. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. No. 92. October Term, 1880. — Decided December 20,1880. In Missouri, in an action against an insurer to recover on a policy, evidence of an offer by the insurer to settle for less than the policy, and of an intimation by the same to the insured that -the policy was obtained by misrepresentation, is admissible to show “ vexatious delay.” When competent evidence becomes immaterial under a charge favorable to the party offering it, its exclusion is not error. It is no error to refuse to give spec’al instructions asked for when the general charge has stated them in language equally favorable to the party asking. If a series of proportions are embodied in instructions, and the instructions are excepted to in a mass, the exception will be overruled if any one proposition is correct. The act of Missouri giving damages for vexatious refusal by insurance companies to pay policies is not repealed. A verdict, the amount of which can be ascertained by a simple arithmetical calculation, and which includes every material fact at issue, will be sustained. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. The testimony of Mrs. Wilson and Huff was admitted only on account of its bearing on the question of vexatious delay. The matter testified to had none of the characteristics of “ confidential overtures of pacification,” and there is nothing from which to infer “that the parties agreed together that evidence of it should not be given.” But even if technically inadmissible, it is difficult to see what harm was done the insurance company. An agent of the company went to Mrs. Wilson and in substance told her he wanted to settle by paying less than the face of her policy. She told him if she was entitled to anything she was to the whole, and refused CXC APPENDIX. Cases Omitted in the Reports. to entertain any proposition. He intimated that the policy was obtained by a misrepresentation of facts. This offended her and he apologized. Certainly we ought not to reverse the judgment for the admission of such testimony. The exclusion of the testimony of Hoover could do no harm under the charge of the court upon that branch of the case. The jury were told in substance they must find for the company on the issue to which this testimony related, unless the person who took the application of Wilson and made it out was at the time the agent of this company and knew that the previous application, about which Hoover was called to testify, had been made and rejected. In this view of the case the excluded testimony was immaterial. The general charge included all that the insurance company in its special requests asked. The language was not the same, but, if anything, the charge as given was more favorable to the company than that requested. The exception to the charge as given is general. The charge embraced several distinct matters, most of which are not now objected to. This exception, therefore, was not well taken. Our decisions are uniform and numerous to the effect that “ if a series of propositions are embodied in instructions and the instructions are excepted to in a mass, if any nne of the propositions is correct, the exception must be overruled.” Johnston v. Jones, 1 Black, 209, 220; Beaver v. Taylor, 93 U. S. 46, 54. Rule 4 of this court, promulgated more than twenty years ago, 21 How. vi., was intended to give substantial effect to this line of decisions, and requires of parties in excepting to the charge of the court to state distinctly the several matters to which they except. Section 1, c. 90, of the General Statutes of Missouri, revised in 1865, which gives damages in actions against insurance companies for a vexatious refusal to pay policies, was not repealed by the acts of March 10, 1869, for the incorporation and regulation of insurance companies. Acts of 1869, pp. 26, 45. That section is not inconsistent with any of the provisions of the later acts, and repeals by implication are not favored. There is nothing in the new acts which relates to the same subject matter, and the presumption is, therefore, that it was intended this section should stand. Such was evidently the understanding of the legislature when it revised and promulgated the statutes of- the State in 1879 APPENDIX. cxci Hauenstein v. Lynham. under the provisions of the constitution, for the section is brought into the revision, not as a new enactment, but as an existing law. Rev. Stat. Missouri, § 6026. The verdict is sufficiently certain to authorize the judgment. It is for the full amount of the policy, with six per cent interest, and ten per cent damages for vexatious delay. The amount of the policy and the date from which interest is to be calculated is stated in the petition and admitted in the answer. The amount of the judgment to be entered on the verdict can, therefore, be ascertained by simple arithmetical calculation, which may as well be done by the court as the jury. Every material fact at issue was found by the jury, and all the elements of the calculation to be made were indicated with sufficient certainty. Judgment affirmed. Mr. James Carr, Mr. George D. Reynolds, and Mr. John R. Shepley for plaintiff in error. Mr. E. T. Parish for defendant in error. HAUENSTEIN v. LYNHAM. ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA. No. 133 of October Term, 1879. — Motion made in the case at October Term, 1880.— Decided November 22, 1880. An officer of a State, sued in his official capacity, and charged with no official delinquency, is not liable for costs. This was a motion to correct the judgment in Hauenstein v. Lyn-ham, 100 U. S. 483. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. This motion is denied. The defendant in error was sued in his official character, as escheator for the Commonwealth of Virginia. He was a public officer of the state, and he held the funds sued for in that capacity. He was charged with no official delinquency. Under such circumstances he cannot be made liable personally for the costs of the plaintiffs. The court below was right, therefore, in confining the judgment for costs to the funds in his hands as escheator. Denied. Mr. W. L. Royall for the motion. cxcii APPENDIX. Cases Omitted in the Reports. UNION PACIFIC RAILROAD COMPANY v. CLOPPER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA. No. 139. October Term, 1880. — Decided January 17,1881. Tn an action to recover of the defendant the profits which the plaintiff would have gained in supplying articles to him under a contract, which articles the plaintiff was ready and willing to furnish and the defendant refused to receive, the burden of proof is on the plaintiff to show clearly that the articles refused came within the contract. In the trial of such an action brought to recover profits on stone contracted to be supplied to a railroad company for the construction of a bridge and its approaches, and which the company refused to receive, the testimony of experts is admissible to show what constitutes the bridge and its approaches, and whether a dyke is a necessary part of them; and the jury should be. told to consider what was the condition of things at the time the contract was made, and not the condition as developed subsequently by the operation of nature. The case is stated in the opinion. Mr. Justice Miller delivered the opinion of the court. The Union Pacific Railroad Company having undertaken to build a railroad bridge across the Missouri River at Omaha, entered into the following written contract, by its chief engineer and superintendent : “ OAaha, June 13iA, ’71. “We hereby propose to furnish at Missouri River bridge stone enough to complete said bridge and approaches, excepting the three thousand yards now under contract to W. B. Clark, ag’t, at tbe following rates, viz.: “ Column stone, containing not less than three cubic feet each, and not less than six inches in thickness, at three dollars and fifty cents per cubic y’d. “Riprap stone, containing not less than six cubic feet, each stone, at four dollars per cubic y’d. “ Dimension stone, containing not less than nine cubic feet each, and rectangular in shape, at four dollars and fifty cents per cubic y d. “All stone to be clear, sound and durable, and subject to inspection of the engineer of the bridge, and in quantities as may be required. APPENDIX. cxciii Union Pacific Railroad Co. v. Clopper. “It being understood that forty-four hundred and twenty pounds be a cubic yard. “ Clopper and Gise. “ Chas. Fleury. “ Approved. “[stamp.] “T. E. Sickles, “ Ch. Eng^r. and Shp’t.” The defendants in error having furnished a large amount of stone for which they received payment under this contract, and being ready and willing to furnish other stone,- which they allege was needed by the company to complete the bridge and its approaches, bring this suit to recover damages for the refusal of the company to receive it, alleging that it had bought the same from other persons. The case was submitted to a jury, who found a verdict for the plaintiffs in the sum of $22,085.50, on which judgment was rendered ; to reverse which this writ of error is brought. The assignments of error necessary to be considered here arise in the refusal of the court to grant certain prayers for instruction by the defendant, and the exception to the charge which the' court did give to the jury. So far as these are material to be considered, they all relate to the mode of ascertaining what work, in which stone was used, was necessary to complete the bridge and its approaches, within the meaning of the contract. It 'will be seen at once that the language of the contract on this point is very vague. There is no description of the bridge, no statement of its length, or the number of its piers, or their height; no indication of the length of the approaches to it, nor any estimate of quantity. Nor does the testimony reveal any statement of this kind referred to by either party at the time the contract was made, or during its negotiation, nor any estimate made by the company itself. The principal object of this action being the recovery of profits for stone not actually delivered, but which the plaintiffs would have made if delivered and paid for according to the terms of the contract, it would seem eminently proper that plaintiffs should make out clearly that the stone which was bought by the company from others was within the terms of their contract, and used to complete the bridge or its approaches. *3 cxciv APPENDIX. Cases Omitted in the Reports. The main controversy before the jury had relation to what constituted the eastern approach to the bridge. To understand this it is essential to understand the topography of the land adjacent to the eastern end of the bridge. The ground there at the river bank is higher than it is for several thousand feet back toward the eastern bluffs. ' In fact, from the bank of the river a low bottom extends for about four miles to the city of Council Bluffs, which in many places is lower than the level of the immediate bank of the river. The current of the river, at the time the bridge was built and for many years before, ran close to this eastern bank, and in very high water the whole bottom was overflowed, and on occasions when it was not so high, a part of the water would break through the eastern bank at different points, and run in currents or channels through this wide bottom. The bottom of the bridge on which the rails were laid was considerably higher than the level of this bank, and of course the eastern approach to it had to be projected a corresponding distance on this bottom to obtain the grade necessary to enable the train to ascend to the level of the rails of the bridge. After the bridge was completed, it was found necessary to protect this eastern approach against the overflow of the river by a riprap wall of stone. It also became expedient for the company to prolong or continue its track for more than a thousand feet, at a considerable elevation above the natural surface of the ground, as a means of checking the currents of these overflows, which would otherwise cut through their track and do it immense damage. This also aided m turning the current or channel to the western or Omaha side of the river. It does not seem to be yet decided how far eastwardly this elevation of the railroad may be profitably projected for these purposes, without reference to its use as an approach to the bridge; nor how much of it will require a riprap of stone for its protection, nor how much of this may be profitably done, though not absolutely necessary. Under these circumstances, it was important that the principles which should guide the jury in deciding what part of this track was the approach to the bridge, within the meaning of the contract, and what was mere elevated track to get above high water, and dyke to repel the currents of the overflow, should be stated to them with as much precision as possible. We are of opinion that this was not done, but that prayers of the defendant were refused which conveye the true rule on that subject, and others granted, at the request o the plaintiffs, which were erroneous. APPENDIX. cxcv Union Pacific Railroad Co. v. Clopper. The following instructions, each of which was specifically refused by the court, were, in our opinion, entirely correct and should have been applied by the jury to the ascertainment of what was the eastern approach to the bridge, intended by the use of that language in the contract: 7. “ In determining what was intended to be embraced in the contract the jury should consider what was the condition of things at the time it was made, and not the condition as developed by the operations of nature years afterwards, and which was not and could not have been in the minds of the parties at the time the contract was made. “ (Refused by the court.) 8. “The contract must be construed and interpreted as it was made and understood at the time of entering into it, unless it has been satisfactorily shown that it was subsequently changed or modified. “ (Refused by the court.) 9. “ The testimony of experts who are shown to have had experience in the science of bridge-building and as civil engineers has been admitted, and is entitled to due weight as to whether or not the work spoken of as a dyke is a part of the bridge or approach. “ (Refused by the court.) ” That the opinion of a practical civil engineer of experience in bridge building is entitled to weight with the jury in deciding whether part of this track through the bottom, which had been protected by stone, was so constructed as a dyke against the current of water, or as the approach to the bridge, is, we think, too clear for argument. Such a witness would know what is usually meant by the term approach to a bridge, much better than the average juror, and would have, perhaps, little difficulty in forming a just opinion, when the ordinary juror would have been wholly at a loss. So, also, no reason can be seen for rejecting the seventh and eighth instructions, which were only intended to assert the ordinary rule, that a contract-must be construed in the light of surrounding circumstances, as the parties understood it at the time it was made. The reason for rejecting these prayers is found in the following instruction granted at the request of the plaintiffs : r cxcvi APPENDIX. Cases Omitted in the Reports. “If the jury are satisfied from the evidence, that at the time the contract sued on was executed, no plan or specifications for the building of the bridge or its approaches existed, but that the building and completion of the bridge and its approaches were left entirely by the defendant to Mr. Sickles, the chief engineer, who had not, at the time of executing said contract, any definite or fixed plan as to construction and completion of piers or columns and approaches, other than to put in said piers or columns and approaches and riprap the same with stone to protect the same, as it might subsequently be ascertained So be ^necessary, and it was subsequently ascertained, while work under said contract was in progress, that it would be necessary for such protection to riprap any or all of said piers or approaches, by putting in stone about said piers or columns, or by extending the east approach by building a heavy wall, extending back in a northeast direction, as far as circumstances might develop a necessity for, then the plaintiffs would be entitled to recover such damage as the proof under instruction may show them entitled to, for all stone necessary to be used for such purposes; and this right of plaintiffs to so recover would exist and apply to stone yet undelivered, if necessary for such purposes, as well as to stone already delivered.” Under this last instruction the jury was left fairly to infer that if, after the bridge itself was completed and in use, the company should find it expedient, with a view to arrest the overflow of the river bottom, to extend its track across the entire four miles to Council Bluffs, and protect it by an exterior covering of stone, this dyke or wall might be the approach to the bridge within the meaning of the contract and the stone used in the dyke covered by its terms. Taking the prayers refused and the instructions given, and we are satisfied that the jury were left with a very improper view of what was the approach to the bridge, and with unlimited discretion as to time of completion and extent of track that might be called an approach. We cannot, of course, lay down any precise description of how much of this track was approach and how much was dyke and how much ordinary railroad track. We think the three prayers asked by defendant and refused by the court contain the t»ue elements o the problem, and that much weight ought to be given to the views of scientific and practical engineers and builders of bridges. The main charge delivered by the court is very full and apparent y APPENDIX. cxcvii Fletcher v. Blake. very fair, but it nowhere removes or cures the errors we have pointed out, and for these the judgment of the court is Reversed and the case remanded, with instructions to set aside the verdict and grant a new trial. Mr. Samuel Shellabarger, Mr. J. M. Wilson and Mr. A. J. Poppleton for plaintiff in error. Mr. J. L. Webster and Mr. W. J. Connell for defendants in error. WHITNEY v. COOK. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI. No. 285. October Term, 1880.—Decided May 2,1881. Damages are awarded in a case where the appeal was taken for delay, and was frivolous. The case is stated in the opinion. Mr. Chief Justice Waite announced the judgment of the court. There has been no appearance for the plaintiffs in error in this case. The writ of error has operated to delay proceedings on the judgment against Klein, the garnishee. There is nothing whatever in the record to justify7 him in staying execution. The security by Whitney, the judgment debtor, was for costs only. The cause has been permitted to remain on the docket for two years, notwithstanding what was said by us at the October Term, 1878, 99 U. S. 607, when we felt compelled to deny a motion to affirm because it could not be brought under the operation of rule 6, there being no color of right to d dismissal. We, therefore, affirm the judgments, with interest and costs, and award two hundred and fifty dollars damages against Klein on account of the delay. So ordered. Mr. P. Phillips and Mr. G. Gordon Adam for defendants in error. FLETCHER v. BLAKE. appeal from the circuit court of the united states for the SOUTHERN DISTRICT OF NEW YORK. No. 685. October Term, 1880. — Decided December 6,1880. The internal revenue stamps used by the defendant in error are no infringement of the letters patent issued to the plaintiff in error, June 8, 1869, for an improvement in stamps used for revenue and other purposes. cxcviii APPENDIX. Cases Omitted in the Reports. The case is stated in the opinion. Mr. Justice Harlan delivered the opinion of the court. This is an appeal from a decree in the Circuit Court of the United States for the Southern District of New York, dismissing a bill in equity, based upon an alleged infringement of letters patent issued to the plaintiff in error on the 8th of June, 1869, for an improvement in stamps used for revenue and other purposes. At the time of such alleged infringement the defendant was a collector of internal revenue. The revenue stamps, the sale and use of which by him constitutes the basis of the claim herein for damages, were sold and used in pursuance of directions *by the Commissioner of Internal Revenue, and in discharge of defendant’s duties as such collector, and for no other purpose. The action is further defended upon the ground that the stamps so sold and used by the defendant, known as tax-paid special stamps, rectified spirit stamps, and wholesale liquor dealer’s stamps, were not constructed in accordance with the specifications, claims and drawings of the letters patent; that there has been no infringement upon any right or privilege secured to plaintiff by his letters patent; and, lastly, that the alleged improvement was neither useful nor valuable. The solicitor general, in both his oral and printed arguments, claims, that, although the grant to the patentee, his heirs and assigns, was of an exclusive right for a prescribed term to make, use and vend his invention or discovery, the United States are at liberty to use the thing protected without making compensation to the patentee. This, upon the ground that the government is not named in the patent law as being excluded from using the invention or discovery which may be patented. To support that position reference is made to several adjudged cases in the English courts. Feather v. The Queen, 6 B. & S. 257; Walker v. Congreve, 1 Carpmael Pat. Cas. 356 ; and Dixon v. Small-Arms Co., L. R. 10 Q. B. 130. In view of those decisions, we are invited, notwithstanding what was said in United States v. Burns, 12 Wall. 246, repeated in Cammeyer n. Newton, 94 U. S. 225, to re-examine the question as to the right of the United States, without the consent of the patentee, and without making compensation, to use in the public business any invention or discovery for which letters paten may have been issued. It has also been suggested that since the collector, in using the stamps in question, acted in accordance with orders of his supeiior APPENDIX. cxcix Fletcher v. Blake. officers, he can, in no event, be held individually liable to the plaintiff, and that the claim of the latter, if any he has, should be asserted directly against the United States. We deem it unnecessary to pass upon either of the foregoing propositions, because we are all of opinion, passing by all other questions in the case, that the stamps used by the collector are not included in the patent of the plaintiff. That which plaintiff claimed and desired to be secured was described in the schedule, referred to in the letters patent, as “ a postage or revenue stamp having a portion of its surface composed of thin or fragile p^per, or other suitable material, loosely attached and on which a portion of the design or other matter is printed, substantially as and for the purposes set forth.” Referring to the descriptive portion of the schedule, the invention is declared to consist “ in providing the stamp with a flap or flaps covering a portion of its face, and arranging the requisite design or printed matter on such stamp to extend over the flap or flaps and remaining or uncovered portion of said face or body of the stamp. By this application of my invention as applied to an adhesive stamp, whether for internal or other purposes, said stamp may be cancelled by tearing off the flap or flaps which, if necessary, may be preserved as evidence of the cancellation ; or where not required to be preserved, the flap or flaps may be torn off and thrown away or be so mutilated by the act of cancelling as .heretofore practised on postage stamps (which and other adhesive stamps, my invention is equally applicable to) as that it will be impossible to use the same stamp over again without detection of the fraud.” Upon comparing the stamp, as thus described, with the stamp used by the defendant, we are satisfied that the latter is not covered by the plaintiff’s patent. It is a different article altogether from that described in the specifications and claim of the plaintiff. The stamp used by the government is composed of one continuous piece of paper, of uniform thickness, upon the face of which is certain printed or engraved matter, with blanks in which are inserted, at the appropriate time, certain figures and names required by law to appear on revenue stamps.. No separate paper is attached, loosely or otherwise, to the face of that stamp. Upon the back .of the body of the government stamp, attached to its outside edges, is a slip of red, blank paper, of less width than the stamp. When the stamp is pasted upon the barrel, that portion of it immediately over cc APPENDIX. Cases Omitted in the Reports. the red slip does not adhere to the barrel. It is protected from the paste on the barrel by the intervening red slip, so that when the portion, thus protected, is cut or torn out for preservation or for any other purpose, the slip, underneath, with the remaining portion of the stamp, adheres to the barrel. An essential characteristic of plaintiffs stamp is a flap, originally a distinct piece of paper, but, when used, to be loosely attached to the face of the body of the stamp. A further characteristic is that upon the piece, thus loosely attached, must appear a portion of the vignette, design, or printed matter required to be engraved or printed on the face of revenue stamps. The government stamp has no such characteristics. It is, as we have said, one continuous paper, containing upon it the required printed matter, with no flap loosely attached to its face, which' may be subsequently torn off. Neither the red slip of unprinted paper across the back of the government stamp, and which adheres to the barrel, nor that portion of the stamp which does not adhere to the barrel, answers the same purposes as the flap of plaintiff’s stamp. The present claim by the plaintiff is manifestly broader than his claim and specifications, as set out in the schedule to his letters patent. We concur with the court below in the opinion that the whiskey stamp is a modification of the inventor’s idea that had not occurred to him when he drew his specifications, which were so limited in their terms as not to include the stamps used by the government. It is, clearly, not a mere colorable contrivance or imitation for evading that which had been done before. Decree affirmed. Mr. Treadwell Cleveland and Mr. Joseph H. Choate for appellant. Mr. Solicitor General for appellee. HILL v. HARDING. ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS. No. 735. October Term, 1880. — Decided December 6, 1880. A bankrupt may prosecute in his own name a writ of error to a judgment rendered after the adjudication of bankruptcy; but the assignee will be heard on questions which he thinks involve the estate of the bankrupt. These were motions by the defendants in error to dismiss, and by the assignee in bankruptcy to be substituted as plaintiff. T e case is stated in the opinion. APPENDIX. cci Louisiana v. New Orleans. Mr. Chief Justice Waite delivered the opinion of the court. As the judgment in this case was rendered after Hill’s adjudication in bankruptcy, we think he may prosecute a writ of error in his own name. We will not undertake to decide on a motion to dismiss, whether his discharge operates to release him from all liability growing out of the judgment. The motions are, therefore, overruled ; but if the assignee shall be of the opinion that any of the questions involved are such as may affect the estate of the bankrupt, he will be heard on such questions by his counsel in connection with the plaintiff in error when the case comes up for argument, if be desires. Denied. Mr. Adolph Moses for the motion to dismiss. Mr. George W. Brandt opposing. FARLOW v. KELLEY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO. No. 795. October Term, 1880.—Decided March 14,1881. An allowance by a Circuit Court of an appeal taken by a receiver, is equivalent to leave by the court to the receiver to take an appeal. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. This motion is denied. The allowance of the appeal by the circuit justice is equivalent to leave by the court to the receiver to take an appeal. The order appealed from finally disposed of the suit, which was instituted against the receiver by permission of the court under date of November 13, 1878. It was the final judgment or decree in that matter. To what extent it may be reviewable here, in this form of proceeding, will be for determination when the case is heard on its merits. Jfr. R. P. Buckland and Mr. J. W. Keif er for the motion. Mr. A. Bowman opposing. LOUISIANA ex rel.. FOLSOM v. NEW ORLEANS. ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA. No. 810. October Term, 1880. — Decided March 14,1881. The judges of the court differing in opinion, the submission is set aside, and an argument ordered. ccii APPENDIX. Cases Omitted in the Reports. The case is stated in the opinion. Mr. Justice Field announced the order of the court. The relators are the holders of two judgments against the city of New Orleans, one for $26,850, the other for $2000. Both were recovered in the courts of Louisiana; the first in June, 1877, by the relators; the second in June, 1874, by parties who assigned it to them. Both judgments were for damages caused to the property of the plaintiffs therein by a mob or riotous assemblage of people, in the year 1873. A statute of the State made municipal corporations liable for damages thus caused within their limits. Revised Statutes of Louisiana, 1870, § 2453. The judgments were duly registered in the office of the controller of the city, pursuant to the provisions of the act known as No. 5, of the extra session of 1870, and the present proceeding was taken by the relators to compel the authorities of the city to provide for their payment. At the time the injuries complained of were committed, and one of the judgments was recovered, the city of New Orleans was authorized to levy and collect a tax upon property within its limits, of one dollar and seventy-five cents upon every one hundred dollars of its assessed value. At the time the other judgment was recovered this limit of taxation had been reduced to one dollar and fifty cents on every one hundred dollars of the assessed value of the property. By the constitution of the State adopted in 1879, the power of the city to impose taxes on property in its limits was further restricted to ten mills on the dollar of its valuation. The effect of this last limitation is to prevent the relators, they not being allowed to issue executions against the city, from collecting their judgments, as the funds receivable from the tax thus authorized to be levied are exhausted by the current expenses of the city, which are to be first met. The question is therefore raised by the relators whether the limitation of the taxing power of the city by the state constitution of 1879, does not conflict, so far as it applies to their judgments, with the clause of the 14th Amendment of the Constitution of the United States which forbids the State to deprive any persdn of property, without due process of law, their contention being that the judgments are property, and the restriction of the power of taxation of the city of New Orleans to its present limit, since they were recovered, renders it impossible to collect them and thus they are practically destroyed. APPENDIX. ceiii National Life Insurance Co. v. Scheffer. Upon the question thus presented the judges differ in opinion. The court, therefore, orders an oral argument upon it. The submission on briefs is accordingly set aside and the cause restored to its place on the calendar. Mr. Robert Mott, Mr. Thomas J. Semmes and Mr. Henry B. Kelly for plaintiffs in error. Mr. E. Howard McCaleb and Mr. Henry C. Miller for defendants in error. This case was argued and decided at October Term, 1883. See 109 U. S. 285. NATIONAL LIFE INSURANCE COMPANY v. SCHEFFER. ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA. No. 273. October Term, 1881. — Decided April 24, 1882. A record in a state court which shows a verdict and motion for new trial overruled, but no judgment on the verdict, shows no final judgment to which a writ of error may be directed. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. A majority of the court is of opinion that there has been no final judgment below in this case. Upon the trial in the District Court of Ramsey County, a verdict was rendered in favor of the plaintiff. Before any judgment. was entered on this verdict, a motion was made for a new trial. This motion was overruled and thereupon an appeal was taken to the Supreme Court of the State from “the order . . . denying the application for a new trial.” The judgment on this appeal is as follows: “ Pursuant to an order of court duly made and entered in this cause on the 21st of March, 1879, it is here and hereby determined and adjudged that the order herein appealed from, to wit, of the District Court of the second judicial district, sitting within and for the county of Ramsey, be and the same hereby is in all things affirmed.” Then follows a judgment for costs in the Supreme Court. No further proceedings appear to have been had in either court, and the record consequently shows a verdict and motion for new trial overruled, but no judgment on the verdict. It follows that the writ of error must be Dismissed. Mr. Isaac N. Arnold, Mr. Van H. Higgins and Mr. Leonard Swett for plaintiffs in error. Mr. E. C. Palmer for defendants in error. APPENDIX. Cases Omitted in the Reports. ’Ik cciv SCRUGGS v. MEMPHIS AND CHARLESTON RAILROAD COMPANY. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF MISSISSIPPI. No. 391. October Term, 1881.—Decided December 12,1881. Service of notice of citation on the attorney of a party is sufficient. An appeal bond for costs need not be signed by all the appellants. Being approved by the court it stands as security for all the appellees. This was a motion to dismiss. The case is stated in the opinion. The final disposition of the case will be found in 108 U. S. 368. Mr. Chief Justice Waite delivered the opinion of the court. This motion is denied. There is sufficient evidence of the service of the citation on the attorney of Viser, and that is enough. United States v. Curry, 6 How. Ill ; Bacon v. Hart, 1 Black, 39. The bond for the appeal is sufficient. The appeal does not operate as a supersedeas. The security is for costs only. The bond need not be signed by all the appellants. Brockett v. Brockett, 2 How. 240. Having been approved by the judge, it stands as security for all the appellees. The* controversy in the suit is as to the account between Mrs. Scruggs and the railroad company, growing out of the purchase by the company of the hotel in Corinth. The amount in dispute, as shown by the exceptions to the master’s report, is more than five thousand dollars. Viser seeks payment of a debt due him from Mrs. Scruggs out of the proceeds of the litigation between Mrs. Scruggs and the railroad company, and if it should appear that she was not bound to return the company any of the money which was paid to her, he can have no decree against her personally. The relief which he asks is a mere incident to the accounting between Mrs. Scruggs and the railroad company. In addition to this, it appears that the original claim of Viser exceeded $5000. Mrs. Scruggs resisted the payment of the whole. It has all been allowed in the progress of the cause. The final decree in his favor was less than $5000, because the remainder of the claim had, by an order of the court, been paid before from the proceeds of the litigation. Mr. J. H. Viser for the motion. APPENDIX. ccv Stark v. United States. MARSHALL v. KNOTT. ERROR TO THE SUPREME COURT OF THE STATE OF OREGON. No. 209. December Term, 1867. — Decided February 24, 1868. This court has not jurisdiction in error over the judgment of a state court brought here under the 25th section of the Judiciary Act of 1789, unless the record discloses that one of the questions described in that section arose in the state court, or was decided by its judgment. Motion to dismiss the case is stated in the opinion of the court. Mr. Chief Justice Chase delivered the opinion of the court. By the motion made in this case we are asked to dismiss the writ of error. The case is brought here under the 25th section of the Judiciary Act, but it does not appear from the record that any of the questions described in that section arose in the cause in the state court, or were decided by its judgment. We have, therefore, no jurisdiction to revise the judgment of the Supreme Court of Oregon upon writ of error, and the writ must be Dismissed. Mr. Edward Lander for the motion. No one opposing. STARK v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. , No. 259. December Term, 1871. — Decided February 12,1872. The court refuses a rule on the Court of Claims to certify up evidence used in that court on the trial of a cause which has been brought here by appeal from that court. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. The motion for rule on the Court of Claims to certify, whether certain depositions were used in evidence on the trial of this cause, and also to transmit a copy of the evidence used, and also to transmit certified copies of depositions used on the trial of the cause in this court is Denied. Mr. Wm. Penn Clarke for the motion. No one opposing. covi APPENDIX. Ambler v. Whipple. UNITED STATES v. SMOOT. SMOOT v. UNITED STATES. APPEALS FROM THE COURT OF CLAIMS. Nos. 264, 265. December Term, 1871. —: Decided February 19, 1872. This court will not direct the Court of Claims to send up the evidence on which that court bases its findings. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. The court is of opinion that the motion in this case asks in effect to remand this case to the Court of Claims with directions to send the evidence upon which their findings of fact were made to this court for revision. It alleges that the court omitted to find particular facts and asks that it may be required to certify what they shall find to support the omissions in said finding. We have repeatedly decided that this cannot be done under the rules governing appeals from the Court of Claims. The motion must, therefore, be Denied. Mr. Benjamin F. Butler for the motion. Mr. Assistant Attorney General Hill opposing. AMBLER v. WHIPPLE. APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 610. December Term, 1871. — Decided February 19, March 22, 1872. A cause is docketed and dismissed upon motion of the appellee, and subsequently redocketed on motion of the appellant. Motion to docket and dismiss. The case is stated in the opinion. Mr. Chief Justice Chase delivered the opinion of the court. The judgment was rendered and the appeal allowed on the 2d of December, 1871. The ninth rule provides that where an appeal shall be brought to this court in less than thirty days before the commencement of the term, if the appellant shall fail to docket the appeal within the first thirty days after the judgment was rendered, the appellee may have the case docketed and dismissed upon producing a certificate from the clerk of the court wherein the decree was rendered, stating the cause and certifying that the appeal had been duly sued out and allowed; this returnable to the next term after it was allowed, which was December Term, 1871, commencing APPENDIX. ccvii Ex Parte Lange. on the 4th day of December. The motion is therefore within the rule and it must be docketed and dismissed. On the 1st of March, 1872, Mr. B. F. Butler moved to strike out order of 19th February and for leave to docket the appeal. This being argued on the 22d March, it was ordered that decree of February 19 be rescinded and annulled, and leave was granted appellant to docket cause. Mr. James Hughes for the first motion. No one opposing. Mr. B. F. Butler for the second motion. Mr. James Hughes opposing. EX PARTE LANGE. ORIGINAL. No. 9. Original. October Term, 1873. — Decided January 12,1874. A writ of habeas corpus is ordered to issue, and also a writ of certiorari to bring up a petition by this petitioner to the judge of a Circuit Court of the United States for a writ of habeas corpus, and the denial thereof made in chambers; inasmuch as the petition in this court showed that the papers had been filed in the Circuit Court and remained there of record. Petition for writs of habeas corpus and certiorari. The cast is stated in the opinion. Mr. Justice Clifford delivered the opinion of the court. Representation is made by the petitioner that he is, and since the eighth of November last has been a prisoner confined in the Ludlow-Street jail in the city of New York, in the custody of Oliver Fiske, United States marshal for the Southern District of New York, under an illegal sentence pronounced on him on the said eighth of November, and that he is restrained of his liberty in violation of the Constitution of the United States, and of the law in such case made and provided. Wherefore he prays that a writ of habeas corpus issue directed to the said Oliver Fiske, as such marshal, commanding him to produce the petitioner before this court here, at such time as this court shall direct, and that he, the marshal, show at the same time the cause of the petitioner’s detention, to the end that he, the petitioner, may be discharged from custody. Superadded is also the further prayer that a writ of certiorari may issue to Kenneth G. White, clerk of the Circuit Court of the United States for the same district, commanding him to certify to ccviii APPENDIX. Bergner v. Palethorp. this court the petition for habeas corpus which the petitioner on or about the seventeenth of December last presented “to the Hon. Lewis B. Woodruff, Circuit Judge of the United States for the Second Circuit, with the return thereto, and all the record of said court respecting the same, and the adjudication thereon, to the end that the errors therein may be corrected by this court, as more fully set forth in the petition.” Petitions of the kind when presented here are heard in the first place ex parte, and in view of that fact it is proper to remark that it has not escaped the attention of the court that the adjudication sought to be reviewed was made on a petition presented to the said circuit judge at chambers, but inasmuch as the petition here appears to warrant the inference that the first named petition and the proceedings thereon were subsequently filed in the Circuit Court, and that the same remain there of record, the court is of opinion that the special circumstance mentioned is no bar to the present application ; and due consideration having been given to the petition, the court directs that the writ of habeas corpus issue to the person named and to the end as prayed. Also that the writ of certiorari issue and that it be directed as prayed, and that it be made returnable forthwith. Mr. Stewart L. Woodford for the petitioner. For further proceedings in this case see Ex parte Lange, 18 Wall. 163. BERGNER v. PALETHORP. ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA. No. 926. October Term, 1875. —Decided March 27, 1876. A Federal question not raised at the trial of a cause in the state court below will not be considered here. Motion to dismiss for want of jurisdiction. The case is stated in the opinion. Mr. Chief Justice Waite announced the opinion of the court. The motion to dismiss this cause for want of jurisdiction is granted. No Federal question is presented by the record. It is argued here that a certain paper writing given in evidence upon the trial in the Court of Common Pleas was not good and valid as a lease, because not stamped as such, but the record does not show that any such question was presented to the Supreme Court for de- APPENDIX. ccix Meyer v. Pritchard. termination, or that it was decided, or that its decision was in any manner necessary to the judgment as rendered. Mr. Robert Palethorp for the motion. Mr. Samuel Gormley and Mr. W. S. Price opposing. MEYER v. PRITCHARD. APPEAL EROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 171. October Term, 1876. — Decided January 15, 1877. The surrender of letters patent for an invention extinguishes them; and if made after appeal to this court, no substantial controversy remains. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. In Moffitt v. Garr, 1 Black, 273, we held that a surrender of a patent “ means an act which, in the judgment of law, extinguishes the patent. It is a legal cancellation of it, and hence can no more be the foundation for the assertion of a right, after the surrender, than could an act of Congress which has been repealed. The reissue of the patent has no connection with or bearing upon antecedent suits; it has as to subsequent suits. The antecedent suits depend upon the patent existing at the time they were commenced, and unless it exists and is in force at the time of trial and judgment the suits fail.” To the same effect is Reedy v. Scott, 23 Wall. 352. We are satisfied with this ruling. Since the appeal in this case, the appellants, who represent the original patentees, have surrendered the patent upon which the suit was brought and obtained a reissue. This fact is conceded. If we should hear the case and reverse the decree below, we could not decree affirmative relief to the appellants, who were the complainants below, because the patent upon which their rights depend has been cancelled. There is no longer any “ real or substantial controversy between those who appear as parties to the suit” upon the issues which have been joined, and for that reason the appeal is dismissed, upon the authority of Cleveland v. Chamberlain, 1 Black, 419, and Lord v. Veazie, 8 How. 250. The cause is remanded to the Circuit Court to be dealt with as law and justice may require. Mr. George Harding and Mr. J. Hervey Ackerman for the 'motion. Mr. B. F. Thurston and Mr. S. D. Law opposing. T4 ccx APPENDIX. Wilson v. Hoss. WILSON v. HOSS. APPEAL EROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 243. October Term, 1876. —Decided May 7, 1877. Upon the pleadings and proof, the plaintiff was entitled to recover, whether the deposition objected to was admitted or excluded, and therefore its admission worked no injury to the defendant. The case is stated in the opinion. Mr. Justice Hunt delivered the opinion of the court. The burden of the appellant’s cause of complaint in this appeal is the admission in evidence of the deposition of the plaintiff below. This complaint is not well founded. Upon the pleadings in the case, whether the deposition be considered as in the case, or whether it is excluded, the plaintiff was entitled to recover. No proofs were taken, except this deposition. The bill alleged the making of an agreement between the plaintiff and the defendants’ firm, (who are practising lawyers,) to the effect that the plaintiff should use his exertions to secure to the defendants certain professional business described, and that after deducting expenses the plaintiff should have one third of the fees received for prosecuting such business; that as to certain other claims mentioned, one half of the fees should in like manner be paid to the plaintiff; that various claims mentioned were prosecuted under the agreement, and judgments recovered and collected, the fees in which, amounting to over $4000, were received by the defendant; that $500 only had been paid to the plaintiff; that the defendants refuse to pay him the balance due to him; and demands an account and decree for the amount due, after deducting expenses. A copy of the agreement is made an exhibit to the .bill. This agreement states that as to the cases of Cogan, Calleton and Moran, now in defendants’ hands, the fees shall be equally divided between the parties. The answer of the defendant Wilson admits the making of the agreement, alleges that the same was entered into upon plaintiff s representation that he was the agent for a number of persons having claims to a large amount against the United States, and that plaintiff should use his exertions that defendants should be employed as attorneys in such cases; that plaintiff failed to deliver APPENDIX. ccxi Staten Island Railway Co. v. Lambert. any such claims, or cause them to be delivered to defendants, or cause them to be employed, and that since the signing of the agreement no such claims have come into his hands through plaintiff’s exertions; avers a belief that plaintiff was not agent for such claims, and that his representation was fraudulent; admits that the claims of Cogan and Moran were prosecuted successfully, and that he received between $3000 and $4000 as fees in those cases. The answer thus admits the receipt of between $3000 and $4000, which the agreement expressly provided should be divided equally between the parties. It is not pretended that any larger sum than $500 has been paid to the plaintiff. The pleadings show an amount of about $1500 due to the plaintiff, subject to an account for expenses, and upon these pleadings a decree was necessarily ordered for the plaintiff. If there is a claim of fraud it must be proved, which is not here attempted. Excluding as irregular the deposition in which the plaintiff establishes his case, it is not a subject of reasonable doubt that upon the hearing on bill and answer, and on the motion for a rehearing, in which both parties appeared, the decree given was properly rendered. The decree expressly states that it is made upon the bill and answer, without regard to the deposition, which was irregularly taken. Decree affirmed. Mr. Enoch Totten and Mr. Thomas Wilson for appellant. Mr. J. M. Carlisle and Mr. J. D. McPherson for appellee. STATEN ISLAND RAILWAY COMPANY v. LAMBERT. ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK. No. 772. October Term, 1877. — Decided January 7, 1878. If in an action in a state court to recover damages under a state statute for a death caused by a collision on navigable waters within the State, no Federal question is raised during the trial, this court cannot take jurisdiction in error. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the' court. The steamboat Middletown, owned by the plaintiff in error, (defendant below,) on her passage from Staten Island to New York ran into and sank a small sail-boat lying at anchor, thereby causing ccxii APPENDIX. Southern v. Hagood. the death of Charles Lambert. This action was brought by the administratrix of Lambert, under a statute of the State, to recover damages for his death, upon the ground that it resulted from the carelessness and negligence of those engaged in navigating the steamboat. In its answer the plaintiff in error denied the negligence complained of, and insisted that the accident happened through the fault of the decedent, but did not set up any claim of right, privilege or immunity under the navigation laws of the United States. The case as tried presented questions of fact alone, and, upon the motion to dismiss the complaint after the testimony was closed, the court was not asked to rule the law upon conceded facts, but to decide upon the effect of conflicting evidence. Certainly there was no such failure of proof on the part of the plaintiff below as to make it error in the court to refuse to take the case from the jury, and in the assignment of error which has been returned with the writ, in accordance with the requirements of sec. 997, Rev. Stat., no complaint is made of the instructions as given to the jury, or of the refusal to give any that were requested. It does not appear, therefore, that any Federal question was necessarily involved in the decision of the court below, or that any was in fact decided. The motion to dismiss for want of jurisdiction is granted. Mr. W. W. Goodrich for the motion. Mr. Julian A. Davies opposing. SOUTHERN v. HAGOOD. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA. No. 27. October Term, 1878. — Decided November 4,1878. This bill is dismissed because the evidence sent here fails to support the finding on which the bill was dismissed; and as grave constitutional questions were involved, it is remanded to the Circuit Court with power to allow amendments to the pleadings and take further proof. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. This record shows clearly that the case was heard and decided below upon testimony which is not before us. The decree of dismissal is based entirely upon a finding, that the complainants were concluded by some judgment in a state court “ to which Mr. Wesley APPENDIX. ccxiii Marsh v. Citizens Insurance Co. was a party.” There is nothing here to support such a finding. In fact, no testimony whatever has been sent up. Neither is the case in a condition to be heard understandingly upon the important constitutional questions which have been argued. It comes upon bill, answer and replication alone. There is nothing to show the form of the “ revenue-bond scrip,” which is the subject matter of the controversy, and we have not a description of it even. Under these circumstances it is apparent that the case has not been prepared by either party with a view to the presentation of these questions, and we are, therefore, unwilling to enter upon their consideration on this appeal. » The decree of the Circuit Court is reversed with costs, upon the sole ground that the evidence which has been sent here fails to support the finding upon which the bill was dismissed, and the cause is remanded for a further hearing, with power in the Circuit Court to allow such amendments to the pleadings and such further proof as it shall be advised may be necessary for the proper presentation of the questions to be decided. Mr. Dennis McMahon for appellants. Mr. Leroy F. Youmans for appellees. For further proceedings in this case, see Hagood v. Southern, 117 U. S. 52. MARSH v. CITIZENS INSURANCE COMPANY. ERROR TO THE SUPREME COURT OF PENNSYLVANIA. No. 70. October Term, 1878. — Decided December 9, 1878. At the trial in a state court upon a policy of insurance of a steamboat, the question whether if the steamboat was burned while carrying turpentine as freight, the owner must show affirmatively his license to carry the turpentine, or whether the law would presume a license until the contrary was shown, is not a Federal question. The case is stated in the opinion. This case presents no question of Federal jurisdiction. Marsh, the plaintiff in error, claimed below no “title, right, privilege, or immunity ” under the Constitution, laws, or treaties of the United States, and no such title, right, privilege, or immunity has been denied him. He sued upon a policy of insurance to recover for the loss of his steamboat by fire, and the defence was that the fire was caused by his gross carelessness in the use of turpentine, on board as freight, to increase steam while racing with another boat. ccxiv APPENDIX. De Liano v. Gaines. An act of Congress (Stat. 63, c. 106, § 7) prohibits the transportation of turpentine, as freight, on steamboats carrying passengers, “except in cases of special license for that purpose.” No complaint was made of the carriage of the turpentine, but of its use while being carried. The court in effect told the jury that, under the existing laws, there could be no recovery if the loss was occasioned by the misconduct of the insured in taking a barrel of turpentine from the hold of the boat, placing it in front of the furnace, knocking out the head, and pouring two thirds of a bucket full of turpentine on the coal and wood near by, so that when the furnacedoor was opened and the fire stirred up, during a race with another boat, the burning coals fell on the fuel thus saturated and set fire to the boat. No complaint is made here, by the assignment of errors, of the charge as given. The errors assigned relate only to the refusal of the requests to charge made by Marsh, and these presented only questions as to the effect of evidence and the burden of proof ; that is to say, whether if a steamboat was burned while carrying turpentine as freight, the owner, in an action on a policy of insurance, must show affirmatively his license to carry the turpentine, or whether the law would presume a license until the contrary was shown. The determination of such questions by the court below, even if necessary to the decision of the case, is final and cannot be re-examined here. The suit is consequently dismissed for want of jurisdiction. Mr. Edward Lander, Mr. J. W. Moore, and Mr. E. A. Newman for plaintiff in error. Mr. Andrew McCallum for defendant in error. ____________ DE LIANO v. GAINES. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOK THE DISTRICT OF LOUISIANA. No. 192. October Term, 1879.—Decided March 15,1880. The overruling of a motion that the cause proceed no farther by reason of an alleged compromise of the suit is not a final judgment or decree. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. A decree having been entered referring this cause to a master to state an account of rents and profits, De Liano, the appellant, appeared in court and moved that the master be directed to proceed no further with his accounting, by reason of an alleged compromise APPENDIX. ccxv Weatherby v. Bowie. and settlement that had been made by the parties in respect to the matters in dispute. The court, after a hearing, denied the motion and directed that “ the cause proceed.” From this order De Liano took this appeal. It needs only a statement of the facts to show that we have no jurisdiction. The decree appealed from is not a final decree. The appeal is dismissed. Mr. H. B. Kelly, Mr. G. L. Bright and Mr. H. L. Lazarus for appellant. Mr. Samuel Shellabarger, Mr. J. M. Wilson, and Mr. 0. E. Fenner, for appellee. WEATHERBY v. BOWIE. ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA. No. 790. October Term, 1879. — Decided January 5, 1880. A statement in the opinion of the highest court of a State that the only Federal question in the case was probably abandoned as “it is manifest that the Circuit Court could not have taken jurisdiction ” is not such a decision of the question as to give this court jurisdiction. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. We may look into the opinions of the Supreme Court of Louisiana for the purpose of determining whether a Federal question was raised and decided in a case coming up from that court. Armstrong v. Treas, Athens Co., 16 Pet. 281; Cousin v. Blanc, 19 How. 202. To give us jurisdiction in a writ of error to a state court a Federal question must not only exist in the record, but it must have been decided against the party who sues out the writ. Murdock v. Memphis, 20 Wall. 590. “ Only such questions as either have been or ought to have been passed upon by that court in the regular course of its proceedings can be considered by us upon error.” Fashnacht v. Frank, 23 Wall. 416. On looking into the opinion in this case we find that the only Federal question there is in the record was not presented to the Supreme Court “either in brief or oral argument.” The court also say they presume the question was abandoned, and as one of their reasons for that presumption they say “ it is manifest that the Circuit Court could not have taken jurisdiction.” We think this is not such a decision of the question as will give us jurisdiction. Dismissed. Mr. John H. Kennard for the motion. Mr. A. J. Semmes opposing. ccxvi APPENDIX. Bacon v. Chicago International Bank. BACON v. INTERNATIONAL BANK OF CHICAGO. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 237. October Term, 1880. —Decided March 21,1881. The rights of an assignee in bankruptcy over collateral lodged by the bankrupt with the bank more than two months prior to the bankruptcy, as security for indebtedness which then existed or might thereafter be created, are only such as the bankrupt had when the proceedings in bankruptcy were commenced. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. The facts of this case briefly stated are these: In 1876, the firm of Brunswick Brothers, Stephani & Hart Company was engaged in the business of making and selling billiard tables at Chicago and St. Louis. In August or September of that year this firm agreed to sell the J. M. Brunswick & Balke Company the stock and branch of the business at St. Louis, for which the purchasing company was to give, when the stock was transferred, its notes of one thousand dollars each payable three months from date, and the balance of the invoice when taken was to be divided into monthly notes of one thousand dollars each, the first to fall due four months from date, and one each month thereafter until the whole price was paid. The three notes due three months after date were to be delivered the selling firm when the transfer of the stock was made, but the others were to be deposited with the International Bank of Chicago, with instructions that they be delivered one month before their maturity. The invoice when taken amounted to twelve thousand dollars. The stock was transferred and notes executed according to the agreement, September 9, 1876. The three first to fall due were at once handed over to the selling firm and the others deposited in bank as agreed. The firm of Brunswick Brothers, Stephani & Hart Company was dissolved in September, 1876, and all its assets passed on the dissolution to the firm of Brunswick, Stephani & Hart, which was its successor in the business. On the 16th of September the new firm agreed that the bank might hold the nine notes then in its possession as collateral security for the indebtedness of the firm to the bank, which then existed or which might thereafter be created. The firm was at the time APPENDIX. ccxvii Bacon v. Chicago International Bank. owing the full amount of the notes, a part, at least, of which was for a debt incurred under a promise to give the notes as collateral when they were obtained. Proceedings in bankruptcy were instituted against Brunswick, Stephani & Hart, on the 29th of November, 1876, and they were adjudicated bankrupts on the 16th of the following December. On the 3d of February, 1877, the other members of the firm of the Brunswick Brothers, Stephani & Hart Company filed their petition in bankruptcy, and on the same day they were adjudicated bankrupts and made parties to the former proceeding. The J. M. Brunswick & Balke Company paid the notes to the bank as they fell due, and the payments as made were applied to the liquidation of the debt for which they were held as collateral. On the 25th of June, 1877, the assignee in bankruptcy of the bankrupt firms commenced this suit in trover against the bank to recover damages for the unlawful conversion of the notes and the moneys collected thereon. This statement, which is not disputed, shows clearly, as we think, that the court below committed no error in directing a verdict in favor of the bank. The makers of the notes do not complain of what was done between the bank and the payees. They owed the debt represented by the notes and have paid it to the bank as it fell due. As the payments were made they got up their notes. The rights of the assignee against'the bank are only such as the bankrupts themselves had when the proceedings in bankruptcy were commenced. That the St. Louis firm owed the debt to the Chicago firm, whether the notes were ever delivered by the bank or not under the terms of the deposit, is conceded. That debt was assigned to the bank as collateral. Such is the legal effect of the agreement between the bank and the firm. That gave the bank the right to collect the notes as they fell due, and apply the proceeds to the discharge of the debt to secure which the transfer was made. This was done more than two months before the proceedings in bankruptcy were begun, and there is no allegation or suspicion of bad faith. This made- the title of the bank good as against the creditors of the bankrupts. Certainly the bankrupts cannot call on the bank to return the notes until the debt for which the security was given is paid. No more can the assignee. The judgment is Affirmed. Mr. J. JF. Jackson and Mr. Thomas Dent for plaintiff in error. Mr. A. M. Pence for defendant in error. ccxviii APPENDIX. Leary v. Long. LEARY v. LONG. APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF CO- LUMBIA. No. 50. October Term, 1880. — Decided November 8, 1880. When it appears in the pleadings that a former bill for the same cause of action was dismissed for the reason that a plea that had been filed and not denied presented a good defence, an averment that there has been no adjudication upon the merits is not enough; but it must be averred in the pleadings and shown that the nature of the defence did not present a bar to the action. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. Upon the case made by the bill, the appellant is not entitled to recover. Paragraphs 9 and 10 of the bill are as follows: “9. Complainant further states that he filed his bill of complaint in said court against said defendant and said Kappell, on or about the 19th day of July, 1870, praying that said sale should be set aside, and for other matters, which will more fully appear by reference to said bill, which bill was afterwards dismissed for want of prosecution upon the part of the attorney for complainant. “ 10. Complainant further states that on or about the 16th day of October, 1871, he filed his second bill in said court, praying for the same relief, and that the defendant plead thereto, which bill was also dismissed for the reason of the default of a replication to said plea, the attorney of the complainant having died during the pendency of said last-mentioned bill.” Here is an express admission of record that a bill for the same identical cause of action now sued on was dismissed for the reason that a plea which had been filed and not denied presented a good defence. What the plea was, does not appear, but as the bill was dismissed absolutely, the presumption is it went to the merits. A mere averment that there has been no adjudication upon the merits, is not enough. To overcome the effect of the other allegations, the nature of the defence set up in the plea should have been stated, so that it could be seen that it did not present a bar to the action. Affirmed. Mr. L. .G. Hine and Mr. 8. T. Thomas for the motion. Mr. A. L. Merriman opposing. APPENDIX. ccxix Lane v. Wallace. , LANE v. WALLACE. ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA. No. 1016. October Term, 1881. — Decided November 21,1881. When the highest court of a State dismisses a suit brought up from the trial court for want of jurisdiction, the Federal question, if there be one in it, was decided by the trial court, and the writ of error should be directed to that court. Motion to dismiss. The case is stated in the opinion. Mr. Chief Justice Waite delivered the opinion of the court. The judgment of the Supreme Court of Louisiana in this case was one dismissing the suit for want of jurisdiction. Consequently that court could not have decided the Federal question presented to and passed upon by the District Court. All it did was to determine that the District Court was the highest court of the State in which a decision in the suit could be had. The writ of error should, therefore, have been directed to that court instead of the Supreme Court. Such a writ can now issue if applied for and allowed in time. The motion to dismiss is granted. Mr. W. W. Handlin for the motion. Mr. Joseph P. Hornor opposing. ccxx APPENDIX. Omitted Cases. II. TABLE OF OMITTED CASES; (1) IN WHICH THE OPINION STATES FACTS UPON WHICH THE JUDGMENT IS RENDERED, INVOLVING NO QUESTION OF LAW: (2) IN WHICH A BRIEF OPINION ORDERS JUDGMENT ENTERED ON AUTHORITY OF SOME OTHER CASE REFERRED TO, WITHOUT FURTHER DISCUSSION: (3) IN WHICH JUDGMENT IS ENTERED PARTLY ON FACTS, AND PARTLY ON AUTHORITY: OR (4) IN WHICH THE OPINION ORDERS A JUDGMENT ENTERED ON THE STIPULATION OF THE PARTIES, OR FOR INCOMPLETENESS OF THE RECORD, OR FOR NON-COMPLIANCE WITH THE RULES OF COURT. Dec. T. 1851. 1. United States v. Harrison. No. 126. (Authority of United States v. Philadelphia, 11 How. 609.) Dec. T. 1852. 2. United States v. Carrère. No. 18. ) (Same “ 3. United States v. Grafton. No. 80. J authority.) Dec. T. 1854. 4. The Steamboat Niagara et al. v. Van Pelt et al. No. 69. (Stipulation.) Dec. T. 1856. 5. Coggeshall et als. v. Hartshorne et al. No. 60. (Stipulation.) Dec. T. 1857. 6. Hudgins et al. v. Kemp. No. 22. (Authority of Same v. Same, 18 How. 530.) “ 7. Watterson v. Payne. No. 56. (Facts.) Dec. T. 1859. 8. United States v. Osio. No. 74. (Facts. Identical with Same v. Same, 23 How. 273.) Dec. T. 1863. 9. Richardson v. Lawrence County. No. 100. (Authority of Woods v. Lawrence County, 1 Black, 386.) “ 10. United States v. Hallock. No. 113. (Authority of The Prize Cases, 2 Black, 635.) . “ 11. United States v. Olvera. No. 149. (Facts.) “ 12. Milwaukee and Minnesota Railroad Co. v. Soutter. No. 267. (Authority of a case previously decided, which is probably Bronson v. La Crosse Railroad, 1 Wall. 405.) “ 13. Same v. Same. No. 268. (On the same au- thority.) APPENDIX. ccxxi Omitted Cases. Dec. T. 1864. 14. Merriam v. Haas. No. 77. (Facts.) Dec. T. 1865. 15. United States v. De Haro. No. 81. (Facts.) “ 16. Mahoney (Intervenor) ,v. United States. No. 146. (Facts.) “ 17. Rogers v. Keokuk. No. 94. (Authority of Gelpcke v. Dubuque, 1 Wall. 202, in part; facts in part.) “ 18. Rogers v. Lee County. No. 95. (Authority of Rogers v. Keokuk, ante, No. 94.) “ 19. Duvall v. United States. No. 145. (Authority of The Reform, 3 Wall. 617.) “ 20. Horback v. Potter. No. 189. 1 zp . “ 21. Horback v. Brown. No. 190. } ' / T' “ 22. Hammond v. Massachusetts.) (Authority of Mc- No. 240. > Guire v. Massa- “ 23. McNeal v. Same. No. 241. chusetts, 3 Wall. “ 24. Clark v. Same. No. 242. J 387.) “ 25. Churchill v. Utica. 1 No. 286. (Authority of Van Allen v. “ 26. Williams v. Nolan. I Assessors, 3 Wall. 387.) No. 288. J Dec. T. 1866. 27. Brown v. Johnson. No. 47. (Authority of Brown v. Bass, 4 Wall. 262.) “ 28. Mineral Point v. Lee. No. 164. (Authority of “ several cases of similar character.”) “ 29. United States v. Mayrand. No. 187. (Author- ity of United States v. Holliday, 3 Wall. 407.) 30. Tillinghast v. Van Buskirk. No. 313. (Authority of Green v. Van Buskirk, 5 Wall. 307.) 31. Southern Pennsylvania Railroad v. Baltimore. No. 43. (Facts.) Dec. T. 1867. 82. Ex parte Milwaukee and Minnesota Railroad Co. No. 8. Original. (Authority of a case referred to but not named in the opinion, but which is probably Minnesota Go. v. St. Paul, 6 Wall. 742.) 33. Mississippi v. Stanton and Grant. No. 14. Original. (Authority of Georgia v. Stanton, 6 Wall. 50; and Georgia v. Grant, 6 Wall. 241. ccxxii APPENDIX. Omitted Cases. Dec. T. 1867. 34. Gaines v. Lizardi. No. 83. (Authority of Gaines v. New Orleans, 6 Wall. 642.) “ 35. United States v. Cook. No. 102. (Partly on facts ; partly on authority of United States v. Hartwell, 6 Wall. 385.) “ 36. Hunt v. Bender. No. 103. (Authority of Sea- ver v. Bigelows, 5 Wall. 208.) “ 37. United States v. Bales of Cotton marked J. H. B. No. 146. (Authority of Union Ins. Co. v. United States, 6 Wall. 759.) “ 38. Williamson v. Moore. No. 421. (Authority of. Williamson v. Suydam, 6 Wall. 723.) Dec. T. 1868. 39. Tillinghast v. Van Buskirk. No. 32. (Authority of Green v. Van Buskirk, 7 Wall. 139.) “ 40. Burbank v. Bigelow. No. 36. (Authority of Breedlove v. Nicolet, 7 Pet. 413.)’ “ 41. Smith v. Washington Gas Light Co. No. 86. (Facts.) “ 42. Finley v. Isett. No. 150. (Facts.) “ 43. Dutton v. Palairet. No. 184. (Authority of Bronson v. Rodes, 7 Wall. 229.) “ 44. United States v- Mowry. No. 186. (Author- ity of United States v. Adams, 7 Wall. 463.) “ 45. United States v. Morgan. No. 191. “ 46. United States v. Burton. No. 192. I (Same “ 47. United States v. Geffroy. No. 193. • authority.) “ 48. United States v. Higdon. No. 197. J “ 49. Davidson v. Starcher. No. 329. “ 50. Same v. King. No. 330. r (Fact’8') “ 51. Same v. McMahon. No. 331. “ 52. Moulder v. Forrest. No. 371. (Authority of Insurance Co. v. Mordecai, 21 How. 195, and Porter v. Foley, 21 How. 393.) Dec. T. 1869. 53. Ex parte Pargoud. No. 9. Original. (Authority of Ex parte Zellner, 9 Wall. 244.) il 54. Burlington and Missouri River Railroad Co. v. Mills County. No. 39. (Authority of Railroad Co. v. Fremont County, 9 Wall. 89.) “ 55. Willard v. Willard. No. 90. (Authority of Willard v. Presbury, 14 Wall. 676.) APPENDIX. ccxxiii Omitted Cases. Dec. T. 1869. 56. United. States ex rel. Amy v. Burlington. 'I No. 94. > “ 57. Same ex rel. Learned v. Same. No. 95. J (Authority of Butz v. MuScatine, 8 Wall. 575.) “ 58. Flanders v. Tweed. No. 108. (Authority of Same n. Same, 9 Wall. 425.) “ 59. Weed v. Crane. No. 123. (Facts.) V 60. Supervisors v. Durant. No. 134. (Authority of Supervisors v. Durant, 9 Wall. 415.) “ • 61. Washington County v. United States ex rel. Mortimer. No.’ 137. (Authority of Supervisors v. Durant, 9 Wall. 415.) “ 62. Northern Belle v. Robson. No. 141. (Facts.) “ 63. Kenosha v. Lamson. No. 143. (Authority of Knox County v. Aspinwall, 21 How. 539 ; and The City v. Lamson, 9 Wall. 477.) “ 64. Loi^g v. Patton. No. 196. (Authority of Little v. Herndon, 10 Wall. 26, in part, and on facts as to the remainder.) “ 65. Underhill v. Herndon. No. 197. (Same au- thority.) “ 66. Sturtevant v. Herndon. No. 198. (Authority of Little v. Herndon, 10 Wall. 26.) “ 67. Underhill v. Patton. No. 199. (Same authority.) “ 68. Supervisors v. United States ex rel. Durant. No. 202. (Facts.) “ 69. Godbe v. Tootle. No. 258. (Authority of Mussina v. Cavazos, 6 Wall. 355.) “ 70. McCollum v. Howard. No. 344. (Facts. The decree below was interlocutory.) “ 71. United States v. Pollard. No. 391. “ 72. United States V. Kohn. No. 359. r “ 73.* United States v. Stanton. No. 390. J (Authority of United States v. Anderson, 9 Wall. 56.) “ 74. Riley v. Welles. No. 397. (Authority of Wolcott v. Des Moines Co., 5 Wall. 681.) Dec. T. 1870. 75. Ex parte Waples. No. 10. Original. (Author-ityof Ex parte Graham, 10 Wall. 541.) ccxxiv APPENDIX. Omitted Cases. Dec. T. 1870. 76. Garnett v. United States. No. 15. (Authority of Same v. Same, 11 Wall. 256.) “ 77. Stevens v. De Aubrie. No. 45. I “ ' 78. Stevens v. Bellemarde. No. 46. J (Authority of Smith v. Stevens, 10 Wall. 321.) “ 79. United States v. Hodson. No. 52. (Author- ity of Same v. Same, 10 Wall. 395.) “ 80. United States v. Mynderse. No. 237. (Au- thority of United States v. Hodson, 10 Wall. 395.) “ 81. Van Slyke v. Wisconsin. No. 261. ) “ 82. Bagnall s. Same. No. 262. ) (Authority of National Bank' v. Commonwealth, 9 Wall. 353, and Lionberger v. Bouse, 9 Wall. 468.) “ 83. Cousin v. Generes. No. 286. (Authority of Bethell v. Demaret, 10 Wall. 537.) Dec. T. 1871. 84. Ex parte Loud. No. 8. Original. (Authority of Ex parte McNiel, 13 Wall. 236.) “ 85. Holmes v. Sevier, Adm’r. No. 31. (Author- ity of Osborn v. Nicholson, 13 Wall. 654.) tl 86. Jackoway v. Denton. No. 47. (Authority of Sevier v. Haskell, 14 Wall. 12.) “ 87. Plant v. Stovall. No. 82. (Facts. No error in the record.) “ 88. Conrad v. Hazlett. No. 108. (Facts.) “ 89. St. John (The) v. Hasbrouck. No. 131. (Facts.) “ 90. Germain v. Mason. No. 290. (Authority of Wells v. McGregor, 13 Wall. 188.) “ 91. Northwestern Union Packet Co. v. Home In- surance Co. No. 467. (Authority of Callan v. May, 2 Black, 541, and other cases cited.) “ 92. Gray v. Coon. No. 481. (Facts.) “ 93. Davidson v. Connelly. No. 510. (Facts.) Dec. T. 1872. 94. Jones v. Fritshle. No. 59. (Facts.) “ 95. Diaz v. United States. No. 97. (Authority of Pico v. United States, 2 Wall. 279; Per alto v. United States, 3 Wall. 434.) APPENDIX. ccxxv Omitted Cases. Dec. T. 1872. 96. United States v. Stafford. No. 105. (Facts. The court says the question has ceased to be of any importance.) “ 97. Norton v. Jamison. No. 192. (Authority of Bartemeyer v. Iowa, 18 Wall. 129.) “ 98. Oulton v. San Francisco Savings Union. No. 206. (Authority of Oulton v. Savings Institution, 17 Wall. 109.) “ 99. Humbird v. Jackson County. No. 209. (Au- thority of Olcott v. Supervisors, 16 Wall. 678.) “ 100. Charleston v. Jessup. No. 234. (Authority of Tomlinson v. Jessup, 15 Wall. 454.) “ 101. Bank of New Orleans v. Caldwell. No. 255. (No bill of exceptions in record.) Oct. T. 1873. 102. South Carolina ex rel. Robb v. Gurney. No. 22. (Authority of State v. Stoll, 17 Wall. 425.) “ 103. Adelia (The) v. Jackson. No. 65. (Facts.) “ 104. Chicago and Northwestern Railway Co. v. Fuller. No. 89. (Authority of Railroad Co. n. Fuller,' 17 Wall. 561.) 105. Kenner v.-United States. No. 202. (Authority of The Confiscation Cases, 20 Wall. 92.) “ 106. Allen v. Tarelton. No. 251. (Facts.) 107. United States v. Six Lots, Hatch, claimant. No. 225. (Authority of The Confiscation Cases, 20 Wall. 92.) 108. United States v. Ten Lots, Conrad, claimant. No. 283. (Same authority.) “ 109. Priest v. Folger. ) No. 298. (Authority of Habich v. 110. Thwing v. Folger. ” Folger, 20 Wall. 1.) No. 299. 111. Woodman Pebbling Machine Co. v. Guild. No. 311. (Stipulation.) “ 112. Heath v. Slidell. No. 532. ) 113. Brugere v. Slidell. No. 479. J (Authority of Bigelow v. Forrest, 9 Wall. 339, and Day v. Micou, 18 Wall. 156.) Oct. T. 1874. 114. Hardy v. Harbin. No. 14. (Facts.) *5 ccxxvi APPENDIX. Omitted Cases. Oct. T. 1874. 115. Northwestern Union Packet Co. v. Viles. No. 70. (Authority of Same v. Clough, 20 Wall. 528.) “ 116. Lee County v. Clews. No. 79. (Authority of Chambers County v. Clews, 21 Wall. 317.) “ 117. Schow v. Harriman. No. 101. (Authority of Schulenberg v. Harriman, 21 Wall. 44.) “ 118. Basse v. Brownsville. No. 109. (Authority of McKinney v. Saviego, 18 How. 235.) “ 119. Rogers Locomotive and Machine Works v. Helm. No. 134. (Facts.) “ 120. Oulton v. Savings and Loan Society. No. \ 169. “ .121. Cary v. Same. No. 172. ■h “ 122. Same v. German Savings and Loan Society. No. 173. J (Authority of Cary v. San Francisco Savings Union, 22 Wall. 38.) " 123. Oulton v. California Insurance Co. No. 170. (Authority of Barnes n. Railroad Co., 17 Wall. 294, and.Stockdale v. Atlantic Ins. Co., 20 Wall. 323.) “ 124. Lane v. United States. No. 176. (Authority of Haycraft v. United States, 22 Wall. 81.) “ 125. Bailey v. Work. No. 540. (Authority of Bailey v. Clark, 21 Wall. 284.) “ 126. Blake v. Fourth National Bank. No. 554.^ ** 127. Blake v. Park Bank. No. 555. “ 128. Kenny v. Philadelphia &c. Railroad. No. 318. J (Authority of Blake v. National Banks, 23 Wall. 307.) “ 129. Windsor v. McVeigh. No. 583. (Motion- Authority of Gregory v. McVeigh, 23 Wall. 294.) “ 130. Commercial Bank of Cleveland v. Iola. No. 741. (Authority of Loan Association v. Topeka, 20 Wall. 655.) Oct. T. 1875. 131. Eliza Hancox (The) v. Langdon. No. 36. (Facts.) APPENDIX. ccxxvii Omitted Cases. Oct. T. 1875. 132. Turner v. Ward. No. 129. (Facts.) “ 133. Crary v. Devlin. No. 527. (Authority of Mining Co. n. Boggs, 3 Wall. 304.) “ 134. Atherton v. Fowler. No. 648. (Authority of Same v. Same, 91 LT. S. 143.) “ 135. Mead v. Pinyard. No. 754. (Facts.) Oct. T. 1876. 136. Berreysea v. United States. No. 83. (Authority of United States v. Cambuston, 20 . How. 59 ; United States v. Knight, 1 Black, 227; Peralta v. United States, 3 Wall. 434, and other cases.) “ 137. Herhold v. Upton. No. 125. (Authority of Upton v. Tribilcock, 91 U. S. 45 ; Sanger v. Upton, 91 U. S. 56 ; and Webster v. Upton, 91 U. S. 65.) “ 138. Mackall v. Richards. No. 184. (Facts.) “ 139. Johansson v. Stephenson. No. 194. (Facts.) “ 140. Davies v. Slidell. No.") (Authority of Bige- 417. low n. Forrest, 9 “ 141. Huppenbaur v. Slidell. A Micou, 18 Wall. 156 ; and Wallach 142. Ames v. Slidell’s Heirs. v. Van Biswick, 92 Nos. 668 and 669. J U. S. 202.) 143. Morrill v. Wisconsin. No. 685. (Authority of Welton v. Missouri, 91 U. S. 275.) 144. Pittsburgh Locomotive & Car Works v. National Bank of Keokuk. No. 718. (Facts.) 145. Van Norden v. Washburn. No. 795. (Authority of Van Norden v. Benner, ante, clxi.) “ 146. Haynes v. Pickett. No. 837. (Authority of Bay v. Norseworthy, 23 Wall. 128.) 147. McCready v. Virginia. No. 992. (Authority of Same v. Same, 94 U. S. 391.) Oct. T. 1877. 148. First National Bank of Cincinnati v. Cook, No. 182. (Authority of Merchants' Bank v. Cook, 95 U. S. 342; and West Philadelphia Bank v. Dickson, 95 U. S. 180.) 149. Corry v. Campbell. No. 187. (Authority of Davidson v. New Orleans, 96 U. S. 97.) 150. Hutchinson v. The Northfield. No. 213. (Facts.) ccxxviii APPENDIX. Omitted Cases. Oct. T. 1877. 151. Clark v. Beecher. No. 214. (On one branch on the facts ; on the other on authority of Phipps v. Sedgwick, 95 U. S. 3 ; and Trust Co. v. Sedgwick, 97 U. S. 304.) 11 152. Strong v. United States. No. 537. (Facts.) “ 153. Goodenough Horse-Shoe Manufacturing Co. v. Rhode Island Horse-Shoe Co. No. 665. (Facts.) “ 154. United States y. Atchison, Topeka &c. Rail- road Co. No. 875. (Facts.) “ 155. Indianapolis & St. Louis Railroad Co. v. Vance. No. 897. (Authority of Railroad Co. v. Vance, 96 U. S. 450.) “ 156. Hagar v. California. No. 898. (Authority of Crowell v. Randall, 10 Pet. 367 ; and Edwards v. Elliott, 21 Wall. 532.) “ 157. Keogh v. Orient Fire Ins. Co. No. 917. (Facts.) “ 158. Northwestern Life Insurance Co. v. a Martin. No. 1009. f “ 159. Same v. Wellborn. No. 1008. ) (Authority of Thompson v. Butler, 95 U. S. 694.) Oct. T. 1878. 160. Wilson v. Goodrich. No. 100. (Authority of Claflin v. Houseman, 98 Ü. S. 130.) “ 161. Jaeger v. Moore. No. 232. (Facts.) “ 162. Burke v. Tregre. No. 253. (Facts.) “ 163. Leavenworth v. Kinney. No. 744. (Authority of Commissioners v. Sellew, 99 U. S. 624.) “ 164. Case v. Marchand. No. 804. (Facts.) “ 165. Faxon v. Russell. No. 846. (Authority of Arthur v. Davies, 96 U. S. 135.) “ 166. Betts v. Mugridge. No. 870. (Authority of Norris v. Jackson, 9 Wall. 125, and Insurance Co. n. Sea, 21 Wall. 158.) “ 167. Ingersoll v. Bowen. No. 949. (Authority of Wiswall v. Campbell, 93 U. S. 347.) “ 168. Dold v. United States. No. 955. (Facts.) “ 169. Williams v. United States. No. 1058. (Facts.) Oct. T. 1879. 170. North v. McDonald. No. 41. (Facts.) “ 171. Lammers v. Nissen. No. 72. (Facts.) APPENDIX. ccxxix Omitted Cases. Oct. T. 1879. 172. Woolfolk v. Nisbet. No. 73. (Facts.) “ 173. Follansbee v. Ballard Paving Co. No. 102. (Facts.) “ 174. Ponder v. Delauhey. No. 204. (Facts.) “ 175. Fountaine v. McNab. No. 205. (Facts.) “ 176. United States v. Williams. No. 216. (Facts.) “ 177. Grand Trunk Railway Co. v. Walker. No. 219. (Facts.) “ 178. Burr v. Myers. No. 223. (Facts.) “ 179. Dallas County v. Huidekoper. No. .224. ) “ 180. Same v. Davol. No. 226. J (Authority of Dallas County v. Huidekoper, below.) “ 181. Dallas County v. Huidekoper. No. 225. (Au- thority of Smith y. Clark County, 59 Missouri, 59 ; and Macon County v. Shores, 97 U. S. 272.) “ 182. Bank of the Republic v. Millard. No. 240. (Authority of Railroad Co. y. Grant, 98 U. S. 398.) “ 183. Gage v. Carraher. No. 243. (Authority of Removal Cases, 100 U. S. 457.) “ 184. Louisville (The) Gibson, Claimant v. Halliday. No. 278. (On point 1, authority of The Abbotsford, 98 U. S. 440; on point 2, authority of The Ductile, 19 Wall. 73 ; Montgomery v. Anderson, 21 How. 386; Yeaton v. United States, 5 Cranch, 281.) “ 185. Jouan v. Divoll. No. 485. (Facts.) “ 186. Woodfolk v. Seddons. No, 943.. (Facts.) “ 187. Gurnee v. Blair. No. 988. (Authority of Railroad Co. v. Blair, 100 U. S. 661.) “ 188. Sea v. Connecticut Mutual Life Insurance Co. No. 1066. (Authority of Carroll v. Dorsey, 20 How. 204.) “ 189. Cowdrey v. Vandenburgh. No. 1076. (Au- thority of Same v. Same, 101 U. S. 572.) Oct. T. 1880. 190. Groat v. O’Hare. No. 35. (Facts.) “ 191. Bank of Montreal v. White. No. 61. (Facts.) ccxxx APPENDIX. Omitted Cases. Oct. T. 1880» 192. White v. United States. No. 82. (On the 1st point on the facts ; on the 2d on the authority of Silliman v. United States, 101 U. S. 465.) “ 193. McLaughlin v. Fowler. No. 94. 1 “ 194. Same v. Thorpe. No. 95. ) (Authority of Newhall v. Sanger, 92 U. S. 761.) “ 195. Richmond Mining Co. v. Eureka Mining Co. Nos. 116, 117. (Authority of Same n. Same, 103 U. S. 839.) “ 196. Whitney v. First Nat. Bank of Brattleboro. No. 125. (Authority of National Bank n. Graham, 100 U. S. 699.) “ 197. Benton County v. Rollens. No. 147. (Au- thority of Scotland County v. Thomas, 94 U. S. 682, and Schuyler County v. Thomas, 98 U. S. 169.) “ 198. Seward v. Corneau. No. 240. (Facts. See Seward v. Comeau, 102 U. S. 161.) “ 199. Wight v. Condict. No. 280. (Facts.) “ 200. Frances. Missouri. No. 915. (Facts.) “ 201. Green v. Fisk. No. 965. (Authority of Green v. Fisk, 103 U. S. 518.) Oct. T. 1881. 202. Hearst v. Halligan. No. 6. (Facts.) . “ 203. Price v. Kelley. No. 13. (Facts.) “ 204. Roberts v. Bolles. No. 48. (Authority of Same v. Same, 101 U. S. 119.) “ 205. Glover v. Love. No; 62. (Facts.) “ 206. Levy v. Bangel. No. 72. (Authority of Rail- road Co. v. Heck, 102 U. S. 120.) “ 207. Continental Bank Note Co. v. United States. No. 216. (Facts.) “ 208. Bonnifield v. Price. No. 230. (Authority of Hecht v. Boughton, 105 U. S. 235.) “ 209. Mellon v. Delaware, Lackawanna and Western Railroad Co. No. 244. (Facts.) “ 210. United States v. Canda. No. 257. (Author- ity of United States v.. Roseriburgh, 7 Wall.’ 580; and United States v. Avery, 13 Wall. 251.) APPENDIX. ccxxxi Omitted Cases. Oct. T. 1881. èli. Upton v. Mason. No. 262. (Authority of Hecht v. Boughton, 105 U. S. 235.) “ 212. Upton v. Steele. No. 263. (Same authority.) “ 213. Ralls County Court v. United States ex rei. George. No. 278. (Authority of Ralls County Court v. United States, 105 U. S. 733.) “ 214. United States v. Barnett. No. 901. (Author- ity of United States v. Kaufman, 96 U. S. 567.) “ 215. Grame v. Mutual As-') Z,T ,. . • „ . . (Motion. Authority surance Society of - a. . r, f „ J , A of Sternes v. Frank- Virgima. No. 1049. > 7. ~ „ 216. Godding Same. No. «’“W, U Wall. 1050. J Oct. T. 1882. 217. Thompson v. Perrine. No. 75. (Authority of Same v. Same, 106 U. S. 589.) 218. Kahn v. Hamilton. No. 149. (Authority of Hecht v. Boughton, 105 U. S. 235.) “ 219. Badger v. Ranlett. No. 587. (Authority of Same v. Same, 106 U. S. 255.) 220. Chicago and Alton Railroad v. Wiggins Ferry Co. No. 839. (Authority of Same v. Same, 108 U. S. 18.) Oct. T. 1883. 221. Steever v. Rickman. No. 67. (Facts.) ccxxxii APPENDIX. TABLE OF THE SAME CASES, ALPHABETICALLY ARRANGED. Adelia (The) v. Jackson.......103 Allen v. Tarleton.............106 Ames v. Slidell...............142 Atherton v. Fowler............134 Badger v. Ranlett......... 219 Bagnall v. Wisconsin...........82 Bailey v. Work................125 Bank of Montreal v. White.....191 Bank of New Orleans v. Caldwell. 101 Bank of Republic v. Millard...182 Basse v. Brownsville..........118 Benton County v. Rollens.. ...197 Berreysea v. United States....136 Betts v. Mugridge.............166 Blake v. Fourth Nat. Bank.....126 Blake v. Park Bank............127 Bonnifield v. Price...........208 Brown v. Johnson..............277 Brugere V. Slidell............113 Burbank v. Bigelow............ 40 Burke v. Tregre...............162 Burlington &c. Railroad v. Mills County......................... 54 Burr v. Myers.................178 Cary v. Savings and Loan Society 121 Cary v. German Savings and Loan Soc...........................122 Case v. Marchand..............164 Charleston v. Jessup..........100 Chicago & Northwestern Railway Co. v. Fuller.............. .104 Chicago and Alton Railroad v. Wiggins Ferry Co..............220 Churchill v. Utica............ 25 Clark v. Beecher..............151 Clark v. Massachusetts........ 24 Coggeshall v. Hartshorne....... 5 Commercial Bank of Cleveland v. Iola.......................130 Conrad v. Hazlett.............88 Continental Bank Note Co. v. United States..............207 Corry v. Campbell............149 Cousin v. Generes.............83 Cowdrey«. Vandenburgh........189 Crary v. Devlin..............133 Dallas County v. Davol......180 Dallas County v. Huidekoper.179 Dallas County v. Huidekoper.181 Davidson v. Connelly..........93 Davidson v. King.............•• 50 Davidson v. McMahon..........•. 51 Davidson v. Starcher..........49 Davies v. Slidell............140 Diaz v. United States.........95 Dold v. United States........168 Dutton v. Palairet............43 Duvall v. United States...... 19 Eliza Hancox (The) v. Langdon. .131 Faxon v. Russell.............165 Finley«. Isett............... 42 First Nat. Bank of Cincinnati v. Cook..................... 148 Flanders v. Tweed.............68 Follansbee v. Ballard Paving Co.. 173 Fountaine v. McNab...........115 France v. Missouri...........200 Gage v. Garraher.............133 Gaines v. Lizardi.............34 Garnett v. United States..... 1® Germain «. Mason..............30 Glover v. Love...............205 Godbe v. Tootle............. ^3 APPENDIX. ccxxxiii Goddin v. Mutual Assurance Association of Va.................216 Goodenough Horse Shoe Mfg. Co. v. R.I. Horse Shoe Co......153 Grame v. Mutual Assurance Association of Va............... 215 Grand Trunk Railway v. Walker.. 177 Gray v. Coon.................. 92 Green v. Fisk.................201 Groat v. O’Hare...............190 Gurnee v. Blair.............;... 187 Hagar v. California...........156 Hammond v. Massachusetts.......22 Hardy v. Harbin...............114 Haynes v. Pickett...........,. 146 Hearst v. Halligan........... .202 Heath v. Slidell..............112 Herhold v. Upton..............137 Holmes v. Sevier.............. 85 Horback v. Brown............ .. 21 Horback v. Potter............. 20 Hudgins v. Kemp................ 6 Humbird v. Jackson County..... 99 Hunt v. Bender................ 36 Huppenbaur v. Slidell.........141 Hutchinson v. The Northfield...150 Indianapolis & St. Louis Railroad v. Vance......................155 Ingersoll v. Bowen............167 Jacoway v. Denton............. 86 Jaeger v. Moore...............161 Johansson v. Stephenson.......139 Jones v. Fritshle............. 94 Jouan v. Divol....•...........185 Kahn v. Hamilton..............218 Kennern. United States........105 Kenny v. Phila. &c. Railroad Co.. .128 Kenosha v. Lamson..............63 Keogh v. Orient Insurance Co...157 Lammers v. Nissen.............171 Lane v. United States.........124 Leavenworth v. Kinney.........163 Lee County v. Clews...........116 Levy v. Bangel................206 Long v. Patton................ 64 Loud, Ex parte...............184 Louisville (The) v. Halliday. 84 Mackall v. Richards..........138 McCollum v. Howard........... 70 McCready v. Virginia.........147 McLaughlin v. Fowler.........193 McLaughlin v. Thorpe.........194 McNeal v. Massachusetts.......23 Mahoney v. United States..... 16 Mead v. Pinyard..............135 Mellon v. Delaware, Lackawanna &c. Railroad................209 Merriam v. Haas.............. 14 Milwaukee & Minnesota Railroad, Ex parte................... 32 Milwaukee & Minnesota Railroad v. Soutter.................. 12 Milwaukee & Minnesota Railroad v. Soutter.................. 13 Mineral Point v. Lee......... 28 Mississippi v. Stanton....... 33 Morrill v. Wisconsin.........143 Moulder v. Forrest........... 52 Niagara (The) v. Van Pelt..... 4 North v. McDonald............170 Northern Belle v. Robson..... 62 North-Western Life Ins. Co. v. Martin.....................158 North-Western Life Ins.. Co. v. Wellborn...................159 North-Western Union Packet Co. v. Home Ins. Co............. 91 North-Western Union Packet Co. v. Viles....................115 Norton v. Jamison............ 97 Oulton v. California Ins. Co....123 Oulton v. San Francisco Savings Union......................... 98 Oulton v. Savings and Loan Society ........................120 Pargoud, Ex parte............. 53 Pittsburgh Locomotive Works v. Nat. Bank of Keokuk.........144 Plant v. Stovall. ............ 87 Ponder v. Delauney............174 Price v. Kelley...............203 Priest v. Folger..............109 ccxxxiv APPENDIX. Ralls County Court v. United States.......................213 Richardson v. Lawrence County.. 99 Richmond Mining Co. v. Eureka Co........................... 195 Riley v. Welles.............. 74 Roberts v. Bolles............204 Rogers v. Keokuk............. 17 Rogers Lee County............ 18 Rogers Locomotive Works v. Helm..........................119 St. John (The) v. Hasbrouck... 89 Schow v. Harriman............117 Sea v. Connecticut Mut. Life Ins. Co............................188 Seward v. Corneau............198 Smith v. Washington Gas Light Co.......................... 41 South Carolina ex rel. Robb v. Gurney...................... • 102 Southern Pa. Road v. Baltimore... 31 Steever v. Rickman...........221 Stevens v. Bellemarde........ 78 Stevens v. De Aubrie......... 77 Strong v. United States......152 Sturtevant v. Herndon........ 66 Supervisors v. Durant........ 60 Supervisors v. Durant........ 68 Thwing v. Folger.............110 Thompson v. Perrine..........217 Tillinghast v. Van Buskirk... 30 Tillinghast v. Van Buskirk... 39 Turner v. Ward............... 132 Underhill v. Herndon......... 65 Underhill v. Patton.......... 67 United States v. Atchison, Topeka &c. Railroad.............154 v. Bales of Cotton....... 37 v. Barrett...............214 v. Burlington............ 56 v. Burlington............ 57 v. Burton................ 46 v. Carrère................ 2 v. Canda.................210 v. Cook............... 35 v. De Haro............. 15 v. Geffroy............. 47 v. Grafton.............. 3 v. Halloch............. 10 v. Harrison............. 1 v. Higdon...............48 v. Hodson...............79 v. Kohn.................72 v. Mayrand............. 29 v. Morgan...............45 v. Mowry............... 44 v. Mynderse.............80 v. Olvera...............11 v. Osio................ 8 v. Pollard..............71 v. Six Lots (Hatch Claimant) 107 v. Stafford.............96 v. Stanton............. 73 v. Ten Lots (Conrad Claimant) ...................108 v. Williams.......•....176 Upton v. Mason..............211 Upton v. Steele.......... 212 Van Norden v. Washburn .....145 Van Slyke v. Wisconsin...... 81 Waples, Ex parte......... • • • 75 Washington County v. United States..................... 61 Watterson v. Payne........... 7 Weed v. Crane................59 White v. United States......192 Whitney v. First Nat. Bk. of Brattleborough ................196 Wight v. Condict........... 199 Willard v. Willard...........55 Williams v. Nolan............96 Williams v. United States...169 Williamson v. Moore......... 68 Wilson v. Goodrich..........160 Windsor v. McVeigh..........199 Woodfolk v. Seddons.........166 Woodman Pebbling Machine Co. v. Guild....................111 Woolfolk v. Nisbet..........172 APPENDIX. coxxxv TABLE OF CASES IN WHICH STATUTES OR ORDINANCES HAVE BEEN HELD TO BE REPUGNANT TO THE CONSTITUTION OR LAWS OF THE UNITED STATES, IN WHOLE OR IN PART, BY THE SUPREME COURT OF THE UNITED STATES FROM THE ORGANIZATION OF THE COURT TO THE END OF OCTOBER TERM, 1888. A. — Statutes of the United States. 1. Hayburn's Case, August T. 1792, 2 Dall. 409. Whether the act of March 23, 1792, 1 Stat. 243, conferring upon the United States courts jurisdiction to pass upon claims for pensions, was unconstitutional, was not decided by the court; but the judges were individually of that opinion, as appears by a note to the case reporting decisions in circuit made by every justice except Mr. Justice Johnson. See United States v. Todd, No. 2, post. 2. United States v. Yale Todd, February T. 1794, 13 How. 52, n. In this case the court held the act of March 23, 1792 (considered in Hayburn's Case, No. 1, ante), to be unconstitutional, as attempting to confer upon the court power which was not judicial. 3. Marbury v. Madison, February T. 1803, 1 Cranch, 137. The provision in the Judiciary Act of 1789, c. 20, § 13, 1 Stat. 80, 81, conferring upon the Supreme Court original jurisdiction to issue writs of mandamus directed to “ persons holding office,” is not warranted by the Constitution. 4. United States v. Ferreira, December T. 1851, 13 How. 40. The acts of March 3, 1823, 3 Stat. 768, c. 35; June 26, 1834, 6 Stat. 569, c. 87; and March 3, 1849, 9 Stat. 788, c. 181, confer upon the District Court powers which are not judicial, and they are therefore void. 5. Cordon v. United States, December T. 1864, 2 Wall. 561. Sections 5, 7, of the act of March 3, 1863, 12 Stat. 765, conferring jurisdiction of appeals from the Court of Claims, are void. No reasons are given. But see 117 U. S. 697 ; and United States v. Jones, 119 U. S. 477. 6. Ex parte Garland, December T. 1866, 4 Wall. 333. The act of January 24, 1865, c. 20, 13 Stat. 424, respecting the oath to be administered to attorneys and counsellors in courts of the United ccxxxvi APPENDIX. States, was ex post facto, and in the nature of a bill of pains and penalties. 7. Hepburn n. Griswold, December T. 1864, 8 Wall. 603. The legal tender act of February. 25, 1862, c. 33, 12 Stat. 345; the joint resolution of January 17, 1863, 12 Stat. 822 ; and the act of March 3, 1863, 12 Stat. 709, so far as they made the notes of the United States a legal tender for debts contracted before their respective enactments, were unconstitutional. This ruling was reversed in Knox n. Lee, 12 Wall. 457; Dooley v. Smith, 13 Wall. 604; Railroad Co. v. Johnson, 15 Wall. 195 ; Maryland v. Railroad Co., 22 Wall. 105 ; and The Legal Tender Case, 110 U. S. 421. 8. United States v. DeWitt, December T. 1869, 9 Wall. 41. Section 29, c. 169, act of March 2, 1867, 14 Stat. 484, so far as it applies to the offence described by it when committed within a State, is in excess of the powers conferred upon Congress. 9. The Justices v. Murray, December T. 1869, 9 Wall. 274. So much of § 5, c. 80, 12 Stat. 756, “ act relating to habeas corpus,” as provided for the removal of a judgment in a state court in which the cause was tried by a jury to a Circuit Court of the United States for retrial on the facts and law, is in conflict with the 7th Amendment to the Constitution, relating to the reexamination of facts tried by a jury. 10. Collector v. Day, December T. 1870, 11 Wall. 113. The income-tax laws of the United States, 13 Stat. 281, 479; 14 Stat. 137, 477, so far as they imposed a tax upon the salary of a judicial officer of a State, were unconstitutional. 11. United States v. Klein, December T. 1871, 13 Wall. 128. The proviso respecting pardons attached to the appropriation act of July 12, 1870, c. 251, 16 Stat. 235, were ex post facto, and in the nature of a bill of pains and penalties. 12. United States v. Railroad Co., December T. 1872, 17 Wall. 322. Section 122, Internal Revenue Act of 1864, 13 Stat. 284, taxing interest paid by railroads on their bonds is unconstitutional, in so far as it taxes the revenues of a municipal corporation in a State. 13. United States v. Reese, October T. 1875, 92 U. S. 214. e provisions of §§ 3 and 4 of the act of May 31, 1870, 16 Stat. c. 114, 140, 141, to enforce the rights of citizens of the United States to vote, are beyond the limit of the 15th Amendment of the Constitution. 14. United States v. Fox, October T. 1877, 95 U. S. 670. ev. Stat. § 5132, concerning goods obtained by a bankrupt under fa se APPENDIX. ccxxxvii pretences, so far as it relates to offences which are - subjects of state legislation, and are not within the jurisdiction of the United States, is in excess of the powers conferred upon Congress. 15. Trade-Mark Cases, October T. 1879, 100 U. S. 82. Sections 4 and 5 of the act of August 14, 1876, c. 274, 19 Stat. 141, and Rev. Stat. § 4937, relating to trade-marks, are void because they apply to a species of commerce which is not placed under the control of Congress. 16. Kilbourn v. Thompson, October T. 1880, 103 U. S. 168. The resolution of the House of Representatives, January 24, 1876, for an inquiry into the nature and business of a real estate pool in the District of Columbia which was in bankruptcy and indebted to the United States, related to a judicial subject, and conferred no power to compel a witness to testify. 17. United States v. Harris, October T. 1882, 106 U. S. 629. Rev. Stat. § 5519, relating to conspiracies to deprive persons of the equal protection of the laws, is a broader exercise of power to punish criminal offence than is warranted by the Constitution. 18. Civil Rights Cases, October T. 1883, 109 U. S. 3. Sections 1 and 2 of the act of March 1, 1875, c. 114, “ to protect all citizens in their civil and legal rights,” 18 Stat. 335, 336, are not authorized, either by the 13th or by the 14th Amendment to the Constitution. 19. Boyd v. United States, October T. 1885, 116 U. S. 616. Section 5 of c. 391, 18 Stat. 187, “to amend the customs-revenue laws, and to repeal moieties,” as applied to suits for penalties or to establish a forfeiture, is repugnant to the 4th and 5th Amendments to the Constitution. 20. Callan v. Wilson, October T. 1887, 127 U. S. 540. The Revised Statutes for the District of Columbia, § 1064, when applied to a person accused of a conspiracy to prevent one from pursuing a lawful avocation, deprives him of the right of trial by jury, and is repugnant to the Constitution. B« — Statutes of the States and Territories. Alabama. 1. Sinnot v. Davenport, December T. 1859, 22 How. 227. The act of February 15, 1854, to provide for the registration of the names of the owners of steamboats navigating the waters of the State, is in conflict with the provisions of the act of February 18, 1793, 1 Stat. 305. $ 2. Affirmed in Foster v. Davenport, December T. 1859, 22 How. ccxxxviii APPENDIX. 3. Howard v. Bugbee, December T. 1860, 24 How. 461. The act of January, 1842, authorizing redemption from mortgage sales by judgment creditors of the mortgagor, so far as it affects mortgages made before its enactment, impairs the obligations of the contracts, and is unconstitutional. 4. The Belfast, December T. 1868, 7 Wall. 624. The Alabama Code, §§ 2692, 2708, and the statute of October 7, 1864, concerning maritime liens, are in conflict with § 9 of the Judiciary Act of 1789, 1 Stat. 76. 5. State Tonnage Tax Cases, December T. 1870, 12 Wall. 204. Section 2, pl. 12, of the act of February 22, 1866, imposing a tax per ton on vessels owned within the State, conflicts with the provision of the Constitution that no State shall, without the consent of Congress, lay any duty on tonnage. 6. Morgan v. Parham, December T. 1872, 16 Wall. 471. The laws of Alabama taxing vessels temporarily in the State are in conflict with the commerce clause of the Constitution. 7. Horn v. Lockhart, October T. 1873, 17 Wall. 570. The acts of November 9, 1861, and November 23, 1863, authorizing executors to invest in Confederate bonds, were unconstitutional. 8. Leloup v. Port of Mobile, October T. 1887,' 127 U. S. 640. An ordinance of the Port of Mobile, 1883, imposing license taxes for that year, when applied to a telegraph company engaged in interstate commerce, is in conflict with the commerce clause of the Constitution. Arizona. ♦ None. Arkansas. 1. Woodruff n . Tapnail, December T. 1850, 10 How. 190. The act of January 10, 1845, requiring taxes to be paid in “par funds, so far as it applied to notes of the Bank of the State of Arkansas issued prior to that date, impairs the obligation of the contract in its charter that the notes of the bank shall be received for debts due the State. 2. Curran n. Arkansas, December T. 1853,15 How. 304. Statutes enacted in 1843, 1845, 1846 and 1849, withdrawing the assets of the Bank of the State from creditors when it was insolvent, impaired its contracts with its creditors. 3. MqGee v. Mathis, December T. 1866, 4 Wall. 143. The acts of January 11, 1855, and January 13, 1857, authorizing the taxa tion of swamp lands, known as the “Levee Act,” impaired the APPENDIX. ccxxxix obligation of the contract with holders of state scrip, redeemable in these lands, that they should be exempt from taxation. '4. Osborn n. Nicholson, December T. 1871, 13 Wall. 654. The provision in the constitution of Arkansas of 1868, annulling contracts for the purchase of slaves, so far as it operated on preexisting contracts, impaired the obligation of those contracts. California. 1. Hays n. Pacific Mail Steamship Co., December T. 1854, 17 How. 596. Taxing laws imposing taxes on vessels owned and registered in New York, employed in commerce between New York and California, conflict with the act of December 31, 1792, § 3, 1 Stat. 287, “concerning the registering and recording of ships.” 2. Almy v. California, December T. 1860, 24 How. 169. The act imposing a stamp duty on bills of lading of gold and silver is a tax on exports and as such is unconstitutional. 3. Lown. Austin, December T. 1871, 13 Wall. 29. California taxing laws of 1868, when enforced against imported goods in original packages, conflict with Art. 1, Sec. 10, of the Constitution. 4. Chy Lung v. Freeman, October T. 1875, 92 U. S. 275. The Political Code of California and the statutes of 1873, 1874, requiring bonds from passengers coming into the State, conflict with the commerce clause of the Constitution. 5. Yick Wb v. Hopkins, October T. 1885, 118 U. S. 356. The municipal ordinances of San Francisco of 1880, respecting laundries, which conferred power to make unjust discriminations, founded on difference of race, conflict with the 14th Amendment. 6. California v. Central Pacific Pailroad Co., October T. 1887, 127 U. S. 1. General taxing laws, so far as they attempt to reach franchises conferred upon railroad corporations by the United States, conflict with the interstate commerce clause of the Constitution. Colorado. None. Connecticut. None. Dakota. None. Delaware. Neal v. Delaware, October T. 1880, 103 U. S. 370. The provision in the Constitution limiting the right of suffrage to the white race, conflicts with the 15th Amendment to the Constitution. ccxl APPENDIX. District of Columbia. Stouteriburgh n. Hennick, October T. 1888, 129 U. S. 141. Clause 3 of § 21 of the District Act of June 20, 1872, requiring commercial agents selling by sample to take out a license, is a regulation of interstate commerce,- when applied to agents soliciting purchases on behalf of principals outside of the District. Florida. Pensacola Telegraph, Co. v. Western Union Telegraph Co., October T. 1877, 96 U. S. 1. The act of December 11, 1866, granting exclusive privileges to the Pensacola Telegraph Co., is in conflict with the act of July 24, 1866, 14 Stat. 221, c. 230, “ to aid in the construction of telegraph lines.” Rev. Stat. §§ 5263-5268. Georgia. 1. Fletcher v. Peck, February T. 1810, 6 Cranch, 87. The act of February 13, 1796, declaring void the act of January 7, 1795, which made a grant of public land, impairs the obligation of the contract of the State in making the grant. 2. Worcester v. Georgia, January T. 1832, 6 Pet. 515. The , acts of December 19, 1829, (extending the laws of Georgia over the Cherokee country,) and of December 22, 1830, “to prevent the exercise of assumed and arbitrary power by all persons under pretext of authority from the Cherokee Indians,” conflicts with treaties with those Indians and statutes passed to give them effect. 3. White v. Hart, December T. 1871, 13 Wall. 646. The provision in the Constitution of 1868, concerning enforcement of debts contracted for the purchase of slaves, so far as it applies to prior contracts, impairs their obligation. 4. Gunn v. Barry, December T. 1872, 15 Wall. 610. The provision in the Constitution of 1868, exempting property from execution, so far as it affects judgments obtained before the passage of the act, impairs the obligation of the judgment contract. 5. Walker v. Whitehead, December T. 1872, 16 Wall. 314. The act of October 13, 1870, imposing conditions upon obtaining a judgment, so far as it affected prior contracts, impaired their obligation. 6. Central Railroad Banking Co. v. Georgia, October T. 1875, 92 U. S. 665. The tax-law of February 26, 1874, conflicts with the obligation of the contract in the charter of the companies consolidated into the plaintiff corporation. 7. Southwestern Railroad Co. v. Georgia, October T. 1875, 92 U. S. 676. Affirming Central Railroad Banking Co. v. Georgia,r ante, No. 6. APPENDIX. ccxli 8. Savannah v. Jesup, October T. 1882, 106 U. S. 563. The ordinance of the city of Savannah taxing the property of the Atlantic and Gulf Railroad Co. in excess of the limit fixed by their charter, impairs the obligation of that contract. 9. Spraigue v. Thompson, October T. 1885, 118 U. S. 90. Section 1512 of the Code, respecting pilots, conflicts with Rev. Stat. § 4237. Idaho. None. Illinois. 1. Bronson n. Kinzie, January T. 1843, 1 How. 311. The acts of February 19 and February 27, 1841, concerning sales under execution and under decrees of foreclosure, and concerning redemptions from such sales, so far as applied to prior mortgages, impaired the obligation of the contracts with the mortgage creditors contained in them. 2. McCracken v. Hayward, January T. 1844, 2 How. 608. The act of February 27, 1841, concerning sales under execution, impaired the obligation of prior judgment contracts. 3. Bradley v. People, December T. 1866, 4 Wall. 459. Applying Van Allen n. Assessors, 3 Wall. 573, (No. 8, New York, infra,) to the taxing laws of Illinois. 4. Von. Hoffman v. Quincy, December T. 1866, 4 Wall. 535. The act of February 14, 1863, affecting the provisions of law concerning taxation in the city of Quincy which were in force when the legislature authorized the issue of the bonds in suit, and also * when they were issued, impaired the obligation of the contract with the holders of the city’s bonds. 5. University n. People, October T. 1878, 99 U. S. 309. The revenue law of Illinois of 1872, so far as it was attempted to be applied to the Northwestern University, impaired the obligation of its charter contract for the exemption of its property from taxation. 6. Wabash, St. Louis & Pacific Railway Co. v. Illinois, October T. 1886,118 U. S. 557. The provision in c. 114, § 126, Rev. Stats. Ill., against discriminations by railways in the transportation of passengers or freight in interstate commerce, infringes upon the powers confided to Congress by the Constitution. Indiana. 1. Gantley’s Lessee v. Ewing, January T. 1845, 3 How. 707. The act of February 13, 1841, imposing restrictions on mortgage 16 ccxlii APPENDIX. sales, thereby impairing the obligation of the mortgage contracts, is unconstitutional. Bronson v. Kinzie, (No. 1, Illinois, supra,) affirmed and applied to this statute. 2. Evansville Bank v. Britton, October T. 1881, 105 U. S. 322, Hills v. Exchange Bank, 105 U. S. 319, (No. 16, New York, post,) and Supervisors v. Stanley, 105 U. S. 305, (No. 15, New York, post,) affirmed and applied to the tax laws of Indiana. 3. Western Union Telegraph Co. v. Pendleton, October T. 1886, 122 U. S. 347. Sections 417fi, 4178, Rev. Stats. Ind. 1881, concerning the delivery of telegrams, so far as they relate to such deliveries in other States, are a regulation of interstate commerce. Iowa. 1. Webster v. Reid, December T. 1850, 11 How. 437. The Territorial Act of June 25, 1839, providing that the trial of certain land suits should “be before the court, and not a jury” is in conflict with the 7th Amendment to the Constitution. 2. Barron n. Burnside, October T. 1886, 121 U. S. 186. The act of April 6, 1886, c. 76, Laws of 21st Gen. Assembly, so far as it makes the right of a foreign corporation to do business within the State dependent upon its surrender of a right secured to it by the Constitution and laws of the United States, is unconstitutional. 3. Bowman v. Chicago & Northwestern Railway Co., October T. 1887, 125 U. S. 465. Section 1553 of the Code, as amended by c. 143, Acts of 20th Gen. Assembly, 1886, forbidding common carriers to bring intoxicating liquors into the State except in certain specified cases, is a regulation of commerce, in conflict with the commerce clause of the Constitution. Kansas. 1. The Kansas Indians, December T. 1866, 5 Wall. 737. The Kansas tax laws, so far as they impose taxes on lands belonging to certain tribes of Indians, conflict with treaties and laws of the United States, and with their general policy towards the Indians. 2. Railway Company v. Prescott, December T. 1872, 16 Wall. 603. Kansas tax laws, when applied to lands to which the Kansas Pacific Railway has a contingent right of preemption, conflict with the laws of the. United States. But see Railway Co. v. McShane, 22 Wall. 445 ; and Hunnewell v. Cass County, 22 Wall. 464, ovei-ruling this. 3. Loan Association v. Topeka, October T. 1874, 20 Wall. 655. The act of February 29, 1872, authorizing municipal corporations to issue bonds in support of private enterprises, is unconstitutional. APPENDIX. ccxliii Kentucky. 1. Green v. Biddle, February T. 1823, 8 Wheat. 1. The act of February 27, 1797, and the substituted act of January 31, 1812, respecting occupying claimants of land, impaired the obligation of the compact between Virginia and Kentucky. 2. Bush v. Kentucky, October T. 1882, 107 U. S. 110. The General Statutes of Kentucky of 1873, in force in May, 1880, excluding colored citizens from juries, conflict with the 15th Amendment to the Constitution. 3. Louisville Gas Co. v. Citizens’ Gas Co., October T. 1885, 115 U. S. 683. The act of March 21, 1872, incorporating the Citizens’ Gas Light Company, and authorizing it to lay pipes and furnish gas in Louisville, impairs the obligation of the contract in the charter of the Louisville Gas Company. Louisiana. 1. McMillan v. McNeill, February T. 1819, 4 Wheat. 209. The insolvent law of March 25, 1808, so far as it attempted to discharge the contract sued on, impaired its obligation, and was unconstitutional. 2. Steamship Co. n. Portwardens, December T. 1867, 6 Wall. 31. The act of March 15, 1855, concerning the fees of portwardens, is a regulation of commerce. 3. White v. Cannon, December T. 1867, 6 Wall. 443. The ordinance of secession of Louisiana, passed January 26, 1861, was a nullity. 4. Cannon n. New Orleans, October T. 1874, 20 Wall. 577. The New Orleans ordinance of 1852, imposing a topnage tax from January 1, 1853, for levee dues, conflicts with the provision in the Constitution that no State shall, without the consent of Congress, lay any duty of tonnage. 5. Commissioners v. North German Lloyd, October T. 1875, 92 U. S. 259. The law imposing taxes on immigrants is a regulation of commerce. ’ 6. Board of Liquidation n. McComb, October T. 1875, 92 U. S. 531. The act of March 2, 1875, authorizing bonds issued under the Funding Act of 1874 to be delivered to the Louisiana Levee Company, impairs the obligation of the contract made with holders of consolidated bonds. 7. Foster v. Master and Wardens of the Port of New Orleans, October T. 1876, 94 U. S. 246. The act of March 6, 1869, con- ccxliv APPENDIX. cerning the survey of vessels by masters and portwardens, is a regulation of commerce. 8. Hall v. DeCuir, October T. 1877, 95 U. S. 485. The act of February 23, 1869, to enforce the 13th Article of the state constitution, and to regulate the licenses therein mentioned, is a regulation of interstate commerce. 9. Wolff v. New Orleans, October T. 1880, 103 U. S. 358. The act of March 6, 1876, adjusting the debt and limiting taxation in New Orleans, so far as it applies to debts contracted before its passage, impairs the obligation of those contracts. 10. Louisiana v'. Pilsbury, October T. 1881, 105 U. S. 278. The act of March 6, 1876, limiting taxation so far as it relates to the consolidated debt, impairs the obligation of that contract. 11. Asylum v. New Orleans, October T. 1881, 105 U. S. 362. The general taxing laws for New Orleans when applied to the property of the asylum, impair the obligation of the contract in its charter to exempt it from taxation. 12Ì Louisiana v. Jumel, October T. 1882, 1Q7 U. S. 711. The Constitution of 1879, so far as it impairs the obligation of the contract made by the State by the act of 1874, No. 3, is unconstitutional. ” 13. Nelson v. St. Martin’s Parish, October T. 1883, 111 U. S. 716. The act, No. 56, April 10, 1877, of the extra session, repealing Rev. Stat. La. §§ 2628, 2630, so far as it affected prior judgments, impairs their obligation. 14. Moran v. New Orleans, October T. 1884, 112 U. S. 69. The license ordinance of New Orleans of 1880, so far as it imposed a license tax upon persons owning and running towboats to and from, the Gulf of Mexico, was a regulation of commerce. 15. New Orleans Gas Light Co. v. Louisiana Light Co., October T. 1885, 115 U. S. 650. The New Orleans ordinance of January 25, 1881, authorizing the Louisiana Light and Heat Producing and Manufacturing Company to supply New Orleans with gas, impaired the obligation of the contract made with the New Orleans Gas Company in the amendments to its charter. 16. New Orleans Water Works Co. v. Rivers, October T. 1885, 115 U. S. 674. The New Orleans ordinance of November 15,1882, granting to Rivers the right to lay water pipes through the streets to the Mississippi, and to take water therefrom for use in the St. Charles Hotel, impaired the obligation of the contract contained in the charter of the New Orleans Water Works Company. 17. Fisk v. Jefferson Police Jury, October T. 1885, 116 U. S. APPENDIX. ccxlv 131. The Louisiana constitution of 1880, so far as it impaired the obligation of the contract with Fisk for his salary, made under authority derived from § 7 of the act of 1871 (Acts of 1871, 109), was to that extent unconstitutional. 18. New Orleans v. Houston, October T. 1886, 119 U. S. 265. The act of 1880, No. 77, so far as it imposes a tax upon the capital stock of the Louisiana State Lottery Company, impairs the obligation of the contract in its charter. 19. St. Tammany Water Works v. New Orleans Water Works, October T. 1886, 120 U. S. 64. Affirming New Orleans Water Works v. Rivers, No. 16, ante. Maine. Hawthorne v. Calef, December T. 1864, 2 Wall. 10. The act repealing the clause in the act of April 1, 1836, making shareholders in a corporation individually liable for the debts of the company, so far as concerns debts before its passage, impaired the obligation of their contracts. Maryland. 1. McCulloch v. Maryland, February T. 1819, 4 Wheat. 316. The bank-tax act of February 11, 1818, so far as it applies to the Bank of the United States, taxes the means employed by Congress to carry into execution the powers entrusted to it, and is unconstitutional. 2. Brown v. Maryland, January T. 1827, 12 Wheat. 419. Section 2 of the act of December, 1821, c. 246, entitled “ An act supplementary to the act laying duties on licenses to retailers of dry goods, and for other purposes,” is repugnant to the clause in the Constitution giving Congress the power to impose duties ; and also to the commerce clause. 3. Boyle v. Zacharie, January T. 1832, 6 Pet. 348. Applying Ogden v. Saunders, 12 Wheat. 213, (see New York, No. 3, post,) to the insolvent laws of Maryland. 4. Gordon v. Appeal Tax Court, January T. 1845, 3. How. 133. The act of April 1, 1841, c. 23, imposing a tax upon holders of stock in banks, so far as it applied to stockholders in banks organized under the act of 1821, impaired the obligation of the contract in their charters. 5. Cook v. Moffat, January T. 1847, 5 How. 295. Insolvent laws of Maryland, so far as they affect debts due to citizens of other States, are unconstitutional. See Ogden v. Saunders, No. 3, New York, post. ccxlvi APPENDIX. 6. Achison v. Huddleson, December T. 1851, 12 How. 293. The act of March 10, 1843, c. 282, imposing tolls for passing over the Cumberland road, is inconsistent with the compact between Maryland and the United States. 7. Ward v. Maryland, December T. 1870, 12 Wall. 418. The Code of Public Law, Art. 56, Title License, so far as it discriminates against non-resident traders, is repugnant to Art. 4, § 20, of the Constitution. Mr. Justice Bradley also thought it repugnant to the commerce clause. 8. Guy v. Baltimore, October T. 1879, 100 U. S. 434. Ordinances of Baltimore, imposing on vessels laden with products of other States taxes not imposed upon vessels laden with products of Maryland, conflict with the commerce clause of the Constitution. 9. Corson v. Maryland, October T. 1886, 120 U. S. 502. Art. 12, §§ 41-56, of the Code relating to licenses to salesmen, as applied to a citizen of New York offering in Maryland to sell his goods in New York by sample, is in conflict with the commerce clause of the Constitution. Massachusetts. 1. Norris v. Boston, January T. 1849, 7 How. 283. The act of April 20, 1837, c. 238, imposing a tax upon alien passengers, is a regulation of commerce. 2. Western Union Telegraph Co. v. Massachusetts, October T. 1887, 125 U. S. 530. Pub. Stats. Mass. c. 13, § 54, so far as it assumes to' confer power to restrain a telegraph company which has accepted the provisions of Rev. Stat. § 5263, is in conflict with that act. Michigan. 1. Walling v. Michigan, October T. 1885, 116 U. S. 446. Act, No. 226, of the Session Laws of 1875, imposing a tax upon the business of selling intoxicating liquors in Michigan to be shipped from without the State, so far as it discriminates against manufacturers in other States, is a regulation of commerce, and conflicts with the commerce clause of the Constitution. 2. Fargo v. Michigan, October T. 1886, 121 U. S. 230. The act of June 5, 1883, No. 152, taxing the gross, receipts of companies and corporations engaged in interstate commerce, is a regu lation of commerce and conflicts with the commerce clause of the Constitution. APPENDIX. ccxlvii Minnesota. Irvine v. Marshall, December T. 1857, 20 How. 558. The territorial statutes of Minnesota, concerning resulting trusts, in so far as they assumed to affect the disposition of public land by the Federal government, were in excess of the power conferred upon the legislature by Congress. Mississippi. Planters' Bank v. Sharp, January T. 1848, 6 How. 301. Section 7 of the act of February 21, 1840, c. 1, making it unlawful for banks to transfer evidences of debt, so far as it applied to the Planters’ Bank, impaired the obligation of the contract in its charter. Missouri. 1. Craig v. Missouri, January T. 1830, 4 Pet. 410. The act of June 27, 1821, c. 1, “for the establishment of loan offices,” authorized the issue of bills of credit by the State, and was repugnant to Art. 1, § 10, paragraph 1 of the Constitution. 2. Affirmed in Byrne v. Missouri, January T. 1834, 8 Pet. 40. 3. Bagnell v. Broderick, January T. 1839, 13 Pet. 436. Missouri statutes of 1825 and 1835, relating to the effect of a New Madrid location as evidence in an action of ejectment, are void so far as they affect the force of a patent of the United States as evidence. 4. Cummings v. Missouri, December T. 1866, 4 Wall. 277. Sections 3, 6, 7, 9 and 14 of Art. 2 of the Constitution of 1865, are ex post facto, and in the nature of bills of attainder and repugnant to the Constitution. 5. Home of the Friendless v. Rouse, December T. 1869,“ 8 Wall. 430. The general taxing law of Missouri of 1865, as applied to the property of the Home, impairs the obligation of the contract in its charter. 6. Affirmed in Washington University v. Rouse, December T. 1869, 8 Wall. 439, as to that institution. 7. St. Louis n. Ferry Co., December T. 1870, 11 Wall. 423. The St. Louis ordinance taxing ferry-boats owned by an Illinois corporation, having their home in that State, but plying between its shores and St. Louis, is void. 8. Pacific Railroad Co. v. Maguire, October T. 1873, 20 Wall. 36. The Railroad ordinance of the state constitution of July 4, 1865, when applied to the Pacific Railroad Company, impairs the obligation of the contract in its charter. 9. Welton v. Missouri, October T. 1875, 91 U. S. 275. The ccxlviii APPENDIX. act forbidding persons to peddle goods, wares or merchandise not the product of the State, Gen. Stats. Missouri 1866, c. 96, § 1, is a regulation of commerce. 10. Railroad Co. v. Husen, October T. 1877, 95 U. S. 465. The act of January 23, 1872, regulating the bringing of Texas, Mexican or Indian cattle into the State is a regulation of commerce. 11. Kring v. Missouri, October T. 1882, 107 U. S. 221. A provision in the Missouri constitution of 1875, changing the criminal law of the State, is ex post facto and void, so far as it affects the accused in this case, the crime complained of being committed before its adoption. 12. Cole v. La Grange, October T. 1884, 113 U. S. 1. The act of March 9, 1871, authorizing the issue of municipal bonds in aid of a manufacturing corporation, is in excess of the grant of legislative power by the state constitution. 13. Seibert v. Lewis, October T. 1886, 122 U. S. 284. The act of March 8, 1879, Rev. Stats. Mo. §§ 6798, 6799, 6800, repealing the tax law of March 10, 1871, so far as it applies to preexisting debts, impairs the obligation of their contracts. 14. Affirmed in Seibert v. United States, ex rel. Harshman, October T. 1888, 129 U. S. 192. Montana. Dunphy v. Kleinsmith, December T. 1870, 11 Wall. 610. The statutes of 1867, 1869, abolishing the distinction between equitable and legal remedies, is in excess of the power conferred upon the legislature. Reconsidered in Hornbuckle n. Toombs, 18 Wall. 648. Nebraska. None. Nevada. Crandall v. Nevada, December T. 1867, 6 Wall. 35. Section 90 of c. 85 of the acts of 1865, imposing on passengers leaving the State by stage coaeh and railroad a per capita tax, is an exercise of the taxing power upon the right to travel from State to State, and as such is unconstitutional. The Chief Justice and Mr. Justice Clifford held it to be a regulation of commerce. New Hampshire. Trustees of Dartmouth College y. Woodward, February T. 1819, 4 Wheat. 518. The act of June 27, 1816, “ to amend the charter and enlarge and improve the corporation of Dartmouth College, impairs the obligation of the contract in the charter of the college. APPENDIX. ccxlix New Jersey. 1. New Jersey x. Wilson, February T. 1812, 7 Crunch, 164. The act of October, 1804, repealing the act of August 12, 1758, which exempted certain Indian lands from taxation, impairs the obligation of the contract of 1758. 2. New Jersey v. Yard, October T. 1877, 95 U. S. 104. The taxing act of April 2, 1873, when applied to the Morris and Essex Railroad, impairs the obligation of the contract in its charter. New Mexico. None. New York. 1. Sturges v. Crowninshield, February T. 1819, 4 Wheat. 122. The insolvent act of April 3, 1811, so far as it attempts to discharge the defendant from the debt in the declaration mentioned, is a law impairing the obligation of contracts. But see Ogden v. Saunders, No. 3, post, and cases there referred to. 2. Gibbons v. Ogden, February T. 1824, 9 Wheat. 1. The acts of March 27, 1798, April 5, 1803, April 11, 1808, and April 9, 1811, conferring upon Livingston and Fulton the sole and exclusive right of navigating, with vessels impelled by steam, the creeks, rivers, bays and waters within the jurisdiction of New York, are regulations of commerce. 3. Ogden v. Saunders, January T. 1827, 12 Wheat. 213. The insolvent laws of New York of April 3, 1801, April 3, 1811, and April 12, 1813, discharging an insolvent from his debts, when applied to debts due to citizens of other States are unconstitutional. Affirmed in Boyle v. Zacharie, 6 Pet. 348 ; Cook v. Moffat, 5 How. 295. See Maryland, ante, Nos. 3 and 5. 4. Smith v. Turner, (The Passenger Cases,) January T. 1849, 7 How. 283. The provision in Rev. Stat. N. Y., part 1, c. 14, tit. 4, § 7, concerning immigrants, imposing a fee for the health commissioner, is a regulation of commerce. 5. Bank of Commerce v. New York City, December T. 1862, 2 Black, 620. The taxing laws of the State, so far as they impose a tax upon the capital of a bank invested in securities of the United States, are an unconstitutional exercise of the taxing power. 6. Bank Tax Case, December T. 1864, 2 Wall. 200. The New York statute of April 29, 1863, c. 240, in so far as it taxes stocks of the Federal government, is an unconstitutional exercise of the cel APPENDIX. taxing power. Affirming Bank of Commerce v. New York City, 2 Black, 620. 7. The Binghamton Bridge, December T. 1865, 3 Wall. 51. The act of April 5, 1855, c. 164, authorizing the Binghamton Bridge Company to construct a bridge within the limits covered by the charter of the Chenango Bridge Company, impairs the obligation of the contract in that charter. 8. Van Allen v. The Assessors, December T. 1865, 3 Wall. 573. The New York act of March 9, 1865, c. 97, § 10, taxing shares in national banks, so far as it authorizes a greater tax than is imposed upon shares in state banks, is in conflict with the provisions of the act of June 3, 1864, c. 106, § 41, 13 Stat. 111. 9. New York Indians, December T. 1866, 5 Wall. 761. The New York tax laws, so far as they impose taxes on certain tribes of Indians, conflict with a treaty. 10. The Banks v. The Mayor, December T. 1868, 7 Wall. 16. New York laws taxing certificates of indebtedness of the Federal government are beyond the taxing power of that State. 11. Affirmed in Bank v. Supervisors, December T, 1868, 7 Wall. 26, and applied to notes issued as money. 12. Henderson v. New York, October T. 1875, 92 U. S. 259. The act of April 11, 1849, c. 350, imposing severe conditions upon the landing of immigrants, is a regulation of commerce. 13. Inman Steamship Co. v. Tinker, October T. 1876, 94 U. S. 238. The immigrant act of May 22, 1862, c. 487, as amended April 27, 1865, c. 586, imposing a tonnage tax, imposes a tonnage duty in violation of Art. 1, § 10, par. 3, of the Constitution. 14. People v. Weaver, October T. 1879, 100 U. S. 539. The taxing laws of New York tax shares in national banks at a higher rate than other moneyed capital, and are in conflict with Rev. Stat. § 5219. 15. Supervisors v. Stanley, October T. 1881, 105 U. S. 305. The act of April 23, 1866, c. 761, for the taxation of banks, conflicts with Rev. Stat. § 5219, in so far as it allows taxation of national banks in excess of state banks. 16. Hills v. Exchange Bank, October T. 1881, 105 U. S. 319, affirming Supervisors v. Stanley, No. 15, ante. 17. People v. Compagnie Générale Transatlantique, October T. 1882, 107 U. S. 59. The alien passenger act of May 31, 1881, c. 432, is a regulation of commerce. APPENDIX. ccli North Carolina. 1. Wilmington Railroad v. Reid, December T. 1871, 13 Wall. 264. The general tax laws of North Carolina, as applied to a railroad whose property and franchises are exempt from taxation by its charter, impairs the obligation of the contract in the charter. 2. Edwards v. Kearzey, October T. 1877, 96 U. S. 595. The provision in the Constitution of 1868, exempting property of a debtor from levy, when applied to contracts made prior to its adoption impairs their obligation. Ohio. 1. Osborn v. Bank of the United States, February T. 1824, 9 Wheat. 738. The Ohio tax act of February 8, 1819, c. 83, so far as attempted to be applied to the Bank of the United States, taxes an agent of the United States necessary and proper for carrying into effect the powers vested in the government of the United States, and exceeds the taxing power of the State. 2. Neil v. Ohio, January T. 1845, 3 How. 720. The acts of 1831, of February 6, 1837, and of March 19, 1838, imposing tolls for transportation over the Cumberland road, impair the obligation of the contract between the United States and the State. 3. State Bank of Ohio v. Knoop, December T. 1853, 16 How. 369. The act of March 21, 1851, taxing the bank, impairs the obligation of the contract in its charter. Followed, as to the act of April 13, 1852, (4) in Dodge v. Woolsey, 18 How. 331; (5) in Mechanics and Traders’ Bank v. Debolt, 18 How. 380; and (6) in Jefferson Branch Bank v. Skelly, 1 Black, 436 ; (7) as to the act of April 15, 1853, in Franklin Branch Bank v. State of Ohio, 1 Black, 474; and (8) as to the act of April 5, 1859, in Wright v. Sill, 2 Black, 544. 9. Pelton v. National Bank, October T. 1879, 101 U. S. 143. The act of April 12, 1877, Vol. 74, p. 88, “ for the equalization of bank shares for taxation conflicts with Rev. Stat. § 5219. 10. Whitbeck v. Mercantile Bank, October T. 1887, 127 U. S. 193. The Revised Statutes of Ohio, §§ 2804, 2808, 2809, impose an unequal tax on shares of national banks, and are in conflict with Rev. Stat. § 5219. 11. Ratterman v. Western Union Telegraph Co., October T. 1887, 127 U. S. 411. The taxing laws of the State, as applied to interstate telegraphic messages, conveyed by a company which has accepted the benefit of the act of July 24, 1866, 14 Stat. 221, c. 230 (Rev. Stat. §§ 5266, 5267, 5268), conflict with those acts. cclii APPENDIX. Oregon. None. Pennsylvania. 1. United States v. Peters, February T. 1809, 5 Cranch, 115. The Pennsylvania act of April 2, 1803, c. 2379, requiring the executors of David Rittenhouse to pay into the state treasury the funds arising from the sale of the Active and her cargo, is an unconstitutional attempt to resist the lawful process of a court of the United States. 2. Farmers and Mechanics’ Bank v. Smith, February T. 1821, 6 Wheat. 131. The insolvent act of March 13, 1812, c. 3486, so far as it attempted to discharge the contract, impaired its obligation. See Ogden v. Saunders, No. 3, New York, ante. 3. Dobbins v. Erie County, January T. 1842, 16 Pet. 435. The act of April 15, 1834, No. 232, imposing a tax upon salaries of officers of the United States, conflicts with the execution of powers delegated to the United States. 4. Prigg n. Pennsylvania, January T. 1842, 16 Pet. 539. The statutes on which the indictment was found are repugnant to the provisions of the Constitution respecting the surrender of fugitive slaves. 5. Searight v. Stokes, January T. 1845, 3 How. 151. The act of June 13, 1836, No. 69, relating to tolls on the Cumberland road, impairs the obligation of the contract between the State and the United States. 6. Railroad Company v. Jackson, December T. 1868, 7 Wall. 262. The Pennsylvania acts requiring a railroad company, in paying interest on bonds secured by mortgage of its whole road, part of which is in another State, to withhold a tax upon the capital of the bond imposed by the State, operate upon property and interests beyond its jurisdiction, and are in excess of its taxing power. 7. State Freight Tax, December T. 1872, 15 Wall. 232. The act of August 25, 1864, No. 870, taxing freight transported in the State, sb far as it affects interstate commerce, is a regulation of commerce. 8. State Tax on Foreign-Held Bonds, December T. 1872, 15 Wall. 300. The tax law of May 1, 1868, No. 69, taxing the bonded debt of corporations of the State, so far as it affects holders of railroad bonds without the State, is in excess of the taxing power of the State. 9. Cook v. Pennsylvania, October T. 1878, 97 U. S. 566. The act of May 20, 1853, No. 380, § 18, (modified by the act of April APPENDIX. ccliii 29, 1859, No. 426,) taxing auction sales, when applied to sales of imported goods in the original packages, lays a duty upon imports and is a regulation of commerce. 10. Boyer n. Boyer, October T. 1884, 113 U. S. 689. The provisions of the law of March 31, 1870, No. 22, as to local' taxation, were held, on the case presented by the demurrer, to impose, an unequal tax upon national banks, and thus to conflict with Rev. Stat. § 5219. 11. Gloucester Ferry Co. v. Pennsylvania, October T. 1884, 114 U. S. 196. The taxing laws of the State, when attempted to be applied to the capital stock of a New Jersey corporation, running a ferry on the Delaware between New Jersey and Pennsylvania, carrying on no business in the State except the landing and receiving of passengers and freight, is a tax on interstate commerce. 12. Philadelphia and Southern Steamship Co. v. Pennsylvania, October T. 1886, 122 U. S.-326. The tax laws of March 20, 1877, No. 5, and June 7, 1879, No. 122, in so far as they attempt to tax gross receipts of a corporation incorporated under the • laws of the State which are derived from the transportation of persons and property on the high seas, between different States, or to and from foreign countries, is a regulation of interstate and foreign commerce. Rhode Island. None. South Carolina. 1. Weston v. Charleston, January T. 1829, 2 Pet. 449. The ordinance of Charleston, passed February 20, 1823, authorizing the taxation of stock issued for loans to the United States, is in excess of the taxing power of the State. 2. Humphrey v. Pegues, December T. 1872, 16 Wall. 244. The tax laws of the State, when applied to a railroad whose charter exempts it from taxation, impair the obligation of the contract in the charter. 3. Barings v. Dabney, October T. 1873, 19 Wall. 1. Section 11 of the act of December 21, 1865, “to raise supplies,” impairs the obligation of a contract between the Bank of South Carolina and its creditors. 4. Murray v. Charleston, October T. 1877, 96 U. S. 432. The taxing ordinances of Charleston of March, 1870, and March, 1871, withholding a tax to the city in paying the interest on its bonds, impair the obligation of the contract in the bonds. ccliv APPENDIX. Tennessee. 1. Furman v. Nichol, December T. 1868, 8 Wall. 44. The laws of 1865, c. 28, § 37, and 1866, providing that notes of the Bank of Tennessee should not be received in payment of taxes so far as it applied to‘notes issued before the rebellion, impaired the obligation of the contract in the charter of the bank. 2. Farrington v. Tennessee, October T.4877, 95 U. S. 679. The tax law of February 12, 1869, when applied to the Union and Planters’ Bank, impaired the obligation of the contract in its charter. 3. Memphis v. United States, October T. 1877, 97 U. S. 293. The act of March 23, 1875, repealing the act of March 18, 1873, when applied to a judgment recovered before the repeal, impaired the obligation of that contract. 4. Keith v. Clark, October T. 1878, 97 U. S. 454. The provision in the Constitution of 1865, forbidding the receipt for taxes of bills of the Bank of Tennessee, when applied to notes issued during the rebellion, impaired the obligation of the contract in the charter of the bank. 5. Stevens v. Griffith, October T. 1883, 111 U. S. 48. The confiscation act of the Confederate States, when enforced as a law of Tennessee, was unconstitutional. 6. Pickard n. Pullman Southern Car Co., October T. 1885, 117 U. S. 34. The tax act of March 16, 1877, imposing a tax upon sleeping cars when applied to such cars engaged in interstate commerce, is a tax upon interstate commerce. 7. Affirmed in Tennessee v. Pullman Southern Car Company, October T. 1885, 117 U. S. 51. 8. Van Brocklin v. Tennessee, October T. 1885, 117 U. S. 151. The tax laws of the State cannot be enforced against property of the United States. 9. Robbins v. Shelby County Taxing District, October T. 1886, 120 U. S. 489. Ch. 96, § 16, Stats. 1881, imposing a tax on drummers, when applied to a person soliciting the sale of goods on behalf of persons doing business in another State, is a regulation of commerce. Texas. 1. Texas v. White, December T. 1868, 7 Wall. 700. The act of secession, and the act of January 11, 1862, “to provide funds for military purposes,” are unconstitutional. 2. Peete v. Morgan, October T. 1873, 19 Wall. 581. The act of APPENDIX. cclv August 13, 1870, imposing a tonnage tax on vessels at quarantine, is a duty of tonnage and conflicts with Art. 1, § 10, par. 3, of the Constitution. 3. Tierman n. Rinker, 102 U. S. 123. The tax act of June 3, 1873, so far as it discriminates against wines and beer not manufactured in the State, is unconstitutional. 4. Telegraph Co. v. Texas, October T. 1881, 105 U. S. 460. The laws taxing telegraphic messages sent out of the State, as applied to a telegraph company which has accepted the provisions of Rev. Stat, title 65, §§ 5263-5269, conflicts with those acts. 5. Asher n. Texas, October T. 1888, 128 U. S. 129. The act of May 4, 1882, imposing a tax upon drummers, is a regulation of commerce. Utah. Ferris v. Higley, October T. 1874, 20 Wall. 375. The act of January 19, 1855, conferring on probate courts jurisdiction in civil and criminal cases, and in common law and chancery causes, is in conflict with the act organizing the Territory. Vermont. Society for the Propagation of the Gospel v. New Haven, February T. 1823, 8 Wheat. 464. The act of October 30, 1794, granting the lands belonging to the society to the respective towns in which they were situated, impaired the contract of the grant of the same lands to the society. Virginia. 1. Terrett n. Taylor, February T. 1815, 9 Cranch, 43. The acts of 1798, c. 9, and 1801, c. 5, so far as they operated to divest the Episcopal Church of property acquired before the Revolution, are void. 2. Pennsylvania v. Wheeling Bridge Co., December T. 1851, 13 How. 518. The Virginia act of March 19, 1847, c. 160, authorizing the construction of a bridge over the Ohio River, is unconstitutional. 3. Thomas n. City of Richmond, December T. 1870, 12 Wall. 349. The ordinance of the city of Richmond, of April, 1861, for the issue of city notes, and the act of Virginia, March 19, 1862, validating the same, were passed in aid of the rebellion and are void. 4. Williams v. Bruffy, October T. 1877, 96 U. S, 176. The confiscation act of the Confederate States, when enforced as a statute of Virginia, is void. coivi APPENDIX. 5. Hauenstein v. Lynham, October T. 1879, 100 U. S. 483. The laws of escheat of Virginia, so far as they interfered with treaty obligations of the United States, are void. 6. Hartman v. Greenhow, October T. 1880, 102 U. S. 672. The act of 1876, c. 161, § 117, concerning deduction of taxes from coupons on its bonds presented for payment, when applied to coupons separated from bonds issued, under the Funding Act of March 30, 1871, and held by different owners, impairs the obligation of the contract of the State with the bondholders. 7. Webber v. Virginia, October T. 1880, 103 U. S. 344. The license acts of 1875, 1876, which require a license for sales of goods made without the State, but none for sales of goods made within it, are regulations of commerce. 8. Antoni v. Greenhow, October T. 1882, 107 U. S. 769. The acts of March 7, 1872, c. 148, and January 14, 1882, c. 7, both relating to the funds in which taxes shall be paid, impair the obligation of the contract made by the State in the Funding Act of March 30, 1871. 9. Virginia Coupon Cases, October T. 1884, 114 U. S. 269. The acts of January 26, 1882, c. 41, and Mafbh 13, 1884, c. 421, impair the obligation of the contract made by the State in the Funding Act of March 30, 1871. 10. Effinger v. Kenney, October T. 1885, 115 U. S. 566. The act of February 28, 1867, c. 270, relating to the adjustment of liabilities arising under contracts or wills made between January 1, 1862, and April 10, 1865, impairs the obligation of those contracts. 11. Royall v. Virginia, October T. 1885, 116 U. S. 572. Affirming Antoni v. Greenhow, and The Virginia Coupon Cases, and applying them to the Code of 1873, title 12, c. §4, § 60, and the acts oi February 7, 1884, and March 15, 1884. Washington. None. West Virginia. 1. Pierce v. Carskadon, December T. 1872, 16 Wall. 234. The Act of February 11, 1865, amending § 27 of the Process Act of September 25, 1863, is an ex post facto law, and partakes of the nature of a bill of pains and penalties when applied to judgments recovered before the passage of the Amending Act. 2. Strauder v. West Virginia, October T. 1879, 100 U. S. 303. The Juror Act of March 12, 1873, so far as it discriminates against negroes on account of race, is in conflict with the 14th Amendment. APPENDIX. cclvii 3. Parkersburg v. Brown, October T. 1882, 106 U. S. 487. The act of December 15, 1868, authorizing the city of Parkersburg to issue its bonds in aid of manufacturers carrying on business near the city, exceeds the power of taxation conferred upon a legislative body. Wisconsin. 1. Insurance Co. v. Morse, October T. 1874, 20 Wall. 445. The clause in the act of 1867, c. 179, authorizing foreign insurance companies to transact business within the State, by which they were required, as a condition, to agree that they would not remove causes to the Federal court if sued in a state court, is repugnant to the Constitution and laws of the United States. 2. Doyle v. Continental Ins. Co., October T. 1876, 94 U. S. 535. Affirming Insurance Co. v. Morse, 20 Wall. 445 (No. 1, ante). 3. Koshkonong v. Burton, October T. 1881, 104 U. S. 668. The act of March 9, 1872, relating to the recovery of interest upon interest, when applied to prior contracts, impairs their obligation. Wyoming. None. 17 cclviii APPENDIX. THE SAME CASES CHRONOLOGICALLY ARRANGED. Hayburn’s Case, 2 Dall. 409 ........................United States. United States v. Yale Todd, 13 How. 52 .... United States. Marbury v. Madison, 1 Cranch, 137...................United States. United States v. Peters, 5 Cranch, 115............Pennsylvania. Fletcher v. Peck, 6 Cranch, 87....................... Georgia. New Jersey v. Wilson, 7 Cranch, 164................New Jersey. Terrett v. Taylor, 9 Cranch, 43.......................Virginia. Town of Pawlet v. Clark, 9 Cranch, 292 ...........Vermont. Sturges v. Crowninshield, 4 Wheat. 122...............New York. McMillan v. McNeill, 4 Wheat. 209 ...................Louisiana. McCulloch v. Maryland, 4 Wheat. 316...................Maryland. Dartmouth College v. Woodward, 4 Wheat. 518 . New Hampshire. Farmers and Mechanics’ Bank v. Smith, 6 Wheat. 131 . Pennsylvania. Green v. Biddle, 8 Wheat. 1 ..........................Kentucky. Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464 ...................................Vermont. Gibbons v. Ogden, 9 Wheat. 1.........................New York. Osbori) v. Bank of the United States, 9 Wheat. 738 .... Ohio. Ogden v. Saunders, 12 Wheat. 213.....................New York. Brown v. Maryland, 12 Wheat. 419 . . '................Maryland. Weston v. Charleston, 2 Pet. 449 ............City of Charleston. Craig v. Missouri, 4 Pet. 410.........................Missouri. Boyle v. Zacharie, 6 Pet. 348 ........................Maryland. Worcester v. Georgia, 6 Pet. 515.......................Georgia. Byrne v. Missouri, 8 Pet. 40..........................Missouri. Bagnell v. Broderick, 13 Pet. 436 ....................Missouri. Dobbins v. Erie County, 16 Pet. 435 ..............Pennsylvania. Prigg v. Pennsylvania, 16 Pet. 539 ...............Pennsylvania. Bronson v. Kinzie, 1 How. 311.........................Illinois. McCracken v. Hayward, 2 How. 608 .....................Illinois. Gordon v. Appeal Tax Court, 3 How. 133................Maryland. Searight v. Stokes, 3 How. 151....................Pennsylvania. Gantley’s Lessee v. Ewing, 3 How. 707 ....... Indiana. Neil v. Ohio, 3 How. 720 .................................Ohio. Cook v. Moffat, 5 How. 295 ...........................Maryland. Planters’ Bank v. Sharp, 6 How. 301................Mississippi. Smith v. Turner, 7 How. 283 ......................... New York. APPENDIX. cclix Norris v. Boston, 7 How. 283 ......................Massachusetts. Woodruff v. Trapnail, 10 How. 190.......................Arkansas. Webster v. Reid, 11 How. 437 ...................Iowa Territory. Achison v. Huddleson, 12 How. 293 ......................Maryland. United States v. Ferreira, 13 How. 40..............United States. United States v. Todd, 13 How. 52..................United States. Pennsylvanian. Wheeling Bridge Co., 13 How. 518 . . .Virginia. Curran v. Arkansas, 15 How. 304 ........................Arkansas. State Bank of Ohio v. Knoop, 16 How. 369 ...................Ohio. Hays v. Pacific Mail Steamship Co., 17 How. 596 . . California. Dodge v. Woolsey, 18 How. 331...............................Ohio. Mechanics’ Bank v. Debolt, 18 How. 380 .....................Ohio. Irvine v. Marshall, 20 How. 558 . . . Territory of Minnesota. Sinnot v. Davenport, 22 How. 227 ........................Alabama. Foster n. Davenport, 22 How. 244.........................Alabama. Almy v. California, 24 How. 169.......................California. Howard v. Bugbee, 24 How. 461 ........ Alabama. Jefferson Branch Bank n. Skelly, 1 Black, 436 ...........Ohio. Franklin Bank v. Ohio, 1 Black, 474 ........................Ohio. Wright v. Sill, 2 Black, 544 ...............................Ohio. Bank of Commerce v. New York, 2 Black, 620 . . . New York. Hawthorne n. Calef, 2 Wall. 10.............................Maine. Bank Tax Case, 2 Wall. 200 ........................• . New York. Gordon v. United States, 2 Wall. 561 ; 117 U. S. 697 . United States. The Binghamton Bridge, 3 Wall. 51.....................New York. Van Allen v. Assessors, 3 Wall. 573 ..................New York. McGee v. Mathis, 4 Wall. 143............................Arkansas. Cummings v. Missouri, 4 Wall. 277 ......................Missouri. Ex parte Garland, 4 Wall. 333 .....................United States. Bradley v. People, 4 Wall. 459 .........................Illinois. Von Hoffman v. Quincy, 4 Wall. 535 .....................Illinois. Kansas Indians, 5 Wall. 737...............................Kansas. New York Indians, 5 Wall. 761.........................New York. Steamship Company v. Portwardens, 6 Wall. 31 . . . Louisiana. Crandall v. Nevada, 6 Wall. 35............................Nevada. White v. Cannon, 6 Wall. 443 ..........................Louisiana. The Banks v. The Mayor, 7 Wall. 16....................New York. Bank v. Supervisors, 7 Wall. 26.......................New York. Railroad Co. v. Jackson, 7 Wall. 262 ...............Pennsylvania. The Belfast, 7 Wall. 624 ..........................Alabama. Texas v. White, 7 Wall. 700 .........................Texas. Furman v. Nichol, 8 Wall. 44...........................Tennessee. cclx APPENDIX. Home of the Friendless v. Rouse, 8 Wall. 430 .... Missouri. Washington University v. Rouse, 8 Wall. 439 .... Missouri. Hepburn v. Griswold, 8 Wall. 603 ..................United States. United States v. DeWitt, 9 Wall. 41................United States. The Justices v. Murray, 9 Wall. 274 ...............United States. Collector v. Day, 11 Wall. 113.....................United States. St. Louis v. Ferry Co., 11 Wall. 423 ...........City of St. Louis. Dunphy v. Kleinsmith, 11 Wall. 610 .... Montana Territory. State Tonnage Tax Cases, 12 Wall. 204...................Alabama. Thomas v. City of Richmond, 12 Wall. 349 ..............Virginia. Ward v. Maryland, 12 Wall. 418....................... . Maryland. Low v. Austin, 13 Wall. 29...........................California. United States v. Klein, 13 Wall. 128...............United States. Wilmington Railroad v. Reid, 13 Wall. 264 . . North Carolina. White v. Hart, 13 Wall. 646 ............................Georgia. Osborn v. Nicholson, 13 Wall. 654......................Arkansas. State Freight Tax, 15 Wall. 232 ....... Pennsylvania. State Tax on Foreign-held Bonds, 15 Wall. 300 . . Pennsylvania. Gunn v. Barry, 15 Wall. 610.............................Georgia. Pierce v. Carskadon, 16 Wall. 234 .................West Virginia. Humphrey v. Pegues, 16 Wall. 244 ...........South Carolina. Walker v. Whitehead, 16 Wall. 314.......................Georgia. Morgan v. Parham, 16 Wall. 471..........................Alabama. Railway Co. v. Prescott, 16 Wall. 603 ...................Kansas. United States v. Railroad Co., 17 Wall. 322 . . . United States. Horn v. Lockhart, 17 Wall. 570 .........................Alabama. Barings v. Dabney, 19 Wall. 1...................South Carolina. Peete v. Morgan, 19 Wall. 581............................. Texas. Pacific Railroad Co. v. Maguire, 20 Wall. 36...........Missouri. Ferris v. Higley, 20 Wall. 375 ............................Utah. Insurance Co. v. Morse, 20 Wall. 445 ...............Wisconsin. Cannon v. New Orleans, 20 Wall. 577 . . City of New Orleans. Loan Association v. Topeka, 20 Wall. 655 . . . . . . Kansas. Welton v. Missouri, 91 U. S. 275 ......................Missouri. United States v. Reese, 92 U. S. 214...............United States. Henderson v. New York, 92 U. S. 259 ..................New York. Commissioners of Immigration v. North German ■!, Lloyd, 92 U. S. 259 ..............................Louisiana. Chy Lung v. Freeman, 92 U. S. 275 ...................Califoinia. Board of Liquidation v. McComb, 92 U. S. 531 . . • Louisiana. Central Railroad and Banking Co. v. Georgia, 92 U. S. 665 ......................... ..............Georgia. APPENDIX. cclxi Southwestern Railroad Co. v. Georgia, 92 U. S. 676 . . . Georgia. Inman Steamship Company v. Tinker, 94 U. S. 238 . New York. Fosters. Master and Wardens of the Port of New Orleans, 94 U. S. 246 ................................Louisiana. Doyle v. Continental Insurance Company, 94 U. S. 535 . Wisconsin. New Jersey v. Yard, 95 U. S. 104..................New Jersey. Railroad Company v. Husen, 95 U. S. 465 ...............Missouri. Hall v. De Cuir, 95 U. S. 485 ........................Louisiana. United States v. Fox, 95 U. S. 670 ...............United States. Farrington v. Tennessee, 95 U. S. 679 ................Tennessee. Pensacola Telegraph Co. v. Western Union Tele- graph Co., 96 U. S. 1.................................. . Florida. Williams v. Bruffy, 96 U. S. 176 . . Confederate States enforced as a law of Virginia. Murray v. Charleston, 96 U. S. 432 .... City of Charleston. Edwards v. Kearzey, 96 U. S. 595 ..............North Carolina. Memphis v. United States, 97 U. S. 293 . . . . . . Tennessee. Keith v. Clark, 97 U. S. 454 .........................Tennessee. Cook v. Pennsylvania, 97 U. S. 566 ................Pennsylvania. University v. People, 99 U. S. 309 ....................Illinois. Trade-Mark Cases, 100 U. S. 82....................United States. Strauder v. West Virginia, 100 U. S. 303 . . . West Virginia. Guy v. Baltimore, 100 U. S. 434 .......................Maryland. Hauenstein v. Lynham, 100 U. S. 483 ...................Virginia. People v. Weaver, 100 U. S. 539 ......................New York. Pelton v. National Bank; 101 U. S. 143.....................Ohio. Tiernan v. Rinker, 102 U. S. 123..........................Texas. Hartman v. Greenhow, 102 U. S. 672 . . ................Virginia. Kilbou'rn v. Thompson, 103 U. S. 168 . . . . . United States. Webber v. Virginia, 103 U. S. 344 .....................Virginia. Wolff v. New Orleans, 103 U. S. 358 ..................Louisiana. Neal v. Delaware, 103 U. S. 370 .......................Delaware. Koshkonong v. Burton, 104 U. S. 668 ...... Wisconsin. Louisiana v. Pilsbury, 105 U. S. 278 .................Louisiana. Supervisors v. Stanley, 105 U. S. 305.................New York. Evansville Bank v. Britton, 105 U. S. 319.............Indiana. Asylum v. New Orleans, 105 U. S. 362 .................Louisiana. Telegraph Company v. Texas, 105 U. S. 460 ................Texas. Parkersburg v. Brown, 106 U. S. 487 ..............West Virginia; Savannah v. Jesup, 106 U. S. 563 . . . . . City of Savannah. United States v. Harris, 106 U. S. 629 ...........United States. cclxii APPENDIX. People v.. Compagnie Générale Transatlantique, 107 U. S. 59...........................................New York. Bush v. Kentucky, 107 U. S. 110.................... . . Kentucky. Kring v. Missouri, 107 U. S. 221.........................Missouri. Louisiana v. Jumel, 107 U. S. 711.......................Louisiana. Antoni v. Greenhow, 107 U. S. 769 .......................Virginia. Civil Rights Cases, 109 U. S. 3.....................United States. Stevens v. Griffith, 111 U. S. 48.......................Tennessee. Nelson v. St. Martin’s Parish, 111 U. S. 716 . . . . Louisiana. Moran v. New Orleans, 112 U. S. 69 . . . City of New Orleans. Cole v. La Grange, 113 U. S. 1...........................Missouri. Boyer v. Boyer, 113 U. S. 689 .......................Pennsylvania. Gloucester Ferry Company v. Pennsylvania, 114 U. S. 196...........................................Pennsylvania. Virginia Coupon Cases, 114 U. S. 269 ....................Virginia. Effinger v. Kenney, 115 U. S. 566 .......................Virginia. New Orleans Gas Light Co. v. Louisiana Light Co., 115 U. S. 650 .........................................Louisiana. New Orleans Water Works Co. v. Rivers, 115 U. S. 674 . Louisiana. Louisville Gas Co. v. Citizens’ Gas Co., 115 U. S. 683 . Kentucky. Fisk v. Jefferson Police Jury, 116 U. S.131 . . . . Louisiana. Walling v. Michigan, 116 U. S. 446 ......................Michigan. Royall v. Virginia, 116 U. S. 572 .......................Virginia. Boyd v. United States, 116 U. S. 616................United States. Pickard v. Pullman Southern Car Co., 117 U. S. 34 . . Tennessee. Tennessee v. Pullman Southern Car Co., 117 U. S. 51 . Tennessee. Van Brbcklin v. Tennessee, 117 U. S. 151................Tennessee. Spraigue v. Thompson, 118 U. S. 90........................Georgia. Yick Wo v. Hopkins, 118 U. S. 356 . . . City of San Francisco. Wabash, St. Louis and Pacific Railway Co. v. Illi- nois, 118 U. S. 557 ....................................Illinois. New Orleans v. Houston, 119 U. S. 265 ..................Louisiana. St. Tammany Water Works v. New Orleans Water Works, 120 U. S. 64....................................Louisiana. Robbins v. Shelby County Taxing District, 120 U. S. 489, Tennessee. Corson v. Maryland, 120 U. S. 502 ..................Maryland. Barron v. Burnside, 121 U. S.186.............................Iowa. Fargo v. Michigan, 121 U. S. 230 ........................Michigan. Seibert v. Lewis, 122 U. S. 284 ....................Missouri. Philadelphia and Southern Steamship Co. v. . Pennsylvania, 122 U. S. 326 .......................Pennsylvania. APPENDIX. cclxiii Western Union Telegraph Co. v. Pendleton, 122 U. S. 347...........................................Indiana. Bowman v. Chicago and Northwestern Railway Co., 125 U. S. 465 Iowa. Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530 ................................Massachusetts. California v. Central Pacific Railroad Co., 127 U. S. 1 . California. Whitbeck v. Mercantile Bank, 127 U. S. 193.............Ohio. Ratterman v. Western Union Telegraph Co., 127 U. S. 411 . Ohio. Callan v. Wilson, 127 U. S. 540 .................United States. Leloup v. Port of Mobile, 127 U. S. 640 ............Alabama. Asher v. Texas, 128 U. S. 129.........................Texas. Stoutenburgh v. Hennick, 129 U. S. 141 . District of Columbia. Seibert v. United States ex rei. Harshman, 129 U. S. 192..........................................Missouri. ccbdv APPENDIX. INDEX TO THE OMITTED CASES. [For the Index to the Other Cases reported in this Volume, see post, page cclxxxi.] ADMIRALTY. 1. A decree in admiralty for the condemnation of a vessel is not final if the libel claims the condemnation of the cargo as well, and the cargo has been delivered to the respondents at an appraised value, and the money deposited with the register. Dayton, Claimant, etc., n. United States, Ixxx. 2. The court declines to hear argument whether mandamus shall issue to the Circuit Court directing it to order stipulators for value and sureties on an appeal bond in an admiralty suit to appear for examination concerning their property: whether it has the power to issue the writ in such case qucere. Phillips, Petitioner, clxvii. APPEAL. 1. An order for allowing an appeal relates back to the date of the prayer for allowance, and is considered as made on that day. Latham n. United States, xcvii. 2. An appeal by one of three complainants from a joint decree, without notice to the others and without their refusing to join in it, is dismissed. Downing sr. McCartney, xcviii. 3. An allowance by a Circuit Court of an appeal taken by a receiver, is equivalent to leave by the court to the receiver to take an appeal. Farlow v. Kelley, cci. 4. An appeal bond for costs need not be signed by all the appellants. Being approved by the court it stands as security for all the appellees. Scruggs v. Memphis ^c. Railroad, cciv. See Practice, 3, 11. APPEAL BOND. See Appeal, 4; Practice, 14. ' APPEARANCE. See Practice, 6. BANKRUPTCY. 1. A bankrupt may prosecute in his own name a writ of error to a judgment rendered after the adjudication of bankruptcy ; but the assignee INDEX. cclxv will be heard on questions which he thinks involve the estate of the bankrupt. Hill v. Harding, cc. 2. The rights of an assignee in bankruptcy over collateral lodged by the bankrupt with the bank more than two months prior to the bankruptcy, as security for indebtedness which then existed or might thereafter be created, are only such as the bankrupt had when thè proceedings in bankruptcy were commenced. Bacon v. International Bank, ccxvi. BILL OF REVIEW. A petition to file a bill of review on the ground of newly discovered evidence will not be granted if the bill, when filed, ought not to be sustained by reason of the laches of the petitioner in neglecting to discover the evidence earlier. Dumont v. Des Moines Valley Railroad, clx. BOND. If a bond contains a provision that on default of the payment of interest the principal shall become due at the election of the holder, and such default takes place, the commencement of suit to collect the principal and interest and the production of the bond at the trial are sufficient proof of such election. Rice v. Edwards, clxxv. CASES AFFIRMED OR FOLLOWED. See Damages, 1 ; Mortgage, 2. CERTIORARI. A motion for a certiorari to the Court of Claims is denied. Clarke v. United States, Ixxxvi. See Practice, 11. CHOSE IN ACTION. An assignee of a chose in action takes it subject to the equities of the original debtor or obligor, and is bound to inquire into their existence when the instrument itself puts him upon the track of inquiry. Smith N. Orton, Ixxv. CITATION. A citation served on the 1st December, before the return of the writ, is served in time. Waters v. Barrili, Ixxxiv. See Practice, 28. CLERK OF THE SUPREME COURT. 1. The clerk of this court, when money paid into court is put in his custody, is entitled to a fee of one per cent of the amount. Florida v. Anderson, cxxxv. 2. The court orders the balance of the fund paid to the State of Florida. lb. See Costs, 2. cclxvi APPENDIX. COLLUSION. See Practice, 10, 16. CONSTITUTIONAL LAW. The contract of marriage is not a contract within the meaning of the provision in the Constitution prohibiting States from impairing the obligation of contracts. Hunt v. Hunt, clxv. CONTRACT. The performance of a contract for the construction of a railroad, made by a deceased person with the railroad company, cannot be enforced by his heirs, even if the profits are partly in lands. Crane v. Kansas Pacific Railway, clxviii. See Evidence, 5, 6; Principal and Agent, 1. COSTS. 1. When the judgment is silent as to costs in this court, neither party recovers his costs here; but each must pay, if not already paid, whatever fees are properly chargeable to him according to law and practice. Osborn v. United States, cxxxvii. 2. When the clerk has no security for fees due to him from a party entitled to a mandate he may withhold the mandate until his fees are paid, or he is otherwise satisfied in that behalf. lb. 3. The rules relating to taxation of costs amended, lb. 4. A court has no power to award costs in criminal proceedings unless some statute has conferred it. United States ex rel. Phillips v. Gaines, clxix. 5. In Tennessee the costs of a criminal prosecution are made by statute a debt of the State, for which the comptroller may be compelled to draw a warrant upon the state treasurer when the proper foundation has been laid for such an order by the court; but in this case the steps required by law to be taken in order to charge such costs upon the State as a debt had not been taken, lb. 6. An officer of a State, sued in his official capacity, and charged with no official delinquency, is not liable for costs. Hauenstein v. Lynham, cxci. COURT OF CLAIMS. 1. Although this court does not apply strict rules of pleading to cases appealed from the Court of Claims, yet the allegations and proofs must so far correspond as to give to the United States the benefit of the principal of res judicata in cases where they ought to have the protection which it affords. Baird v. United States, cvi. 2. When a petition in the Court of Claims is silent upon a subject which forms part of the res gestce, that silence concludes the petitioner, lb. 3. On the proofs, this court arrives at the conclusion that the judgment of INDEX. cclxvii the Court of Claims was right, both in respect of the petitioner, and in respect of the United States. Ib. 4. A request for an order upon the Court of Claims for an additional finding is refused, because that court had not been requested to make the findings in accordance with rules 4 and 5 regulating appeals therefrom. United States v. Driscoll, clix. 5. The court refuses a rule on the Court of Claims to certify up evidence used in that court on the trial of a cause which has been brought here by appeal from that court. Stark n. United States, ccv. 6. This court will not direct the Court of Claims to send up the evidence on which the court bases its findings. United States v. Smoot, ccvi. CRIMINAL PROCEEDINGS. See Costs, 4, 5. DAMAGES. 1. Campbell v. Kenosha, 5 Wall. 194, affirmed. The court is satisfied that this writ of error was not sued out for delay, and refuses to allow 10 per cent damages. Kenosha v. Campbell, xcvii. 2. In an action to recover damages for carelessly and negligently shooting and wounding the plaintiff, it is no error to charge the jury that in computing the damages they may take into consideration a fair compensation for the physical and mental suffering caused by the injury. McIntyre v. Giblin, clxxiv. See Jurisdiction, 17; Practice, 4, 15, 26. DISTRICT OF COLUMBIA. See Local Law, 2. DEED. 1. The grantee in a deed of realty, to whom it is conveyed to protect him against an obligation of the grantor for which he has become surety, becomes the holder of the legal title in trust for the grantor, when the latter has discharged the obligation and thus released him from the liability. Smith v. Orton, Ixxv. 2. A deed of trust from the vendee of real estate to the vendor, to secure the payment of part of the purchase money, recited that there was an indebtedness on the property of eight promissory notes, each for $1000 with interest, as appeared by a deed referred to, which were to be assumed by the vendee as part consideration of the sale, and the vendor saved harmless therefrom. By reference to the deed it appeared that these notes were payable in one, two, three, etc., years respectively, with interest; Held, that the interest on each of these notes was payable at its maturity, and, no fraud or mistake being shown, that the obligation of the vendee to protect the vendor extended to the payment cclxviii APPENDIX. of the overdue interest on the specified notes, as well as the principal. Sawyer v. Weaver, cli. EJECTMENT. The legal title must prevail in ejectment; and neither party can set up facts which go to show that equitably the other party is the rightful owner of the property. Marshall v. Ladd, Ixxxix. EQUITY. 1. In equity, parol testimony is admissible to show that a conveyance, absolute on its face, was in fact a mortgage. Risher v. Smith, clvi. 2. It is clear from the evidence that the order which was the subject matter of this action, was for the purpose of security only, and that the debt for which it was security was paid before the defendant Taylor received the government drafts. Ib. 3. A decree in equity will not be reversed for an immaterial departure from technical rules when no harm has been done. Rice v. Edwards, clxxv. See Chose in Action; Pleading. ESTOPPEL. See Pleading, 2. EVIDENCE. 1. There was no error in the rulings of the court admitting evidence to sbow the market-value of the property converted. Thatcher n. Kautcher, cxlvi. 2. An adjusted account of an Internal Revenue Collector at the Treasuiy, showing the exact amount finally allowed him as extra compensation, is conclusive evidence on that question. United States x. Morgan, clxiv. 3. The agreement of compromise between the parties which is referred to in the opinion was competent evidence and properly received as such, although not set forth and relied upon in the pleadings. O'Reilly n-Edrington, clxxvii. 4. When competent evidence becomes immaterial under a charge favorable to the party offering it, its exclusion is not error. Relfe n. Wilson, clxxxix. 5. In an action to recover of the defendant the profits which the plaintiff would have gained in supplying articles to him under a contract, which articles the plaintiff was ready and willing to furnish and the defendant refused to receive, the burden of proof is on the plaintiff to show clearly that the articles refused came within the contract. Union Pacific Railroad v. Clopper, cxcii. 6. In the trial of such an action brought to recover profits on stone contracted to be supplied to a railroad company for the construction of a INDEX. cclxix bridge and its approaches, and which the company refused to receive, the testimony of experts is admissible to show what constitutes the bridge and its approaches, and whether a dyke is a necessary part of them; and the jury should be told to consider what was the condition of things at the time the contract was made, and not the condition as developed subsequently by the operation of nature. Ib. 7. Upon the pleadings and proof, the plaintiff was entitled to recover, whether the deposition objected to was admitted or excluded, and therefore its admission worked no injury to the defendant. Wilson v. Hoss, ccx. See Equity, 1; Local Law, 3 ; Insurance; Promissory Note, 3, 4. EXCEPTION. 1. Where there is only one exception to a general finding by the court in an action at law tried without the intervention of a jury, and that is not well taken, this court will not examine the record further. Morris v. Shriner, xci. 2. A bill of exceptions, signed after the term at which the judgment was rendered, without the consent of the parties or an express order of court to that effect made during the term, will not be considered part of the record, except under very extraordinary circumstances. Jones v. Grover Baker Sewing Machine Co., cl. 3. The court cannot pass upon an exception to the admission of a paper in evidence at the trial, if the record contains no copy of it. Ib. 4. If a series of propositions is embodied in instructions, and the instructions are excepted to in a mass, the exception will be overruled if any one proposition is correct. Relfe n. Wilson, clxxxix. EXECUTOR AND ADMINISTRATOR. See Contract. EXPERT. See Evipence, 6. FEE. See Clerk of the Supreme Court, 1. FRAUD. On the facts reviewed in the opinon, Held, that the title of the appellant to the premises in dispute, whether derived through the sale on execution, or acquired under the confiscation act, is void for fraud. Monger v. Shirley, cxxxi. GUARANTY. See Promissory Note, 2, 3, 4. HABEAS CORPUS. A writ of habeas corpus is ordered to issue, and also a writ of certiorari to bring up a petition by this petitioner to the judge of a Circuit Court cclxx APPENDIX. of the United States for a writ of habeas corpus, and the denial thereof made in chambers; inasmuch as the petition in this court showed that the papers had been filed in the Circuit Court and remained there of record. Ex parte Lange, ccvii. ILLINOIS. See Promissory Note, 1, 3. INSURANCE. When the plaintiff in an action at law on a life insurance policy against the insurer avers in his declaration that the company had been notified of the death of the person whose life wTas insured in the policy, and that the necessary preliminary proofs required by it had been made, and the answer is a general denial of all and singular the allegations of the petition so far as the same may have a tendency to give to said plaintiffs any right or cause of action against the respondent, and, not specially traversing the allegations as to notice and proof, sets up specific defences, on which alone the defendant relies, it is not necessary to prove the notification, nor that the necessary preliminary proofs were made. Knickerbocker Life Ins. Co. v. Schneider, clxxii. See Principal and Agent, 2. INTEREST. See Deed, 2; Principal and Agent, 1. INTERNAL REVENUE COLLECTOR. See Evidence, 2; Secretary of the Treasury. JURISDICTION. 1. An appeal allowed or a writ of error served is essential to the exercise of the appellate jurisdiction of this court. Washington County v. Durant, Ixxx. 2. The removal or appointment of a receiver in a suit for the foreclosure of a mortgage on a railroad rests in the sound discretion of the court below, and is not reviewable here. Milwaukee and Minnesota Railroad v. Howard, Ixxxi. 3. The averments of alienage and citizenship in the declaration are sufficient to give the court jurisdiction. Waters v. Barrill, Ixxxiv, 4. The decrees for the payment of rent by the Milwaukee and St. Paul Railroad Company to the receiver of the La Crosse and Milwaukee Railroad were not final decrees from which appeals could be taken to this court, and this proceeding was irregular, and involved useless litigation. Milwaukee and St. Paul Railroad n. Soutter, Ixxxvi. 5. This court has jurisdiction of a case brought up on a certificate o division of opinion on the question whether the Circuit Court has INDEX. cclxxi jurisdiction of it. Baltimore and Ohio Railroad v. Marshall County, xcix.. 6. Since the passage of the act of July 13, 1866, c. 184, §§ 67, 68, 14 Stat. 172, and the repeal of § 50 of the act of June 30, 1864, 13 Stat. 241, the Circuit Courts of the United States have no jurisdiction of cases arising under the internal revenue laws, to recover duties illegally assessed, and paid under protest, unless the plaintiff and defendant in such suit are citizens of different States. Williams v. Reynolds, cxi. 7. The claim set up in the state court being founded on the Bankruptcy Act, and the decision of the state court being adverse to it, this court has jurisdiction to review it. Mays v. Fritton, cxiv. 8. Whether this court can recall its mandate, and modify it, after the term is ended in which the judgment was rendered, quaere. In this case the mandate of this court, and the decree and mandate of the Circuit Court entered on that mandate, correctly represent what this court decided. Phipps v. Sedgwick, cxxxix. 9. In an action in a state court by a real estate broker to recover commissions on sales of land, the exclusion of evidence that he had not paid the tax or received the license required by the statutes of the United States, when properly excepted to, raised a Federal question; but in this case the question was frivolous, and manifestly taken for delay. Ruckman v. Bergholz, cxliii. 10. This court has jurisdiction of an appeal from a decree of a Circuit Court, requiring stockholders in an insolvent national bank to pay a given percentage on their stock which the comptroller of the currency had ordered collected, and such further sums as may be necessary to pay the debts of the bank. Germanica National Bank v. Case, cxliv. 11. The case presents no question of Federal law. Van Norden v. Benner, cxlv. 12. This court has power at any time to amend a decree which has by inadvertence or mistake been entered in a different form from that in which the court intended it. Elizabeth v. American Nicholson Pavement Co., cxlviii. 13. No Federal question is presented by the record in these cases, the question respecting the forfeiture of the charter of the turnpike company being a question of state law only, as to which the judgment of the state court is final. Nonconnah Turnpike v. Tennessee, clviii. 14. The question raised and decided in a state court, whether there could be a sale of cotton so as to pass title to the vendee before the payment of the government tax, is not a Federal question. Carson v. Ober, clx. 15. An objection not made below cannot be assigned as error and considered here. Flournoy v. Lastrapes, clxi. 16. On the facts set forth in the opinion, it is held that the judgment below, to which the writ of error was directed, was not a final judgment, and that this court was therefore without jurisdiction. Hand n. Hagood, clxxxi. cclxxii APPENDIX. 17. This court has power to adjudge damages for delay on appeals as well as writs of error, and this power is not confined to money judgments. Gibbs n. Diekma, clxxxvi. • 18. A record in a state court which shows a verdict and motion for a new trial overruled, but no judgment on the verdict, shows no final judgment to which a writ of error may be directed. National Life Ins. Co. v. Scheffer, cciii. 19. This court has not jurisdiction in error over the judgment of a state court brought here under the 25th section of the Judiciary Act of 1879, unless the record discloses that one of the questions described in that section arose in the state court, or was decided by its judgment. Marshall v. Knott, ccv. 20. A Federal question not raised at the trial of a cause in the state court below will not be considered here. Bergner v. Palethorp, ccviii. 21. If in an action in a state court to recover damages under a state statute ' for death caused by a collision on navigable waters within the State, no Federal question is raised during the trial, this court cannot take jurisdiction in error. Staten Island Railway v. Lambert, ccxi. 22. At a trial in a state court upon a policy of insurance of a steamboat, the question whether, if the steamboat wras burned while carrying turpentine as freight the owner must show affirmatively his license to carry the turpentine, or whether the law would presume a license until the contrary was shown, is not a Federal question. Marsh v. Citizens Ins. Co., ccxiii. 23. The overruling of a motion that the cause proceed no farther by reason of an alleged compromise of the suit is not a final judgment or decree. De Liano v. Gaines, ccxiv. 24. A statement in the opinion of the highest court of a state that the only Federal question in the case was probably abandoned as “ it is manifest that the Circuit Court could not have taken jurisdiction ” is not such a decision of the question as to give this court jurisdiction. Weatherby v. Bowie, ccxv. See Admiralty, 1,2; Exception ; Practice, 3. LOCAL LAW. 1. A sheriff’s deed executed by a deputy sheriff in his own name is good in Louisiana. Flournoy v. Lastrapes, clxi. 2. In the District of Columbia a valid note of the husband may be secured by a deed of trust of the general property of the wife, executed by husband and wife in the manner required by law. Kaiser v. Stickney, clxxxvii. 3. In Missouri, in an action brought against an insurer to recover on a policy, evidence of an offer by the insurer to settle for less than the policy, and of an intimation by the same to the insured that the policy INDEX. cclxxiii was obtained by misrepresentation, is admissible to show “vexatious delay.” Relfe sr. Wilson, clxxxix. 4. The act of Missouri giving damages for vexatious refusal by insurance companies to pay policies is not repealed, lb. See Costs, 5 (Tennessee) ; Promissory Note, 1 (Illinois and Missouri); 3 (Illinois); Principal and Agent, 1. Lex loci, generally. LOUISIANA. See Local Law, 1. MANDAMUS. 1. On application for mandamus on a Circuit Court, that court having made return, this court will not, on the suggestion of a third party, pass an order implying that the return was imperfect or might work an injustice to the petitioner. Ex parte Harmon, Ixvii. 2. Mandamus will not lie when there is an ample remedy by appeal if the case is put in a condition for it. Conn. Mut. Life Ins. Co., Petitioner, clxxx. MANDATE. This court will not recall a mandate at the term following the one when it was sent to the inferior court. Le More v. United States, Ixxxv. MARRIAGE. See Constitutional Law. MISSOURI. See Local Law, 3, 4; Promissory Note, 1. MORTGAGE. A mortgagee who has notice through his agent in the negotiation of the loan, that the discharge of a prior mortgage on the property was fraudulently obtained, cannot acquire the property discharged of the prior incumbrance, by purchase at a sale under decree of foreclosure of his own mortgage. Conn. Gen. Life Ins. Co. v. Burnstine, cliii. Brine v. Insurance Co., 96 U. S. 627, followed in regard to the right of redemption from a sale under foreclosure of a mortgage in Illinois. ■Metropolitan Bank v. Conn. Mut. Life Ins. Co., clxii. MOTION TO ADVANCE. A motion to advance is denied, because not coming within the 30th rule. Baltimore and Ohio Railroad v. Marshall County, xcix. 18 cclxxiv APPENDIX. MOTION TO DISMISS. A motion to dismiss for want of jurisdiction is denied because it involves looking into the merits. Lynch v. De Bernal, xciv. See Practice, 5. NATIONAL BANK. See Jurisdiction, 10. NON-JOINDER OF PARTIES. An objection on the ground of the non-joinder of parties who are proper but not indispensable parties cannot be made for the first time in this court. Gibbs v. Diekma, clxxxvi. PARTIES. See Non-joinder of Parties. PARTNERSHIP. When a contract is within the scope of the business of a partnership, each partner is presumed to be the agent of all, and it is immaterial what the secret understanding of the parties may have been as to the powers of each. Andrews v. Congar, clxxxiii. PATENT FOR INVENTION. 1. The decree below rightfully denied to the parties their claim for rents and profits, and it is affirmed. Welch v. Barnard, civ. 2. If the subject of a patent is a combination of several processes, parts or devices, the use of any portion of the combination less than the whole is not an infringement. Garratt v. Seibert, cxv. 3. The second claim in the patent granted to Nicholas Seibert for an improvement in lubricators for steam-engine cylinders, does not embrace the heating apparatus and the combination devised for preparing tallow for use in the lubricator, which is covered by the first claim in the patent. Ib. 4. All the combinations and all their separate elements patented to William Westlake, April 6, 1864, for an improvement in lanterns, for which reissued letters were obtained December 23, 1869, were anticipated by inventions referred to in the opinion of the court. Dane n. Chicago Manufacturing Co., cxxvi. 5. Upon a bill in equity by the owner against an infringer of a patent the plaintiff is entitled to recover the amount of gains and profits that the defendant made by the use of the invention. Mevs v. Conover, cxlii. 6. The surrender of his patent by a patentee, in order to obtain a reissue made after obtaining final judgment against an infringer, does not affect his rights which have passed into the judgment. Ib. 7. The internal revenue stamps used by the defendant in error are no infringement of the letters patent issued to the plaintiff in error, June INDEX. cclxxv 8,1869, for an improvement in stamps used for revenue and other purposes. Fletcher v. Blake, cxcvii. 8. The surrender of letters patent for an invention extinguishes them; and if made after appeal to this court, no substantial controversy remains. Meyer v. Pritchard, ccix. PLEADING. 1. To bring a defence in a case like this within the rule which affords protection to a bond fide purchaser without notice, it must be averred in the plea or answer, and proved, that the conveyance was by deed, and that the vendor was seized of the legal title; and that all the purchase money was paid, and paid before notice; and there must be a distinct denial of notice, not only before purchase, but also before payment. Smith v. Orton, Ixxv. 2. When it appears in the pleadings that a former bill for the same cause of action was dismissed for the reason that a plea that had been filed and not denied presented a good defence, an averment that there has been no adjudication upon the merits is not enough; but it must be averred in the pleadings and shown that the nature of the defence did not present a bar to the action. Leary N.Long, ccxviii. See Jurisdiction, 3. PRACTICE. 1. The court, on appellant’s motion, reinstates a case which had been docketed and dismissed on motion of appellees. West v. Brashear, Ixvi. 2. This case is dismissed because neither party is ready for argument at the second term at which it is called. Mayer v. The Venelia ^c., Ixx. 3. One of the several codefendants having appealed from a joint decree against all, without summons and severance, the case is dismissed. Shannon v. Cavazos, Ixxi. 4. It appearing to the court that this writ of error was sued out merely for delay, the judgment is affirmed with ten per cent damages. Phelps n. Edgerton, Ixxi. 5. On a motion to dismiss for want of jurisdiction, the opposing counsel is entitled to a reasonable notice, having regard to the distance of his residence from the court, and to the time necessary to enable him to arrange his business so as to be able to be present at the hearing : and . it is within the discretion of the court to determine whether the notice actually given was reasonable. Davidson v. Lanier, Ixxii. 6. After the lapse of a term a general appearance cannot be changed to a special appearance, so as to affect the rights of parties, without leave of court first obtained. United States v. Armejo, Ixxxii. 7. The order remanding the petitioner became, by the certificate of the clerk, a part of the record in this case. Crandall v. Nevada, Ixxxiii. 8. The question of law in this case ought not to have been made, either below or here, and the judgment below is affirmed. Clark n. United States, Ixxxv. cclxxvi APPENDIX. 9. The court withholds its decision on this motion for a writ of prohibition, until the certificate of division of opinion on the allowance of the writs of habeas corpus complained of can be filed, and a hearing had thereon. Virginia, Petitioner, Ixxxix. 10. In this case the court permits a third party to intervene and file affidavits to show that the suit has been settled between the parties, and that its further prosecution is collusive and fictitious and for the purpose of aiding further proceedings against persons not parties to the record; and, counter affidavits being filed by the appellant, a rule is issued against the appellant to show cause why the suit should not be dismissed. American Wood Paper Co. v. Heft, xcii. 11. The record showing no allowance of appeal below, and it appearing by affidavits that an appeal was actually allowed of which the clerk omitted to make entry, this court refused a certiorari to bring up the record; and the case was passed to enable appellant’s counsel to move in the Circuit Court for an entry nunc pro tunc of the prayer and’al-lowance. Chicago v. Bigelow, xciii. 12. A defendant in equity is required to pay into court for the benefit of complainant money received by him pending the litigation, before service of process but after knowledge of the complainant’s equity. Texas v. W hite, xcv. 13. A rule is granted without affidavits, under the circumstances of this case, (though the practice is irregular,) to show cause why money should not be paid into court for the benefit of complainant, lb. 14. The hearing on a motion for additional security on a writ of error, supported by affidavits but without notice to the opposite party, is postponed in order that notice may be given. Wood v. Richards, xcviii. 15. There is no merit in any of the defences set up hereand, it being apparent that the appeal was taken for the purpose of delay, the judgment below is affirmed with interest and ten per cent damages. Peyton n. Heinekin, ci. 16. One party to a suit cannot pay the fees of counsel on both sides, both in the court below and on appeal, without being held to have such control over both the preparation and argument of the cause, as to make the suit merely collusive in both courts. Gardner v. Goodyear Dental Vulcanite Co., ciii. 17. No appeal being asked for below or rendered, no appeal bond given, and there being no citation, the appeal is dismissed on motion. Monger v. Shirley, ex. 18. After hearing the parties the court advances the causes as causes in which a State is a party under the act of June 30, 1870, 16 Stat. 176, c. 181. Rev. Stat. § 949. Huntington v. Texas, ex. 19. Under the circumstances, the court allows an amendment of the record, on the certificate of the court below, without issuing a writ of certiorari. Stitt v. Huidekopher, cxviii. 20. The writ of error is dismissed, because it should have been directed to the Court of Appeals of the State of Virginia. Underwood v. Me Veigh, cxix. INDEX. cclxxvii 21. When a judgment of affirmance is entered on motion under the rules, it will not be set aside and a rehearing ordered if the court is satisfied that the judgment below would be affirmed on the rehearing, if one were granted. Treat v. Jemison, cxxxv. 22. It appearing that the only Federal question involved in this case has been decided in another case at the present term, the court postpones the hearing of a motion to dismiss, in order to allow it to be amended, under the rules, by adding a motion to affirm. Foree v. McVeigh, cxlii. 23. When a joint decree is made in the court below against two or more parties, and the decree is found to be correct as to some of the parties, and incorrect as to the others, the ordinary and proper practice is to reverse it as an entirety, and remand the cause for a new decree; but when such a decree does not affect the rights of the different parties in a different manner, as, for instance, when it is found right in all respects, except as to the amount, the court sometimes reverses it in part and affirms it in part, this being always within the discretion of the court. Elizabeth v. American Nicholson Pavement Co., cxlviii. 24. This question is one of fact; and this court cannot see that the evidence is so clearly against the decision of the court below, that it would be justified in reversing it. Conn. Gen. Life Ins. Co. v. Burn-stine, cliii. 25. It is no error to refuse to give special instructions asked for when the general charge has stated them in language equally favorable to the party asking. Relfe v. Wilson, clxxxix. 26. Damages are awarded in a case where the appeal was taken for delay, and was frivolous. Whitney v. Cook, cxcvii. 27. The judges of the court differing in opinion, the submission is set aside, and an argument ordered. Louisiana ex rel. Folsom v. New Orleans, cci. 28. Service of notice of citation on the attorney of a party is sufficient. Scruggs n. Memphis ^c. Railroad, cciv. 29. A cause is docketed and dismissed upon motion of the appellee, and subsequently redocketed on motion of the appellant. Ambler v. Whipple, ccvi. 30. This bill is dismissed because the evidence sent here fails to support the finding on which the bill was dismissed; and as grave constitutional questions were involved, it is remanded to the Circuit Court with power to allow amendments to the pleadings and take further proof. Southern v. Hagood, ccxii. See Appeal; Mandamus; C ertiorari ; Mandate ; Citation; Motion to advance; . Clerk of the Supreme Court; Motion to dismiss; Court of Claims, 4; Supersedeas ; Damages; Writ of Error. EYflRPTTOTV ! cclxxviii APPENDIX. PRINCIPAL AND AGENT. 1. In a contract between a commission merchant in New York and a person in another State that the latter shall send merchandise to the former to be sold, and that the former shall make advances on it to be repaid with commissions and interest out of the sales, the rate of interest is to be determined by the laws of New York, the place of performance. Peyton v. Heinekin, ci. 2. A factor who insures goods consigned to him for the benefit of his principal may recover from him the cost of the insurance, lb. 3. The acts of a person assuming to be an agent in the sale of personal property will not bind the principal, unless he either authorized him to make the sale or held him out to the public as clothed with the authority of an agent; and there being no evidence in this case either of authority to sell the property in dispute, or of consent to the agent representing himself to have such authority, no basis has been laid for the propositions which the court was asked to give the jury. Thatcher n. Kautcher, cxlvi. PROMISSORY NOTE. 1. If a person, not a party to a promissory note, writes his name on the back of it when the note is made, the law in Illinois regards him as a guarantor, unless the contrary is shown; but the law in Missouri regards him as prima facie a joint maker. Andrews v. Congar, clxxxiii. 2. In a suit against a joint maker of a promissory note a charge to the jury that he was only a guarantor works no injury to him. Ib. 3. Under the practice in Illinois if one is sued as guarantor of a note, and he verifies his plea of the general issue by affidavit, the plaintiff need not prove the execution of the note itself as well as the guaranty. lb. 4. There was no error in the ruling that if the maker of the note which forms the basis of the controversy in this case could not use an account on its books as a set-off against the note, the defendant as guarantor could not. Ib. PUBLIC LAND. 1. Grants of land made by Spain after the Treaty of St. Ildefonso were void. United States v. Lynde, Ixix. 2. The Attorney General having stated that the Indians are entitled to the land claimed by them, the case is dismissed. United States v. Chetimachas Indians, Ixx. 3. A petition to the Mexican government for a surplus of land which was not granted, is no foundation for an equitable claim against the United States. Miramontes v. United States, Ixxiii. RAILROAD. See Jurisdiction, 2, 4. INDEX. cclxxix RECEIVER. See Appeal, 3 ; Jurisdiction, 4. RES JUDICATA. See Court of Claims, 1. SECRETARY OF THE TREASURY. The Secretary of the Treasury may fix the amount of an extra allowance to a Collector of Internal Revenue in advance of the service rendered. United States v. Morgan, clxiv. SERVICE. See Citation ; Practice, 28. SET-OFF. See Promissory Note, 4. SPANISH GRANT. See Public Land, 1. STATUTE. A. Statutes of the United States. See Practice, 9, 19. B. Statutes of States. Missouri. See Local Law, 4. Tennessee. See Costs, 3. SUPERSEDEAS. 1. It appearing, on inspection of thé record, that the appeal bond was filed too late to make the writ of error operate as a supersedeas, the court vacates an order heretofore made allowing a writ of supersedeas. Patterson v. Hoa, Ixxxviii. » 2. Supersedeas will not issue without notice to the other party, when the object is to avoid an alleged improper execution of the judgment below. Boise County Commissioners v. Gorman, cxxv. 3. A defective supersedeas bond is vacated and a proper one ordered to be filed. Knox County v. United States, clxvi. TRUST. See Deed, 1, 2. VERDICT. 1. A general verdict “for the defendant ” is equivalent to a special verdict on each and all the issues tried. Flournoy v. Lastrapes, clxi; 2. A verdict, the amount of which can be ascertained by a simple arith cclxxx APPENDIX. metical calculation, and which includes every material fact at issue, will be sustained. Relfe v. Wilson, clxxxix. WRIT OF ERROR. 1. • The court deny a motion to rescind an order advancing this cause founded upon the fact that the writ of error to the judgment below was allowed November 30, 1869, less than thirty days before the first day of the present term, which began December 6, 1869. Cox v. United States ex rel. Garrahan, c. 2. When the highest court of a State dismisses a suit brought up from the trial court for want of jurisdiction, the Federal question, if there be one in it, was decided by the trial court, and the writ of error should be directed to that court. Lane v. Wallace, ccxix. See Supersedeas, 1. GENERAL INDEX. [For Index to Omitted Cases, see ante, cclxiv.] ACCIDENT. See Insurance, 1. APPEAL. 1. An appeal taken from the judgment of a District Court in Washington Territory to the Supreme Court, under the territorial act of November 23, 1883, in relation to the removal of causes to the Supreme Court, is a matter of right, if taken within the prescribed time, and no notice of intention to take it need be given. Rights, under our system of law and procedure, do not rest in the discretionary authority of an officer, judicial or otherwise. Hollon Parker, Petitioner, 221. 2. The final decree in a suit of equity, entered October 10, 1885, adjudged and decreed that there was due to the administratrix of J. F. a sum named in the decree, and that if, within ninety days from that date the court should be satisfied that a certain other sum named and paid for the purchase of notes, etc., had inured to the benefit of J. F. or his estate, that sum should be credited on the amount so decreed to be paid; Held, that for the purpose of an appeal the date of the decree was October 10, 1885. Radford v. Folsom, 392, See Equity, 3; Jurisdiction, A, 7, 11; Washington Territory. BANKRUPT. 1. The connection of the plaintiff in error with the partnership of Griffith & Wundram was not a matter in issue in the proceedings in bankruptcy against that firm. Abendroth v. Van Dolsen, 66. 2. An adjudication of the bankruptcy of a firm, and of the members in whose name the firm was doing business, in a bankrupt proceeding affecting them alone, to which a special partner was not a party, does not estop a copartnership creditor from setting up the liability of such special partner, imposed upon him by the statute, for non-compliance with its provisions. Ib. 3. A special partner in a partnership, who is not a party to proceedings in bankruptcy against the partnership and the general members of it, is not entitled to the stay of proceedings provided for in Rev. Stat. cclxxxii GENERAL INDEX. § 5118, until the question of the debtor’s discharge shall have been determined, lb. 4. A discharge of two general partners in bankruptcy cannot be set up in • favor of a special partner in an action against the three as general partners on the ground that the special partner has made himself liable as a general partner, lb. CASES AFFIRMED OR FOLLOWED. 1. This case is controlled by Anthony v. County of Jasper, 101 U. S. 693. Coler n. Cleburne, 162. 2. Bond v. Dustin, 112 U. S. 104, and (3) Dundee Mortgage Co. v. Hughes, 124 U. S. 157, followed/ Spalding v. Manasse, 65. 4. Marshall v. United States, 124 U. S. 391, is affirmed on rehearing, 391. 5. Rude v. Westcott, 130 U. S. 152, affirmed. Comely v. Marckwald, 159. 6. United States v. Hall, 131 U. S. 50, affirmed and applied to the certificates of division in opinion in this case. United States v. Perrin, 55. 7. United States v. Hall, 131 U. S. 50, affirmed and applied to the certificate of division in opinion in this case. United States v. Reiley, 58. 8. United States v. Jones, 131 U. S. 1, affirmed and applied to this case. United States v. Drew, 21. CASES DISTINGUISHED. 1. Ex parte Brown, 116 U. S. 401, distinguished. Hollon Parker, Petitioner, 221. 2. The case distinguished from Weyauwega v. Ayling, 99 U. S. 112. Coler v. Cleburne, 162. CIRCUIT COURT COMMISSIONER. See Oath. CIVIL LAW. See Local Law, 1, 2, 3, 4, 5. CLOUD UPON TITLE. See Equity, 5, 6. COMMON CARRIER. 1. In an action against the proprietors of a stage coach, for an injury caused to a passenger by the misbehavior of one of the horses, evidence of subsequent similar misbehavior of the horse is admissible, m connection with evidence of his misbehavior at and before the time of the accident, as tending to prove a vicious disposition and fixed habit. Kennon v. Gilmer, 22. 2. In assessing damages for a personal injury caused by negligence, the jury may rightly be instructed to take into consideration the plaintiff s bodily and mental pain and suffering, taken together, and necessarily resulting from the original injury. Ib. GENERAL INDEX. cclxxxiii 3. In an action at law for a personal injury, in which damages have been assessed by a jury at an entire sum, the court is not authorized, upon a motion for a new trial for excessive damages and for insufficiency of the evidence to justify the verdict, to enter an absolute judgment, according to its own estimate of the damages which the plaintiff ought to have recovered, for a less sum than assessed by the jury; and either party is entitled to a reversal of such a judgment by writ of error, lb. CONSTITUTIONAL LAW. 1. The provision in the constitution of West Virginia of 1872 that the property of a citizen of the State should not “ be seized or sold under final powers issued upon judgments or decrees heretofore rendered, or otherwise, because of any act done according to the usages of civilized warfare in the prosecution of ‘the war of the rebellion,’ by either of the parties thereto ” does not impair the obligation of a contract, within the meaning of the Constitution of the United States, when applied to a judgment previously obtained, founded on a tort committed as an act of public war. Freeland v. Williams, 405. 2. A bill in equity to invalidate a judgment obtained against the defendant for a tort committed under military authority, in accordance with the usages of civilized warfare and as an act of public war and to also enjoin its enforcement is “ due process of law ” and is not in conflict with the Constitution of the United States. Ib. CONTEMPT. 1. The courts of the United States have power to punish by fine or imprisonment, at their discretion, misbehavior in their presence, or misbehavior so near thereto as to obstruct the administration of justice, although the offence is also punishable by indictment under Rev. Stat. § 5399. Savin, Petitioner, 267. 2. Attempting to deter a witness, in attendance upon a court of the United States in obedience to a subpoena, and while he is near the court-room, in the jury-room temporarily used as witness-room, from testifying for the party in whose behalf he was summoned, and offering him, when in the hallway of the court, money not to testify against the defendant, is misbehavior in the presence of the court. Ib. 3. Within the meaning of § 725, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court, lb. 4. Although the word “summary,” as used in the first section of the act of March 3, 1831, (4 Stat. 487, c. 99,) was omitted from the present revision of the statutes, the courts of the United States have the power to punish by fine or imprisonment, at their discretion, contempts of their authority, in the cases defined in § 725. Ib. 5. In proceeding against a party for contempt, the court is not bound to re cclxxxiv GENERAL INDEX. quire service of interrogatories upon the appellant to afford him an opportunity to purge himself of contempt in answering, but may, in its discretion, adopt such mode of determining the question as it deems proper, having due regard to the essential rules that prevail in the trial of matters of contempt. Ib. See Habeas Corpus, 3; Jurisdiction, B, 2. CONTRACT. 1. A contract relating to a patent medicine, which communicates its ingredients in confidence and provides in substance that the parties shall enjoy a monopoly of the sale of it, each within a defined region in the United States, and that it shall not be sold below a certain rate or price, is not unreasonable or invalid as in restraint of trade. Fowle v. Park, 88. 2. On the facts stated in the opinion; Held, that the defendants sold the balsam within the prohibited territory, or to those by whom to their knowledge it was to be there sold, and that, as the record disclosed violations of the contracts in these respects, the cause should have gone to a master to state an account. Ib. 3. A contract between A, a subscriber to the stock of a proposed incorporated company, and B, another subscriber to the same, made without the knowledge of the remaining subscribers, by which A agrees to purchase the stock of B at the price paid for it, if at a specified time B elects to sell it, is not contrary to public policy, and can be enforced against A if made fairly and honestly, and if untainted with actual fraud. Morgan-N. Struthers, 246. 4. A contract for the purchase of “future-delivery” cotton, neither the purchase or delivery of actual cotton being contemplated by the parties, but the settlement in respect to which is to be upon the basis of the mere “ difference ” between the contract price and the market price of said cotton futures, according to the fluctuations in the market, is a wagering contract and illegal and void, as well under the statutes of New York and Virginia, as generally in this country. Embrey n. Jemison, 336. See Court and Jury; Covenant; Railroad. COPYRIGHT. 1. In this case, it was held, on the facts, that the title to a copyright in a book had passed from the person who secured it to another person, as the result of a completed transaction between them, independently of all agreements in regard to other matters, the consideration for the sale having been paid, and the contract having never been rescinded. Thompson n. Hubbard, 123. GENERAL INDEX. cclxxxv 2. The grantee, having sued the grantor for infringing the copyright, it appeared that although the copyright had been properly secured by the grantor, the grantee, in publishing editions of the book, had, in some of the copies, not printed, in the notice of copyright, either the year or the name, and in others, had omitted the name; Held, that he had forfeited the right to sue the grantor for infringement. Ib. 3. The requirement of the statute in regard to printing the prescribed notice of copyright in the book, is one of the conditions precedent to the perfection of the copyright, the other two being the deposit, before publication, of the printed copy of the title, and the depositing in the public office, within the prescribed time after publication, of copies of the book. Ib. 4. Such requirement in regard to printing the notice extends to editions published by the grantee of a copyright, during his ownership thereof. 1 b. 5. The failure of the grantee to print the notice prevents his right of action, even as against his grantor, who originally secured the copyright, from coming into existence. Ib. CORPORATION. 1. In the absence of fraud, stockholders are bound by a decree against their corporation in respect to corporate matters, and such a decree is not open to collateral attack. Hawkins v. Glenn, 319. 2. Rules applicable to a going corporation, remain applicable notwithstanding it may have become insolvent and ceased to carry on its operations, where, as in this case, it continues in the possession and exercise of all corporate powers essential to the collection of debts, the enforcement of liabilities and the application of assets to the payment of creditors. Ib. 3. Stockholders of record are liable for unpaid instalments, although they may have in fact parted with their stock, or may have held it for others. Ib. See Equity, 5, 6; Limitation, Statutes of ; Railroad. COSTS. See Practice, 2. COURT AND JURY. The instructions of the court below fairly left it to the jury to determine whether the sale of cattle, which is the subject of this controversy, was an absolute sale or a conditional sale. Segrist n. Crabtree, 287. See Common Carrier, 2, 3. COURT OF ORDINARY. See Executor and Administrator ; Judgment. cclxxxvi GENERAL INDEX. COVENANT. 1. In construing a covenant in a deed, the words are to be taken most strongly against the party using them; but, in construing a covenant created by statute out of language of grant in a deed, and in derogation of the common law, the words should be construed strictly. Douglass v. Lewis, 75. 2. Covenants of seisin and for quiet enjoyment, created by statute from the use of certain words in a deed, are operative to their full extent only when the parties have failed to insert covenants in these respects in the deed, and may be controlled and limited in their operation by express covenants in that regard. Ib. 3. When a general covenant of warranty is inserted in a deed, a statutory covenant of seisin is not to be implied. Ib. CRIMINAL LAW. The death of the accused in a criminal case brought there by writ of error abates the suit. List v. Pennsylvania, 396; Menken v. Atlanta, 405. See Habeas Corpus; Jurisdiction, A, 7. DAMAGES. It appearing that this writ of error was sued out for the purposes of delay, the court affirms the judgment below with ten per cent damages, interest and cost. Palmer v. Arthur, 60. See Common Carrier, 2, 3; Patent for Invention, 1, 2, 3. DEED. See Covenant. DELAY. ' See Damages. DISTRICT OF COLUMBIA. See Husband and Wife. DIVISION IN OPINION. See Jurisdiction, A, 6. EQUITY. 1. A demurrer to a bill in equity cannot introduce as its support new facts which do not appear on the face of the bill, and which must be set up by plea or answer. Stewart v. Masterson, 151. 2. Where there is matter in the bill which is properly pleaded, and is properly ground for equitable relief, and requires an answer or a plea, a demurrer to the whole bill will be overruled, lb. 3. Where a bill is taken as confessed by one of two defendants before a decree is made dismissing the bill, on demurrer, as to the other de GENERAL INDEX. cclxxxvii fendant, the latter can appeal from the decree, although it does not dispose of the case as to his codefendant. Ib. 4. Cross-bills are necessary where certain defendants seek affirmative relief against their codefendants. Veach v. Rice, 293. 5. A case instituted by a creditor of a corporation, on his own behalf and on behalf of other unsecured creditors, to set aside a conveyance of its real estate and a mortgage of its personal property, both made by the corporation in trust to secure certain preferred creditors, including among them a director of the corporation, and also to procure a dissolution of the corporation, and the closing up of its business, is a suit brought to remove an incumbrance or lien or cloud upon the title to such property within the meaning of § 8 of the act of March 3, 1875, 18 Stat. 472, c. 137, which authorizes a Circuit Court of the United States to summon in an absent defendant, and to exercise jurisdiction over his rights in the property in suit within the jurisdiction of the court. Mellen v. Moline Iron Works, 352. 6. It is not necessary that the creditors of an insolvent corporation should obtain judgment on his claim, and take out execution and exhaust his remedies at law, in order to invoke the jurisdiction of a court of equity in his favor to remove an incumbrance or cloud or lien upon the title of the corporation’s property, under the act of March 3,1875, 18 Stat. 470, c. 137. lb. 7. An adjudication that a particular case is of equitable jurisdiction is not void, even if erroneous, and cannot be disturbed by a collateral attack. lb. 8. A sale of the trust property which is in dispute in a cause pending in a court of equity, made by the receiver by order of court, and after full compliance with its directions as to notice, is not open to attack by one who is subsequently summoned into the suit, if there has been no fraud, no sacrifice of the property, or no improvidence ; since the proceeds of the sale take the place of the property, and all his rights in the latter are transferred to the former, lb. 9. The proceedings in this case to remove the incumbrance upon the property of the Moline Iron Works, which are set forth and described in the opinion of the court, conformed to the requirements of the act of March 3, 1875, 18 Stat. 470. lb. 10. Purchasers of property involved in a pending suit may be admitted as parties, in the discretion of the court; but they cannot demand, as of absolute right, to be made parties, nor can they complain if they are compelled to abide by whatever decree the court may render, within the limits of its power, in respect to the interest their vendor had in the property purchased by them pendente lite. lb. See Constitutional Law, 2; Jurisdiction, A, 4, 5. EVIDENCE. See Common Carrier, 1; Husband and Wife. cclxxxviii GENERAL INDEX. EXECUTOR AND ADMINISTRATOR. 1. The judgment of the Court of Ordinary allowing the resignation of one of two administrators upon proceedings had pursuant to statute, and discharging him after he had accounted to his co-administrator, and the latter had given a new bond, operated to exonerate the sureties upon the joint bond of both from liability for a devastavit committed after such order of discharge. Veach v. Rice, 293. 2. Where the Ordinary takes an administrator’s bond in good faith, and it appears after liability has been incurred, that the names of some of the supposed sureties were signed thereto without authority, the mere fact that the latter cannot be held will not constitute a defence as to those who executed the bond without being misled or having relied upon the others being bound, lb. FRAUD. See Contract, 3. FRENCH LAW. See Local Law, 1-5. HABEAS CORPUS. 1. Where a court is without authority to pass a particular sentence, such sentence is void, and the defendant imprisoned under it may be discharged on habeas corpus. Hans Nielsen, Petitioner, 176. 2. A judgment in a criminal case denying to the prisoner a constitutional right, or inflicting an unconstitutional penalty, is void, and he may be discharged on habeas corpus, lb. 3. A petitioner for a writ of habeas corpus to obtain his discharge from imprisonment under the judgment and sentence of a District or Circuit Court of the United States for contempt, is at liberty to allege and to prove facts, not contradicting the record, which go to show that the court was without jurisdiction. Cuddy, Petitioner, 280. HUSBAND AND WIFE. 1. In a suit in equity in the Supreme Court of the District of Columbia it is competent, under the acts of Congress, for a married woman, who is a party thereto, to disclose, as a witness, directions given by her to her husband respecting the investment of her separate property, though she could not be compelled to make such disclosure against her wishes. Rev. Stat. Dist. Col. §§ 876, 877. Stickney v. Stickney, 227. 2. There is no higher presumption that a married woman in the District of Columbia intends, by placing her separate money in the hands of her husband, thereby to make a gift of it to him, than there is that a third person has such intent when he in like manner deposits money with him. 16 Stat. 45, c. 23. Ib. 3. In the District of Columbia, whenever a husband acquires possession of the separate property of his wife, whether with or without her consent, GENERAL INDEX. cclxxxix he must be deemed to hold it in trust for her benefit, in the absence of any direct evidence that she intended to make a gift of it to him. lb. INSURANCE. A certificate of policy issued by a Mutual Accident Association stated that it accepted B. as a member in division A A of the association; “ the principal sum represented by the payment of two dollars by each member in division A A,” not exceeding $5000, to be paid to the wife of B. in 60 days after proof of his death, from sustaining “ bodily injuries effected through external, violent and accidental means.” B. and two other persons jumped from a platform four or five feet high, to the ground, they jumping safely and he jumping last. He soon appeared ill, and vomited, and could retain nothing on his stomach, and passed nothing but decomposed blood and mucus and died nine days afterwards. In a suit by the widow to recover the $5000, the complaint averred that the jar from the jump produced a stricture of the duodenum, from the effects of which death ensued. At the time of the death the association could have levied a two dollar assessment on 4803 members in division A A ; Held, (1) It was not error in the court to refuse to direct the jury to find a special verdict, as provided by the statute of the State; (2) the issue raised by the complaint as to the particular cause of death was fairly presented to the jury; (3) the jury were at liberty to find that the injury resulted from an accident; (4) the policy did not contract to make an assessment, nor make the payment of any sum contingent on an assessment or on its collection; and the association took the risk of those who should not pay. United States Accident Co. v. Barry, 100. JUDGMENT. 1. The judgments of Courts of Ordinary in Georgia in respect to subjects matter within their jurisdiction are no more open to collateral attack than those of any other court. Veach v. Rice, 293. 2. The objection that too large an amount of interest has been included in a judgment cannot be raised for the first time in this court Hawkins n. Glenn, 319. See Corporation, 1; Equity, 7, 8. JURISDICTION. A. Jurisdiction of the Supreme Court. 1. The denial of a»change of venue, moved for on the affidavit of the party’s agent to the state of public opinion in the county in which the action is brought, is not reviewable by this court on error to the Supreme Court of a Territory, even if a subject of appeal to that court from the trial court under the territorial statutes. Kennon v. Gilmer, 22. 19 ccxc GENERAL INDEX. 2. Decisions of the Postmaster General, imposing forfeitures on contractors for failure to carry the mails according to theii' contracts, are not subject to.review by this court. Allman v. United States, 31. 3. An appeal lies to this court from a judgment against the United States rendered under the jurisdiction conferred on District Courts by the act of March 3, 1887, 24 Stat. 505, c. 359, without regard to the amount of the judgment. United States v. Davis, 36. 4. In a bill in equity in a Circuit Court of the United States to revive, in the name of the executor of the plaintiff, a suit in equity which had gone to final decree, a decree of revival, entered after due notice to defendants, and after their appearance and pleading to the bill, is a final decree, from which an appeal lies to this court. Terry v. Sharon, 40. 5. When a cause in equity in a Circuit Court, from which an appeal would lie to this court, has gone to final decree, and the executor of the plaintiff files his bill in that court to revive the suit in his name, and his prayer is granted, and an appeal is taken from the decree granting it, this court will not, on the hearing of that appeal, consider the merits of the original case, nor the jurisdiction of the court below over it, if there is sufficient in the record to give an apparent jurisdiction. Ib. 6. Certificates of division in opinion which present no clear and distinct propositions of law, but which, on the contrary, split up the case into fragments for the purpose of obtaining the opinion of this court before a trial or decision in the court below, are insufficient to invoke its jurisdiction. United States v. Hall, 50. 7. There is no general right of appeal to this court in criminal cases. United States v. Perrin, 55. 8. No error can be examined in the rulings of the court at the trial of a cause by the court without a jury by agreement of parties, if there is no allegation in the record that the stipulation was in writing as required by the statute. Spalding v. Manasse, 65. 9. WTiere a case is tried by a Circuit Court, on the written waiver of a jury, and there is a bill of exceptions which sets forth the facts which were proved, that is a sufficient special finding of facts to authorize this court, under § 700 of the Revised Statutes, to determine whether the facts found are sufficient to support the judgment. Coler v. •Cleburne, 162. 10. When the defendant below sues out the writ of error, the matter in dispute here is the judgment rendered against him. Pacific Express Co. v. Malin, 394. 11. Since the act of March 3, 1887, 24 Stat. 552, c. 373, took effect, no appeal or writ of error lies to this court from a decision pf a Circuit Court remanding a cause to a state court which had been removed from it, although the order remanding it was made before that act took effect. Chicago, Burlington ^c. Railway v. Gray, 396. • See Equity, 3. GENERAL INDEX. ccxci B. Jurisdiction of Circuit Courts of the United States. 1. A fatal defect in the allegation of diverse citizenship in a petition for the removal of a cause from a state court for that reason, cannot be corrected in the Circuit Court of the United States. Crehore v. Ohio and Mississippi Railway, 240. 2. When a judgment of a Circuit or District Court of the United States is attacked collaterally, every intendment will be made in support of jurisdiction, unless the want of it, either as to subject matter or as to parties, appears in some proper form; and this general rule applies to judgments punishing for contempt. Cuddy, Petitioner, 280. C. Jurisdiction of District Courts of the United States. See Jurisdiction, B, 2. D. Jurisdiction of the Court of Claims. The act of March 3, 1887, “to provide for the bringing of suits against the government of the United States,” 24 Stat. 505, c. 359, does not confer upon the District or Circuit Courts of the United States, or upon the Court of Claims, jurisdiction in equity to compel the issue and delivery of a patent for public land. United States v. Jones, 1. E. Jurisdiction of Territorial Courts. See Washington Territory. LIMITATION, STATUTES OF. Statutes of limitation do not commence to run as against subscriptions to stock, payable as called for, until a call or its equivalent has been had, and subscribers cannot object when an assessment to pay debts has been made, that the corporate duty in this regard had not been earlier discharged. Hawkins v. Glenn, 319. See Local Law, 6. LOCAL LAW. 1. By the French jurisprudence prevailing in Louisiana, a creditor may exercise the rights of action of his debtor, a right analogous to the garnishee or trustee process in some States. New Orleans n. Gaines’ Administrator, 191. 2. This right cannot be enforced in the Federal courts by an action at law, but by a suit in equity, on the principle of subrogation, Ib. 3. The true owner of lands in Louisiana, having recovered the lands, and obtained judgment for the fruits and revenues against the possessor, may file a bill in equity against the possessor’s grantor, who guaranteed the title, to recover the amount thus recovered — the warrantor of title in Louisiana being liable to the grantee for the fruits and revenues, for which the latter has to account to the true owner. Ib. 4. There are degrees of bad faith in the case of unlawful possessors. A merely technical possessor in bad faith, who supposed his title was a ccxcii GENERAL INDEX. good one, and resisted the claims of the true owner in moral good faith, will not be compelled to answer for fruits and revenues which he has not received. Ib. 5. A fictitious charge against such a possessor (by way of fruits and revenues) of a certain per cent per annum on an inflated valuation of the property, exhibited in sales at auction in a time of wild speculation, will be set aside as speculative and unjust. Ib. 6. The statute of Virginia, (Code of 1873, c. 146, § 20,) provided that when a right of action accrues “ against a person who had before resided in this State, if such person shall, by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted ; ” Held, that this was inapplicable when the defendant, although once a resident of that State, removed therefrom before any right of action accrued against him, and before the transactions occurred out of which the plaintiff’s cause of action arose. Embrey n. Jemison, 336. See Executor and Administrator (Georgia) ; Husband and Wife (District of Columbia) ; Judgment, 1 (Georgia) ; Mortgage (Michigan) ; Washington Territory. LOUISIANA. See Local Law, 1, 5. MAIL TRANSPORTATION. The “ fifty per centum on the contract as originally let,” to which the power of the Postmaster General to expedite service under a contract for carrying the mails is restricted by the proviso in § 2 of the act of April 7, 1880, c. 48, 21 Stat. 72, is fifty per cent on the compensation for all the service, both as originally stipulated and as increased by additional service, which is to be determined by the rates fixed in the original contract; Allman v. United States, 31. See Jurisdiction, A, 2. MANDAMUS. Mandamus lies where an inferior court refuses to take jurisdiction, when by law it ought to do so, or when, having obtained jurisdiction, it refuses to proceed in its exercise. Ex parte Brown, 116 U. S. 401, distinguished. Hollon Parker, Petitioner, 221. A writ of mandamus to correct a mistake of an inferior court as to its jurisdiction may issue to the court and to its judges, although the court is composed of different members from those by whom the error complained of was committed. Ib. GENERAL INDEX. ccxciii MANDATE. In a case which had been dismissed for want of jurisdiction, no opposition having been made thereto, the court allowed a mandate, notwithstanding notice of the motion for the mandate had not been given. Pacific Express Co. v. Malin, 394. MESNE PROFITS. See Local Law, 1-5. MORTGAGE. 1. If a mortgage of real estate in Michigan containing a power of sale is duly recorded, as provided by law, it is not necessary that the bond secured by it and that an agreement referred to in it and adopted and made a part of it should also be recorded, in order that a foreclosure may be had by advertisement and sale in the manner provided by the statutes of the State. Bacon v. Northwestern Life Ins. Co., 258. 2. Where a mortgage debt is payable in instalments, a provision in the mortgage that if at the expiration of the time limited for the payment of all there shall remain due on the mortgage a sum not greater than a sum named, which is less than the amount of the whole mortgage debt, the mortgagor may have the privilege of paying the amount due by giving his note therefor secured by mortgage on other real estate, does not suspend the power of foreclosure and sale for non-payment of instalments as they become due. Ib. 3. This court concurs with the Supreme Court of the State of Michigan in holding that the misspelling of the name of the mortgagee in an advertisement for the foreclosure of the mortgage by public sale under a power of sale in the mortgage in the manner required by the statutes of the State, and other errors in that advertisement which worked no prejudice to the mortgagor — as a reference in the advertisement to the record pointed out to all persons interested the means of obtaining true information and of correcting all mistakes — were not defects sufficient to defeat a title acquired at that sale. Ib. MOTION FOR CHANGE OF VENUE. See Jurisdiction, A, 1. MOTION FOR REHEARING. A renewal of an application for a rehearing after the close of the term at which judgment was rendered, and for reasons which have been passed upon by the court, is not in order, and does not commend itself to the favorable consideration of the court. Williams v. Conger, 390. MUNICIPAL BOND. A statute of Texas provided that bonds to be issued by a city, for erecting water works, should be signed by the mayor, and forwarded by him to the state comptroller for registration. Bonds issued for that purpose ccxciv GENERAL INDEX. were dated January 1, 1884, but not signed till July 3, 1884, and then were not signed by the mayor, but, under a resolution of the city council, were signed by a private citizen, who had been mayor on January 1, 1884, but had gone out of office in April, 1884, and been succeeded by a new mayor, and who appended the word “ mayor ” to his signature. The bonds stated on their face that they were authorized by a statute of Texas, and an ordinance of the city, specifying both. In a suit against the city, to recover on coupons cut from the bonds, brought by a bona fide holder of them ; Held, (1) No one could lawfully sign the bonds but the person who was mayor of the city when they were signed; (2) the city council had no authority to provide for their signature by any other person; (3) the city was not estopped as against the plaintiff, from showing the facts as to the signature of the bonds ; (4) the bonds were invalid. Coler v. Cleburne, 162. NOTARY PUBLIC. See Oath, 1. OATH. 1. The statutes of the United States confer upon notaries public no general authority to administer oaths. United States v. Hall, 50. 2. No statute of the United States authorizes notaries public to administer an oath to a deputy surveyor of the United States in regard to the manner in which he fulfilled a contract for surveying public land. lb. 3. No statute of the United States authorizes a commissioner of a Circuit Court to administer an oath to a deputy surveyor of the United States in regard to the manner in which he fulfilled a contract for surveying public land. PARTIES. See Equity, 10; Promissory Note. PARTNERSHIP. See Bankrupt. PATENT FOR INVENTION. 1. The decision in Rude v. Westcott, 130 U. S. 152, affirmed that the payment of a sum in settlement of a claim for an alleged infringement of a patent cannot be taken as a standard to measure the value of the improvements patented, in determining the damages sustained by the owner of the patent in other cases of infringement. Comely v. Marckwald, 159. 2. Where a plaintiff seeks to recover damages because he has been compelled to lower his prices to compete with an infringing defendant, he must show that his reduction in prices was due solely to the acts of the defendant, or to what extent it was due to such acts. Ib. 3. Where he seeks to recover damages for the loss of the sale of infring GENERAL INDEX. ccxcv ing machines which the defendant has sold, he must show what profit he made on his own machines. Ib. POSTMASTER GENERAL. See Jurisdiction, A, 2; Mail Transportation. PRACTICE. 1. Under the circumstances set forth in the motion papers below, the court, as to so much of the record as was printed by order of the court below, dispenses with the filing of ten of the twenty-five copies required by Rule 10 to be printed for the use of the court and counsel, and remits the clerk’s fees for supervision of printing. Dent v. Ferguson, 397. 2. M. filed a bill in equity against S. for the infringement of letters patent. S. answered and filed a cross-bill. The decree dismissed the original bill from which M. appealed. Thereupon S. took an appeal in the cross-suit from rulings excluding evidence. In this court the clerk required S. to pay one half the cost of printing the record. This court, after argument, affirmed the decree dismissing the original bill, and dismissed the cross-appeal. 128 U. S. 605. Held, that S. was entitled to recover of M. the amount so paid. Nichols n. Marsh, 401. 3. The counsel for appellees having undertaken to appear for the heirs and representatives of the original appellee, deceased, and having filed in the office of the clerk of this court a waiver of publication, and having failed to appear, and the cause having been heard and having proceeded to final hearing, (128 U. S. 464;) Held, that the decree be made absolute against the heirs and representatives of the deceased appellee. Hunt v. Blackburn, 403. See Appeal; Mandate; Criminal Law ; Motion for Rehearing ; Damages; Washington Territory. Jurisdiction, A, 1, 6, 7, 8, 11; PROMISSORY NOTE. The original payee cannot maintain an action upon a note, the consideration of which is money advanced by him upon or in execution of a contract of wager, he being a party to such contract, or having directly participated in the making of it in the name, or on behalf of one of the parties. Embrey v. Jemison, 336. PUBLIC LAND. See Oath, 2, 3. RAILROAD. 1. A contract made by the president of a railroad corporation, in its behalf, and within the scope of its chartered powers, to pay certain sums to the proprietors of a railway bridge for the use thereof, and made ccxcvi GENERAL INDEX. known to the directors and stockholders, and not disapproved by them within a reasonable time, binds the corporation. Pittsburg fyc. Railway v. Keokuk Bridge Co., 371. 2. A contract to pay certain sums for the use of a railway bridge across the Mississippi River, between Illinois and Iowa, is not ultra vires of a railroad corporation of Illinois or of Pennsylvania, whose road connects, by means of intervening railroads, with the bridge as part of a continuous line of transportation. Ib. 3. A being a railroad corporation of Ohio, Indiana and Illinois, B a railroad corporation of Pennsylvania and Ohio, and C a railroad corporation of Pennsylvania, these three corporations, for the purpose of establishing a continuous line of transportation, entered into an indenture, by which A leased its railroad to B for ninety-nine years, B covenanted to pay to A a proportion of the earnings of that road, and to assume and carry out certain transportation contracts existing between A and other companies, receiving and enjoying the benefits thereof, and C guaranteed the performance of B’s covenants. Before the execution of the lease, a contract was drawn up, by which a corporation of Iowa and Illinois, authorized by its charter to build a railway bridge across the Mississippi River from Keokuk in Iowa to Hamilton in Illinois, agreed to build such a bridge, and granted to A and three other railroad corporations in perpetuity the right to use it for the passage of their trains; and they agreed to pay monthly to the bridge company stipulated tolls, and, if those should fall below a certain sum, to make up the deficiency, each contributing in proportion to the tonnage passed by it over the bridge. After the execution of the lease, and upon a formal request of the presidents of B and C in their behalf, undertaking that they should assume all the liabilities and be entitled to all the benefits of the bridge contract, as if it had been specifically named in and made part of the lease, A’s president, in its behalf, executed the bridge contract, and reported to his directors that he had done so, and they never took any action upon the subject. C’s president and directors, in two printed annual reports to their stockholders, declared the settled policy of the company to secure a continuous line of traffic from Philadelphia to Keokuk and westward, and stated that through B this object had been accomplished. A subsequent modification of the bridge contract, by which a deficiency in the tolls was to be borne equally by the four railroad corporations parties thereto, was executed by A’s president, pursuant to a similar request and undertaking of the presidents of B and of C. The bridge was then opened for use, and was afterwards used by B and C; and the sums payable by A under the modified bridge contract for tolls and deficiencies were semiannually demanded by the bridge company from B, and, after examination of the accounts, paid by B’s comptroller for three years; Held, that B and C were liable to the bridge company for the amount of subsequent deficiencies payable by A under that contract, whether the lease was valid or invalid, lb. ccxcvii GENERAL INDEX. RECEIVER. See Equity, 8. REMOVAL OF CAUSES. See Jurisdiction, B, 1. REVIVOR, BILL OF. See Jurisdiction, A, 4, 5. STATUTE. A. Statutes of the United States. See Bankrupt, 3 ; Contempt, 1, 3, 4 ; Copyright ; Equity, 5, 6, 9 ; Husband and Wife; Jurisdiction, A, 3, 9, 11 ; D ; Oath. B. Statutes of States and Territories. Georgia. New York. Virginia. See Executor and Administrator; See Contract, 4; See Contract, 4; Local Law, 6. SUBROGATION. See Local Law, 2. WAGER-CONTRACT. See Contract, 3 ; Promissory Note. WARRANTY. See Covenant, 2, 3. WASHINGTON TERRITORY. The chambers of a district judge of Washington Territory, who is also a judge of the Supreme Court of the Territory, may be held whilst he is in attendance upon the Supreme Court at the place where such court is sitting, although it be without the territorial limits of his district, and at such chambers he may receive notice of an appeal from a judgment rendered by him within his district. Hollon Parker, Petitioner, 221. See Appeal, 1. WEST VIRGINIA. See Constitutional Law, 1. 20